Akintunde Giwa v JNFX Limited & Ors

Summary judgment may be granted on a fraud-based claim where the defendant has no realistic prospect of defending it, but the court must approach the application with considerable caution. Statements of present intention can constitute factual representations founding deceit. For an employer or principal to be liable for an agent’s deceit, the representation must have been made within the agent’s actual or ostensible authority. Ostensible authority depends on a representation by the principal, intended to be and in fact relied upon, that the agent has authority to enter the relevant transaction. Website terms are not incorporated merely because they are mentioned on the website; more direct notice or adoption is required.

The claimant sought summary judgment against JNFX Limited on a deceit claim arising from foreign-exchange transactions, and against Ashay Mervyn and Frontier Financial Technologies Limited following their failure to participate in the proceedings. The claim concerned substantial Naira payments made for dollar transfers which were not completed.

JNFX disputed Mr Mervyn’s deceit, his ostensible authority to bind JNFX, the incorporation of JNFX’s standard terms, and the amount recoverable. The court also considered whether default judgment should be entered against the non-participating defendants.

1. Summary judgment. Applying [2009] EWHC 339 (Ch), as approved in [2009] EWCA Civ 1098, and the caution required in fraud cases, the court held that JNFX had no realistic prospect of defending the deceit claim. The documentary evidence disclosed no obvious conflict of fact and there was no reasonable basis for believing that disclosure or cross-examination would alter the outcome.
2. Deceit. Statements that money would be used for a specified purpose and that payment would be procured were statements of present intention and therefore statements of fact capable of founding deceit. The evidence made alternative explanations for the repeated shortfalls and admissions of lying fanciful. The claimant was entitled to rely on the representations.
3. Ostensible authority. The applicable test was the classic formulation in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480. JNFX’s conduct, including permitting Mr Mervyn to use its email system and titles, and failing to disclaim his claimed role when aware of his communications, overwhelmingly established ostensible authority. Aramco Trading Fujairah FZE v Gulf Petrochem FZC [2022] EWHC 288 (Comm) was supportive. The case was materially different from Hockley Mint Ltd v Ramsden [2019] 1 WLR 1617.
4. Standard terms and quantum. A mere reference to terms on a website was insufficient to incorporate them. JNFX had no realistic prospect of proving the claimed contractual credit or a defence based on its standard terms.
5. Summary judgment was entered against JNFX and Mr Mervyn for the deceit claim in the sum of Naira 7,914,209,196.50, with interest. JNFX’s defence was struck out to that extent. The contractual claim proceeded to trial. Summary judgment was entered against Frontier on deceit, while default judgment was entered against Mr Mervyn and Frontier on the remaining claims.