Glint Pay Ltd & Ors v Jason Daniel Baker & Anor

Mr Simon Gleeson :

1. On 18 August 2025 I handed down Judgment in this matter striking out the Claimants’ claim form and particulars and giving reverse summary judgment, on the basis that their claim had no real prospects of success. I adjourned that hearing on the basis that the parties required time to consider the issue of an appeal, and I set a timetable in the order made after the Judgment for written submissions to be made as to leave to appeal. I have now received a written application for leave to appeal, along with supporting written submissions from the Claimants, and submissions in response from the Defendants. These submissions were received within the times specified in the order.

2. This judgment sets out my grounds for refusing the application for leave to appeal. Otherwise unattributed references in square brackets herein are references to paragraphs of my Judgment.

3. One important procedural point is that the position of the Defendants at the hearing was twofold. The Claimants’ case required them to demonstrate good grounds for a successful challenge to the validity of the Administrators appointment. Their case in this regard turned on the construction of the charge document under which the Administrators were appointed. The Defendants raised two defences to this claim. One was that the Claimants’ arguments on the construction of the Charge were hopeless. The other was that, regardless of the outcome of this challenge, the Claimants were in any event estopped from challenging the validity of the appointment of the administrators by reason of their earlier submissions to the court. I found that the Claimants’ challenge to the Charge had no reasonable prosect of success [104]. However, because I had heard significant argument on the point, I also considered the estoppel point, and concluded that, even had the Claimants succeeded on their construction point, the Claimants would have failed on the estoppel point [101]. Thus, in order to convince me that their appeal has a “reasonable prospect of success”, I would have to be satisfied that they could succeed on both points. As it happens, I think they can succeed on neither.

4. I will deal with the grounds of appeal in order. Ground 1

5. The first ground of appeal is that I erred in law in treating the principles applicable to an application to strike out the claim form and particulars of claim under CPR rule 3.4(2) (on the grounds that they disclose no reasonable cause of action) as the same as those applicable to an application for reverse summary judgment under CPR rule 24.3. This is clearly wrong as regards the principles themselves – as Henderson J said in High Commissioner For Pakistan v The Nizam Of Hyderabad [2016] EWHC 1465, when confronted with an application to strike out under CPR 3.4(2) “… nobody submitted to me that there is any material difference between the test of "no real prospect" of success in Part 24 and "discloses no reasonable grounds for bringing or defending the claim" in rule 3.4(2)(a).” (at [17]).

6. I also note that at no point during the hearing did either side suggest that the question of whether the issue before the court related to strike-out or reverse summary judgement had any bearing on the particular issues considered, and it is somewhat surprising to see it raised for the first time as a ground of appeal.

7. I think that the specific point made by the Claimants is not in fact that there is a material difference between the two standards, but that there is a difference of approach between the two applications. In a strike-out application, the basis for the application must be the construction of the claim form itself, whereas in an application for summary judgment it may be permissible to consider matters of evidence (although not to conduct a mini-trial of such evidence).

8. The basis of the appeal in this regard is that I proceeded by addressing matters of evidence which I should not have done in a strike-out application. This could in theory be a valid ground of appeal if the Defendants’ application had been for a strike-out only, and not for both strike-out and reverse summary judgment. However, it was not. I would therefore be entitled to dismiss this ground on the basis that, even if it were established, it would not give rise to a “success” within the meaning of CPR 52.6(1)(a) in that it would not change the outcome of the litigation or the form of the order.

9. It may nevertheless be helpful to consider whether the argument is a real one. It clearly does not apply to the majority of the grounds of appeal, which are based on suggestions that I should have considered that there might be further evidence available, rather than that I had considered matters of evidence which I should not have done. I think that the only ground where this point arises is Ground 4, where it is suggested that I relied on a finding of “ordinary commercial practice” in reaching my decision. For the reasons given in para [22] below in my discussion of Ground 4, I do not think that this point has any substance. This ground of appeal therefore has no reasonable prospect of success. Ground 2

10. The second ground of appeal is that I erred in law in concluding that any material regarding the negotiating background to the Charge between the Claimants and the original lender was of no assistance to the process of construction of the Charge.

