Sanlam General Insuruance Ghana Limited v Sustainable Growth Fund II SCSP SICAV-SIF

Summary judgment is appropriate where the defendant has no realistic prospect of successfully defending the claim and no other compelling reason for trial exists. A technical challenge to an agent’s authority may fail where the evidence, viewed as a whole, supports a holding out that the agent had authority to bind the principal. Relevant conduct includes the principal’s failure to challenge the agent’s authority over an extended period and the agent’s repeated execution of related documents.

Part 36 consequences may apply to a judgment denominated in a foreign currency. Interest and costs uplifts should be calibrated to the currency of the judgment and the applicable commercial court practice.

The claimant sought judgment for USD 1 million said to be due under a corporate counter-guarantee connected with a promissory note. The defendant did not attend the hearing and relied on documents asserting that it lacked separate legal personality, could act only through its general partner, and had not been validly represented when the relevant documents were signed.

The application was made in the alternative under CPR 12.3, CPR 3.4 and CPR rule 24.3. The central issues were whether the defendant had a realistically arguable defence based on legal personality or want of authority, and what costs and Part 36 consequences should follow.

1. Disposition. The claimant was entitled to summary judgment. The defendant’s asserted defences did not disclose a real prospect of success, and no other compelling reason for trial was shown.
2. Legal personality. The evidence of Luxembourg law established that, although an SCSP lacked separate legal personality from its partners, it had its own registered office and could issue proceedings in its own name and be sued. The point therefore provided no realistically arguable defence.
3. Ostensible authority. The governing principles were drawn from Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2QB 480, as summarised in Armagas Ltd v Mundogas (The Ocean Frost) [1986] 1 AC 731. The question was whether the principal had represented, by words or conduct, that the agent had authority, and whether the claimant had acted on that representation.
4. The issue was assessed on the whole evidential picture, not merely the wording beneath the signature. The defendant had not explained why Ms Wick repeatedly signed the promissory note, counter-guarantee, acknowledgments and correspondence, often copied to other officials, without any earlier challenge to her authority. That evidence made the alleged want of authority no more than fanciful. The general principles stated in Vegesentials Limited & Ors v Shanghai Commercial & Savings Bank Limited [2024] EWHC 7 (Ch) were consistent with that approach.
5. Costs and Part 36. Indemnity costs were not justified for the period before expiry of the claimant’s Part 36 offer merely because the defence was unarguable. After expiry, the claimant was entitled to standard-basis costs before 22 November 2024 and indemnity costs thereafter, together with the applicable Part 36 enhancements.
6. Because the judgment was in US dollars, interest on the judgment sum was awarded by reference to the US dollar prime rate, with a 7.5% uplift. Interest on post-offer costs was awarded at 10% above base rate. The judgment sum was to be notionally converted into sterling when calculating the monetary uplift under Part 36.