This is an appeal from Knowles J who, sitting in the Commercial Court, gave judgment against the appellant bank (“the bank”) and in favour of the beneficiary of four letters of credit, National Infrastructure Development Company Limited (“NIDCO”). NIDCO is a corporate vehicle used by the government of Trinidad and Tobago to effect public infrastructure works.

On 4^th July 2011 NIDCO entered into a contract with Constructora OAS Ltda (“OAS”), a Brazilian contractor, to construct an important public highway in the south of Trinidad. The construction contract was governed by the law of Trinidad and Tobago and disputes were to be resolved by arbitration with a seat in Port of Spain under the auspices of the London Court of International Arbitration (“LCIA”).

OAS wrote to the main engineer on the project on 19^th October 2015 stating that NIDCO had defaulted on payment and that it was giving notice under clause 16.1 of the construction contract. Construction work subsequently ceased (the reasons for which are disputed between NIDCO and OAS). On 21^st June 2016 NIDCO issued a termination notice on the basis that OAS had abandoned the project. OAS’s case was (and is) that they had stopped working because of non-payment by NIDCO.

OAS filed an arbitration request with LCIA on 1^st August 2016 and the dispute between NIDCO and OAS is currently subject to ongoing arbitration.

The dispute between NIDCO and the bank has arisen because OAS, pursuant to the construction contract, procured standby letters of credit in NIDCO’s favour. On 15^th September 2016 NIDCO issued proceedings to enforce these letters of credit after the bank had refused on four separate occasions to honour them. The letters of credit are governed by International Standby Practices 98 (ISP 98). Any matter not governed by ISP 98 is governed by English law and the parties conferred jurisdiction on the English Courts in respect of any dispute arising under the letters of credit.

On the 28^th day of each month OAS would submit to the engineer a statement about work done. NIDCO would then pay for the value of the work if certified by the engineer, subtracting amounts previously paid. The contract entitled NIDCO to withhold an amount of “retention money” in accordance with clause 14.3(c) of the contract. OAS could, however, instead provide “retention security” in lieu of retention money. OAS provided such retention security by procuring standby letters of credit in NIDCO’s favour. As the total retention money increased, OAS would procure from time to time new letters of credit to increase the retention security.

OAS also procured letters of credit in favour of NIDCO by way of “performance security” in accordance with clause 4.2 of the contract. The level of security represented a percentage value of each phase of work.

Clause 4 of the letters of credit required demands made under them to be in accordance with an annex. The required form was to contain the following statement:-

Further relevant clauses of the letters of credit provided:-

Relevant provisions of ISP 98 include:-

There is no dispute that the written demands in the present case were made in the form set out at annex 1 to the standby letters of credit. In them NIDCO stated:-

On 6^th July 2016, a fortnight after NIDCO issued their termination notice, OAS, on appeal, persuaded a Brazilian court to issue a temporary injunction preventing the bank from paying out on any demand under these letters of credit, pending the determination of that court as to its jurisdiction. No determination has yet been made.

The issue for the judge was whether summary judgment ought to be granted in NIDCO’s favour against the bank in respect of the sums stated to be due and owing. The bank resisted summary judgment on the following basis:-

That the sums claimed were not “due and owing” from OAS as stated in the drawing notice and NIDCO had no honest belief in the truth of its statement that they were “due and owing”. NIDCO had therefore acted fraudulently in seeking to operate the letters of credit;

NIDCO was claiming around US$35m retention scrutiny when in fact it was only entitled to US$31m in retention money and NIDCO was fully aware of this;

There was potentially an equitable jurisdiction to prevent unconscionable demands under letters of credit, in addition to the fraud exception. This was said to be a developing area of law not suitable for summary judgment; and

There ought to be a stay of execution pending further order because the bank was prohibited by Brazilian court order from paying the money, even though that order may soon fall away.

The judge rejected these arguments, granted summary judgment and ordered the bank to pay US$38,020,306.79 by 4pm on 23^rd November 2016. He refused permission to appeal and refused to grant a stay of execution. There is now an appeal for which, as it happens, I gave permission.

In support of the bank’s case of fraud, three pieces of evidence were put forward:-

A statement by the president of the claimant made to the Public Accounts (Enterprises) Committee on 1^st June 2016 that OAS did not owe money to NIDCO;

The lack of any mention of sums due in a letter from the claimant signed by its president in the letter terminating the contract on 21^st June 2016; and

A letter dated 6^th July 2016 from the claimant, signed by its president, which divided sums up into debts described as due and debts which required quantification in due course.

