The Imaging Centre Assets Limited v Canon Medical Systems Limited

MASTER PESTER : Introduction

1. This is the Claimant’s application for summary judgment, dated 23 May 2025, for an order that there be summary judgment on liability with damages to be assessed (“the Application”). The Claimant (“Assets”) and the Defendant (“Canon”) are parties to a written contract (referred to as “the Master Agreement”), dated 17 March 2017. The Master Agreement continues in force and is scheduled to run until March 2027.

2. This is not the first time that the parties have resorted to litigation regarding the terms and effect of the Master Agreement. The earlier proceedings, under Case No: CC-2021-NCL-000002, were heard over the course of a three week trial by Andrew Baker J. Throughout this judgment I will be referring to the judgment of Andrew Baker J, reported at [2023] EWHC 3007 (Comm) , as “the Previous Judgment”.

3. The Master Agreement relates to the supply of medical diagnostic equipment (MRI and CT scanners) by Canon to Assets. The Master Agreement defines “Units” as being “CT and MRI Scanners …integrated into Mobile Relocatable Units” .

4. In broad outline, Assets’ position is that on 23 February 2024, and again on 5 July 2024, it placed an order under the Master Agreement for 36 Units to the same specification as an earlier order fulfilled by Canon at the “Best Price” (a term defined in the Master Agreement). Canon has failed to deliver on the order(s). Canon is therefore said to be in breach of the Master Agreement, and Assets is entitled to an order on liability, with damages to be determined subsequently.

5. Canon’s position is that the reality is that this litigation is about the terms upon which Canon has offered to supply the 36 Units. The dispute arises because the Master Agreement is poorly drafted and does not contain many of the terms one would expect in a sale of goods contract (including either a specific price or time for delivery). The parties cannot agree what those terms should be, and it is therefore left to the court to fill the gaps by reference to the previous course of dealing between the parties and/or standards of commercial reasonableness. Canon says establishing what those terms are is plainly something that must be determined at trial.

6. Having heard the parties’ submissions, I have concluded that it would be wrong to enter summary judgment on liability. The Application therefore fails. I set out my reasoning below. Legal test

7. CPR 24.3 provides: “24.3. Grounds for summary judgment The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if— (a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial .”

8. Authoritative guidance as to the principles applicable to summary judgment applications were given by Lewison J (as he then was) in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339, at [15]. These have been cited on many occasions and approved by the Court of Appeal, as follows: (1) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 2 All ER 91 ; (2) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: at [8]; ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 (3) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman; (4) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]; (5) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: ; Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550 (6) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63 ; (7) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: . ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725

9. In the context of this case, the sixth principal is particularly relevant. It may be wrong to grant summary judgment where there are reasonable grounds for believing that a fuller investigation into the facts of the case would add to or at least alter the evidence available to the trial judge, and thus affect the outcome. The evidence

10. In support of the application for summary judgment, Assets filed a witness statement from Dr Christian Kleanthous (the Chief Executive Officer of Assets), and a very short witness statement of Oliver Brown (a director of WH Bence (Coachworks) Limited – hereafter “WH Bence”). WH Bence is the manufacturer of the housing for the Units, sometimes referred to as “the Box”.

11. In response, Canon filed a witness statement from Jonathan Hitchman (a Managing Director of Canon). Dr Kleanthous filed a further witness statement in reply. Background The parties

12. Assets is private limited company registered in England and Wales, incorporated on 17 March 2015. Since its incorporation, Anthony Kleanthous has been a director of Assets. Since 2019, Dr Christian Kleanthous (the son of Mr Kleanthous) has been a senior officer of Assets. Assets was previously known as the Imaging Centre Holdings Limited. In the Previous Judgment, Andrew Baker J used the definition “TIC” to refer to Assets or an associated company, the Imaging Centre Mobile Limited (“TICM”), where it was not necessary to distinguish between them: see at [5]. Where I quote passages from the Previous Judgment, reference is thus frequently made to TIC or TICM.

13. Assets’ principal activities are the leasing of medical equipment, principally computed tomography scanners (“CT scanners”) and magnetic resonance imaging scanners (“MRI scanners”), and the provision of medical imaging services using CT scanners and MRI scanners.

