BFS Group Ltd (t/a Bidvest Logistics) & Ors v Foley & Ors

Summary judgment is appropriate only where the claim or defence has no real prospect of success and there is no other compelling reason for a trial. The court must assess the case as a whole, while avoiding a mini-trial or factual findings on incomplete evidence. Complex allegations of bribery, disclosure, conflicts of interest, corporate attribution and fraudulent invoices ordinarily require disclosure and trial where credible explanations remain possible. A first-instance observation on the facts of another case should not be treated as an all-embracing legal principle. The court may also refuse summary judgment in its residual discretion where granting liability-only judgment would risk unfairness or disrupt efficient trial preparation.

The claimant companies sought summary judgment on liability against several defendants in proceedings alleging bribery, secret profits and fraudulent misrepresentations. The application concerned alleged payments to or for the benefit of a former managing director, payments made through connected companies, payments for storage and financing arrangements, and four invoices said to contain false narratives.

The defendants disputed the allegations and relied on incomplete disclosure, factual explanations for the transactions, possible knowledge within the claimant group, and issues concerning corporate attribution and net benefit. The central question was whether the defendants had no real prospect of successfully defending the selected claims at trial, or whether there was another reason why those issues should be tried.

1. Application dismissed. The claimant had not established that the defendants’ cases had no real prospect of success.
2. Under CPR Part 24, the court assesses whether the relevant claim or defence has a real, rather than fanciful, prospect of success. The exercise is one of judgment and discretion. It is not a trial or fact-finding exercise. The court must avoid a mini-trial on pleadings and documents, particularly in a complex case where disclosure and oral evidence remain material. Questions of uncertain law should ordinarily be decided on actual findings of fact rather than hypothetical facts.
3. The alleged bribery issues could not fairly be resolved summarily. There were credible, although disputed, explanations that payments were part of commercial arrangements, that liabilities of the claimant group were being discharged through intermediaries, and that relevant senior personnel knew of the arrangements. Whether disclosure was sufficient, whether a conflict of interest existed, and whether the payments benefited the former managing director were fact-sensitive questions for trial.
4. The observation in Ross River Limited, Blue River LP v Cambridge City Football Club Limited that disclosure by a managing director generally had to be made to all directors or a properly convened board was not treated as an all-embracing principle. It was capable of being a conclusion on the particular facts. A less stringent rule might apply where disclosure was made by the payer or where the recipient was not the company’s leader.
5. The argument that a bribe requires a net benefit was left open. There could be circumstances in which a recipient obtained no benefit, and none was objectively intended, so that the payment was not a bribe. The issue could not be resolved on the limited material before the court.
6. Payments to companies associated with a fiduciary could not automatically be treated as payments to the fiduciary. The limited circumstances in which the corporate veil may be pierced, and the possible application of ordinary agency principles, raised issues requiring evidence.
7. Even if summary judgment had otherwise been appropriate, the court would have refused it in its residual discretion. The incomplete disclosure, the unrepresented first defendant’s position, the risk of prejudicing the forthcoming trial, and the procedural complications of liability-only judgment and an interim payment justified allowing the claims to proceed to trial.

First-instance decision. No prior appellate decision is stated in the judgment.