RS Lender IV, S.à r.l. v Fernando Oscar Gil Marin

Neutral Citation Number: [2026] EWHC 2489 (Comm)

IN THE HIGH COURT OF JUSTICE THE BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES KING'S BENCH DIVISION

COMMERCIAL COURT Case No: CL-2025-000379 Rolls Building, Royal Courts of Justice London Date: 30 September 2026 Before:

THE HON MR JUSTICE ROBIN KNOWLES CBE - - - - - - - - - - - - - - - - - - - - - Between: RS LENDER IV, S.À R. L. - and -

FERNANDO OSCAR GIL MARIN Claimant Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Andreas Gledhill KC, Mr Harry Adamson and Ms Drishti Suri (instructed by Jones Day LLP) for the Claimant Ms Lisa Lacob and Mr Victor Steinmetz (instructed by Scornik Gerstein LLP) for the Defendant Hearing date: 13 July 2026 - - - - - - - - - - - - - - - - - - - - - Approved Judgment “RS Lender v Marin” Mr Justice Robin Knowles CBE Judgment Robin Knowles J, CBE: Introduction 1. This is the Court’s decision on the Claimant’s application to strike out parts of the Defendant’s Defence and the whole of the Defendant’s Counterclaim, or for summary judgment on particular issues. It is common ground that some issues will be left for trial.

2. It is a matter of regret that the application has had to be made. This is because the main reason for it is that the Defendant has not, in his Defence and Counterclaim, set out the material facts on which he in fact wishes to rely. Pressed to do so by the Claimant, the Defendant offered to serve what he termed voluntary particulars but only if the Claimant paid the costs of that exercise. The offer shows the Defendant has more to plead than he has pleaded. In the circumstances of the case the terms of the offer (that the Claimant pay, in any event, the costs of the Defendant particularising his case) are not appropriate.

3. The Claimant, incorporated in Luxembourg, provides credit facilities. The Defendant runs real estate businesses in Spain.

4. The Claimant has advanced €37 million to Aster for Life SL (“AFL”), out of a total arranged of €50 million, under a facility agreement dated 28 July 2020 (“the Facility Agreement”). AFL is one of a group of related companies with the name Aster.

5. Under a related sponsor guarantee (“the Guarantee”) between the Claimant, the Defendant and Aster Lux S.à r.l (“Aster Lux”), the Defendant agreed in defined circumstances to pay amounts owed under the Facility Agreement as if he were the principal obligor. By a share pledge agreement (“the Share Pledge”) between the Claimant, Aster Lux and another Aster company, the Claimant was granted rights over shares in Aster Lux.

6. The Claimant’s case is that AFL is in default under the Facility Agreement and was insolvent by 2 April 2024. The Claimant purported to exercise a right of appropriation of the share capital of Aster Lux under the Share Pledge at a value of nil. On 14 June 2024 the Claimant purported to accelerate the obligation to repay the advance under the Facility Agreement. It demanded repayment from AFL and then payment from the Defendant under the Guarantee.

7. No sums were repaid or paid and these proceedings followed on 15 August 2025. The Defendant filed a Defence and Counterclaim on 24 October 2025. Page 2 Mr Justice Robin Knowles CBE Judgment “RS Lender v Marin” 8. A statement of case, including a Defence and Counterclaim, must plead the material facts relied upon. The CPR and the Commercial Court Guide are clear on this. The discipline is important to other parties so that they know the case they have to meet, and to the Court so that it knows the case it is asked to decide. The Court may strike out any part of a Defence and Counterclaim that discloses no reasonable grounds for defending the claim. The Court may grant summary judgment on an issue where the Defendant has no real prospect of defending the issue and there is no other compelling reason why the issue should proceed to trial. Prevention 9. The Defendant alleges that he has a “prevention case”, which he defines as “conduct by a contracting party that wrongfully hinders or makes performance by the counterparty impossible or more onerous, such that the preventing party cannot rely on the consequences it caused”.

10. This case is alleged but not particularised in the Defence and Counterclaim. Some evidence in support of it has been served by the Defendant in response to this application but that does not provide the rigour that the rules on statements of case are there to bring about.

11. Insofar as the case is based on an alleged implied term, the grounds on which that term is alleged to have been implied are not pleaded. In any event particulars of each matter said to be in breach of the term or to engage the alleged defence, and to cause non- performance (and what non-performance) are not pleaded.

