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	England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Columbia Pictures Corporation Ltd v Wanda Kids Cultural Development Co. Ltd [2025] EWHC 1895 (Comm) (23 July 2025) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2025/1895.html Cite as: [2025] EWHC 1895 (Comm)

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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL
		23/07/2025

SIR NIGEL TEARE

This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 23 July 2025 at 2:00pm.

Sir Nigel Teare :

1. This is an application by the Claimant for summary judgment on its claim against the Defendant.
2. The Claimant, Columbia Pictures Corporation Limited ("CPC"), is a company incorporated under the laws of England and Wales which carries on business in, among other areas, film and television production and distribution. CPC is a subsidiary of Sony Pictures Entertainment Inc. The Defendant, Wanda Kids Cultural Development Co., Limited ("Wanda"), is a company incorporated under the laws of Hong Kong which carries on business in the media industry. Wanda is part of the Wanda Group, a Chinese multinational conglomerate which has its headquarters in Beijing, China.
3. This claim concerns an alleged failure by Wanda to perform its obligation pursuant to a "Put Option" in a Put and Call Option Agreement dated 16 October 2017 (the "Option Agreement") which obliged it to purchase certain shares upon notice given by CPC for the price of US$49,000,000 (the "Sale Price"). CPC now seeks the payment of the Sale Price as a debt, alternatively damages in the same amount, or alternatively specific performance of Wanda's obligations to purchase the shares for the sum of US$49,000,000, as well as interest on that sum.
4. It is apparent from the pleadings that Wanda seeks to defend the claim on the basis that its obligation to perform the Put Option was conditional upon it obtaining regulatory approval for the transaction by various governmental authorities in the People's Republic of China ("PRC") pursuant to a requirement that off-shore direct investment ("ODI") be approved. Reliance was placed on the true construction of the agreement and, in the alternative, on the basis of an implied term. Since this permission was never obtained (and could not be obtained) it says it has not breached the Option Agreement and that CPC is not entitled to the relief sought.
5. The Claimant says that that defence has no realistic prospect of success and that accordingly summary judgment should be given for the Claimant. A "realistic" defence is one that carries some degree of conviction. It is more than merely arguable; see Easyair Ltd. v Opal Telecom Ltd. [2009] EWHC 339 (Ch) at paragraph 15.

The background

6. By a share purchase agreement dated 18 April 2017 (the "SPA"), Wanda Kidsland (Hong Kong) Co. Ltd ("Wanda Kidsland", a different entity to Wanda) agreed to purchase from a company called Silvergate Group Holdings Limited ("SGHL") 51% of the entire issued share capital of Vampire Squid Productions Limited ("VSP") for US$38,250,000 (with SGHL retaining the remaining 49%). VSP is an entertainment company that holds certain intellectual property rights, including rights to the children's television programme "Octonauts".
7. The SPA provided that on completion of the share sale, the parties would execute an "Option Agreement" (as defined in clause 1 of the SPA) in relation to SGHL's retained shareholding in VSP. At some point between the signing of the SPA on 18 April 2017 and the execution of the Option Agreement on 16 October 2017, Wanda Kidsland transferred its shares in VSP to Wanda.
8. Clause 11.1 of the SPA provided that the Buyer warranted that "it has full power and authority and has obtained all necessary consents to enter into and perform the obligations expressed to be assumed by it under the Transaction Documents." Clause 1 defined "Transaction Documents" as including the Option Agreement.
9. The Option Agreement was subsequently entered into on 16 October 2017 between SGHL, Wanda and VSP. The Option Agreement provided that the Put Option for the remaining shares (which amounted to 1,184,673 ordinary shares of £0.0001) would be exercisable upon notice by SGHL, with completion taking place as soon as possible after, and in any event not later than 28 days from the determination of the Sale Price. Clause 4 of the Option Agreement provided a mechanism for determining the Sale Price, under which the price per option share would be calculated by dividing the greater of (i) US$100,000,000 or (ii) 12 times the Agreed EBITDA by the total number of shares in issue (2,417,710) or such other multiple of Agreed EBITDA as Wanda and SGHL agreed in good faith. .
10. In practice, this meant that the minimum total Sale Price for the 49% shareholding was US$49,000,000, representing 49% of the minimum company valuation of US$100,000,000. However, the Sale Price could be higher depending on the Agreed EBITDA, which was to be calculated pursuant to clauses 4.3 and 4.4 of the Option Agreement.
11. Under the contractual mechanism for the calculation of the Sale Price, VSP would provide the initial EBITDA calculation; Wanda or SGHL could then raise objections to specific items, and if the dispute persisted, an Independent Accountant jointly appointed by the parties would determine the final figure. If the parties failed to agree on the appointment, the Independent Accountant would be appointed by the President of the Institute of Chartered Accountants in England and Wales on the application of either Shareholder.
12. In August 2021 SGHL assigned all rights, title, interest and benefit of the Option Agreement to CPC.
13. On 27 October 2021, CPC exercised the Put Option in writing and VSP provided an EBITDA calculation the same day. The letter dated 27 October 2021 stated as follows:

