Crastvell Trading Limited v Bozel SA - Radcliffe Chambers

after the loans became due, a dispute arose with regard to the ability of the
defendants to repay the loan and the extent to which the claimants were interfering
with it, were not matters which were within the consideration of the parties when
they entered into the agreement. Of course, I readily accept that the court would
imply a term to the effect that the claimants would not take steps to prevent the
performance of the defendants’ repayment obligations, namely their obligation to
repay when those sums came due. But at the due date it is not suggested that the
claimants had, at that stage, taken any steps to impede the defendants from
repaying the loan. The reason why the defendants did not repay the loan was quite
straightforward: they did not have any money. That is why they did not pay on the
due date.
31 There seem to me to be serious difficulties about implying a term relating to what
steps the claimants could take after their loan became due and repayable. It is
obvious that the claimants will wish to enforce its right to repayment and in the
process to ensure that it does not lose any security. In that latter regard, the
claimants would want to ensure that a third party is not invited to embark on a
course of action which would prejudice the claimants’ claim and/or defendants’
security. The term that is being suggested by the defendants would effectively
impede the claimants from enforcing its justified rights. I see absolutely no need to
incorporate or imply any such term. To the contrary, it would be quite improper.
32 There is, it seems to me, some force in the proposition that what the defendants are
seeking to do by virtue of this argument is either to raise a complaint in regard to
the standstill agreement (which is not made), or alternatively to promote a claim
which might more properly be advanced by way of economic tort. Furthermore,
there is, it seems to me, a serious difficulty on the facts. The high spot of the
defendants’ case is that an agreement with a firm called Trilliant with Welgate was
stymied by the claimants. The material that touches on that issue, which is
contained within the bundle and has been read to the court, does not seem to me to
begin to make good that complaint.
33 What had happened was that Welgate had entered into negotiations with a firm
called Trilliant with a view to Trilliant purchasing the shares of Bozel. Wind of
this got out in the course, as I understand it, of the Luxembourg proceedings, albeit
of a slightly different transaction. On 11 th September 2009 the claimants wrote to
Trilliant recording the fact that it was understood that Trilliant were going to buy
the shares of the Bozel subsidiaries, and complaining that despite the fact that
Trilliant purported to be acting with the cooperation of the claimant, it had in fact
never contacted them. More importantly perhaps even than that, it was pointed out
that Trilliant had never approached the claimants in order to ensure that the
recovery of their loan was protected by payment of all or part of the proceeds of
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