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The High Court has recently considered a number of questions of contractual construction in the context of guarantees: Barclays Bank plc v Price & Ors [2018] EWHC 2719 (Comm). Financial institutions should welcome the pragmatic and commercial approach adopted by the court to the question of whether a demand to claim under a guarantee was valid. In … Read more
Standish & Ors v The Royal Bank of Scotland plc & Anor [2018] EWHC 1829 (Ch) will be of interest to financial institutions seeking to enforce rights or exercise powers under facility agreements. In particular, where counterparties allege the existence of implied duties which they allege restrict the exercise of express rights and powers in facility agreements, … Read more
The question of whether ‘negative interest’ will be payable by a transferor of cash collateral in the context of a standard form ISDA 1995 Credit Support Annex (Bilateral Form – Transfer) (“CSA“) has been considered by the Commercial Court in The State of the Netherlands v Deutsche Bank AG [2018] EWHC 1935 (Comm). The court found that … Read more
The Court of Appeal has refused the claimants permission to appeal in the most recent interest rate hedging product (“IRHP“) mis-selling claim to come before the appellate courts: Elite Property Holdings & Anor v Barclays Bank plc [2018] EWCA Civ 1688. The Court of Appeal considered the High Court’s decision to refuse the claimants permission to make … Read more
The recent decision of the Supreme Court in NB Banca Nazionale del Lavoro SPA v Playboy Club [2018] UKSC 43 upheld the decision of the Court of Appeal, confirming that where a bank reference is requested on behalf of an undisclosed principal, then no duty of care is owed by the bank providing the reference to the undisclosed … Read more
A borrower’s right of set-off may be excluded in loan and security documentation (subject to limited exceptions), with the commercial aim of the lender to secure payment, free from potential cross-claims. The recent Court of Appeal decision in Woodeson & Anor v Credit Suisse (UK) Ltd [2018] EWCA Civ 1103 provides helpful guidance as to the operation of … Read more
Paul Crowther & Anor v Arbuthnot Latham & Co Ltd[2018] EWHC 504 (Comm) provides an interesting example of how the High Court applied the test of objective reasonableness to the exercise of a bank’s discretion to consent to the sale of a secured property. In reaching this conclusion, the court refused to apply the so-called Braganza duty … Read more
In CCUK Finance Ltd & Anor v Barclays Bank plc [2018] EWHC 304 (Comm), the High Court has rejected the claimants’ application for summary judgment in respect of its claim and summary dismissal of the defendant bank’s counterclaim. The effect of this judgment is that the bank will be allowed to pursue its multi-million pound counterclaim in … Read more
A recent Court of Appeal decision has found that a broker owed no contractual duty to prevent a “sophisticated and experienced” trader (trading as a private person) from causing economic harm to himself when using the broker’s platform software to trade: Ehrentreu v IG Index Ltd (Rev 1) [2018] EWCA Civ 79. The case arose in the … Read more