The judge dismissed the first piece of evidence because the president’s evidence predated termination and dealt only with “very large overall sums indeed”. He did not regard the second piece of evidence as persuasive and said that the third matter “shows the way in which the claimant viewed their entitlement as a current entitlment in respect of all sums”. He said that even if what was demanded was based on an estimate of future sums that did not mean that the claimant did not hold an honest belief that those sums were due and owing now.

The principles are well settled. In RD Harbottle v National Westminster Bank [1978] QB 146, 155 Kerr J said:-

That decision was approved in the Court of Appeal case of Edward Owen Engineering Ltd v Barclays Bank International Ltd [1978] QB 159 where it was emphasised that the bank must honour a performance bond unless it has notice of clear fraud.

Edward Owen was itself approved by the House of Lords in United City Merchants v Royal Bank of Canada [1983] 1 A.C. 168 which concerned a letter of credit issued to a seller of goods who presented apparently conforming documents including falsely dated bills of lading which it (the seller) did not know were false. Having set out the obligations of the confirming bank to pay the seller Lord Diplock continued (page 183):-

This was a matter of some debate because commercial judges have been somewhat troubled by the supposedly low burden assumed by a defendant successfully resisting summary judgment namely “a real prospect of establishing a defence” according to CPR Part 24. Even before the advent of CPR Part 24 Rix J had said in Czarnikow-Rionda v Standard Bank [1999] 2 Lloyd’s Rep. 187, 202:-

After the CPR came into force, Mance LJ in an obiter passage in Solo Industries UK Ltd v Canara Bank [2001] 1 WLR 1800 (para 31) said that the words “real prospect” provided a comparatively low hurdle and (para 32) that Harbottle and Edward Owen had required fraud to be “established” and that such defence if good at all must be capable of being established with clarity at the interlocutory stage. These paragraphs were expressly approved by the Privy Council in Alternative Power Solution Ltd v Central Electricity Board [2015] 1 WLR 697 at paragraph 59 which, however, was a case in which the bank’s customer had sought to restrain the bank from paying sums required to be paid under a letter of credit on the ground that it was “seriously arguable” that the beneficiary could not honestly have believed in the validity of its demands. Speaking for the judicial committee, Lord Clarke of Stone-cum-Ebony said:-

The position with regard to cases of interlocutory injunctions sought against the bank by the bank’s own customer is, however, not the same as the position in cases in which the beneficiary of the letter of credit seeks summary judgment against the bank. This was recognised and accepted by Teare J in Enka Insaat Ve Sanayi A.S. v Banca Popolare Dell’Alto Adige SpA [2009] EWHC 2410 (Comm) [paras 24-25]:-

This seems to me to be the correct approach despite the fact that decision of Teare J was given before the Privy Council in Alternative Power had approved the obiter passage of Mance LJ in Solo.

The matter is of some importance in this case because the judge in his unreserved judgment said twice (paras 15 and 24 that he did not regard it as seriously arguable that NIDCO did not honestly believe in the validity of its demands. He seems to have derived that phrase from its use in the Alternative Power case where it was used appropriately to describe the burden on a claimant seeking to establish a claim for interim relief in the form of an interlocutory injunction; but the phrase is, with respect to the judge, not appropriate to describe the burden on a defendant seeking to resist summary judgment who only has to establish a “real prospect” of establishing his defence. With these prefatory remarks I can turn to the permitted grounds of appeal.

There are now six grounds of appeal:-

The judge applied an incorrect test of serious arguability when he should have asked himself whether the bank had a real prospect of establishing its defence.

The bank did have a real prospect of establishing that NIDCO did not believe in the validity of its claim because a claim for unliquidated damage for premature abandonment of the construction contract was not in law a claim that money was “due and owing”.

The factual evidence relied on by the bank demonstrated that NIDCO had no genuine belief that money was due and owing from OAS.

On any view the claim under the retention letters of credit could only be in respect of the certified retention; at the time of the demand the certified retention was only US$31m and it was therefore wrong to claim an amount of US$34m in respect of the retention security.

It was wrong to give summary judgment without offering the bank an opportunity to cross-examine NIDCO’s witnesses.

