Nathan Samuel Eisenberg & Anor v JNFX Limited

Deputy ICC Judge Baister:

1. This judgment deals with an application by the directors of JNFX Limited to put the company into a payment institution special administration under reg 8 of the Payment and Electronic Money Institution Insolvency Regulations 2021. It is supported by witness statements of Nathaniel Samuel Eisenberg, the first applicant, Allister Jonathan Manson and Mark Boast, the company’s proposed administrators, and Aaron Michael Harlow of the applicants’ solicitors. Evidence on behalf of Mr Giwa came from Mr Vladimir Joseph Meerovich of Peters & Peters. I heard the application on very short notice on the afternoon of Friday 21 November 2025. I had not had time to read the evidence properly or at all so reserved judgment until the following Monday to enable me to do so and to consider the submissions of the parties. I am grateful to them for bearing with me over the weekend.

2. The company’s business is the provision of foreign exchange services. It is an authorised payment institution regulated by the Financial Conduct Authority under the Payment Services Regulations 2017. As an authorised payment institution, it is required by reg 23 of the Payment Services Regulations to safeguard “relevant funds,” that is, sums received from or for the benefit of payment service users or from other payment service providers to execute payment transactions on their behalf. In simple terms, the Payment Services Regulations require the company to segregate customer funds used in payment transactions from its own working capital.

3. In 2022 Akintunde Giwa brought proceedings against the company. On 2 April 2023 Mr Stuart Isaacs KC, sitting as a Deputy High Court Judge, gave summary judgment in Mr Giwa’s favour fin the sum of 7,914,209,196.50 Nigerian naira (some £4.2 million). On appeal to the Court of Appeal that sum was reduced to 4,921,000,000 naira (around £2.6 million). Together with interest and costs, the judgment sum now due comes to some £3.4 million. That judgment sum has not been satisfied, nor does there appear to be any prospect of its being satisfied. It follows that the company is insolvent.

4. Further information about the company, its history and operation, and further detail about the proceedings between Mr Giwa and company are given in the evidence and helpfully summarised in the skeleton arguments. I do not, however, think that I need say more for present purposes.

5. The procedure for putting a company such as JNFX Limited into special administration is governed by the Payment and Electronic Money Institution Insolvency Regulations 2021.

6. Reg 8(1)(b) allows an application for a special administration order to be made by an authorised payment institution’s directors. Reg 9(3) provides that the application may be made on the basis of either: ground A, which is defined in reg 9(1)(a) as being that “the institution is, or is likely to become, unable to pay its debts; or ground B, which is defined in reg 9(1)(b) as being that “it is fair to put the institution into special administration”. Section 93(8) of the Banking Act 2009 provides that the expression “fair” in this context is the modern equivalent of the old expression “just and equitable.” (There is a third public interest ground C, resort to which is the prerogative of the Secretary of State.)

7. I n Re Contis Financial Services Ltd [2025] EWHC 351 (Ch) Trower J held that under regulation 10(2)(a) of the 2021 Regulations the court could make an order for the appointment of a special administrator on either or both of ground A and ground B. In other words, only one ground need be satisfied (as indeed is plain from the wording of reg 10((2)(a) and reg 9(3)).

8. As I have already noted, the company is (and through its directors accepts that) it is insolvent and that a special administration order can and should be made. It is common ground that an order should be made. I therefore make the order asked for under ground A. To the extent it may be appropriate to go further, I also accept that it would be appropriate to make an order under ground B. It is plainly fair to make an order in circumstances in which, as appears from the history of the litigation in which the company has so far been involved, there are question marks over the way business of the company has been conducted, which may require independent investigation. I shall say no more at this stage: this is not the proper time at which to conduct an investigation of even the most basic kind, much less make findings on the basis of the limited and untested information available to me and on which I have been addressed only in outline terms. I shall hear counsel on the form of order I should make when I hand down this judgment.

9. That brings me to the issue on which the parties do not agree, namely the identity of the special administrators to be appointed. The applicants seek the joint appointment of Mark Boast and Allister Jonathan Manson of Opus Restructuring LLP; Mr Giwa and various creditors, one represented by Mr Searle, seek the joint appointment of Louise Brittain and Matthew Richards of Azets Holdings Ltd. Most of the hearing was taken up with submissions as to the rival claims to appointment of the Opus administrators on the one hand and the Azets administrators on the other. I do not propose to go into the detail of each and every submission made: there was something in some of what was claimed on each side, but nothing amounting remotely to a knock-out point in favour of one team of administrators as opposed to the other.