14. Canon is also a private limited company registered in England and Wales. Its business is supplying and maintaining electrical, electronic and mechanical products and services in the diagnostic medical imaging market, including CT scanners and MRI scanners. Canon obtains this equipment from Canon Medical Systems Europe BV (“CMSE”), a company incorporated in the Netherlands, which in turn purchases goods primarily from Canon Medical Systems Corporation (formerly called Toshiba Medical Limited) (“CMSC”), a company incorporated in Japan.

15. Canon does not manufacture either the Scanners, or the Box. Both are sourced from third parties. The Master Agreement

16. On 17 March 2017, the parties entered into the Master Agreement (each using their former names). The Master Agreement has various components to it, including a marketing, surveying, sales and project management component (defined as “Services”), provisions dealing with the leasing of Units, and provisions dealing with the purchase of Units.

17. CT scanners and MRI scanners are highly sophisticated machines, whose correct operation is critical to the accuracy of their results. Their operation requires highly trained operators, whose training needs to be tailored to the particular manufacturer’s scanners.

18. CT and MRI scanners are usually placed in fixed sites. However, it is possible to install the scanners into transportable housing, that is, a “Box”. The Master Agreement provided for the sale of CT and MRI scanners for imaging centres, and also Units to facilitate a rental fleet, managed by Canon for Assets. A Unit therefore consists of a Scanner housed in a Box (as defined), which is either mobile, placed on a trailer which can be pulled by a HGV, or relocatable, in a container that can be loaded onto a flatbed. The container is sourced from WH Bence.

19. The definition of Units in the Master Agreement is: “… [Canon] CT and MRI Scanners, and such other [Canon] equipment as may be developed and produced from time to time in the field, integrated into Mobile Relocatable Units.” The term “Mobile Relocatable Units” is in turn defined to mean: “… mobile and relocatable units usable for the housing of the Units”.

20. For present purposes, the key terms of the Master Agreement are the following: (1) Clause 3 provides that Canon has agreed to sell Units to Assets at [Canon] cost representing the lowest market price and provide the Services as and when reasonably required to Assets and end users of the Units; (2) Clause 10 provides that Canon is required “to procure the housing for the Units initially from W.H. Bence upon the best terms obtainable.” (3) Clause 17 provides that Canon would not enter into agreements competitive with the terms hereof during the Term. (4) Clause 19 deals with the pricing of the Units, as follows: “[Canon] will at all times provide or procure all Units, Equipment and Services at the best price supplied to any other customer of [Canon] to date or in the future.” (5) Clause 28 provides that Assets agrees that during the Term it would not purchase scanning equipment not manufactured by [Canon] unless [Canon] was unable to supply any equipment from time to time reasonably required. (6) Clause 43.1 is an entire contract clause. The previous litigation

21. As Dr Kleanthous says, the relationship between the parties was not a happy one, and led to litigation, as described above. This led to the Previous Judgment in November 2023. This judgment of Andrew Baker J is lengthy, extending over 399 paragraphs. I note here, in passing, that Andrew Baker J was extremely critical of aspects of Canon’s evidence. As to the approach to constructing the Master Agreement, Andrew Baker J said this, at [165]: “A feature of the Master Agreement that cannot be avoided when one seeks to construe it, is that it is not a well drafted document. That would immediately strike even a casual reader of the document. Therefore, the process of construing the document must be more alive than might be appropriate if the drafting were more tightly constructed and polished to the very real possibility that the language may not have been well chosen, and a meaning conveyed at first sight by some turn of phrase, read in isolation, might have to yield to a different meaning that offers itself only to the reader who takes a bit of time and care to try to read and make sense of the document as a whole. It is fair to observe, I think, that the root cause of what eventually became this litigation is probably fault on both sides, in human terms the equal fault of Mr Kleanthous and Mr Hitchman, in signing an obviously poorly drafted contract rather than putting in the additional time and effort that would have been required to express their bargain more clearly.”

