The High Court discharged an interim injunction that had prevented Ulster Bank Ireland Limited from transferring loans owed by Vieira Limited, European Property Fund plc and Laurelmore Limited. It also refused the companies’ application for an interlocutory injunction, finding material non-disclosure in the ex parte application and concluding that the case for continuing relief was not made out.
The companies’ underlying proceedings allege that the bank mis-sold derivative transactions, including a positive carry swap and interest rate hedges, and seek damages. The bank disputes those allegations. The injunction applications were intended to prevent loan transfers that, the plaintiffs said, could defeat a right to set off damages claims against any demand for repayment.
The interim order was granted ex parte on 8 October 2014. At the later hearing, the court found the plaintiffs had not disclosed contractual documents governing the derivatives, or related correspondence. Those documents included terms describing the clients as professional, stating that the bank was not providing advice, and placing responsibility for assessing transactions on the clients. The judge held that the material was relevant to the allegations and that its omission was a culpable failure, although he stopped short of finding it deliberate. He therefore discharged the interim order and declined to consider interlocutory relief further on that basis.
The judge also considered the injunction under the Campus Oil guidelines. He concluded that the pleadings and evidence did not establish a bona fide, fair or serious issue to be tried on the claims as then presented. Among the matters he considered were EPF’s status as a qualifying investor fund, the contractual terms, limitation issues affecting claims concerning older transactions, and the loan agreements’ express exclusion of set-off. He also found that damages would be an adequate remedy in the commercial dispute and that the balance of convenience weighed against an injunction.
The court stressed that it was not finally deciding the factual or legal merits of the underlying claims; those could be considered on a fuller evidential record at trial. It refused the interlocutory injunction and directed that the interim injunction be discharged.