Summary

Tripwire paid Astor an advance of USD 9.45 million under a contract of 12 September 2024 for the supply of TNT, which Tripwire had sold on, back to back, to a buyer the judgment calls Global. Astor delivered nothing. In June 2025 Astor contracted with Global directly, and Global served what it called a termination notice on Tripwire.

Sir Clive Freedman gave Tripwire summary judgment for breach of contract, with damages to be assessed, and held that Astor's counterclaim gave no set-off. He refused an interim payment, whether of lost profit or of the advance, because Tripwire could not show what it would have recovered had the TNT been delivered.

Background and facts

Astor was to supply 6 million kg in the first year and 10 million kg in the second at USD 10.50 per kg. The advance was 15% of the first year's price. Tripwire's onward price to Global was USD 13.50 per kg until an amendment of 31 October 2024 increased the first year's quantity and cut the price to USD 11 per kg. No matching change was made to the contract with Astor.

Tripwire also sues in deceit and conspiracy and holds a freezing injunction obtained on 7 October 2025. The application was confined to the claim for breach of contract.

The issue

Astor admitted a delay in delivering 7 million kg up to October 2025 but denied any wider breach. Astor's case was that an implied term barred either party from insisting on performance the other had prevented, and that the fraud allegations and the injunction had left Astor unable to pay its Vietnamese supplier. It also counterclaimed for conspiracy to injure and relied on the counterclaim as a set-off.

Tripwire sought an interim payment of USD 48 million, its margin of USD 3 per kg on the two years' quantities, or in the alternative the USD 9.45 million advance.

The decision

The Judge started from facts that needed no mini-trial. For at least seven months before proceedings began there was no delivery, Astor made no attempt to acquire TNT for Tripwire, and by June 2025 Astor and Global had replaced Tripwire in the chain of supply.

The breach was therefore not delay, but non-delivery.Sir Clive Freedman, paragraph 37

Astor's point that Tripwire had never terminated did not help it. The loss had accrued by June 2025, months before the proceedings and the injunction.

In my judgment, the losses which are claimed did not depend on a termination on the part of Tripwire.Sir Clive Freedman, paragraph 32

The counterclaim had no real prospect against Tripwire. Two judges had found the fraud case arguable, three had upheld the injunction, and nothing suggested the claims were brought with the predominant purpose of injuring Astor.

The counterclaim not being a claim for a liquidated sum, there is no question of a legal set off.Sir Clive Freedman, paragraph 66

Equitable set-off failed under the test in Geldof Metaalconstructie NV v Simon Carves Ltd [2010] EWCA Civ 667: a cross-claim arising months after an established breach was not so closely connected with the claim that enforcing it alone would be manifestly unjust.

The interim payment failed at the first stage. The USD 48 million depended on setting aside the amended price, which raised the same or similar issues as the fraud case. At the amended price the margin was so thin, on Tripwire's own evidence, that the contract may have been loss-making. In Florida, Tripwire had blamed Global for defective end user certificates and delayed export certifications and had pleaded force majeure, which raised a real prospect that Global would not have paid in any event.

It is not a sufficient answer to say that the proceedings in different jurisdictions have to be contextualised by the particular allegations in that jurisdiction or by the particular issues.Sir Clive Freedman, paragraph 102

The same doubt defeated recovery of the advance as wasted expenditure: there was no irreducible minimum. Tripwire then sought to rely on its unjust enrichment claim, which it had kept out of the application for fear of an argument on election.

I am satisfied that it is not available at this stage for Tripwire to change the basis of the application and for the unjust enrichment claim to come in for consideration either through the front door of the first stage of the application or through the back door of the exercise of discretion.Sir Clive Freedman, paragraph 128

Although the discretion did not arise, the Judge said he would have rejected the argument that the freezing injunction gave Tripwire comfort enough, because an injunction is not security. Before hand-down HMRC issued a petition against Astor, listed for 11 November 2026, and the Judge refused to defer judgment.

Practical implications

A buyer who has paid in advance and received nothing can obtain judgment on liability without a trial, even against a seller that recasts the breach as delay and pleads a large counterclaim. An interim payment is a separate question: the court needs a sum it can safely assume will be recovered, and on a back to back sale that depends on proof of what the onward sale would have produced.

A statement of case in one jurisdiction will be read against the case run in another, and saying the pleadings are framed differently will not carry a summary application.

Tripwire South LLC v Astor International Limited, Astor Defence Limited and Henry Turnbull, [2026] EWHC 2646 (KB), High Court of Justice, King's Bench Division, case number KB-2025-003647. Judgment of Sir Clive Freedman, sitting as a Deputy Judge of the High Court, handed down on 16 October 2026 following a hearing on 28 July 2026. Summary judgment for the Claimant on its claim for breach of contract, with damages to be assessed; interim payment refused.