"This Letter is the notice of exercise of the Put Option, as provided for in clause 2.3 of the Put and Call Agreement and we hereby give you notice that we are exercising the Put Option in respect of all of the Option Shares at a price per share equal to the Sale Price, calculated based on the 12 months ending at the month-end prior to the exercise, being 1 October 2020 to 30 September 2021.

Completion of the sale and purchase of the Option Shares pursuant to this exercise of the Put Option shall take place as soon as possible and, in any event, not later than 28 days from determination of the Sale Price. Completion of the sale and purchase of the Option Shares is conditional on receipt of relevant regulatory approvals.

The Company will calculate the EBITDA and will deliver the EBITDA calculation to the Shareholders pursuant to clause 4.2 of the Put and Call Agreement."

14. Wanda subsequently disputed the calculation. When no agreement could be reached, efforts were made to appoint an Independent Accountant, but they were not successful.
15. By a letter dated 11 January 2024 CPC agreed to accept the contractual "floor price" of US$49,000,000 in order to bring the dispute over valuation to an end. That letter notified Wanda that completion of the sale and purchase of the Option Shares would occur on or before 8 February 2024.
16. While clause 2.4 of the Option Agreement provided for completion at VSP's London office, CPC offered an alternative arrangement to accommodate Wanda: payment of US$49,000,000 into CPC's account at JP Morgan Chase's London branch, against which CPC would deliver the Option Shares with all necessary documentation. If Wanda declined this alternative, completion would take place at VSP's office on 8 February 2024.
17. On 8 February 2024, CPC attended VSP's London office to complete the sale by delivering a duly executed transfer upon payment. Wanda did not attend and has not paid the US$49,000,000 purchase price.
18. CPC therefore brought the present claim against Wanda.

The Option Agreement

19. Clause 1 of the Option Agreement contained certain definitions including the following:

"Option Shares: the 1,184,673 ordinary shares of £0.0001 each in the capital of the Company, representing 49 per cent. of the entire issued share capital of the Company, beneficially owned by and registered in the name of SGHL at the date of this Agreement.

Put Option: the right of SGHL to require Wanda to acquire the Option Shares as set out in clause 2.1.

Put Option Period: the period during which the Put Option can be exercised, being (i) the period commencing on 31 December 2020 and ending on 31 December 2023 or (ii) (subject to due notice being given to SGHL in accordance with this Agreement), 42 days before the date of a Quotation and ending on the date of the Quotation.

Quotation: the admission of, or the grant of permission to dealings by the public generally in, any class or part of the share capital of any Quotation Entity to any securities exchange or dealing facility in any country in the world.

Quotation Advisor: the lead third party investment bank acting on an arm's length basis in relation to a Quotation.

Quotation Entity: Wanda Kids Culture Development Company Limited or any holding company of Wanda Kids Culture Development Company Limited or any other entity which acquires the business of either Wanda Kids Culture Development Company Limited or the Company (whether directly or indirectly and whether via share sale, asset sale, merger or otherwise) and which in each case is the subject of the Quotation.

Quotation Percentage: Agreed EBITDA divided by the EBITDA of the Quotation Entity using the same basis of calculation as that for the Agreed EBITDA and assuming 100% ownership of the Company and expressed as a percentage.

Quotation Shares: shares of the same class and ranking pro rata and pari passu in all respects with all other shares of the entity the subject of the Quotation."

20. Clause 2 of the Option Agreement provided as follows:

"2.1 Wanda hereby grants to SGHL the right (exercisable during the Put Option Period) to require Wanda to buy all (but not some only) of the Option Shares at a price per share equal to the Sale Price.

