MA Fastmove Limited v Global Billpay Private Limited & Ors

Summary judgment may be granted where the court has all necessary evidence to determine a short point of construction and the opposing case has no realistic prospect of success. A contractual framework may impose a joint and indivisible obligation on parties described as suppliers, even where they divide performance between themselves. An indemnity or primary-liability clause may give the claimant an additional remedy against one party without releasing another party from its own liability.

Directors are generally not personally liable for procuring their company’s breach when acting bona fide within their authority. Personal liability may arise where additional features, such as dishonesty or breach of personal duties, are properly pleaded. The court should exercise caution before determining dishonesty summarily and should permit a proper amendment where the factual case is powerful but inadequately pleaded.

Fastmove sought summary judgment against three defendants arising from a banknote collection, foreign-exchange and remittance arrangement. The first defendant, Global Billpay, did not acknowledge service or participate. FMC Trading defended the application, principally contending that it had acted only as cash collector and was not responsible for remitting funds. Ali Salamat, a director of Global Billpay, opposed the claim that he had personally procured breaches of contract and trust.

The court considered whether the written agreement imposed joint obligations on Billpay and FMC, whether Billpay could rely on alleged additional charges and a purported float, whether the evidence established breach of trust, and whether the claim against Mr Salamat was sufficiently pleaded for summary determination.

1. Permission and summary-judgment approach. Permission was granted to apply before defences had been filed because concerns about international enforcement of a default judgment provided a good reason under Civil Procedure Rules 1998, Part 24.4(1). The court applied the principles in Easyair Limited v Opal Telecom Limited [2009] EWHC 339 (Ch): a realistic prospect is more than arguable; the court must avoid a mini-trial; and it may decide a short issue of law or construction where the evidence is sufficient and the parties have had a proper opportunity to address it.
2. Billpay. The Banknotes Agreement was a framework for contracts made with either or both suppliers. The relevant orders were placed with Billpay and FMC. The agreement imposed an indivisible obligation to convert the banknotes, credit the customer account and make instructed payments. The division of functions between the defendants did not alter their contractual responsibility. Summary judgment was therefore entered against Billpay for breach of contract and breach of trust.
3. Alleged additional charges, a 10% float, and other deductions conflicted with the agreement’s express charging, entire-agreement, variation and waiver provisions. They provided no realistic defence.
4. FMC. FMC was a joint contractual obligor. Clause 8 gave Fastmove an additional remedy against Billpay and did not waive or limit Fastmove’s rights against FMC. Judgment was entered against FMC for breach of contract. The breach-of-trust claim against FMC was adjourned because there was a real prospect that issues concerning its control of the money and the timing of any trust obligation required further consideration.
5. Suspicion that Fastmove’s business might facilitate illegality did not amount to another compelling reason for trial. There was no evidence of illegality or wrongdoing.
6. Mr Salamat. The general rule in Said v Butt [1922] 3KB 497 protects a director acting bona fide and within authority. Dishonesty or breach of personal duties may constitute an exception. The claim alleged knowledge that Billpay was acting in breach, but did not expressly plead dishonesty, lack of bona fides, or breach of duties owed to Billpay. The application against Mr Salamat was adjourned with permission to restore. Fastmove was permitted to amend within 28 days and Mr Salamat was given 28 days thereafter to serve a defence and evidence.