Background
MA Fastmove Limited, a Birmingham-based cross-border payment company regulated by the FCA, arranged for large quantities of sterling banknotes to be transported to Singapore, converted into US dollars, and paid out to nominated beneficiaries. Between July and September 2022, it shipped approximately £35 million in 22 consignments under a written agreement (the “Banknotes Agreement”) with two Singapore entities: Global Billpay Private Limited (“Billpay”), which held the converted funds and made the onward payments, and FMC Trading, a licensed money changer whose role was to count, verify, and convert the banknotes on arrival. Of the US $41.18 million that should have been remitted, only US $39.45 million reached the nominated clients, leaving a shortfall of approximately US $1.98 million. Fastmove commenced proceedings in January 2023 to recover that shortfall.
At a summary judgment hearing in November 2024, HHJ Worster entered judgment against both Billpay and FMC for breach of contract. Billpay’s defence — that an oral agreement entitled it to a 5% commission — was rejected because the Banknotes Agreement required any charges beyond those in the written orders to be agreed in writing and contained an entire agreement clause. FMC, though its sole proprietor Mr Jalaludeen was found to have acted honestly, was held jointly liable as a “Supplier” under the agreement. The judge simultaneously adjourned the summary judgment application against the third defendant, Ali Salamat (Billpay’s sole director), to allow Fastmove to particularise a dishonesty case and Salamat to file a defence and further evidence.
When the Salamat application was restored, Salamat produced new evidence — including WhatsApp messages and records from what he called Billpay’s “Portal” — purporting to show that the orders expressly provided for a 5% fee, contradicting his earlier position that the commission agreement was entirely oral. The judge expressed scepticism about the genuineness of those documents but, applying the summary judgment threshold, found a triable issue and dismissed the application against Salamat. FMC applied for permission to appeal the original November 2024 judgment, more than nine months out of time.
The Court’s Holding
The Court of Appeal (Males LJ, with whom Holgate LJ and Sir Geoffrey Vos MR agreed) granted permission to appeal out of time and allowed the appeal, setting aside the summary judgment against FMC and dismissing the summary judgment application against it. The court held that the judge had been wrong to bifurcate the summary judgment application by entering final judgment against FMC while leaving the underlying breach issue open as against Salamat. Because FMC’s liability rested entirely on being jointly liable for the same breach as Billpay, there was a real risk that a trial between Fastmove and Salamat could produce a finding that no breach had occurred — a result that would be a significant injustice to FMC, which had itself acted honestly throughout.
On the extension-of-time question, the court applied the three-stage Denton test (as directed for appeal extensions by R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472). The nine-month delay was serious and significant (stage one), and no good reason was advanced for it, at least after the second judgment was delivered (stage two). Nevertheless, at stage three the court concluded that the interests of justice clearly favoured granting the extension: the injustice to FMC — an honest party facing liability for a breach that may ultimately be found not to have occurred — outweighed Fastmove’s interest in the finality of the first judgment, particularly given that adding FMC to the existing trial would not materially increase its cost or length.
The court also noted that the two issues in the Salamat proceedings — whether there was a breach at all, and whether Salamat had an honest belief in Billpay’s entitlement to a commission — were in practice inextricably linked on the facts: if the Portal documents were genuine they might provide a defence on both issues; if they were not genuine it was difficult to see how any honest belief could be maintained. The judge had treated them as more separable than they truly were.
Key Takeaways
- A court should not enter final summary judgment against one defendant on a joint liability issue while leaving the same underlying issue open for determination at trial against a co-defendant, where an adverse finding at trial could render the summary judgment unjust.
- An extension of time to appeal will be granted outside the Denton good-reason stage if the third-stage interests-of-justice analysis strongly favours it — here, an honest party’s potential exposure to liability for a breach that may never be established at trial was decisive.
- Under a contract with a written-variation clause and an entire agreement provision, an oral commission arrangement will not displace the written fee structure, even where the alleged oral agreement is supported by a director’s evidence.
- Where two issues in related proceedings are factually inextricably linked (here, the existence of a breach and an honest belief in entitlement to a commission), treating them as entirely separate for procedural purposes risks procedural and substantive injustice.
- The finality of a judgment, while an important interest, will not override a compelling justice argument — especially where the prejudiced party acted honestly and including it in an existing trial will cause little additional disruption.
Why It Matters
This decision is a practical warning against piecemeal summary judgment in multi-defendant litigation where the defendants share joint contractual obligations. When liability against one defendant is entirely derivative of a breach that remains contested as against another, courts must either resolve the breach issue comprehensively or defer judgment until all connected applications have been determined. Granting summary judgment prematurely can leave an honest party bound by a finding that is later contradicted at trial — with no opportunity to participate in, or benefit from, the evidence that changes the outcome.
The case also illustrates the flexibility that remains in the Denton framework even for very late appeals. Where the injustice of maintaining a judgment is sufficiently stark — particularly when the party affected acted in good faith and the appeal can be absorbed into existing trial proceedings — the third-stage balancing exercise can override significant procedural default. Practitioners should take note that delay alone will not save a judgment that creates a genuine risk of irreconcilable findings across related proceedings.