2.2 The consideration for the exercise of the Put Option shall be payable, at the sole discretion of SGHL, either as (a) cash in US Dollars to an account nominated by SGHL or (b) where law and regulation permits, the issue and allotment of Quotation Shares in the Quotation Entity representing 49% of the Quotation Percentage (or, at SGHL's option, a mix and match part cash, part shares basis with a corresponding reduction in the percentage received by SGHL of the Quotation Percentage) (the "SGHL Put Election").

2.3 The Put Option shall be exercisable by notice in writing to Wanda (with a copy to the Company) at any time during the Put Option Period. If at the expiry of the Put Option Period the Put Option shall not have been so exercised it shall lapse.

2.4 Completion of the sale and purchase of the Option Shares following the exercise of the Put Option shall take place as soon as possible after, and in any event not later than 28 days after, the determination of the Sale Price. Completion shall take place at the registered office of the Company or at such other place as the Shareholders shall agree at which time SGHL shall deliver to Wanda a duly executed transfer or transfers of the Option Shares (accompanied by the relevant share certificate, or an indemnity in respect of any lost share certificate(s) in a form reasonably satisfactory to Wanda, against payment of the Sale Price).

2.5 If SGHL shall not, on the date for completion of the exercise of the Put Option, execute and deliver transfers in respect of the Option Shares held by it and deliver the certificate(s) in respect of the same (or a suitable indemnity in lieu thereof), then the Company shall be entitled to, and shall, execute or authorise and instruct such person as it thinks fit to execute, the necessary transfer(s) and indemnities for lost share certificates on SGHL's behalf and, against receipt by the Company (on trust for SGHL) of the consideration payable for the relevant Option Shares, deliver such transfer(s) and certificate(s) or indemnities to Wanda and register Wanda as the holder thereof and, after such registration, the validity of such proceedings shall not be questioned by any person.

2.6 Wanda will, and shall procure that the Company and any relevant Group entity of Wanda will, give to SGHL not less than 42 days' notice of any proposed application for a Quotation, in any such case giving SGHL such details of the Quotation as SGHL may reasonably require, and will procure that the Quotation does not take place until SGHL has a minimum of 42 days in which to exercise the Put Option.

2.7 Wanda will and/or will procure that the Company or Quotation Entity will (as applicable) apply to the relevant exchange or body for the admission of and grant of permission to deal in any shares allotted pursuant to any exercise of the SGHL Put Election in the relevant exchange and Wanda will and/or will procure that the Company or Quotation Entity will (as applicable) use its best endeavours to obtain such grant of permission and admission not later than 14 days after receipt of any notice of the SGHL Put Election. In the event that a Quotation takes place while the Option remains exercisable in whole or in part Wanda will and/or will procure that the Company or Quotation Entity will (as applicable) apply to the relevant exchange for the shares allotted pursuant to any exercise of the SGHL Put Election to be admitted to trading."

21. Wanda contends that, on its true construction, clause 2.7 of the Option Agreement rendered Wanda's obligation to perform and complete the Put Option (and thus to pay the Sale Price) conditional upon the grant of the required regulatory approvals from certain governmental authorities in the PRC ("Regulatory Approval"). Regulatory Approval for performance of the Put Option was never (and, on Wanda's case, could never have been) obtained. It follows that Wanda's obligation to pay the Sale Price has not accrued as a debt and that, for the same reason, there has been no breach of the obligation to pay the Sale Price, and Wanda owes no extant obligation to perform the option that could be specifically enforced.
22. CPC contends that the ordinary and natural meaning of the words in clause 2.7 does not support that construction. CPC says that the clause is clearly concerned only with the procedural obligation to apply for permission to deal in shares if CPC were to elect to receive shares (rather than cash) in Wanda Kids Culture Development Company Limited (or another holding company of Wanda) as consideration for the Option Shares (as is evident by the words "any shares allotted pursuant to any exercise of the SGHL Put Election"). Under clause 2.2, that election is expressed to be at CPC's "sole discretion", and CPC duly elected to receive cash, not shares.

Principles of construction

23. Counsel for the Claimant referred me to a short summary of the relevant principles by Lord Hamblen in Sara & Hossein Asset Holdings Ltd v Blacks Outdoor Retail Ltd [2023] UKSC 2 at [29]:

(1) The contract must be interpreted objectively by asking what a reasonable person, with all the background knowledge which would reasonably have been available to the parties when they entered into the contract, would have understood the language of the contract to mean.