11. The issue here is that the Claimants were putting forward a construction of certain words used in the Charge (the “Information Provisions”, described in [12]) which was at variance with their apparent meaning, and involved a strained construction of those words. Their argument was that the construction for which they argued was supported by the fact that these words had been used in earlier security arrangements put in place between the same parties, where those security arrangements were of a different kind (fixed real estate charges rather than a general all purpose fixed and floating charges) and the words should therefore be construed to have the meaning which they were intended to have in those earlier charges.

12. I found that the words used had a plain meaning, which corresponded with commercial common sense and what one would ordinarily expect to find in a document of this kind [46]. It was therefore for the Claimants to show that they had a good arguable case that they meant something different. The Claimants’ argument in this regard was based on the fact that it might be possible at trial for them to show by evidence that, as between the original parties to the Charge (Brahma and the Claimants), it was agreed that the although the scope of the charge was expanded from a fixed charge over real estate to a general fixed and floating charge over all assets, the scope of the Information Provisions was to remain restricted to those assets which had previously been secured by the real estate charges. I noted that this seemed extremely unlikely, but that formed no part of my decision [45].

13. The key point as regards this issue is that, even if the Claimants could have shown that this was the clear intention of the parties as between the chargeor and the chargee at the time when the charge was entered into, this would have achieved nothing unless the assignee of the Charge was bound by that agreement.

14. My starting point here (at [25]) is the Judgment of Lewison LJ in Cherry Tree Investments v Landmain [2013] Ch 305 , where he said: “The reasonable reader would also understand that the parties had a choice about what they put into the public domain and what they kept private. He would conclude that matters which the parties chose to keep private should not influence the parts of the bargain that they chose to make public” (at [130]).

15. The effect of this principle is to prevent weight being given to private documents (and, a fortiori, private verbal agreements) collateral to the contract in question, even though they were known or reasonably available to the original parties. Instead, the admissible background is limited to that which any reader of the registered document would reasonably be supposed to know about: Cosmetic Warriors Ltd v Gerrie [2015] EWHC 3718 (Ch) at [27]. The effect of the application of this principle is that, even if the Claimants could show that there was a private agreement in place between the Claimants and the Chargee at the moment of creation of the Charge, the rights of an assignee of that Charge would not be limited by any such agreement, and the assignee would be entitled to rely on the written text.

16. The submissions made in support of the grounds of appeal argue that, where a private agreement is made between parties which is not disclosed on the face of a contract, neither assignability alone, nor registration alone, nor ignorance of any prior agreement alone, are complete bars to the use of such private arrangements in the construction of that contract. This may well be correct. However, the cumulative presence of all of these factors seems to me to make it impossible for the Claimants to establish at trial that an assignee of the Charge would be bound by the terms of any such private agreement between the chargeor and the chargee as against the chargeor.

17. I accept that Cherry Tree is not authority that such matters should be disregarded completely. However, on the facts of this case, it did not seem to me that there was any basis on which the existence of such a prior agreement, even if it could have been proved, would have been sufficient to persuade a trial court to interpret the clear words of the charge in a way inconsistent with commercial practice and common sense [46].

18. I therefore do not accept that the existence of such an agreement, even if it could be shown, would have any effect on the conclusion reached as to the construction of the Charge. This ground of appeal therefore has no reasonable prospect of success. Ground 3

19. Ground 3 consists of a challenge to my finding that the use of the words “location, condition, use and operation” had a clear meaning. The argument put forward is that, if further evidence of facts had been obtained, this might have been challenged.

20. This argument is hopeless on a number of grounds. First, as I said in [56], even the narrowest construction of these words as put forward by the Claimants did not completely undermine the validity of the request for information actually made and, since it is accepted that no response at all to the request was ever given, the challenge would not, even if successful, disturb the finding that there was an event of default under the Charge. Second, although the Claimants may be correct in saying that further information may be found and may be relevant, that information must be wholly within their possession, since it is information relating to negotiations to which they were a party. A party cannot defeat a summary judgment application by asserting the possibility of information which it itself has whilst refusing to say anything about the nature of that information. This ground of appeal therefore has no reasonable prospect of success. Ground 4

21. The fourth ground of appeal is that I was wrong to consider that the meaning of the words “location, condition, use and operation” did not imply a restriction of the power to obtain information in respect of charged assets. I pointed out as part of my discussion of this point that it would be contrary to ordinary commercial practice for a floating charge holder to confine his information rights to fixed assets only (at [45]). The Claimants say (correctly) that there was no evidence as to ordinary commercial practice before me, and that the fact that the agreement had been drafted between lawyers meant that it could be assumed that it was not intended to reflect ordinary commercial practice in any event.

