Deutsche Bank AG & Ors v Unitech Global Ltd & Ors

Deutsche Bank AG & Ors v Unitech Global Ltd & Ors

All proposed amendments by Unitech were unarguable or precluded by the indemnity clause, established law, or lack of legal foundation. The Lenders were entitled to an order making Unitech's defence conditional on payment of $120m into court, as it is clear Unitech must pay at least that sum even if its misrepresentation defence succeeds. The court has jurisdiction under CPR and the overriding objective to make such an order.

Parties
Claimant/respondent and Cross Appellant: Deutsche Bank AG; Claimant/respondent and Cross Appellant: DBS Bank Limited; Claimant/respondent and Cross Appellant: BBK B. S. C.; Claimant/respondent and Cross Appellant: Shinhan Bank; Claimant/respondent and Cross Appellant: LIREF (Singapore) PTE LTD; Claimant/respondent and Cross Appellant: PT. Bank Negara Indonesia (Persero) TBK, Tokyo Branch; Claimant/respondent and Cross Appellant: BMI Bank BSC (C); Claimant/respondent and Cross Appellant: DB International (Asia) Limited; Claimant/respondent and Cross Appellant: Axis Speciality Limited; Claimant/respondent and Cross Appellant: DB Trustees (Hong Kong) Limited; Defendant/appellant and Cross Respondent: Unitech Global Limited; Defendant/appellant and Cross Respondent: Unitech Limited; Claimant (swap Action): Deutsche Bank AG; Defendant (swap Action): Unitech Limited
Jurisdiction
England and Wales
Judgment Date
03 March 2016
Procedural Posture
Civil Appeal (commercial/banking) / Interlocutory Appeal From High Court (commercial Court) to Court of Appeal; Cross Appeals on Amendments, Summary Judgment, and Interim Payment
Outcome
Unitech's appeal dismissed; Lenders' cross-appeal allowed.
Legal Topics
Guarantees and Indemnities, Misrepresentation, LIBOR Manipulation, Illegality and Public Policy, Competition/antitrust (tfeu, Competition Act 1998), Summary Judgment, Interim Payments, Rescission, Exchange Control, Place of Performance
Banking and Finance Law Contract Law Competition Law Civil Procedure Guarantees and Indemnities Misrepresentation LIBOR Manipulation Illegality and Public Policy +6 more

Case Brief

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Parties

Deutsche Bank AG

Claimant/respondent and Cross Appellant

DBS Bank Limited

Claimant/respondent and Cross Appellant

BBK B. S. C.

Claimant/respondent and Cross Appellant

Shinhan Bank

Claimant/respondent and Cross Appellant

LIREF (Singapore) PTE LTD

Claimant/respondent and Cross Appellant

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

Claimant/respondent and Cross Appellant

BMI Bank BSC (C)

Claimant/respondent and Cross Appellant

DB International (Asia) Limited

Claimant/respondent and Cross Appellant

Axis Speciality Limited

Claimant/respondent and Cross Appellant

DB Trustees (Hong Kong) Limited

Claimant/respondent and Cross Appellant

Unitech Global Limited

Defendant/appellant and Cross Respondent

Unitech Limited

Defendant/appellant and Cross Respondent

Deutsche Bank AG

Claimant (swap Action)

Unitech Limited

Defendant (swap Action)

Procedural Posture

Civil Appeal (commercial/banking) / Interlocutory Appeal From High Court (commercial Court) to Court of Appeal; Cross Appeals on Amendments, Summary Judgment, and Interim Payment

Legal Issues

  1. 1 Whether Unitech may amend its defence to plead discharge by non-disclosure of unusual features, breach of contract, exchange control, illegality by place of performance, and breach of competition law
  2. 2 Whether summary judgment should be set aside
  3. 3 Whether an order for interim payment or payment into court should be made as a condition of defending the claim

Ratio Decidendi

All proposed amendments by Unitech were unarguable or precluded by the indemnity clause, established law, or lack of legal foundation. The Lenders were entitled to an order making Unitech's defence conditional on payment of $120m into court, as it is clear Unitech must pay at least that sum even if its misrepresentation defence succeeds. The court has jurisdiction under CPR and the overriding objective to make such an order.

Court Disposition

Unitech's appeal dismissed; Lenders' cross-appeal allowed.

Orders

  • All proposed amendments by Unitech refused.
  • Order making Unitech Global Limited's defence conditional on payment of $120,000,000 into court within 21 days; in default, summary judgment stands.