(2) The court must consider the contract as a whole and, depending on the nature, formality and quality of its drafting, give more or less weight to elements of the wider context in reaching its view as to its objective meaning.

(3) Interpretation is a unitary exercise which involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its implications and consequences are investigated.

24. That summary was based upon the judgment of Lord Hodge in Wood v Capita Insurance Services Ltd. [2017] AC 1173.
25. Counsel for the Defendant referred me to the earlier decision of the Supreme Court in Arnold v Britton [2015] AC 1619 and emphasised three matters:

(1) The court focuses on the objective meaning of the relevant words in their documentary, factual and commercial context.

(2) The objective meaning has to be assessed in light of: (a) the natural and ordinary meaning of the clause; (b) any other relevant provisions of the agreement; (c) the overall purpose of the clause and the agreement; (d) the facts and circumstances known or assumed by the parties at the time that the document was executed; and (e) commercial common sense, but (f) disregarding subjective evidence of any party's intentions (including evidence of their pre-contractual negotiations).

(3) If there is more than one possible construction of a term, the court is entitled to prefer the construction that is more consistent with business common sense and reject the other.

Summary of the Parties' Submissions

26. Counsel for CPC submitted that it is clear that clause 2.7 is not addressing the transfer of the Option Shares in VSP by CPC to Wanda consequent on the exercise of the Put Option, but rather the allotment (if any) of new shares to CPC as consideration for the exercise of the Put Option pursuant to clause 2.2. On its face, clause 2.7 is simply not engaged in the circumstances that occurred given CPC's election to receive cash, and not shares, and has no bearing on the actual exercise of the Put Option in this case. Were there to be a requirement for Regulatory Approval in circumstances where CPC elects to receive cash that would be explicit in, for example, clauses 2.1 to 2.4 (dealing with the Put Option itself).
27. Counsel for Wanda submitted, relying upon factual evidence filed in this Application, that it would have been perfectly obvious to both parties that the performance of the Put Option (and payment of the Sale Price) was conditional upon Wanda first obtaining approval from the PRC governmental authorities which applied strict foreign exchange and regulatory capital controls. Indeed, it was submitted that CPC was clearly of this view, given that it expressly stated in its notice exercising the Put Option that "Completion of the sale and purchase of the Option Shares is conditional on receipt of relevant regulatory approvals". It was submitted that this statement provides evidence that CPC was aware of the outbound investment regime (and that it applied to the Put Option) at the time it exercised the option. It was submitted that clause 2.7 of the Option Agreement must be construed in that context.
28. Counsel for Wanda further submitted that a reasonable person with the background knowledge available to both parties (set out above) would have understood clause 2.7 to include permission from the PRC governmental authorities for Wanda to perform the Put Option. Reliance was placed on the reference in clause 2.7 to an application to the "relevant … body" for the "grant of permission to deal in any shares allotted pursuant to any exercise of the SGHL Put Election" (emphasis added). It was said that those words refer both to: (a) an exercise of the "SGHL Put Election" to receive cash only (which is what CPC opted to do); and (b) an exercise of the "SGHL Put Election" to receive an allotment of shares in a "Quotation Entity" (or a mixture of such shares and cash).