22. I did not rely on any particular factual finding as to ordinary commercial practice for any part of my decision. My finding was that the term as drafted appeared to “give the lender rights of information as to the assets which he is funding, and which constitute his security” ([45]), and that this is exactly which one would expect to find in a typical charge document, and that this, applying the principles set out by Lord Hodge in Wood (cited in [26]), supported the construction of the Charge advanced by the Defendants.

23. The Claimants’ submissions in support of this ground also suggest that I should have taken into account the fact that the Chargee might not have required these rights because of the alternative rights available to them under s.431 of the Companies Act 2006 to financial information, and the right contained in the Charge for them to attend board meetings. If this argument had been put forward at trial (which it was not) I would have rejected it – the Chargee unquestionably did have such rights, but they do not provide any kind of substitute for a right to require information about the state of the assets subject to the charge.

24. This ground of appeal therefore has no reasonable prospect of success. Ground 5

25. It is suggested that I erred in concluding that any response or lack of response to requests for information in this case unarguably constituted a breach of the Information Provisions and/or a default permitting the appointment of the Defendants as administrators. The Claimants say that there could be evidence to be produced at trial which shows that the request made was not in fact valid, such that the failure to respond to it did not constitute an Event of Default under the Charge.

26. It is not clear to me how this argument could be made. The terms of the Charge are clear (and it was not disputed at trial) that a breach of the obligation to provide information constituted an event of default. It was accepted by both parties that no response of any kind was in fact given to the request made [13].

27. I deduce from the submissions of Mr Marshall KC provided in support of the grounds of appeal that the issue he seeks to raise here is that the terms of the e-mail dated 15 July were not in fact a valid request for the information prescribed in the Information Provisions. I think that this is an allusion to the fact that the e-mail signature block described the person making the request, Mr Fergusson, as a partner in Nimoi Holdings, whereas the actual Chargee was Niven. However, since it is not disputed that Mr Fergusson was at that time the sole director of Niven, and it was confirmed to the Chargeor that he was acting in that capacity when he sent the e-mail (see [52]), I do not see that this argument has any hope of success. Ground 6

28. The sixth ground is that I erred in concluding that the exercise of the power of appointing the Defendants was for a proper purpose. I think it is important to note that what I found was not that the Defendants had exercised the power for a proper purpose, but that the Claimants had no reasonable prospect of showing that the Defendant’s purpose was so improper that the court should decline to recognise its exercise (at [74]).

29. The Claimants say that this conclusion was not open to me in that they had pleaded a reasonable cause of action and where there might be further evidence that had a bearing on the matter.

30. In fact, I do not think it was open to me to come to any other conclusion. In Re Aartee Bright Bar (cited in [73]) it was held that it was entirely proper for a chargee to exercise a power to appoint an administrator for the purpose of enabling an independent office holder to take control of the assets. Since it is not disputed that that is exactly the object which the Chargee was seeking to achieve in this case, I cannot see that I have any basis for departing from that ruling. This ground of appeal therefore has no reasonable prospect of success. Ground 7

31. The seventh ground is that I erred in law in holding that an implied term, restricting the exercise of the power of appointment, of the type described by the Supreme Court in Braganza v BP Shipping Ltd [2015] UKSC 17 did not arise in connection with the exercise of the power of appointment in this case.

32. Braganza is authority that a discretionary power conferred on one party to an agreement must, in certain circumstances, be exercised honestly and in good faith, and must not be abused (per Baroness Hale [17] to [31]). It is clear that such an implied term does not arise as regards a unilateral right given to a chargee (such as a right to terminate) (I cite the authorities for this position in [81] to [84]). The Claimants argue that these authorities apply only to a right to terminate, and do not apply to a power to request information which arises during the course of a charge, since the exercise of a right to terminate that involves no co-operation or involvement of the other party and is entirely unilateral in nature, whereas a right to provide information requires co-operation from the chargeor. This is, I think, simply wrong – the exercise of a right to require information is every bit as unilateral as the exercise of a right to terminate. In each case, the exercise of the right places certain obligations on the Chargee, but in neither case is the position analogous to the sort of position envisaged in Braganza , where the decisions affects the rights of both parties to the contract, and where the decision-maker has a clear conflict of interest.