22. Andrew Baker J determined a number of disputes between the parties. The one which is most relevant for present purposes is what was described as “the Unit Sale Claim” in the Previous Judgment. This was a claim by Assets against Canon in respect of a claimed failure by Canon to deliver 36 Units requested at a discount of 30% off Best Price. The Judge held that Assets’ request that Canon supply the Units at a discount of 30% off Best Price was a request to purchase units outside the framework of the Master Agreement, and therefore did not create any obligation on the part of Canon to sell: see at [272], [292] and [294].

23. In reaching his conclusions, Andrew Baker J held the following: (1) It is not the natural reading of clause 3 to say that in relation to sale it is only an agreement about price if a sale happens to occur. As regards TICM, the Master Agreement was a promise by Canon to sell when TICM wants to buy, with a consequent promise to provide the agreed Services in respect of any Units thus sold: at [193]. (2) The terms in which Canon’s “best price” commitment are mentioned in clause 3 are rather muddled and unclear in meaning: at [194]. (3) The primary provision containing Canon’s “best price” promise is not clause 3, but clause 19, and reading clause 3, as regards price, makes better sense as a “clumsy paraphrase” of clause 19: at [205]. (4) Read sensibly, clause 3 in “material respect does articulate a promise to sell (on request), not merely a promise as to price if a sale is later agreed”: at [205] again (emphasis in the original). (5) Regarding clause 19, Andrew Baker J said this, at [206]; “Clause 19 promises that all Units sold to TIC pursuant to the Master Agreement will be sold “at the best price supplied to any other customer of [Canon] to date or in the future.” The sense of that last phrase, as I read it, is that [Canon] commits that any sale made immediately following the Master Agreement will be priced to match the best price given up to that point to any other customer, and any sale thereafter (“in the future”) will be priced to match the lowest price given, by then, to any other customer. Subject to that clarification, I consider the language of Clause 19 to be simple and clear. It might be a more involved task, which I suppose could reveal subtleties of meaning that would have to be resolved, to ascertain whether [Canon] did always give TIC a Clause 19 price. However, there was no claim of failure by [Canon] to honour Clause 19 (aside from an isolated, and important, point that is raised by the Unit Sale Claim, so I deal with it below).” (6) Canon’s material obligation was to sell to TIC always at the best price at which up to the time of the sale in question it had sold to any other customer: at [207], [267(2)]. (7) To trigger Canon’s obligation to sell Units under clause 3, there must be a request to purchase at the Best Price: at [271] – [272]. (8) In closing, Counsel for TIC focussed on the sale process that Canon insisted was required for a sale, namely (i) request to buy (ii) quote from Canon (iii) purchase order (iv) acceptance of order. Counsel focussed on Canon’s failure to quote for supply under the Master Agreement in response to a request for such supply. Andrew Baker J then said this: “I do not consider that changes the substance. If [Canon]’s sale processes required a certain sequence, and TICM made a contractual request for supply, then [Canon] cannot rely on its failure to follow its own processes to deny that it came under an obligation to supply.” See at [279].

24. There was also a separate claim by TIC against Canon for a failure to sell two or three new CT Units. Andrew Baker J held that Canon was in breach of the Master Agreement in respect to that order, in relation to two Units, but as TIC had failed to present any evidence as to its loss, the claim could only be for nominal damages: see at [309] – [311].

25. Hardly had the first piece of litigation come to an end, when the parties fell out again. Assets threatened to present a winding up petition against Canon. In response, Canon applied for and obtained a without notice injunction against Assets. This injunction was then set aside by HHJ Saffman on 10 September 2024 on the basis that the matter was res judicata between the parties and for Canon’s breach of the duty of full and frank disclosure when seeking a without notice injunction. The Orders and the Quotes

26. In the meantime, by email dated 23 February 2024, Assets placed an order under clause 3 of the Master Agreement for “… 36 CT units to the same trailer specification as TMCT5” (“the February Order”). The “Best Price”, as set out in that email, was £250,750 per Scanner, with a maximum total of £565,750 per Unit. Under the heading “Terms & Conditions”, the email stated: “We would be purchasing these systems under the same terms and conditions as all our Canon fleet units. We are not obligated to update the existing terms, and Canon do not have a right to unilaterally impose new terms. Indeed, you have introduced new payment terms in your letter which are wholly rejected. Instead, we have ordered the Units under the usual terms (as governed by the Master Agreement) and expect Canon to meet its legal requirements here.”

