Summary
In UBS AG v Rose Capital, the High Court considered the defence pleadings that a Braganza duty should be implied into the terms of a mortgage contract.
A Braganza clause implies a duty that a discretion enjoyed under the terms of a contract should not be exercised irrationally, arbitrarily, capriciously and/or unreasonably. In rejecting the defence's argument, the Master said "...the law is clear with regard to a mortgagee's entitlement to call for repayment of a loan where the language of the loan agreement is as clear and unequivocal as it is in this case".
Facts
By a legal mortgage dated 27 March 2012, Rose Capital Ventures Limited (Rose Capital), owned by Dr Vijay Mallya (the second defendant), mortgaged a property to UBS AG as security for a £20.4 million loan. The loan was subject to UBS's standard mortgage conditions as well as certain special conditions. The following were key special conditions pertaining to the loan:
- the "Type of Mortgage" was described as an "Interest only, uncommitted and on-demand facility"
- the term of the loan was specified as five years (unless terminated earlier)
- UBS was entitled, at its absolute discretion, to require repayment in full of the mortgage debt by giving not less than three months' notice in writing (the Repayment Condition).
Four years after the drawdown of the loan, UBS served notice on the Defendant to terminate the contract relying on its right to require repayment in full under the Repayment Condition.Payment was not effected.The bank commenced court proceedings.
Rose Capital filed a defence arguing that, among other things, the Repayment Condition gave the bank a discretion; accordingly, it must be subject to the Braganza duty. UBS applied to strike out parts of the defendant's amended defence, maintaining that certain arguments were bound to fail.
Braganza duty
The UK Supreme Court in the case of Braganza v BP Shipping Ltd [2015] UKSC 17 (Braganza) considered the principles of a party exercising a contractual discretion.
In Braganza, the employee's estate was entitled to receive a death in service payment unless the employer found his death had resulted from one of three causes.The employer had an ongoing fact-finding role: a clear "conflict of interest" situation.
In Braganza, the court ruled that not only would the reasonableness of the outcome of the contractual discretion be reviewed, but also the decision-making process. In exercising its discretion, the relevant party must not act irrationally, arbitrarily, capriciously and/or unreasonably.
Judgment
Chief Master Marsh identified four key principles in his analysis concerning the application of Braganza:
- the language of the contract will be an important factor; not every contract will be subject to the Braganza limitation
- the types of contractual discretion that will be subject to Braganza duties are those which affect the rights of both parties to the contract, "where the decision-maker has a clear conflict of interest"
- the nature of the contractual relationship is a factor to be taken into account
- the scope of the term to be implied will vary according to the circumstances and the terms of the contract.
He found in the bank's favour:
- The language of the contract was clear and unequivocal. The borrower had agreed to an uncommitted loan, repayable on demand.
- The bank's unilateral right did not create a conflict of interest between the parties.
- The relationship between the contracting parties was an important factor. Here, the balance of power between the two parties was relatively equal, unlike the employer-employee relationship in Braganza. The Braganza duty did not apply to every form of contractual discretion but would be limited to circumstances, such as in Braganza, to address the possibility of substantial injustice.
- There was no reason to imply a Braganza.
Rose Capital also alleged that the bank had breached its duty to act in good faith. As a secured lender, UBS accepted that it had a separate, but far more limited, duty to act in good faith, but denied the breach.
The Court held that there was nothing "prima facie irrational or in breach of duty of good faith" about the decision to terminate: "in the absence of an allegation that UBS' decision to call in the loan was disconnected from a desire to obtain repayment of the loan and to enforce its security, the duty of good faith will not avail the defendants".
UBS was under no obligation to give reasons for calling in the loan. It was for Rose Capital, who alleged mala fides, to prove this – it had failed to do so.
Comment
The Court found the language of the loan was clear and unequivocal. The five year term was conditional. It may be likened to the statements in many overdrafts that it is the lender's "present intention" to make the facilities available for a specified period. Such facilities remain on demand (see Lloyds Bank plc v Lampert (CA [1999] 1 All ER (Comm) 161).
The Court has provided a level of comfort for lenders by confirming that the Braganza duty will not be implied by the Court where a party has an absolute discretion under a loan.
The circumstances under which the Braganza principles will apply are very fact-specific and contractual freedom remains of paramount importance in English courts.
Nevertheless, contractual discretion and rights should be drafted carefully and parties should be cautious when taking enforcement steps in exercising their discretion to avoid falling foul of the duty to act in good faith.
UBS AG v Rose Capital Ventures Limited, Dr Vijay Mallya, Mrs Lalitha Mallya, Mr Sidartha Vijay Mallya [2018] EWHC 3137 (Ch)