Discussion

29. I begin with the language of clause 2.7. It contemplates an application "to the relevant exchange or body for the admission of and grant of permission to deal in any shares allotted pursuant to any exercise of the SGHL Put Election in the relevant exchange."
30. It is therefore necessary to know what the "SGHL Put Election" is. It is explained in clause 2.2 as an election by SGHL (or, in the events which have happened, CPC) to receive as consideration for the exercise of the Put Option "either .........(a) cash in US Dollars to an account nominated by SGHL or (b) where law and regulation permits, the issue and allotment of Quotation Shares in the Quotation Entity representing 49% of the Quotation Percentage (or, at SGHL's option, a mix and match part cash, part shares basis with a corresponding reduction in the percentage received by SGHL of the Quotation Percentage)."
31. Thus CPC was entitled to receive, at its election, either cash or the issue and allotment of "Quotation Shares in the Quotation Entity" or a mix of cash and shares.
32. It is to be observed that the phrase "where law and regulation permits" in clause 2.2 applies only to the issue and allotment of Quotation Shares in the Quotation Entity. Thus the parties expressly contemplated that law or regulation may not permit the issue and allotment of such shares. There was no such express contemplation in the case of a payment in cash.
33. Clause 2.7 contemplates an application being made with regard to "any shares allotted pursuant to any exercise of the SGHL Put Election in the relevant exchange." The reference to "any shares allotted" appears to be a reference back to clause 2.2 where it refers to the allotment of Quotation Shares in the Quotation Entity. That is also consistent with the circumstance that the words "where law and regulation permits" in clause 2.2 refer only to the issue and allotment of Quotation Shares in the Quotation Entity. Clause 2.7 appears to identify Wanda as the person who must make the necessary application so that, if successful, the issue and allotment of Quotation Shares is permitted by law and regulation.
34. Thus the language of clauses 2.2 and 2.7 suggests that the reasonable person would understand clause 2.7 to have the meaning for which CPC contends.
35. Wanda's case on the construction of clause 2.7 is that "clause 2.7 is clear in placing Wanda under an obligation to obtain Regulatory Approval for "any exercise of the SGHL Put Election", which includes a situation where SGHL (or CPC) elects to receive cash consideration for the Option Shares. The Regulatory Approval so referred to is not limited to approval from the "relevant exchange", but also includes approval from the "relevant … body" (suggesting that the "body" is something different to a securities exchange). In light of the admissible factual matrix (set out above), the body being referred to was clearly the "relevant PRC governmental authorities" (see Wanda's Skeleton Argument at paragraph 27). It is also Wanda's case that where CPC elects to receive cash "the "grant of permission" referred to in clause 2.7 must be a grant of permission for Wanda to deal in the option shares" (see Wanda's Skeleton Argument at paragraph 28).
36. There are, as it appears to me, real difficulties with this case.
37. First and foremost is the difficulty in reading the words "any shares allotted pursuant to any exercise of the SGHL Put Election" as encompassing not only the allotment of Quotation Shares in the Quotation Company but also the transfer of the Option Shares to CPC. Counsel for Wanda said that this was a possible meaning of clause 2.7 in circumstances where there was a reference to "any" shares and also a reference to "any" exercise of the SGHL Put Election which must include not only a choice to receive the allotment of Quotation Shares in the Quotation Company but also a choice to receive cash.
38. This was an imaginative submission but I was not persuaded that it enabled a reasonable person to read "any shares allotted" as including a transfer of the Option Shares. I do not consider that that is a permissible reading of "any shares allotted" in the context of clauses 2.2 and 2.7. I say that for several reasons. First, the word "allotment" in clause 2.2 refers to an allotment of Quotation Shares and so the phrase "any shares allotted" in clause 2.7 naturally takes its meaning from clause 2.2. Second, the word "allotted" in clause 2.7 does not naturally encompass the transfer of the Option Shares pursuant to a sale of them. (It is to be noted that when the parties refer to a transfer of the Option Shares they do so in terms; see clause 2.5.) Third, as explained above in paragraph 33, when one reads clauses 2.2 and 2.7 together the natural meaning of "any shares allotted" is that they refer to the shares which are allotted when CPC exercises its option to receive consideration for the exercise of the Put Option in the form of the allotment of Quotation Shares. Reading "any exercise of the SGHL Put Election" in clause 2.7 as including a choice to receive cash is not consistent with the meaning of clauses 2.2 and 2.7 when read together.
