Bank Notes

BARCLAYS BANK PLC v SVIZERA HOLDINGS BV [2014] EWHC 1020 (Comm)

The relationship between the parties as defined in agreed facility documents excluded any advisory relationship or fiduciary duty on the part of the bank and gave rise to a contractual estoppel precluding the defendant from alleging that it had relied on any advice from the bank [70].  No assumption of responsibility could be inferred.  The defendant had entered into the agreement on the basis of its own judgment.  On the evidence the bank had not been required to obtain a currency swap for the defendant as a condition precedent to the facility agreement, the bank had not made any representation that it would obtain the swap and the defendant had not relied on any such representation.  Nor had there been any collateral warranty that the swap would be obtained.

21/3/14

FUJITSU SERVICES LTD v IBM UNITED KINGDOM LTD [2014] EWHC 752 (TCC)

Contains a useful analysis of the principles of contractual construction when considering exclusion clauses and the circumstances in which contracting parties may assume fiduciary duties.  On the facts a clause excluding the liability of a main contractor to a sub-contractor for loss of profits was effective, there was no fiduciary relationship between the parties and no duty of good faith was owed.

16/10/13

FORSTA AP-FONDEN v BANK OF NEW YORK MELLON SA/NV [2013] EWHC 3127 (Comm)

The claimant pension fund succeeded in claiming damages for losses on an investment in certain medium term notes made on its behalf by the defendant investment fund manager.  The defendant’s role was as a discretionary fund manager, not an adviser, and it was not required to keep the claimant fully informed.  Nor were the defendant’s duties properly classified as fiduciary.  The defendant had not acted in breach of duty in acquiring and retaining the notes.  But in communicating with the claimant the defendant had to give a fair view of the risk of default and loss.  The defendant had been negligent and breached that duty because it had told the claimant that it remained confident that the issuer of the notes would pay in full when its analysis at that time was that there was a significant likelihood of default.  The judgment contains a useful description of securities lending [36], and the circumstances in which fiduciary duties may be owed [172].

25/4/13

WALSH v SHANAHAN [2013] EWCA Civ 411

When an agency terminated the former agent ceased to owe fiduciary duties so the principal ceased to be entitled as of right to an account of profits made thereafter by the agent by misuse of the principal’s confidential information.  That was a tort and the judge had been right to hold that he had a discretion whether to order an account of profits as the remedy rather than damages.  On the facts the judge’s decision to award damages and to refuse an account of profits as disproportionate, was unimpeachable.

25/1/12

ROSS RIVER LTD v WAVELEY COMMERICAL LTD [2012] EWHC 81 (Ch)

Contains a useful summary at [235] – [256] of the principles to be applied in determining whether one party owes a fiduciary duty to another.  On the facts a party to a joint venture agreement owed a fiduciary duty to act in good faith in the operation of the joint venture and in accounting to the other party for its share of profits, as well as a fiduciary duty not to do anything which favoured itself to the disadvantage of the other party when handling joint venture revenues.