10. Mr Kok began his submissions with a point about the standing of creditors on an application such as this. He took me to rr 10-13 of the Payment and Electronic Money Institution Insolvency (England and Wales) Rules 2021. He pointed out that r 10 (service of the application) and r 11 (proof of service) made no reference to creditors as parties who needed to be served; r 12 (further notification) made provision for the notification of any enforcement officer charged with effecting execution and any party known to have distrained, but not of any other creditor. He also took me to r 13 (the hearing). This rule sets out who has the right to appear on the hearing of any application, listing various parties, but again, there is no specific reference to creditors. Sub-rule (h), however, provides for the appearance “with the permission of the court, [of] any other person who appears to have an interest.” It seems plain that Mr Giwa and the creditor represented by Mr Searle have an interest in the application. In his witness statement Mr Harlow refers to his firm’s having notified Mr Giwa of the application. In my view, it was proper of him to do so in the circumstances of this case. I do not recall explicitly giving Mr Giwa and/or any other creditors permission to appear under sub rule (h). By hearing their representatives I think I did so implicitly. For the avoidance of doubt I give permission now.

11. One of the points on which Mr Kok relies in support of the appointment of the Opus administrators is their experience. In his witness statement Mr Manson gives details of the jobs he has undertaken as well as information about his colleague, Mr Boast. Mr Meerovich, in his witness statement, seeks to undermine the significance of that, at the same time giving evidence about the experience of the Azets office-holders.

12. Mr Kok also relies on the Opus administrators’ experience to date of dealing with this company. They have, for example, advised on a possible company voluntary arrangement or going into creditors’ voluntary liquidation. They know the company, its business and what needs to be done (see paragraphs 12 ff of Mr Manson’s witness statement). Ms Meech leaps on this as indicative of a lack of objectivity. Indeed the appearance of partiality is a point taken by counsel for each camp against the other. Ms Meech relies on the failure of Mr Manson to mention the need to investigate certain things that are high on her client’s agenda as a sign that nothing would be done. Similarly, Mr Kok raises concerns about the appointment of administrators who might be too close to the interests of the creditor(s) nominating them for appointment.

13. Ms Meech sought to make much of the (she says, inaccurate) use in correspondence and reports of the term “contingent creditor” by the Opus administrators. They may or may not have used the terms well or wisely in relation to Mr Giwa or others. I do not know. The status of creditors will be one of many matters to be determined in the administration. It is not appropriate at this stage to undertake a forensic examination of the use of terms as though the status of creditors were already written in stone. I give Ms Meech’s criticism of this and similar matters no weight at this stage.

14. I do not think there is anything in the general point about the proposed administrators’ experience. True, the Opus administrators have more direct experience of working with authorised payment institutions than do the Azets administrators, but, as I pointed out in the course of the hearing, if prior experience were to be decisive, one would end up appointing the same people all the time, ultimately creating something approaching a monopoly, which cannot be right. It may also be that the Azets team, as Mr Meerovich says, have more experience of fraud investigation, which may turn out to be just as or more relevant. We do not know at this stage, so again the point does not take us anywhere.

15. Nor do I feel able to draw any adverse conclusion from the pre-appointment involvement in the affairs of the company of the Opus team. Someone had to advise the company. Office-holders frequently act as such after advising, as David Richards J (as he then was) recognised in Royal Bank of Scotland plc v Targetfollow Property Holdings Ltd [2013] BCC 817 . Acting after advising can give rise to a conflict, I accept, though I see no evidence of its doing so in this case at this stage. Office-holders are often put in place by creditors. That does not necessarily give rise to a conflict either, nor does it make them partial or, of itself, give rise to an appearance of bias.

16. Taking on board new office-holders may, I accept, add to costs; but ultimately it is the creditors who control those, if they choose to exercise their powers to do so. In my view, it is creditors, rather than directors, who are the best judges of how to spend what is (or is not) available to spend. Again, I think there is nothing in this aspect of the experience point either.

17. Mr Meerovich makes much of the need for an investigation of the affairs of this company. He may be right. Any administrator will have to form a view on what needs investigation and what does not and how to fund that or any other steps that need to be taken. The point does not favour the appointment of one set of administrators over the other. As Mr Kok rightly points out, the creditors will be able to form a committee to supervise and advise what any administrators do.

18. Mr Kok says that particular weight should be given to the views of the Financial Conduct Authority which supports the appointment of the administrators proposed by the company. At a basic level I accept the point, given the role the FCA plays in the overall scheme of the special insolvency regime with which we are concerned. Mr Kok puts particular emphasis on a letter from the FCA of 20 November 2025. It indeed appears to favour the appointment of the Opus administrators, although only on the basis of their prior involvement which, the FCA believes, will best serve its “primary interest” in ensuring that funds are returned as soon as possible with as little cost as possible. Those are laudable aims, but they are not the only ones. Size of recovery may, for example, be as important as speed. Furthermore, although the letter lends support to the appointment of the Opus administrators, it does not support them by contrast with the administrators proposed by the creditors. No comparison is made (and probably rightly so). I decline, then, to give the FCA’s apparent view on the identity of who should be appointed the weight for which Mr Kok contends.

19. So far, then, I find nothing concrete in the evidence or submissions that constitutes an obvious reason for the court to favour the appointment of the administrators proposed by the applicants over that of those proposed by the creditors or vice versa. I proceed, then, on the basis that all four candidates are suitable for appointment, which means I must look for some legal basis on which to choose between the two pools of candidates for office.