39. The second difficulty, closely related to the first difficulty, relates to counsel's reliance on the reference in clause 2.7 to the need to apply to the "relevant exchange or body" and the suggestion that it can include a body which gives permission for the use of cash to purchase the Option Shares. That sits uncomfortably with the description in clause 2.7 of the nature of the application to be made to the relevant exchange or body, namely, an application for the admission of and grant of permission to deal in any shares allotted pursuant to any exercise of the SGHL Put Election in the relevant exchange.
40. Having considered the language of clause 2.7, in the context of clause 2.2, it is next necessary to consider the factual matrix, the background knowledge reasonably available to both parties. Both parties made a submission under this head.
41. CPC relied upon the terms of the SPA and in particular upon the warranty given by Wanda (and/or its predecessor) that it has obtained all necessary consents to perform its obligations under the Option Agreement, being one of the Transaction Documents. It was said that in that context it would not be possible to construe clause 2.7 of the Option Agreement as requiring Wanda to apply for permission to pay the agreed price for the transfer of the Option Shares.
42. Wanda relied upon the evidence of Mr. Liao, its Chief Financial Officer, that the PRC is subject to strict foreign exchange and regulatory capital controls. Mr. Liao said that it would have been "perfectly obvious" to both parties that the performance of the Put Option (even where CPC had elected to receive cash) was conditional upon Wanda obtaining approval from the PRC authorities for the relevant funds to be transferred from the Wanda Group in the PRC to Wanda in Hong Kong. This was disputed by CPC who relied upon the evidence of their English solicitor and what he had learnt from discussions with PRC local counsel. However, it is to be noted that when CPC exercised its option to receive the consideration for the Put Option in cash CPC stated that "completion of the sale and purchase of the Option Shares is conditional on receipt of relevant regulatory approvals." That was said by counsel for CPC to be "incorrect."
43. I do not consider that on this application for summary judgment the court can resolve that particular dispute. I have noted the arguments rehearsed at paragraphs 22-24 of CPC's Skeleton Argument and at paragraph 29 of Wanda's Skeleton Argument. To resolve these arguments would amount to a "mini-trial" (as that phrase is used in Easyair v Opal Telecom). Counsel for CPC relied upon the circumstances that (a) Mr. Liao had not mentioned the circumstance that only certain investments fell within the outbound investment regime, (b) the initial purchase of 51% of shares in VSP was not, apparently, within that regime and (c) until CPC commenced proceedings no mention had been made of the need for approval from the PRC authorities. Counsel submitted that in those circumstances Wanda's evidence was very weak. I have noted those points but remain of the view that that I cannot resolve the question on this application.
44. But even if Wanda's case on the factual matrix is correct (or should be assumed to be so on this application) it does not, in my judgment, enable the words used by the parties in clauses 2.2 and 2.7 of the Option Agreement to bear the meaning attributed to them by Wanda. For the reasons I have sought to express above I do not consider that the meaning which Wanda seeks to give clause 2.7 (in the context of clause 2.2) is an available meaning or construction of the words used by the parties to express their agreement.
45. Furthermore, the natural construction of clause 2.2 is that, assuming that Wanda's case on the factual matrix is correct (or should be assumed to be so on this application), CPC did not bear the risk that "law or regulation" might not permit the payment of the price where CPC had elected to receive cash. Wanda's case seeks to make CPC bear that risk when clause 2.2 does not do so.
46. In reaching my conclusion I have not relied upon the Buyer's warranty in the SPA. My conclusion is based upon the clear meaning of the words used by the parties in clause 2.7 and clause 2.2 of the Option Agreement.
47. The Option Agreement bears the hallmarks of being drafted by commercial lawyers instructed by sophisticated business people. Had there been an intention that where CPC elected to receive cash Wanda would only be obliged to do so if law or regulation permitted, such an intention would have been clearly expressed.
48. For these reasons I have reached the conclusion that there is no realistic prospect of Wanda succeeding on its defence based upon the true construction of the Option Agreement. This is the sort of "short point of law or construction" which may properly be the subject of a summary judgment application; see EasyAir v Opal Telecom.
49. In my judgment a reasonable person with the background knowledge alleged by Wanda would understand clauses 2.7 and 2.2 of the Option Agreement to have the meaning for which CPC contends.