27. In substance, Assets repeated the February Order in a letter dated 5 July 2024, this time from its solicitors to Canon’s solicitors (“the July Order”). In a follow up letter dated 14 August 2024, Assets’ solicitors wrote to say “… Payment terms have been established as a matter of custom between the parties. Our clients are not seeking any amendments to the established payment terms, and Canon is not entitled to frustrate the order by seeking to impose new conditions as to payment which were not envisaged in the Master Agreement.”

28. In response, Canon’s lawyers responded by a lengthy letter dated 20 August 2024, enclosing an updated quotation. This August quote set out a price per Unit for Scanner of £356,092.00, with further sums in respect of the Bence Relocatable Box, and with a 5% management fee, for a total of £771,892.00 per Unit. For 36 Units, the global cost was £27,788,112.00. In relation to Payment Terms, Canon asked for a 30% upfront payment on placement of the order, a further 30% when the underframe and main body framework of the Unit is complete at the WH Bence factory, and with the remaining 40% on the acceptance date.

29. Thus, it is fair to point out that, in response to the February Order and the July Order, Canon provided various quotes for the equipment (“the Quotes”). Canon’s position is that neither the February Order, nor the July Order constituted valid orders under the Master Agreement. Its pleaded case is that a purchase order under the Master Agreement “… is not merely an order placed by [Assets] but rather an order form by which [Assets] accepts a quotation previously supplied by [Canon], which quotation specifies the goods required and the price and which order includes the specific quotation number provided by [Canon]”: Defence, paragraph 8. This is defined as “the Valid Purchase Order”.

30. On 8 November 2024, Canon sent a further (slightly amended) quote (“the November Quote”). The present claim

31. By claim form dated 4 January 2025, Assets began these proceedings. On the same date, it applied for an order for specific performance / mandatory interim injunction.

32. On 17 February 2025, Canon filed its defence; and on the same date it served a Request for Further Information.

33. Assets’ application for a mandatory order was heard by Steven Gasztowicz, sitting as a Deputy High Court Judge (“the Deputy Judge”) on 4 March 2025. The Deputy Judge adjourned the proceedings, in the hope that the parties might resolve matters. The parties exchanged proposals and counterproposals. There was no agreement.

34. On 14 March 2025, the matter having come back to the Deputy Judge in the meantime, the Deputy Judge refused to grant the injunction, on the ground that damages were an adequate remedy, although the Deputy Judge accepted that Assets had a reasonably arguable case in relation to breach of contract. The Deputy Judge accepted an undertaking from Canon. The terms of the undertaking were, in summary, as follows: (1) Canon agreed that it would keep a quote from November 2024 (as revised in March 2025) open for acceptance until 13 April 2025; (2) Canon would confirm in writing that Assets was not prevented by clause 28 of the Master Agreement from ordering scanners from alternative suppliers; (3) if Assets accepted the revised quotation by placing a purchase order (a) Canon would deliver such Units as soon as reasonably practicable (estimated four months from acceptance of the quote for the first Unit, and then at a rate of 1-2 Units per month) and (b) upon receipt of the 30% of the Bence housing costs from Assets, it would forthwith order the housing required as specified in the order and hold such payment on trust to pay Bence (c) all other payments required for the Units were to be made within 30 days of provision of an invoice by Canon and (d) Canon would not seek to argue that Assets, by accepting the revised quotation, was prevented from advancing any part of its claim at trial, in relation to what was “the best price” or otherwise.

35. In his witness statement in support of the Application, Dr Kleanthous says that Assets did not wish to put £3.2million plus VAT into Canon’s hands “with no firm commitment as to timeframe from Canon, but an indication that the first Unit would not be delivered for several months, and the last Unit would not be delivered for potentially years”.

