Deutsche Bank AG & Ors v Unitech Global Ltd & Ors [2016] EWCA Civ 119 (03 March 2016)

Deutsche Bank AG & Ors v Unitech Global Ltd & Ors [2016] EWCA Civ 119 (03 March 2016)

The guarantee and indemnity clause precluded Unitech from relying on defences of non-disclosure of unusual features or discharge by breach. The loan was not an 'exchange contract' under the IMF Agreement. The place of performance was New York, not India, so Indian illegality was irrelevant. The credit and swap agreements were not void for breach of competition law. The court had power to order an interim payment or make the defence conditional on payment into court, as UGL would have to pay at least $120m even if its defence succeeded.

Citation
[2016] EWCA Civ 119
Parties
Claimant (lenders Action), Claimant (swap Action): Deutsche Bank AG; Claimant (lenders Action): DBS Bank Limited; Claimant (lenders Action): BBK B. S. C.; Claimant (lenders Action): Shinhan Bank; Claimant (lenders Action): LIREF (Singapore) PTE LTD; Claimant (lenders Action): PT. Bank Negara Indonesia (Persero) TBK, Tokyo Branch; Claimant (lenders Action): BMI Bank BSC (C); Claimant (lenders Action): DB International (Asia) Limited; Claimant (lenders Action): Axis Speciality Limited; Claimant (lenders Action): DB Trustees (Hong Kong) Limited; Defendant (lenders Actions): Unitech Global Limited; Defendant (lenders Actions), Defendant (swap Action): Unitech Limited
Jurisdiction
England and Wales
Judgment Date
03 March 2016
Procedural Posture
Civil Appeal (interlocutory) / Court of Appeal Judgment on Amendments to Defence and Interim Payment Orders
Outcome
Appeal by Unitech dismissed; Lenders' cross-appeal allowed in part
Legal Topics
Guarantees and Indemnities, Misrepresentation, LIBOR Manipulation, Implied Terms, Illegality, Competition Act 1998, Article 101 TFEU, Interim Payments, Summary Judgment, Restitution
Banking and Finance Law Contract Law Competition Law Civil Procedure Guarantees and Indemnities Misrepresentation LIBOR Manipulation Implied Terms +6 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 20 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Deutsche Bank AG

Claimant (lenders Action), Claimant (swap Action)

DBS Bank Limited

Claimant (lenders Action)

BBK B. S. C.

Claimant (lenders Action)

Shinhan Bank

Claimant (lenders Action)

LIREF (Singapore) PTE LTD

Claimant (lenders Action)

PT. Bank Negara Indonesia (Persero) TBK, Tokyo Branch

Claimant (lenders Action)

BMI Bank BSC (C)

Claimant (lenders Action)

DB International (Asia) Limited

Claimant (lenders Action)

Axis Speciality Limited

Claimant (lenders Action)

DB Trustees (Hong Kong) Limited

Claimant (lenders Action)

Unitech Global Limited

Defendant (lenders Actions)

Unitech Limited

Defendant (lenders Actions), Defendant (swap Action)

Procedural Posture

Civil Appeal (interlocutory) / Court of Appeal Judgment on Amendments to Defence and Interim Payment Orders

Legal Issues

  1. 1 Whether Unitech could amend its defence to plead discharge by non-disclosure of unusual features, breach of contract, illegality under IMF Agreement, illegality by place of performance, or breach of competition law; Whether the court could order an interim payment or make defence conditional on payment into court

Ratio Decidendi

The guarantee and indemnity clause precluded Unitech from relying on defences of non-disclosure of unusual features or discharge by breach. The loan was not an 'exchange contract' under the IMF Agreement. The place of performance was New York, not India, so Indian illegality was irrelevant. The credit and swap agreements were not void for breach of competition law. The court had power to order an interim payment or make the defence conditional on payment into court, as UGL would have to pay at least $120m even if its defence succeeded.

Court Disposition

Appeal by Unitech dismissed; Lenders' cross-appeal allowed in part

Orders

  • Permission to amend defence refused on all five grounds advanced by Unitech
  • Order for interim payment or, alternatively, conditional order requiring UGL to pay $120,877,193.76 into court within 21 days as a condition of defending the claim