An Implied Term

50. In the alternative Wanda's case is that there is to be implied in the Option Agreement a term that Wanda's obligation to perform and complete the Put Option was subject to and conditional upon the grant of Regulatory Approval.
51. Counsel for Wanda submitted that the application for summary judgment was not expressed to be based upon the submission that the implied term defence had no realistic prospect of success. Counsel submitted that an amendment was required but that it was now too late to amend; see paragraphs 46-47 of his Skeleton Argument.
52. The Application sought summary judgment on the whole of CPC's claim "for the reasons explained in the attached witness statement". The attached witness statement of Mr. Daniel Scot Bodle stated that "Wanda's Defence failed to set out any facts or matters on which it might defend itself from CPC's claim. In my view, it therefore has no prospect of succeeding in its defence". Since the Defence relied on the true construction of clause 2.7 and, in the alternative, on an implied term it would seem that Mr. Bodle's witness statement encompassed both defences. That is also to be inferred from the circumstance that CPC sought judgment on the whole of its claim. Such judgment could not be sought unless the application encompassed both defences. However, Mr. Bodle then went onto say that clause 2.7 did not have the effect for which Wanda contended and said nothing about the implied term defence. It is that omission on which counsel for Wanda relies.
53. In my judgment the natural meaning of the application for summary judgment on the whole of CPC's claim encompassed both defences. The passage in Mr. Bodle's witness statement referring only to the true construction defence did not have the effect of cutting down the ambit of the application which remained for judgment on the whole of CPC's claim.
54. In case I am wrong about that I must consider CPC's application to amend its application. I would have allowed CPC to amend its application to include the implied term defence. Counsel for CPC applied to amend (in the event that such amendment was required) during her opening submissions. Although that was as late as could be the lateness caused no prejudice to Wanda because its counsel was, as one would expect, ready to deal with the implied term defence and had made written submissions on the subject in his Skeleton Argument. Permitting the amendment would not require Wanda to deal with the point "on the hoof" as suggested by its counsel at paragraph 47 of his Skeleton Argument. Moreover, if permission to amend were refused CPC would issue a further application for summary judgment which would only lead to extra costs and further delay in considering whether CPC was entitled to summary judgment on the whole of its claim.
55. So I turn to the question whether the implied term defence has a realistic prospect of success. Counsel for both parties referred me to the decision of the Supreme Court in Marks & Spencer v BNP Paribas Securities Services [2016] AC 742 in which Lord Neuberger set out the relevant principles at paragraphs 14-31. I have read those paragraphs and have them in mind. I will not however seek to summarise them.
56. Counsel for Wanda submitted that, given the background facts that would be known to a notional reasonable person in the position of Wanda and SGHL at the time they were contracting, such a person would have concluded:

(1) That without the implied term, the Option Agreement would lack commercial or practical coherence (and thus that the implied term was necessary to give business efficacy to the Option Agreement). In particular, as explained in Liao 2 at paragraphs 27-29, in the absence of Regulatory Approval, it would have been impossible for Wanda to perform the Put Option and, if it had sought to do so, Chinese banks would simply have refused to process applications to purchase and remit currency funds from Wanda Group to Wanda, which would have left it unable to perform due to it being reliant on procuring funds from Wanda Group in the PRC.

(2) That the implied term was so obvious as to go without saying. For the reasons set out in Liao 2 at paragraphs 17 and 24, it would have been obvious to the individuals negotiating the Option Agreement (including those persons negotiating it on behalf of SGHL) that such an investment would be subject to the ODI.

57. I deal first with the submission that without the implied term the Option Agreement would lack commercial or practical coherence (and thus that the implied term was necessary to give business efficacy to the Option Agreement).
58. I do not consider that without the implied term the Option Agreement would lack commercial or practical coherence. The Option Agreement is a detailed and carefully drafted contract. The obligation to pay cash was unconditional unlike the obligation to issue and allocate Quotation Shares which was conditional upon law and regulation permitting. Clause 2.2 shows that the parties intended that where CPC elected to receive cash CPC was not to bear the risk that law or regulation might not permit payment of the price. By contrast clause 2.2 provides that CPC was to bear the risk that issue and allotment of Quotation Shares might not be permitted by law or regulation (so long as Wanda had exercised its best endeavours pursuant to clause 2.7). Thus to imply the suggested term would contradict the parties' allocation of risk in the Option Agreement. That was their contractual solution to the (assumed) need for Regulatory Approval of payment of cash. Wanda is now seeking to imply a different contractual solution. That is not permissible; see Marks & Spencer v BNP Paribas at paragraph 28.
59. I next deal with the submission that the implied term was so obvious as to go without saying.
60. In my judgment the notional reasonable person in the position of the parties at the time they were contracting would not have said that the suggested implied term was so obvious that it goes without saying. That is because the suggested implied term would contradict the parties' allocation of risk in clause 2.2 of the Option Agreement, a detailed and carefully drafted contract.
61. For these reasons I have reached the conclusion that there is no realistic prospect of Wanda succeeding on its defence based upon the suggested implied term. This is again the sort of "short point of law or construction" which may properly be the subject of a summary judgment application; see EasyAir v Opal Telecom.
62. In my judgment the suggested term cannot be implied in the Option Agreement.

Conclusion

63. I will therefore grant CPC summary judgment.
64. I ask the parties to agree an order giving effect to this judgment. I assume that it will be in the form of the draft order in the hearing bundle at pp.7-8.