33. I therefore do not think that it is in any way arguable that a Braganza duty on a chargee in deciding whether or not to exercise a power under the charge to appoint an office-holder. This ground of appeal therefore has no reasonable prospect of success. Ground 8

34. The eight ground is that the Claimants say that paragraph [93] of the judgment constitute a finding that the Claimants were in some way bound by the doctrine of res judicata in respect of the decision ICC Judge Prentis on the Defendants’ remuneration application. It does not. The relevant section of the judgment ([93]) reads as follows. “It seems to me to be entirely clear that the Claimants would be estopped per rem judicata from denying that they were liable to pay the administrators their costs as awarded by ICC Judge Prentis, and they do not dispute that. The issue, however, is that the Defendants say that by recognising that the administrators are entitled to receive their fees as administrators under Rule 18.23, they have in fact accepted that the administrators are validly appointed as such, and cannot now challenge that appointment.”

35. This is not a finding of res judicata , and the Claimants cannot appeal against a finding which I did not make. This ground of appeal therefore has no reasonable prospect of success. Ground 9

36. The ninth ground is that I held that the Claimants’ bringing of this case constitutes an abuse of the process of the court. This finding was based on the fact that the Claimants, having presented one position to a court, and the court having made an order in reliance on that position, now take a different position in these different proceedings. Zacaroli LJ in in Malik v Malik [2024] EWCA Civ 1323 at [36] made clear that this fact pattern should be considered to be an abuse of the process (the authorities are set out in [97 - 100]).

37. The reason that I took this view was that, having supported the making of an order which could only have been made if the Defendants were validly appointed, it is an abuse of process for the Claimants now to bring a claim whose fundamental basis is that they were not. It would have been entirely open to the Claimants to raise the issues that were before me in those earlier proceedings, but they chose not to do so. It is therefore too late for them to try to raise them now.

38. It was of course argued that the determination of this matter was a fact sensitive one requiring full consideration of all the circumstances after having had proper disclosure and witness evidence, and that here was insufficient material before the court to come to any final conclusion summarily. However, there was and is no indication as to what sort of facts might be found which would be relevant to this issue. This ground of appeal therefore has no reasonable prospect of success. Further ground

39. A point which was made in submissions (although it is not found in the grounds of appeal themselves) was that there are two issues arising out of this litigation which can be said to be matters of uncertain and possibly evolving law. One is the extent to which a chargee is constrained in his ability to exercise powers granted to him by a charge document without being subject to limitation by an implied Braganza -like term. The other is the extent to which the parties to an agreement which has been assigned are subject to a pre-existing agreed variation of that agreement where the variation was agreed between the assignor and the counterparty, but where the variation does not appear on the face of the agreement and is not known to the assignee.

40. As regards these issues the Claimants say that I should not have struck out any part of the claim which related to an area where “the law is in a state of development”. This latter point was said to be supported by the decision of Peter Gibson LJ in Hughes v Colin Richards & Co. [2004] EWCA Civ 266 where he said (at [22]): “I start by considering what is the correct approach on a summary application of the nature of Mr. Richards's application at this early stage in the action when the pleadings show significant disputes of fact between the parties going to the existence and scope of the alleged duty of care. The correct approach is not in doubt: the court must be certain that the claim is bound to fail. Unless it is certain, the case is inappropriate for striking out (see Barrett v Enfield London Borough Council [2001] 2 AC 550 at p. 557 per Lord Browne-Wilkinson). Lord Browne-Wilkinson went on to add: “[I]n an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out.”

41. This is clearly correct. However, the issue which it raises in this context is as to whether the law in respect of either of these issues is in the sort of state of development which Lord Browne-Wilkinson envisages.

42. I do not see that this dictum has any relevance in this context. It should not be possible to proof a claim against strike-out simply by pleading a disputed area of law. The mere fact that a claim contains the suggestion that the facts give rise to a Braganza-type duty (or, for example, alleges that a contract is relational) does not and must not mean that it should automatically proceed to trial.

43. I therefore refuse permission to appeal on all of the grounds put forward.