Finance litigation update - July 2022

FINANCE LITIGATION UPDATE – JULY 2022 24 rights)8. Note that, even where a 'Braganza' duty is held to apply, it may well have little practical benefit due to the limited nature of such a duty9 (as highlighted by the recent High Court claim of De Boinville v I G Index Limited in the context of a customer agreement relating to a spread betting account10). The Lender was therefore entitled to terminate, notwithstanding that the reasons which justified termination were not specified in the termination notice. The Court also held that there was no breach of the Lender's equitable duty to obtain the best price reasonably obtainable for the aircraft, as was also argued by the Borrower. Key takeaways This case serves as a useful reminder of some of the key issues relevant to the termination of commercial contracts, namely: (i) While any contractual termination notice needs to comply strictly with all conditions specified in the termination clause, it should not be assumed that a valid termination notice needs to specify (or correctly specify) the reason for termination. Whether or not this is a condition of a valid termination notice will turn on the proper construction of the relevant termination clause(s). Where it is not necessary to specify the reason(s) for termination, it may be advisable to refrain from doing so to ensure that the terminating party is not precluded from subsequently relying on additional or alternative reasons for termination. (ii) Related to this is another crucial notice drafting point (albeit not one discussed in the Skyjets case). This is that any party seeking to terminate a contract should always consider whether it would be preferable to seek to terminate under the common law for 'repudiatory breach of contract' rather than under a contractual termination clause.11 If so then any termination notice will need to be carefully drafted in a way which seeks to preserve a party's right to rely on repudiation as a primary basis for termination, with contractual termination as an alternative basis for termination (which the High Court has suggested can be validly done)12. (iii) It should not be assumed that any breach of contract (for example, a failure to make payment by a specified date) needs to be continuing at the date that a party seeks to terminate. As with (i) above, whether or not this is the case will turn on a proper construction of the relevant termination clause(s). A contractual right to terminate which is triggered "at any time", as in the Skyjets case, may allow a party to terminate for historic breaches of contract (subject to the below). (iv) Care should be taken to ensure that the right to terminate is not lost by that party acting in a manner which is inconsistent with the termination of the contract (amounting to a 'waiver' of its right to terminate). Applying default interest or late payment charges, or accepting late payments, may all waive the right to terminate. While there are mechanisms which can minimise the risk of a party losing its right to terminate (such as labelling communications 'without prejudice', using language which seeks to reserve a party's rights, and relying on 'no waiver' clauses), these are by no means fail-safe, as the Skyjets case demonstrates. For that reason, any party considering termination should seek advice to ensure that any interactions with the defaulting party do not result in the termination right being lost (and it will often be preferable for any communications with the defaulting party to be managed by lawyers). Sue Millar, Sophie Mahal and Harriet Campbell 8 Relying on TAQA Bratani Limited v Rockrose UKCS8 LLC [2020] EWHC 58 (Comm). 9 Namely that any discretion must not be exercised in a manner which is irrational, perverse, capricious or arbitrary (as opposed to a general duty of reasonableness). 10 [2021] EWHC 3326 (Comm). 11 While it may be preferable to terminate under a contractual termination clause (which is often less risky, due to greater certainty that the right to terminate exists), there may be a substantial difference in the level of compensation that a terminating party will stand to receive (there being a right to potentially much more favourable 'damages' for repudiation). 12 As per Shell Egypt West Manzala GMBH and anor v Dana Gas Egypt Ltd [2010] EWHC 465 (Comm), para.34.