Court Clarifies Construction of “Consent not to be Unreasonably Withheld” - Robert-Jan Temmink QC

Fri, 02 March, 2018

Crowther & Crowther v Arbuthnot Latham & Co Ltd

In a considered judgment by HHJ Waksman QC on 1 March 2018 the Court determined a question of contractual construction. The relevant clause was in a facility agreement between a bank and its customer and provided that a property could be sold, subject to the bank’s consent (such consent not to be unreasonably withheld).

At the time the clause was agreed the property, which was held as s security for a loan from the bank, was not worth as much as the loan. An offer was made by an independent third party to purchase the property at a fair market value, but the bank refused its consent to the sale. The bank wished to make it a condition of sale that the borrower provided alternative security for the shortfall between the value of the property and the value of the loan. The borrower contended that the bank was acting unreasonably - there was no evidence that the property would be worth any more at the termination of the loan period; the purchase price was at a fair market value; and the bank was really seeking an uncovenanted-for advantage.

The Court agreed with the borrower that the clause was to be construed according to the principles in a landlord and tenant case: Mount Eden v Straudley Investments (and the other earlier cases referred to in that case) rather than in accordance with the principles in Barclays Bank v Unicredit - which considered a different sort of clause entirely.

Robert-Jan Temmink QC acted for the borrower.


Robert-Jan Temmink QC

Robert-Jan Temmink QC is widely-recognised as a talented advocate and is listed as a leading practitioner in the legal directories.   Robert’s practice is broad, ranging from financial services, fraud and insolvency to multi-jurisdictional issues in insolvency and commercial law often in Chambers’ core areas of aviation, construction, energy and shipping.  Robert is a registered practitioner at the Dubai International Financial Centre Courts and appears there frequently.  He is called to the Bar in Northern Ireland and as a Foreign Legal Consultant in the State of New York.  He is often asked to work on cases in the Caribbean arising out of contractual, commercial or chancery disputes.  Robert is a Fellow of the Chartered Institute of Arbitrators and is a registered arbitrator at all of the large international arbitral institutions between London and Hong Kong. He is recommended as a leading silk for commercial dispute resolution, aviation and international arbitration. He is described as "...An extremely good advocate, who is very good at dealing with difficult situations and anxious clients. His written work is very strong and he brings clarity to cases..."

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