MA Fastmove Ltd v Global Billpay Private Ltd & Ors

Factual and Procedural Background

This is an appeal from summary judgment proceedings concerning a written contract dated 14 June 2022 (the "Banknotes Agreement") between Company A (Claimant/Respondent), Company B (First Defendant), and Company C (Second Defendant/Appellant). Company A arranged the collection and transport of large quantities of sterling banknotes from the UK to Singapore for conversion to US dollars, which were credited to an account operated by Company B. Company C, a licensed money changer and sole proprietorship in Singapore, counted and verified the banknotes on arrival and effected the foreign exchange at rates agreed by communications among representatives of the parties. Between 1 July and 20 September 2022 approximately £35m was sent and converted, with an asserted overall shortfall of US$1,979,703. Company A sued to recover that shortfall, alleging breach of contract and breach of trust against Company B and Company C, and that the Third Defendant (the sole director of Company B) procured those breaches.

At first instance Judge Worster entered summary judgment for Company A against Company B and Company C, finding joint contractual liability of the Suppliers under the Banknotes Agreement and a trust in favour of Company A against Company B. The claim against the Third Defendant was adjourned for further pleadings and evidence; when restored the judge found that the Third Defendant's further evidence raised triable issues and dismissed summary judgment against him. Company C sought permission to appeal out of time from the summary judgment entered against it. The Court of Appeal heard the rolled-up application for permission to appeal and substantive appeal.

Legal Issues Presented

1. Whether the judge was wrong to grant summary judgment against Company C before resolving the application against the Third Defendant (i.e. whether bifurcation produced an injustice to Company C).
2. Whether permission to appeal should be granted notwithstanding the delay in seeking permission (application for extension of time), applying the principles in R (Hysaj) and the Denton three-stage test.
3. Whether, as a consequence, the judgment against Company C should be set aside and the summary judgment dismissed so that Company C can participate in the trial between Company A and the Third Defendant.

Arguments of the Parties

Appellant's (Company C) Arguments

• It did not contend that, on the material before the first judgment, it had a real prospect of defending the claim; rather it argued that the judge erred in bifurcating the summary judgment process by entering final judgment against Company C while allowing further evidence from the Third Defendant which could materially affect the breach issue.
• Bifurcation denied Company C the opportunity to rely on evidence subsequently adduced by the Third Defendant (including documentary material said to bear on entitlement to a commission) and thus created a real risk of prejudice and injustice if the trial later concluded there was no breach by Company B.

Respondent's (Company A) Arguments

• The judge's second judgment did not finally decide the breach issue against the Third Defendant but only held that a triable issue existed as to the Third Defendant's honest belief regarding an alleged commission; the finding of breach against Company B in the first judgment remained final.
• Setting aside the first judgment would be prejudicial to Company A, the appeal was substantially out of time, and Company C's delay risked disrupting the trial timetable.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal analysed the procedural sequence and the interrelationship of the issues. It observed that the judge's first judgment had finally determined that Company B had breached the Banknotes Agreement and that Company C was jointly liable as a Supplier. The judge then permitted the Third Defendant to adduce further evidence and, on restoration, dismissed summary judgment against him because the new evidence raised triable issues about entitlement to a 5% commission and the genuineness/credibility of supporting documents (the "Portal").

The appellate court concluded that bifurcating the summary judgment process in this way was wrong in the circumstances because the issues were inextricably linked: evidence the Third Defendant might legitimately adduce about the Portal could undermine the factual basis for the finding of breach (and thus Company C's liability). That created a real risk of injustice to Company C, which had no opportunity to benefit from the Third Defendant's evidence before final summary determination against it.

On the question of delay, the court applied the Denton three-stage test as framed in R (Hysaj). It found the nine-month delay to be serious and that there was no adequate explanation for the delay once the second judgment had been delivered. Nevertheless, at the third stage the court concluded that justice required permitting the late appeal: the potential injustice to Company C if trial concluded there had been no breach outweighed Company C's delay. The court also noted that including Company C in the trial should not significantly add to cost or delay and that case management could ensure readiness for the existing trial timetable.

Holding and Implications

Appeal allowed; judgment against Company C set aside

Holding: The Court of Appeal granted permission to Company C to appeal out of time, allowed the appeal, set aside the summary judgment entered against Company C, and dismissed the application for summary judgment against it.

Implications: The immediate effect is that Company C will be reinstated into the proceedings and the question of breach (as between Company A and the Third Defendant and, consequently, Company C's liability) will proceed to trial. The court did not purport to establish any broader new legal principle; the decision remedies the specific risk of injustice arising from the bifurcation and late emergence of material evidence.