The judge’s refusal to order a stay in the light of the Brazilian Injunction was wrong in principle.

It will be apparent from what I have already said that I think that the judge did apply the wrong test. The use of the phrase “seriously arguable” may have been an inadvertent infelicity in the course of an unreserved judgment. But the judge appears to have set the bar too high and this ground of appeal, so far as it goes, must succeed.

I say “so far as it goes” because one must bear in mind exactly what it is that the bank must have a “real prospect” of establishing. It is in the words of Teare J that “the only realistic inference is that [the claimant] could not honestly have believed in the validity of its demands” (the emphasis is mine but none the less crucial for that).

It follows from (1) above that this ground of appeal is misconceived. The position in law is irrelevant because it is the beneficiary’s belief in the validity of its demands which is relevant, not whether the demands are correct as a matter of law.

That said the words “due and owing” in a contractual context must inevitably be construed against their contractual background. In the present case the construction contract required the performance security to be provided to cover a number of events set out in clause 4.2(d) of the contract, including not merely failure to pay amounts due but:-

In the light of this provision it must be arguable (and, if necessary, I would hold) (1) that the letters of credit constituting performance security covered the sums for which clause 4.2 (d) of the construction contract contemplated the letters of credit would be given and (2) that the requirement that any demand should state that a sum was “due and owing” enabled the beneficiary to include sums to which it was entitled on any allegedly contractual termination, following OAS’s repudiation by abandoning the work. Mr Russen QC for the bank submitted that no claim in respect of damages for wrongful termination could be made under the letter of credit unless and until such sum has been determined by agreement or award. But that cannot be right in the light of the context in which the letters of credit were issued.

Since, moreover, there is a set date on which the letter of credit expires (albeit one which OAS may have been contractually required to extend), the bank (if the letter of credit was not in fact extended) could escape any liability if an arbitration award could not be made before the date of expiry. That is also something which the parties could not have intended when the letters of credit were provided.

This conclusion is also consistent with Balfour Beatty v Technical & General [2000] CLC 252 in which the beneficiary had to state that the sum demanded was “due and payable” and the claim made was a claim for repudiation of the contact.

In these circumstances the bank’s assertion that NIDCO were fraudulent in asserting that money was due and owing to them as a result of OAS’s wrongful repudiation of the construction contract would be extremely difficult to establish. It cannot be fraudulent to make a demand one is entitled to make. Even if there was (as Mr Russen submits) in fact no entitlement in law to make the demands which NIDCO made under the letters of credit, there was nevertheless a strongly arguable case as to such entitlement and the question whether as to the facts, there is a real prospect of establishing

The president’s evidence to the Public Accounts (Enterprises) Committee of the Trinidad and Tobago Parliament was given before NIDCO gave notice of termination under clause 15.2 of the construction contract and thus while the contract was still continuing. It was nevertheless at a time when no work had been done on the road for a number of months. The project was a project of great concern to the people in the south of the island and was (and is) one of the biggest projects undertaken by the government. It was thus entirely natural for the Public Accounts (Enterprises) Committee to take a major interest in what was going on. No doubt NIDCO’s president, Mr Garibsingh, did not have an entirely comfortable ride from the committee while giving his evidence. The bank relies on a passage in which the committee was endeavouring to discover how much payment had been made to OAS for the work done to date and whether OAS had done less work than that for which they had been entitled to payment. They established that the contract sum was $5.2 billion and that 61% of the work had been done and that $3.7 billion had been paid, which was around 71% of the contract sum and the evidence then proceeded:-

The short response is that neither the Committee nor Mr Garibsingh were talking of the consequences of a termination which had not then occurred. They were only talking of the financial position before termination when payments had been made which did not entirely match the work done because parts of the payments were made by way of payments in advance. That was the context in which Mr Garibsingh agreed that no one owed anybody any money “more or less”.

That is then confirmed by the immediately following exchange:

The fact that NIDCO’s letter of 21 June 2016 did not make any financial claim at that stage is, if anything, still less indicative of fraud. The confirmation letter of 6^th July did make financial claims before notice of entitlement under the letters of credit was given on 11 July 2016. It is true that the letter did draw a distinction between debts that were due and “debts” that required quantification but that is no evidence of absence of belief that NIDCO were entitled to draw down the letters of credit.

