Fxcm Securities v Digby
| Jurisdiction | England & Wales |
| Judge | Mr Justice Andrew Smith |
| Judgment Date | 15 February 2013 |
| Neutral Citation | [2013] EWHC 762 (Comm) |
| Docket Number | Claim No: 2012-1162 |
| Date | 15 February 2013 |
| Court | Queen's Bench Division (Commercial Court) |
[2013] EWHC 762 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building,
110 Fetter Lane,
London EC4 1NL
Mr Justice Andrew Smith His Honour Judge Hullhis Honour Judge Hull
Claim No: 2012-1162
MR PETERS appeared on behalf of the Claimant.
The Defendant appeared in person.
Friday, 15 February 2013
This is an application by FXCM Securities Limited for summary judgment in the sum of £544,029.12, and also for interest, but I leave aside the matter of interest for the time being. There is also an application to strike out the defendant's pleadings, but I need not consider that separately. The claimant has been represented by Mr Peters, and I am grateful for the way he identified the lines of potential defence that should be considered. Mr Digby has appeared in person.
I say at the outset that there has been some suggestion in the past that Mr Digby's presentation of his arguments has been characterised by wild allegations. I cannot speak about the past, but there was no such indication in the points that he made today, which were properly presented. One point that Mr Digby made is that application for summary judgment is made at a relatively late stage in the exchanges concerning the dispute. The rules allow an application for summary judgment at a relatively late stage. It is possible that I shall have to consider the timing when I come to costs. I also bear in mind Mr Digby's observation that the timing may reflect upon the merits of the application, not least because of the history by way of a statutory demand that was compromised, and the similarity between the test for a justified statutory demand or a statutory demand being set aside, and the test for summary judgment and permission to defend being refused. Although I bear that consideration in mind, it does not excuse me from examining the evidence as it is before me.
I do not need to expand upon the test that I have to apply. Suffice it to say, the question is whether Mr Digby has a real, as opposed to fanciful, chance of success of his defence or his counterclaim, or both. It does not seem to me that there is another reason for trial, and I do not think that has been suggested.
The nature of the dispute is this. The claimant carries on business as a foreign exchange derivatives, equities and commodities broker and is a member of the London International Finance Futures and Options Exchange. Since, I think, 2004, Mr Digby was a client of the claimant and dealt in instruments, including, in particular, option contracts, using the claimant's services and paying commission — he has told me significant amounts of commission — to the claimant. I refer to the claimant because the same claimant company has been in existence since the 1990s, as I understand it, although, from time to time, it has changed its name and in particular (as I shall mention later) in 2011 it changed its name to the present name in which it sues. Previously it had carried on business as ODL Securities Limited. The change of name in 2011 reflects the acquisition of the claimant by a Delaware company called FXCM Holdings LLC, which I understand is its indirect parent.
The nature of the business between Mr Digby and the claimant was that Mr Digby would instruct the claimant to execute trades. The claimant, having the right to deal on the Liffe Exchange, would then enter into a trade on its own behalf, and entered into a matching back-to-back trade with Mr Digby. The claimant did not act as Mr Digby's advisor, but executed contracts on instructions. From what I can, for practical terms at any rate, regard as the start of their relationship in 2004, the contract was governed by written terms ("the 2004 terms"). In 2007 the claimant began to use in their business generally a new set of terms ("the 2007 terms"). The introduction of those new terms reflected changes in the regulatory regime, the introduction of what is generally known as MIFIT, and the 2007 terms were introduced by the claimant accordingly. There is an issue (to which I will revert) as to whether the 2007 terms replaced the 2004 terms so as to govern the dealings between the claimant and Mr Digby.
The 2007 terms themselves are said by the claimant to have been replaced in 2011 by another set of terms ("the 2011 terms"). There is an issue between Mr Digby and the claimant as to whether the contract between them was amended so as to incorporate the 2011 terms, displacing the previous terms. Mr Peters accepts that, for the purposes of summary judgment, I should proceed on the basis that the 2011 terms were not introduced into the contract, and should proceed on the basis that the defendant is correct in his denial that they were.
What then of the question as to whether the 2004 or the 2007 terms governed their relationship? It was a provision of the 2004 terms that FXCM (as I shall anachronistically call them) provided in 2004 that they might amend the agreement by not less than ten business days' written notice to Mr Digby, except where it was impractical in the circumstances. The claimant's case is that they did give such notice by sending an email to Mr Digby on 17 October 2007, which purported to give notice of amended terms of business which would "automatically take effect on 1 November". A number of questions arise about that. First, was it written notice within the meaning of clause 29.1 of the 2004 terms? According to Mr Digby, he has no recollection of receiving this email, and he suggests that because it was sent to somewhere other than his regular email address, it is possible that it was treated by the recipient address as spam. It does not seem to me that I can reject that as impossible on the information that I have. Mr Peters, understandably, draws to my attention a document which is presented as indicating that Mr Digby's computer accessed parts of the new 2007 terms and appears to record some sort of acceptance. The evidence about that given by Mr Wass of the claimant's solicitors does not seem to me satisfactory. Firstly, it is third-hand hearsay, and, secondly, it does not explain in any detail what the word "acceptance" on the printout connotes. It is said in general and vague terms that it indicates acceptance of the terms, but whether that means more than receipt remains obscure. Questions as to the interpretation of the computer printout might have been suitable for determination at summary judgment, but only with more detailed and cogent evidence.
If it be the case that the...
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