12. The failure is not marginal; it is surprisingly severe and is not improved by a later response to a CPR Part 18 request. The failure may be illustrated by these passages from the Defence and Counterclaim: “25 … any distress was caused by the Claimant’s refusal to fund the committed final €13m, obstruction of completions, and refusal to release/subdivide mortgages. … 27 … The Defendant and AFL engaged constructively; the Claimant contrived defaults and refused agreed funding, and then relied on its own conduct to justify enforcement. 28 … The Claimant wrongfully refused to fund notwithstanding satisfaction of conditions precedent and its own control of approvals (URT, weekly meetings), thereby engaging the prevention principle. … Page 3 Mr Justice Robin Knowles CBE Judgment “RS Lender v Marin” 56 The contemporaneous factual matrix shows a deliberate pattern of prevention and value-destructive conduct by the Claimant: (i) Withholding the final €13 million tranche while exercising de facto controls (weekly approvals, URT utilisation templates, continuous document uploads) thereby frustrating the agreed business plan; Escalating the rate from 12% to 17% and then 22% p.a. on contrived defaults, with a refusal to capitalise and a demand for monthly cash interest; Refusing mortgage subdivision/releases by invoking indivisibility, thereby blocking completion of 56 of 82 contracted

unit sales and receipt of c. €17 million purchaser monies; Obstructing third-party rescue finance (including FRUX Capital); and Misusing pledge voting rights to attempt to remove AFL’s director and displace its instructed counsel in Spanish proceedings. (ii) (iii) (iv) (v) These particulars evidence bad-faith enforcement and the prevention principle.” 13. A form of shorthand is used in places which is generalised and unclear. Individual details and dates of alleged material acts and omissions are not given (“contrived defaults”, “obstruction of completions”). The basis of suggestions that conduct was not open to the Claimant is not given (“refusal to subdivide mortgages”, “refusal to capitalise”). The case of causation is not explained (“any distress was caused by …”). These are examples. And this is all in the context of allegations that are said to reach the level of a “deliberate pattern” of conduct, “misusing voting rights” and “bad-faith enforcement”. The more serious the allegation, the more important it is that material facts are properly pleaded.

14. The author of the Defence and Counterclaim was neither Ms Lisa Lacob nor her junior Mr Victor Steinmetz, both of whom appeared as counsel for the Defendant on the hearing of the application. Ms Lacob defended the statement of case as best she could, emphasising that it could be replied to and it had allowed the case to move forward.

15. But, respectfully, on any view it is simply not good enough as a reference point for the Court at trial. It also inhibits the identification of common ground. This is not, in any degree, to require the pleading of evidence, but it is to require the pleading of each individual material fact that the Defendant is saying can and will be proved by evidence. Merger 16. The Defendant also alleges the obligation of AFL to repay the Claimant (as creditor) under the Facility Agreement has become the obligation of the Claimant (as debtor). Page 4 Mr Justice Robin Knowles CBE Judgment “RS Lender v Marin” The result, alleges the Defendant, is that the obligation is extinguished by merger.

17. Here, the Defendant refers to the Claimant’s appropriation of the Aster Lux shares and the control said to have resulted. But that does not make the Claimant the debtor. That is the end of the point. The Defendant’s argument that there is a mixed question of fact and law and that the question of merger is linked to the question of value (addressed below) do not save the position.

18. The relevant parts of the Defence and Counterclaim will be struck out and should not feature in the Defence and Counterclaim at trial. Value 19. The appropriation of the Aster Lux shares was, as noted, at nil value. A valuation at nil was reached by Deloitte, albeit possibly some months after the appropriation. The Defendant’s case is that it is wrong and a correct value would exceed the amount of the repayment under the Facility Agreement claimed by the Claimant.

20. The Claimant stands by the valuation but says that in any event any such dispute has been consigned to the Luxembourg courts under the terms of the Share Pledge.

21. Clause 5.4 of the Guarantee is headed “Waiver of defences”. It provides: “The obligations of the … [Defendant] … under this Deed will, to the extent permitted by law, not be affected by an act, omission, matter or thing which, but for this Clause 5.4 … would reduce, release or prejudice any of their obligations under this Deed (without limitation and whether or not known to them or any Finance Party) including … non-observance of any formality or requirement in respect of any instrument [and] any failure to realise the full value of any security”.

