MA Fastmove Limited v Global Billpay Limited & Ors

Where co-defendants are alleged to be jointly liable for the same breach, the court should not finally determine the breach against one defendant while leaving it open against another whose evidence may affect that issue. The procedure should avoid a real risk of inconsistent findings and injustice.

For an out-of-time appeal, the three-stage approach applies: assess the seriousness and significance of the delay, consider the reason for it, and then determine whether justice requires an extension in all the circumstances. Serious delay and the absence of a good reason may be outweighed by a substantial risk of injustice, particularly where the appeal can proceed without material disruption.

Fastmove claimed damages from Billpay, FMC and Mr Salamat arising from an alleged shortfall under the Banknotes Agreement. In the first judgment, dated 14 November 2024, the High Court entered summary judgment against Billpay and FMC, treating FMC as jointly liable for Billpay’s breach, but adjourned the application against Mr Salamat.

After further pleadings and evidence, including evidence concerning Billpay’s Portal, the High Court dismissed the summary judgment application against Mr Salamat because triable issues remained. FMC sought permission to appeal out of time, arguing that the common breach issue had been improperly separated and that a later finding of no breach by Billpay would cause it injustice.

The Court of Appeal granted FMC permission to appeal and allowed the appeal. It set aside the judgment against FMC and dismissed Fastmove’s application for summary judgment against it.

1. Risk of inconsistent findings. The orders left open the possibility that Mr Salamat could contend at trial that Billpay had committed no breach, although FMC had already been held liable for that same breach. The Court of Appeal was not asked to decide whether Mr Salamat could challenge the earlier finding, and could not determine that issue on an appeal to which he was not a party. It therefore had to proceed on the basis that the challenge remained possible.
2. Improper bifurcation. The issues of Billpay’s entitlement to a commission and Mr Salamat’s genuine belief in that entitlement were practically linked. The evidence concerning the Portal could affect both issues. It was therefore wrong to make a final determination of breach against FMC while leaving the same issue open against Mr Salamat. That created a significant risk of injustice to FMC.
3. Extension of time. The principles in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, [2015] 1 WLR 2472 applied, and the three-stage test in Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926 was appropriate. The delay was serious and significant and there was no good reason for it. At the third stage, however, justice required the first judgment to be set aside. The risk of injustice to FMC was obvious, while adding FMC to the existing trial would add little cost or delay and could be accommodated within the April 2027 timetable.

• Court of Appeal (Civil Division): Granted permission to appeal out of time, allowed FMC’s appeal, set aside the judgment against FMC and dismissed the summary judgment application against it.
• High Court of Justice, Business and Property Courts in Birmingham, Circuit Commercial Court: In [2024] EWHC 2922 (Comm), entered summary judgment against Billpay and FMC for breach of contract, while adjourning the application against Mr Salamat. After further evidence, the application against Mr Salamat was dismissed because triable issues remained.