ACI Worldwide (EMEA) Ltd. v National Organisation Systems Technical & Trading Co Ltd.

Summary judgment may be granted where the opposing case has no real, as opposed to fanciful, prospect of success. A party’s failure to challenge alleged contractual breaches during the contractual remedy period may trigger a contractual right to terminate. A distributor that purchases products for resale and bears financial risk is not thereby a commercial agent entitled to the protections applicable to agents. Any entitlement to reasonable notice would ordinarily give rise to a claim in damages, rather than prevent termination. Once termination is established, post-termination contractual obligations may be enforced by declaration and appropriate consequential orders.

The claimant distributed banking and financial-services software. The defendant had acted as its distributor in Greece under a written agreement governed by English law and subject to the exclusive jurisdiction of the English courts.

The claimant alleged that the defendant had committed remediable breaches, served notice requiring them to be remedied, and terminated the agreement after the contractual period expired without an effective response. The defendant argued that the original agreement had been superseded by a Greek-law contract, and that statutory protections for commercial agents prevented immediate termination. The claimant sought summary declarations concerning termination, the defendant’s loss of distributorship rights, and its post-termination obligations.

1. Summary judgment. The defendant’s contention that the contractual relationship had secretly changed in 2000, despite not being recorded, mentioned or raised when termination was invoked, was fanciful for the purposes of Part 24. There was no real prospect of establishing that the original agreement had been superseded.
2. Contractual termination. Clause 10.3.1 permitted termination where a party committed a remediable breach, received written notice requiring remedy, and failed to remedy the breach within 30 days to the other party’s satisfaction. The claimant had served the required notice. The defendant did not challenge the allegations or remedy them within the contractual period. The right to terminate was therefore triggered.
3. Choice of law and jurisdiction. The agreement remained governed by English law and subject to the exclusive jurisdiction of the English courts. Arguments based on possible enforcement difficulties before a Greek court were irrelevant to the declarations sought in England.
4. Commercial agency protections. The defendant was a distributor, not a commercial agent. It purchased products for resale and bore financial risk. The agreement gave it no continuing authority to negotiate or conclude sales on the claimant’s behalf. The commercial-agency legislation therefore did not prevent termination.
5. Even if reasonable notice had been required, the remedy for failure to give it would be damages, not continuation of the distributorship. Termination also brought the clause 11 post-termination obligations into effect.

The limited declarations sought were granted. The remaining applications were adjourned.