20. The obvious point by reference to which to break the tie would appear to me to be, as Ms Meech suggests, the will of the creditors.

21. Both Ms Meech and Mr Kok draw my attention to the judgment of Lewison J, as he then was, in Med-Gourmet Restaurants Ltd v Ostuni Investments Ltd [2013] BCC 47 . That was a case in which there were competing views as to who should be appointed as administrator. In paragraph 10 of his judgment, Lewison J drew on propositions applicable to the appointment of a liquidator set out by HHJ Maddocks in a case called Fielding v Seery : “(1) The identity of the liquidator has to be considered by reference to the purpose for which he is appointed … (2) An application in relation to the appointment of the liquidator accordingly has to be considered by reference to the test adopted by Sir Andrew Morritt V.-C., … whether … ‘it will be conducive to both the proper operation of the process of liquidation, and to justice as between all those interested in the liquidation.’ (3) It follows from this … that although the majority vote of the creditors will in the normal course prevail, creditors holding the majority vote do not have an absolute right as to the choice of liquidator … (4) A liquidator should not be a person nor be the choice of a person who has a duty or purpose which conflicts with the duties of the liquidator … (5) More specifically the liquidator should not be the nominee of a person: (a) against whom the company has hostile or conflicting claims …; or (b) whose conduct in relation to the affairs of the company is under Investigation …” Those are helpful, but I should be alive to the possibility that different considerations may inform a decision as to the appointment of an administrator, in particular when one is dealing with a special regime. I note Mr Kok’s submission as to point (3), namely that a majority vote should not be regarded as conclusive, a point that, in my view, is well made.

22. In fact, Lewison J went on to appoint the nominees of a majority in number but minority in value of creditors. He appears to have done so having regard to the judgment of Patten J in Oracle (Northwest) Ltd v Pinnacle Services (UK) Ltd [2008] EWHC 1920 (Ch) , [2009] BCC 159 and in particular a passage at paragraph 21: “… I have to make a choice, and it seems to me that that choice is essentially dictated by the wishes of the creditors, who have a clear preference for Mr Chamberlain over Tenon. It seems to me that where, as in this case, significant creditors have a clear preference for one administrator over another, and the secured and other creditors remain neutral, then the court should resolve that matter in favour of the wishes of those creditors, for whose benefit in the end the administration is.” Ms Meech relies on this passage and submits that in this case the court should follow Patten J’s approach, this too being an administration case.

23. The applicants appear to accept that Mr Giwa is the largest creditor (see, for example, paragraph 11 of Mr Harlow’s witness statement). I must, I think, give some weight to that fact. In paragraph 21 of his witness statement Mr Meerovich says that the creditors who seek the appointment of the Azets administrators, who include Mr Searle’s client and his client, Mr Giwa, amount to approximately 57% of the company’s creditors (in number) and approximately 88% of the company’s total liabilities (so creditors by value). They all support the appointment of Ms Brittain and Mr Richards. Faced with the same dilemma as that which confronted Patten J, I gratefully adopt the solution favoured by Patten J and appoint Ms Brittain and Mr Richards of Azets. I make it clear that, in doing so, I make no criticism whatsoever of the company’s proposed administrators, both of whom are also plainly eminently fit to be appointed.

24. In deciding as I have, I have given primacy to the views of creditors over those of the FCA. I do not see why that should not be the case as it generally is in most insolvency regimes. In deciding as I have I take into account that the role of the FCA in the special administration remains the same whoever are appointed as special administrators.

25. In the course of the hearing we canvassed briefly the possibility of appointing one administrator from each camp to act jointly. That gave rise to a short squabble about the roles of each prospective administrator. That was sufficient to demonstrate that such an appointment would be likely to give rise to more problems than it might solve. For that reason Patten J rejected it as a possible solution in Oracle . I reject it for the same reason in this case. Postscript

26. I sent out this judgment in draft on the morning of 23 November 2025. Mr Kok sent in suggested corrections late that night. He also sent a letter from the FCA to the company, care of its solicitors, providing “comments or observations” on my judgment (I had given permission to send a copy to the FCA), a note of a hearing of 7 July 2025 of a case concerning a company called Ziglu Limited before ICC Judge Agnello KC, and gave notice of his clients’ intention to file a further witness statement (which I subsequently received).

27. I do not think I should consider any new material containing evidence at this stage (see, for example, Karunia Holdings Ltd v Creativityetc Ltd [2021] EWHC 1864 (Ch) ); nor, in my view should the provision of suggested corrections to a draft judgment be taken as an opportunity to make further submissions: “The delivery of a judgment is not a transactional process. Its contents are not open to negotiation” ( Re YM (Care Proceedings) (Clarification of Issues) [2024] EWCA Civ 71 ).

28. I end this postscript by thanking all the advocates for their assistance and for the patience with which they dealt with my questions and interventions in the course of the hearing.