Success for Matthew Hardwick QC in defending $70m Raiffeisen Bank claim

On 2 October 2020, Moulder J. handed down judgment in the Commercial Court in Raiffeisen Bank International AG v (1) Asia Coal Energy Ventures Limited (ACE); and (2) Ashurst LLP [2020] EWHC 2602 (Comm). Matthew Hardwick QC, acting for ACE, was instructed by Chris Swart and Katie Pritchard of Squire Patton Boggs (UK) LLP.

The claim was featured in The Lawyer’s Top 20 Cases of 2020: a $70m claim by Raiffeisen Bank arising out of ACE’s takeover of Asia Resource Minerals plc, the indirect owner of one of Indonesia’s largest coal producers.

The claim was brought against (1) ACE (a BVI special purpose vehicle), for the balance allegedly due under a Sale and Purchase Agreement in respect of a portfolio of loans and their associated security; and (2) Ashurst, for damages for the alleged breach of its duties in relation to an $85m escrow fund.

In a comprehensive success for ACE, and following a 3 week trial in July 2020 (conducted entirely remotely with witnesses in Vienna, London, Singapore and Hong Kong), Moulder J. found that (1) Raiffeisen Bank had made a series of material misrepresentations (express and implied) to ACE in a data room marketing document in relation to the status of the loans security; (2) ACE had relied on the misrepresentations in entering into the SPA; and (3) ACE was entitled to rescind (and had rescinded) the SPA. Raiffeisen Bank’s claim against Ashurst also failed and for related reasons.

The Judgement is of particular interest for the importance attached by the Judge to the accuracy of the bank’s data room marketing material – and provides a compelling modern example of the power of the equitable remedy of rescission.

A copy of the Judgment can be found here.