36. A Costs and Case Management Conference had been listed for 16 June 2025. The CMC did not take place. Instead, Canon issued an application for further information pursuant to CPR Part 18 on 3 June 2025, which was heard on the date fixed for the CMC. I ordered Assets to provide further information as to its case, which was duly provided on 3 August 2025. Analysis

37. Assets’ case is that Canon has received an unambiguous request to supply 36 Units at “Best Price”. In the Particulars of Claim, paragraph 30, under the heading “Breaches”, Assets pleads that Canon “… has repeatedly evinced an intention not to deliver” the 36 Units “either at all or within a reasonable time period other than on terms different from [the Master Agreement]”. The particulars of breach then lists the communications between the parties, from 9 February 2024 (a meeting between Dr Kleanthous and Canon’s Joe Vincent) up to and including a letter dated 8 November 2024 from Canon’s lawyers, including the Order and Quotes to which I have referred earlier in this judgment.

38. In its second Part 18 Request, Canon asked (i) which terms of the Quote(s) are alleged to be different from the terms in the Master Agreement and (ii) which terms of the Master Agreement it is alleged such terms were different to. By its response, Assets set out in three tables a summary of the terms which Canon require which are said to be different from that found in the Master Agreement, relating to placement of an order, price for units, payment terms (that is, whether there should be any upfront payment and, if so, for how much) and time for delivery.

39. At the hearing before me, Counsel for Assets clarified that the real focus of the Application was not the allegation that Canon had evinced an intention not to deliver the Units at all, but rather that Canon has repeatedly evinced an intention not to deliver the Units “… within a reasonable period other than on terms different from those in [the Master Agreement]”. Assets accepts that, on the Application, the court cannot determine either what is “the Best Price” or what would be a reasonable time for delivery of the Units. Counsel for Assets submits that this is irrelevant for a finding of liability against Canon. The price is fixed under the Master Agreement. The time for delivery is a reasonable time. The Master Agreement does not specify a time for payment. Under the Sale of Goods Act 1979 (“SOGA 1979”), s. 28 , payment and delivery are concurrent conditions. But that is not Assets’ case. Assets says that the course of dealing between the parties shows that payment could be made at any time within 30 days of delivery.

40. Turning to remedy, Assets seeks (a) an order for specific performance, under s. 52 of SOGA 1979, or in the exercise of the court’s inherent jurisdiction, for the delivery of the Units and/or (b) a mandatory injunction to similar effect and/or (c) an award of damages. Only the award of damages is relevant at this stage. The award of damages includes a claim for loss of profit, loss of opportunity to secure term contracts for the provision of medical imaging services and loss of reputation “particularly from NHS bodies”.

41. In summary, Assets submits that the effect of what Canon has done is to “produce a quote which is wholly at odds with its obligations under the Master Agreement, and thereby frustrate the order”. Assets says that the matter has in effect been resolved by the findings in the Previous Judgment.