Mr Russen submitted that there was no evidence that personnel at NIDCO had addressed their minds to the question whether sums were presently “due and owing” or would become “due and owing” at some future date and that he should be entitled to cross-examine them to try to establish that they were reckless as to that distinction, such recklessness amounting to fraud in the Derry v Peek sense. No doubt lawyers can have a debate as to whether a current entitlement to claim damages for repudiation entitles one to say that the amount of such damages is due and owing (and I have summarised my own views on that interesting question above) but it borders on the absurd to say that the only realistic inference from the fact that businessman did not have (or may not have had) that debate is that they could not have believed in the validity of their demands.

These letters of credit were set so that OAS would not have to submit to sums being retained from the purchase price in the ordinary way to constitute security for contractual performance of the work. The bank is able to point to a document of 14 January 2016 stating that the certified entitlement to retention as at that date was $31 million, if retention in cash had been exercised. That document cannot, however, be conclusive of that matter since it expressly adds:-

While it is true that there are different letters of credit for “performance security” and “retention security”, that is only because the underlying contract so required; performance security was axiomatic for a big construction contract; retention in some form or another would also be axiomatic. OAS was entitled, if it did not wish to submit to cash retention, to procure letters of credit in respect of that retention so that it could be paid instalments in full during the operation of the contract. That did not mean that the retention letter of credit could not be operated for the same purpose as that for which retention in cash would have been utilised if there had been a cash retention. Mr Russen had to accept that if there had been a cash retention it could have been used as security for any claim for wrongful repudiation by OAS, in the sense that any such claim would be diminished by the amount of the retention. There is no reason to think that letters of credit put up in place of a cash retention should be treated any differently. It would be most odd if a contractual provision existing for the benefit of the contractor (in that it obtains the full amount of any instalment without deduction for retention) entitled it to say that letters of credit put in place for retention purposes could not be used as security for any claim but could only be operated so as to enable the beneficiary to claim the amount of retention to which he would have been entitled but for the letter of credit option being used by the contractor. If that had been intended, the letter of credit could easily have said so.

Even if all that is wrong, I still cannot see that the demand in fact made can only be referable to fraud on the part of NIDCO; it is equally (if not more) referable to a genuine belief that NIDCO were entitled to make the relevant demands.

The facts and matters put forward as evidence of fraud to my mind just do not amount to fraud at all; the judge was therefore right to order summary judgment in the sum which he did.

I have dealt with this in paragraph 38 above as part and parcel of the fraud allegations. As a free-standing ground of appeal it amounts to no more than a hope that something might turn up at a trial which cannot be identified now. As such it is no reason for the case to go to trial.

The bank submits that if it pays the sums required by the judgment it will be in breach of the injunction granted by the Brazilian Court of Appeal and will be liable to pay a fine of 10% of the judgment. It also submits that the arbitrators in the LCIA arbitration have power under Brazilian Law to discharge the injunction and are likely to do so. The first submission cannot prevail. If the bank chooses to do business in any particular jurisdiction it has to submit to any order of courts, in such jurisdictions. The second submission is difficult to understand. Even if the arbitrators sitting in Trinidad technically have jurisdiction to discharge the injunction granted in Brazil, there is no reason to suppose that they will do so. There is not even any reason to suppose that OAS will ask them to do so.

In general terms it is inappropriate for a court to stay its judgment in a letter of credit case. Letters of credit are part of the lifeblood of commerce and must be honoured in the absence of fraud on the part of the beneficiary. The whole point of them is that beneficiaries should be paid without regard to the merits of any underlying dispute between the beneficiary and its contractor. In Power Curber Intl Ltd v National Bank of Kuwait [1981] 1 WLR 1233, the seller of goods had obtained an order from the courts of the place where the bank was registered and had its head office preventing payment under a letter of credit. In the light of that order Parker J had granted a stay of execution of the judgment he had given in favour of the seller/beneficiary. But this court set aside the stay. Lord Denning MR said (page 1241D)

The argument for a stay in the present case is even weaker than it was in Power Curber since the order of the Brazilian Court is not even an order of the place where the bank has its head office (namely Spain) but merely an order of the place where the contractor has its own place of business.

For all these reasons, although the judge may have applied too generous a test in favour of NIDCO as the claimant, I would nevertheless uphold his orders entering summary judgment in favour of NIDCO and refusing any stay. I would, therefore, dismiss this appeal.

I agree.