Summary judgment for €172 million

27/08/21

Summary judgment has been given in the Commercial Court (Richard Salter QC) in favour of Heritage Travel and Tourism Ltd and another against Lars Windhorst and several companies associated with him, confirming a debt of over €172 million.

The debt arose under a settlement agreement which settled earlier disputes arising from several option repo transactions in the shares of companies connected with Mr Windhorst. Four defences were put forward as matters requiring full trial and all were rejected.

First, the Defendants relied on economic duress. The alleged threats were held to have been threats of lawful action to which there applied the principles affirmed by the Supreme Court in Times Travel (UK) Ltd v Pakistan International Airlines Corpn [2021] UKSC 40. Even taking the Defendants’ case at its highest, it did not come close to establishing reprehensible or improper conduct or the kind of unconscionability that could provide an arguable defence.

Secondly, the Court held as a matter of construction that the Defendants’ obligations under the settlement agreement were not subject to an unsatisfied implied condition precedent.

Thirdly, it was not arguable that the same condition precedent could be inserted by the process of rectification.

Fourthly, the argument that certain “Daily Lump Sum Payments” were unenforceable as a penalty was rejected on the ground that they were conditional primary obligations, rather than secondary obligations, as explained by the Supreme Court in Cavendish Square Holding BV v Makdessi [2016] AC 1172.

With all defences rejected, the application for judgment succeeded in full.

The judgment is here.