CA-2024-001254 - [2025] EWCA Civ 961

Ground 5 is that the Judge erred in holding that JNFX had no realistic prospect of succeeding in its allegation that its published standard terms and conditions were incorporated into any contracts between Mr Giwa / MultiChoice and JNFX.

This seems to me a hopeless contention. Unlike the other points relied on, where JNFX put Mr Giwa to proof, the allegation that JNFX’s standard terms and conditions were incorporated into any contracts is one where the onus rests squarely on JNFX. The entirety of the evidence relied on in support of this allegation is a print out of a page from JNFX’s website which contains what are described as “Application terms and conditions”, together with the fact that JNFX’s website address is given as one of the contact details on Mr Mervyn’s e-mails.

As Arnold LJ pointed out in argument, that does not tell one anything about how one navigates from the landing page of JNFX’s website to the page containing the terms and conditions. No doubt it is the case that a contract made through a website may, by requiring clients to tick appropriate boxes and the like, incorporate a business’s terms and conditions, but the mere fact that they are to be found somewhere on the website does not do this.

Moreover there seems to me to be a more fundamental objection to this contention. It is not suggested that the contracts here were made through the website. The evidence is that they were made with the minimum of formality by e-mail, text message, WhatsApp or orally on the phone. In order for a term to be incorporated into a contract, there needs to be something in the contract which incorporates it (or else a course of dealing on particular terms). JNFX is wholly unable to point to anything which might incorporate the relevant terms, save for the reference to the website on the e-mails. That seems to me plainly insufficient. Even if Mr Giwa was prompted by curiosity to look at the website, and even if he found the terms, that would still not, so far as I can see, have the effect of incorporating them. Nor is there any relevant course of dealing which would incorporate them, as JNFX has no evidence that he ever dealt on those terms.

In these circumstances I would dismiss this Ground.