Credit Suisse AG v Up Energy Group Ltd [2013] EWHC 3611 (Comm) (21 November 2013)

Credit Suisse AG v Up Energy Group Ltd [2013] EWHC 3611 (Comm) (21 November 2013)

The defence of common mistake, namely that both parties entered into the Deed under a shared and fundamental misapprehension that the Notes could be transferred to UEGL, has a real prospect of success. The contract did not clearly allocate the risk of impossibility to UEGL, and the guarantee does not survive if the Deed is void. Therefore, summary judgment is inappropriate.

Citation
[2013] EWHC 3611 (Comm)
Parties
Claimant: Credit Suisse AG; Defendant: Up Energy Group Ltd
Jurisdiction
England and Wales
Judgment Date
21 November 2013
Procedural Posture
Commercial Summary Judgment Application / Application for Summary Judgment Before Trial
Outcome
Summary judgment application dismissed
Legal Topics
Summary Judgment, Common Mistake, Guarantee Liability, Contractual Construction
Contract Law Commercial Law Summary Judgment Common Mistake Guarantee Liability Contractual Construction

Case Brief

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Parties

Credit Suisse AG

Claimant

Up Energy Group Ltd

Defendant

Procedural Posture

Commercial Summary Judgment Application / Application for Summary Judgment Before Trial

Legal Issues

  1. 1 Whether the contract (Deed) is void for common mistake due to impossibility of performance
  2. 2 Whether the risk of impossibility was contractually allocated
  3. 3 Whether the guarantee survives if the principal contract is void

Ratio Decidendi

The defence of common mistake, namely that both parties entered into the Deed under a shared and fundamental misapprehension that the Notes could be transferred to UEGL, has a real prospect of success. The contract did not clearly allocate the risk of impossibility to UEGL, and the guarantee does not survive if the Deed is void. Therefore, summary judgment is inappropriate.

Court Disposition

Summary judgment application dismissed

Orders

  • Application for summary judgment by Credit Suisse AG against both defendants is dismissed