42. Despite the forceful and, in some ways, compelling, submissions advanced by Counsel for Assets, I am not persuaded that matters are necessarily so simple, for the following reasons: (1) Andrew Baker J determined the issues he was required to determine. He did not consider the situation where Canon provides a quote, which Assets says is not the “Best Price” and which contains payment and delivery terms which Assets refuses to accept. The focus of the Unit Sale Claim before Andrew Baker J was the failure by Canon to quote for supply under the Master Agreement in response to a request for such supply (described as the “root cause … of the failure to sell”: see at [279]). Now, we have a situation where Canon has supplied quotes; Assets’ case is that the terms of the quote do not comply with the obligations under the Master Agreement. (2) Although Andrew Baker J indicated that he considered the language of clause 19 to be “simple and clear”, he went on in the very next line to say that: “ It might be a more involved task, which I suppose could reveal subtleties of meaning that would have to be resolved, to ascertain whether [Canon] did always give TIC a Clause 19 price. However, there was no claim of failure by [Canon] to honour Clause 19 (aside from an isolated, and important, point that is raised by the Unit Sale Claim, so I deal with it below) …”: at [206]. (3) Assets referred to SOGA 1979, s. 8, dealing with the ascertainment of price. I do not consider that this assists. In this case, the Master Agreement does fix a price, at clause 19. What is less clear is what the figure actually is, and what the parties’ obligations are where they do not agree. Certainly, Canon’s position, as set out in the evidence, is that it has, on three occasions, quoted its “best price”. This cannot be rejected out of hand. (4) The Master Agreement does not set out what is to happen where the parties cannot agree as to what is “best price”, or what the terms as to payment and delivery are, which Canon says properly form part of the parties’ obligations. Resolution of those issues is a matter of either the implication of terms or through reliance on an earlier course of dealing (to the extent that those approaches differ). (5) It is trite to say that terms may be incorporated by a previous consistent course of dealing between the parties, or by their common understanding: see Lewison, the Interpretation of Contracts (8 th ed., 2023) at 3.109 ; Chitty on Contracts , 35 th ed., 2025, at 4-148. Canon relies on a course of dealing to say that there is a requirement for a Valid Purchase Order. (6) Incorporation of terms is a matter of fact and degree, and in general, a large number of transactions will require to be proved before the court will permit one party to rely on a course of conduct in order to rely upon standard terms of business: Lewison, at 3.110 – 3.111. However, sometimes, in cases where the number of transactions proved is insufficient to amount to a course of conduct, it is still possible that standard terms will be held to have been incorporated into a contract: Lewison, at 3.112. (7) Assets relies on the presence of the entire agreement clause in clause 43.1 of the Master Agreement. However, an entire agreement clause may not prevent the implication of a term in order to make the contract work as intended by the parties: see Chitty, at 17-020. This is not something which can properly be determined on the Application. (8) It is clear that Assets is itself relying on a course of dealing to imply terms. The Master Agreement is silent as to the terms for payment. Assets says that it is prepared to pay, at the price demanded by Canon, 30 days after delivery, and while reserving its right to bring a damages claim if it has wrongly and in breach of the Master Agreement not been charged “the Best Price”. Assets says that Canon has never required an upfront deposit from Assets when supplying Units but has instead always accepted payment in full within 30 days of delivery. However that submission demonstrates that Assets itself accepts that there is scope for argument, at least, as to what terms can be implied by way of course of dealing. (9) There are further difficulties in determining the case on liability at this juncture, without a trial. Assets accepts that the issue of what was a “reasonable time” for delivery is properly an issue for trial. Assets’ case on this has changed. In the Particulars of Claim, paragraph 25, Assets pleads that the reasonable time-period for delivery of all 36 Units was four months from the date of order. In contrast, in its RFI dated 2 July 2025, Assets pleads that a reasonable time for delivery was within four months for the first three Units, and three Units per month for the next 11 months, so 15 months from the date of the order for the entirety of the delivery. The 15 month period has now elapsed, and not a single Unit has been delivered. However, the February Order required delivery by May 2024, and the July Order required a lead time of four months. It is not in dispute that delivery should be within a reasonable time, but Canon’s defence is that delivery within four months was not practicable and therefore not reasonable. There is a real difficulty in rejecting, on a summary basis, Canon’s defence that it cannot be in breach of the Master Agreement due to a failure to deliver in accordance with the Orders, when the time specified in the Orders was arguably unreasonable. (10) I also note that it was Assets’ case in the earlier proceedings that the sales process involved a four stage process, namely, (i) request to buy (ii) quote from Canon (iii) purchase order (iv) acceptance of order. This is apparent not only from what Andrew Baker J said, at [279], when referring to Assets’ Counsel’s closing arguments, but it was also set out in Mr Kleanthous’ witness statement dated 31 August 2023 for trial. In those circumstances, it becomes difficult to reject on a summary basis Canon’s case as pleaded in its Defence, paragraph 8, that there must be a Valid Order Process. Dr Kleanthous, in his evidence in reply, states that although Assets “… has been prepared to accept quotes from Canon in the past, it did so when there was nothing particularly controversial about the quote; not because [Assets] thought [the Master Agreement] required it …” This gives rise to a real dispute, as to whether there is such a requirement for acceptance of a quote as a precondition for delivery. (11) Canon’s case is that it has always incorporated its standard terms and conditions to any sale, regardless of whether that sale was to Assets or to some other customer. I was not impressed by Canon’s evidence on this at the hearing before me. Nevertheless, this is the sort of submission that requires a closer scrutiny of all the documents than is possible on a summary judgment application. (12) The Deputy Judge, whilst acknowledging that Assets had a reasonably arguable case on breach of contract, refused to grant a mandatory injunction. I accept that the merits test for an injunction and an order for summary judgment is not the same. Nevertheless, the refusal to grant an injunction is a pointer suggesting that summary judgment may not be appropriate either.