22. The Claimant’s position is that by this clause (and the jurisdiction clause in the Share Pledge, to which the Defendant was not party) the Claimant and the Defendant mitigated the risk of inconsistent outcomes if valuation was left to be challenged by both principal debtor and guarantor in separate proceedings.

23. The Claimant further relies on Clause 5.7 of the Guarantee which provides: “Until all liabilities have been irrevocably paid in full, the Security Agent … may: (a) refrain from applying … any other monies, security or rights held or received … in respect of those amounts … and [the Defendant] shall not be entitled to the benefit of the same”. Page 5 Mr Justice Robin Knowles CBE Judgment “RS Lender v Marin” 24. The Claimant emphasises that on the facts of the case the Defendant ultimately owns the pledgor. I take that into account. It certainly informs the commercial context both at the time and now (the Defendant has not caused the pledgor to challenge the appropriation in Luxembourg when on the face of things that option has been available to him). But I do not see it as central to an analysis of the issues arising.

25. The Defendant’s argument focuses as follows, through the submissions of Ms Lacob. What follows is my summary of her argument. The key relevant relationship is that between the Claimant and the Defendant. The Claimant has appropriated the shares by taking ownership rather than by realising the shares for value. An appropriation operates automatically to reduce the liability, and does not require the Claimant to take the further step of applying a reduction to the debt (cf. Clause 5.7 of the Guarantee). The Claimant as creditor owes an equitable duty to the Defendant as guarantor to obtain proper value for the purpose of debt reduction. But further the Financial Collateral Arrangements (No 2) Regulations 2003 (“FCARs”) provide a safeguard which cannot, the Defendant submits, be excluded by contract. Clause 5.4 of the Guarantee is not directed to appropriation, where the Claimant takes ownership rather than realises for value. The valuation was obtained in the context of appropriation; the situation is not the same as where value is being realised and an allegation of “failure to realise the full value of a security” is made.

26. As the Claimant fairly notes, the FCARs too have not been pleaded by the Defendant. Ms Lacob’s argument centres on Regulation 18(1) which is in these terms: “Where a collateral-taker exercises a power contained in a security financial collateral arrangement to appropriate the financial collateral the collateral-taker must value the financial collateral in accordance with the terms of the arrangement and in any event in a commercially reasonable manner.” Recital 17 to the relevant Directive refers to an objective as “the protection of the collateral provider and third parties.” 27. But my assessment of the argument of Ms Lacob is that within the analysis she presents there are points that are most suitably examined at trial; I am not prepared to say the Defendant has no real prospect of success. It is further desirable that the full context will be before the court when deciding them; that will be at trial.

28. As noted, in the present dispute there will be a trial between the Claimant and the Defendant in any event. Given the view I have reached I do not propose to elaborate further on this last area as I do not want to trespass on the treatment at trial. I do not wish to be taken as expressing a prediction of the ultimate outcome of either party’s Page 6 Mr Justice Robin Knowles CBE Judgment “RS Lender v Marin” arguments; my point is that they are suitable for trial. But this matter too must be properly pleaded, and it is not at present. Conclusions 29. The Defendant is to serve an Amended Defence and Counterclaim that complies with the CPR and the Commercial Court Guide by 9 October 2026.

30. It is preferable that this statement of case is settled by the Defendant’s Leading and Junior Counsel. If it is not then the Court requests that it should, as a minimum, be accompanied by a statement by the Defendant’s Leading Counsel that she has reviewed it and advised the Defendant that it is to the standard that the Court requires.

31. If an Amended Defence and Counterclaim is served that does not meet that standard, the Defendant should expect no further opportunity or flexibility from the Court. The Claimant will have a liberty to apply to bring the matter back to the Court.

32. Extended disclosure is currently due on 16 October 2026. The trial will commence on 23 June 2027. Of course, the Claimant must have the opportunity to serve a Reply and Defence to Counterclaim in response to the statement of case that the Defendant is to produce. The parties are invited to propose an agreed reset timetable for all remaining steps to trial for consideration by the Court. The trial date is not to be moved.

33. I am happy to consider the proposed reset timetable as part of dealing with consequential matters upon this judgment. I would hope that these might all be dealt with, in the interests of time and cost, on concise written materials from the parties and without a further oral hearing. Page 7