KB-2025-001929 - [2025] EWHC 2966 (KB)

I examine in turn the evidence placed before me by the parties.

The defendant has filed no witness statement from any employee who dealt with Bill. However, there is a witness statement dated 10 June 2025 filed by the defendant’s solicitor Mr Bharucha. This is not the same as evidence from those with direct knowledge of the commercial arrangements between the parties. Nevertheless, Mr Bharucha states, as relevant:

“53.

In correspondence Mr Du has denied any knowledge of the SA or the Supplemental Agreement, and has asserted that the signatories on those agreements “have never been authorized by Orange Transgroup Ltd, nor have they ever held positions within our company.” He has also denied that the signatures comply with the formalities required in English law (see for example, Mr Du’s email of 8 April 2025).

54.

… I note that Mr Du has also claimed that the person who sent the termination email “was not employed by Orange Transgroup Ltd. I, personally, never consented to or authorized the termination of cooperation with Shein.” - see his email of 16 April 2025 - this position is demonstrably false, however, as Mr Du was copied to the termination email; he therefore clearly knew of it at the time, and did nothing to suggest that its contents were untrue or that it should not have been sent.

55.

For present purposes I simply note that pursuant to s.43(1)(b) of the Companies Act 2006, a contract may be made on behalf of an English company by any person with express or implied authority to do so; there are no formality requirements for the making of an ordinary contract by a company (such as that it be made in writing, sealed, or witnessed). Moreover, the SA and the Supplemental Agreement were both signed on behalf of Orange by Bill, together with its stamp.”

The defendant states that it cannot “access” those employees who were involved in autumn 2021 when the SA was concluded. When asked why this was, the defendant told the court that it did not keep records from 2021. I am bound to say I found this puzzling. Here is a major international retail brand. It states that it entered into a contract with Orange in October 2021. However, it has not provided any documentation of the steps in the negotiations that led to the concluding of the SA. It has filed no witness statement from anyone involved in any capacity. At one point, it appeared that the defendant was suggesting that it did not know who was involved as it only had the “we.com” messaging remaining as opposed to the email record. If this is truly the case, it is surprising. Nonetheless, when the defendant was asked whether it could, to use its term, “access” employees who dealt with Bill more recently in the three years or so following the SA being agreed, it said that it could. Shein said it had chosen not to put any witness statement before the court. In part this was because the ostensible authority test was objective, examining what it was objectively reasonable to conclude from Orange’s representations, such as they may be, as principal. I perceive difficulties in this.

First, as to Bill’s actual authority at Orange or indeed IT Way, those Shein employees who dealt with him in the three-year period are likely to provide the court with evidence and insight about the capacity in which he held himself out as dealing with them. Second, the defendant invites the court to draw an inference about Bill’s authority at the time of the conclusion of the SA in autumn 2021. It is the defendant’s case that the court can reasonably infer the true nature and extent of his authority from the subsequent documentary record following the concluding of the SA. The simple and parsimonious course would have been to file witness evidence. The defendant has failed to do this. It leaves the court in the position of having to infer authority from documentation without a single filed witness statement from any employee of the defendant who ever dealt with Bill in the three years before the SA ended. That this is problematic is illustrated by the claimants’ position, to which I turn.

On behalf of the claimants and Orange in particular, there is the witness statement of Mr Du dated 12 June 2015. In it, he strongly refutes Bill’s authority. He states:

“13.

At paragraphs 9–14 of the Defendant’s Witness Statement (pp. 3–4) Exhibit I, the Defendant relies upon a purported “Service Agreement” dated 28 October 2021 (the “SA”), allegedly signed between Shein Distribution UK Limited ('Shein') and Orange Transgroup Ltd ('Orange'). The Defendant seeks to use this document as the contractual foundation for its arbitration stay application and related strike-out arguments.

14.

The Claimants categorically deny that [the SA] was ever validly executed by Orange Transgroup Ltd. The signature attributed to Orange on the final page of the SA (Exhibit J, AB1/11) is not that of Mr HaoXiang Du, who has been and remains the sole registered director and legal representative of Orange Transgroup Ltd. This fact is verified in the UK Companies House record.

15.

The individual who signed the SA on behalf of Orange is neither named nor identifiable in any supporting resolution, board minute, or authority document. The Defendant has provided no evidence of actual or ostensible authority issued by Mr Du or Orange’s board. In fact, Mr Du has never signed or authorised the execution of the SA at any time.

16.

This absence of authority renders the SA legally unenforceable.”

Mr Du is a director and designated member of Orange. He may be taken to have a reasonable grasp of Bill’s role and authority. It was clarified in oral argument that the claimants are relatively small companies and employ around 20 people. It is not beyond credulity that Mr Du knew whether Bill had any authority to conclude the SA. However, his assertion that Bill, if indeed it was Bill, acted without authority faces a number of challenges of its own.

It appears that Bill’s signature is on the SA, although the claimants “cannot confirm” that fact. It is unclear whether the claimants dispute that it is Bill’s signature or whether someone has forged it. Similar points may be made about the supplemental agreement, also apparently signed by Bill and on which the defendant relies. Whether it was a frolic of Bill’s own or naked fabrications, the point is that there is no filed evidence from the person who would know: there is no witness statement from Bill. When the claimants were asked if they could obtain a witness statement from Bill, they indicated that they could. I am bound to express equal puzzlement that this has not been done. But it has not.

Turning to the rival arguments about this evidence, it is submitted on behalf of the defendant that Bill will therefore have had ostensible authority to execute the SA and the supplemental agreement on Orange’s behalf if:

The defendant then identifies what it submits are revealing indicators in the documentation about the true nature of Bill’s authority. I have considered them fully. They include but are not limited to:

The defendant recognises that Mr Du claims that Bill was not authorised to send the email of 27 January 2025 informing Shein that Orange was to cease providing services to it. Indeed, in an email to Shein on 16 April 2025 Mr Du said of the email of 27 January 2025 that Bill “was not employed by Orange Transgroup Ltd. I, personally, never consented to or authorized the termination of cooperation with Shein.” At the oral hearing, the claimants explained that Bill worked for a different company: Orange Transgroup Limited (not “Ltd.”), based in Hong Kong. The purported supplemental agreement states that it is signed in Guangzhou, China, supporting, it is said, the fact that the London companies knew nothing about it. The claimants submit that the difference between “Limited” and “Ltd.” is significant. The defendant says this distinction is absurd.

To develop the argument made by the defendant, if Bill had sent the email of 27 January 2025 without Mr Du’s agreement and approval, Mr Du would surely have responded to it by informing Shein that in fact there would be no cessation in the performance of the services. The available material also contains instances of Bill being referred to as a “partner”. An example is an email from 20 May 2025. It is from the “Bill” IT Way email address at 09:36. It is to Mr Du (called familiarly by the author of the email) “Will” at Mr Du’s IT Way email address. Bill’s email account emails Mr Du speaking about the loss of a “major client” and asks Mr Du for a “statement” so the author could “report to the board”. On 20 May 2025, Mr Du emailed Bill, copying four other people. He addressed his email “Dear Partners of I.T. way Transgroup Clearance LLP”.

The claimed significance of this is how the claimants plead their case in the particulars of claim at para 16:

“[Orange] oversees strategic investment and management decisions, while [IT Way] functions as the licensed customs entity responsible for executing logistics operations…Both entities act as a single commercial unit in dealings with [Shein], under the direction of shared officers and unified business planning.”