National Westminster Bank v Utrecht-America Finance Company [2001] EWCA Civ 658 (10 May 2001)

National Westminster Bank v Utrecht-America Finance Company [2001] EWCA Civ 658 (10 May 2001)

Clause 8.2(d) of the TOA, properly construed in its commercial context, excludes any liability for non-disclosure (including for negligence or fraud) and prohibits either party from bringing actions based on such non-disclosure. Utrecht's pursuit of the 9th, 10th, and 12th causes of action in California, all based on alleged non-disclosure, is a breach of the TOA. The clause is reasonable under English law, having been negotiated between sophisticated parties of equal bargaining power. The English court is entitled to grant a permanent injunction restraining Utrecht from continuing the Californian proceedings, and there is no basis for a stay of the English proceedings.

Citation
[2001] EWCA Civ 658
Parties
Claimant/respondent: National Westminster Bank; Defendant/appellant: Utrecht-America Finance Company
Jurisdiction
England and Wales
Judgment Date
10 May 2001
Procedural Posture
Appeal From Commercial Court (summary Judgment and Injunction) / Court of Appeal Judgment
Outcome
Appeal dismissed; summary judgment and injunction upheld
Legal Topics
Anti Suit Injunctions, Exclusion Clauses, Jurisdiction Clauses, Summary Judgment, Reasonableness Under UCTA and Misrepresentation Act, Non Disclosure in Commercial Contracts
Contract Law Conflict of Laws Banking and Finance Anti Suit Injunctions Exclusion Clauses Jurisdiction Clauses Summary Judgment Reasonableness Under UCTA and Misrepresentation Act +1 more

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Parties

National Westminster Bank

Claimant/respondent

Utrecht-America Finance Company

Defendant/appellant

Procedural Posture

Appeal From Commercial Court (summary Judgment and Injunction) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether Utrecht-America Finance Company breached the Take Out Agreement (TOA) by pursuing claims in California against National Westminster Bank based on non-disclosure
  2. 2 Whether clause 8.2(d) of the TOA excludes liability for non-disclosure, including for negligence and fraud
  3. 3 Whether clause 8.2(d) is reasonable under section 3 of the Misrepresentation Act 1967 and/or section 2(2) of the Unfair Contract Terms Act 1977

Ratio Decidendi

Clause 8.2(d) of the TOA, properly construed in its commercial context, excludes any liability for non-disclosure (including for negligence or fraud) and prohibits either party from bringing actions based on such non-disclosure. Utrecht's pursuit of the 9th, 10th, and 12th causes of action in California, all based on alleged non-disclosure, is a breach of the TOA. The clause is reasonable under English law, having been negotiated between sophisticated parties of equal bargaining power. The English court is entitled to grant a permanent injunction restraining Utrecht from continuing the Californian proceedings, and there is no basis for a stay of the English proceedings.

Court Disposition

Appeal dismissed; summary judgment and injunction upheld

Orders

  • Declarations that Utrecht's 9th, 10th, and 12th causes of action in California are in breach of the TOA
  • Permanent injunction restraining Utrecht from pursuing those causes of action against NWB in California