British Energy Power & Trading Ltd & Ors v Credit Suisse & Ors [2008] EWCA Civ 53 (07 February 2008)

British Energy Power & Trading Ltd & Ors v Credit Suisse & Ors [2008] EWCA Civ 53 (07 February 2008)

The Court held that Barclays entered into the Option Agreements both as Security Trustee and as agent for the Finance Parties, including the Banks. The language of the agreements, the commercial purpose, and the context indicated that the restrictions in clause 31.2 were intended to bind both Barclays and the Banks. Therefore, Credit Suisse and the Banks are parties to and bound by the restrictions in clauses 31 and 39 of the Option Agreements, and entry into the Ampere Transaction would be a breach of those clauses.

Citation
[2008] EWCA Civ 53
Parties
Claimant/respondent: British Energy Power and Trading Limited; Claimant/respondent: Eggborough Power (Holdings) Limited; Claimant/respondent: Eggborough Power Limited; Defendant/appellant: Credit Suisse; Defendant/appellant: Ampere Limited; Defendant/appellant: Ampere 1 Limited
Jurisdiction
England and Wales
Judgment Date
07 February 2008
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From Commercial Court
Outcome
Appeal dismissed
Legal Topics
Construction of Contracts, Syndicated Loans, Agency, Trusts, Assignment and Transfer of Rights, Options Agreements, Sub Participation, Pre Emption Rights
Contract Law Banking and Finance Construction of Contracts Syndicated Loans Agency Trusts Assignment and Transfer of Rights Options Agreements +2 more

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Parties

British Energy Power and Trading Limited

Claimant/respondent

Eggborough Power (Holdings) Limited

Claimant/respondent

Eggborough Power Limited

Claimant/respondent

Credit Suisse

Defendant/appellant

Ampere Limited

Defendant/appellant

Ampere 1 Limited

Defendant/appellant

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From Commercial Court

Legal Issues

  1. 1 Whether Credit Suisse and other Banks are parties to and bound by the restrictions in clauses 31 and 39 of the Option Agreements
  2. 2 Whether entry into the Ampere Transaction would be a breach of those clauses

Ratio Decidendi

The Court held that Barclays entered into the Option Agreements both as Security Trustee and as agent for the Finance Parties, including the Banks. The language of the agreements, the commercial purpose, and the context indicated that the restrictions in clause 31.2 were intended to bind both Barclays and the Banks. Therefore, Credit Suisse and the Banks are parties to and bound by the restrictions in clauses 31 and 39 of the Option Agreements, and entry into the Ampere Transaction would be a breach of those clauses.

Court Disposition

Appeal dismissed

Orders

  • Declarations granted by the Commercial Court affirmed: Credit Suisse is a party to and bound by the restrictions in clauses 31 and 39 of the Option Agreements; entry into the Ampere Transaction would be a breach of those clauses; instructions from Credit Suisse to Barclays to exercise the options pursuant to the...