43. Assets submits that Canon’s position would, in effect, turn the Best Price provision in the Master Agreement into a pointless and ineffective provision. Canon’s evidence, in places, does tend to suggest that Canon did not have sufficient regard to the actual wording of clause 19. Mr Hitchman’s witness statement refers to the February 2024 quote from Canon being calculated using a Salesforce system, and refers to various factors used in arriving at a price that do not, on first reading, very obviously relate to the clause 19 “Best Price” formulation. The price in the August 2024 quote was lower than the price quoted in February 2024; and the quote in November 2024 was lower still. Nevertheless, one returns to the fact that the issue in this case is not only about establishing the Best Price, but what the obligation is in circumstances where the parties do not agree either what is “the best price supplied to any other customer of Canon to date or in the future” or regarding the other, important, terms of delivery.

44. In oral submissions, but not in its pleaded Defence, Canon took another point, which was to say that that Assets’ use of the phrase of “evincing an intention” at paragraph 30 of the Particulars of Claim was in truth a claim for anticipatory breach or the breach of a executory contact, which the innocent party was entitled to accept and thereby bring the contract to an end. As it was common ground that Assets had not in fact accepted any alleged renunciation, and the Master Agreement continued, Assets could not possibly bring any claim for damages, because an unaccepted renunciation of an executory contract does not give rise to a damages claim. This seems to me a plainly bad point. An innocent party, when faced with a repudiatory breach, may elect to keep the contract alive, and bring a claim for damages in respect of any losses it has suffered as a result of the breach: Chitty on Contracts, at 28-054.

45. Nevertheless, the issue of liability does not seem to me to be capable of being determined on the Application. Whatever difficulties its defence may face, Canon has at least a real prospect of being able to defend the claim on liability.

46. Even if I am wrong on that, and Canon has no real prospect of defending the claim on liability, there is another factor in play on the Application. The grant of summary judgment involves a judicial discretion, as shown by the language of CPR r. 24.3, which says that the Court “may” grant summary judgment on an issue. It would be wrong to make a general finding of liability without having determined the true underlying facts. The facts might make a real difference as to the outcome. To take one example: until the court determines what is a reasonable time for the delivery of the Units, the date of breach cannot be determined. This is inevitably going to have a real and possibly decisive impact not only as to the quantum of any damages, but potentially on Canon’s underlying liability. No date for breach is pleaded in the Particulars of Claim.

47. The justification for allowing the parties to advance a summary judgment application is the asserted strength of the case against the respondent and the fact that a final trial of at least part of the claim can be avoided. However, in this case, the terms of the order sought by Assets is summary judgment on liability with damages to be assessed. In order to determine what damages Assets is entitled to, the court will need to hear detailed evidence and submissions to determine what the Best Price is, what a reasonable time for delivery is, and what terms were incorporated into the Master Agreement to make it work and/or by reason of any course of conduct. Granting a finding of liability now will not avoid the need for the court to grapple with all of those issues. The length and complexity of any trial will not be shortened or made any easier. There is a real danger that, in covering all the issues necessary to establish what loss, if any, Assets has suffered, the court may conclude that it was wrong to enter judgment on liability on the Application.

48. One may ask what Assets hoped to achieve by the Application. Counsel for Assets candidly indicated in oral submissions that it would be helpful to “get the issue of liability out of the way” and that it might make matters easier to settle. That is not an illegitimate basis for bringing an application for summary judgment. However, it seems to me unlikely to achieve even that. Even if a finding of liability were (contrary to my conclusion) to be entered now, there would still be all to argue about on the question of damages. Conclusion

49. I will therefore dismiss the Application. It is surprising that the parties find themselves in a position where the supplier asserts that it wishes to sell, and the buyer says it wishes to buy, but they nevertheless find themselves in litigation. However, unless the parties can agree a way forward, this is a case which must proceed to trial.