Nexedge Markets Limited v Trex Global Limited

Summary judgment may be granted where the defence has no real prospect of success and no other compelling reason for trial. The court need not accept factual assertions at face value, particularly where they are unsupported by admissible evidence and could have been addressed by witnesses with direct knowledge.

Foreign insolvency proceedings do not automatically prevent an English court from determining liability under an English law-governed debt. The Gibbs rule protects a creditor who has not submitted to the foreign insolvency process. A case management stay to await foreign proceedings is exceptional and requires rare and compelling circumstances. A contractual indemnity for enforcement costs must be established separately for each agreement. Where it is not established for part of the claim, the court may make an appropriate reduction in a summary costs assessment.

Nexedge Markets Limited sought summary judgment for repayment of two loans totalling US$1.5 million advanced to Trex Global Limited. The first loan was documented in writing and governed by English law. The second was alleged to have been agreed orally on materially similar terms.

Trex admitted receipt of the money but raised undeveloped arguments concerning repayment, conflicts of interest, possible invalidity under Mauritian law, potential counterclaims and the effect of Trex’s liquidation in Mauritius. Trex did not attend the hearing, and its liquidator declined to participate. The issues were whether the court should proceed, whether the pleaded or intimated defences had a real prospect of success, and whether a stay or foreign insolvency principles prevented judgment.

1. Proceeding in the defendant’s absence. The court proceeded because Trex and its liquidator had notice of the hearing and materials, no adjournment or stay had been sought, and the claimant had presented the matter fairly. Questions concerning the effect of the Mauritian insolvency process on the English proceedings were matters for the English court as lex fori. The court was properly seised and jurisdiction had not been challenged.
2. Foreign insolvency. Recognition under the Cross-Border Insolvency Regulations 2006 had not been sought. Section 426 of the Insolvency Act 1986 was unavailable because Mauritius was not within the relevant statutory scheme. The principle of modified universalism did not require a stay. The claimant benefited from the Gibbs rule because the debt was governed by English law and the claimant had not submitted to the Mauritian insolvency proceedings.
3. Defences and summary judgment. Under Easyair Limited v Opal Telecom Limited [2009] EWHC 339, a defence must be more than merely arguable and may be rejected where the factual assertions have no real substance. The first loan, the advances and non-repayment were not materially disputed. The challenge to the second loan was not positively pleaded. In any event, a loan without agreed repayment terms was immediately repayable or, alternatively, repayable on demand. The alleged Mauritian law defences were only described as potential, were not developed, and did not provide a proper basis for a stay.
4. Stays. Applying Athena Capital Fund SICA-FIS SCA v Secretariat for the Holy See [2022] EWCA Civ 1051, a case management stay to await foreign proceedings requires rare and compelling circumstances. None existed. There were no proceedings in Mauritius, no indication that proceedings would be brought, and Trex had submitted to the English jurisdiction. Potential counterclaims did not prevent judgment.
5. Result and costs. Summary judgment was entered for US$1.5 million. The contractual indemnity was established for the first loan but not for the second. Applying the approach discussed in Macleish v Littlestone [2016] EWCA Civ 127, the court summarily assessed costs after a 5% reduction for the second-loan issue and a further 20% reduction for excessiveness, ordering payment of approximately 75% of the claimed total within 14 days.

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