AES-3C Maritza East 1 EOOD v Alstom Power Systems GmbH [2011] EWHC 123 (TCC)

[2011] EWHC 123 (TCC)Case Nos: HT-10-493 and HT-11-24
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31 January 2011
Before
THE HON. MR. JUSTICE RAMSEY
Between
AES-3C Maritza East 1 EOODClaimant(2) Alstom Power Systems GmbHDefendants
Richard Wilmot-Smith QC and Adam Robb (instructed by Eversheds LLP) for ClaimantJohn Higham QC (instructed by White & Case LLP) for First DefendantDavid Friedman QC and Thomas Crangle (instructed by Herbert Smith LLP) for Second DefendantHearing Hearing date: 27 January 2011
Judgment
[1]In these proceedings the claimant ("AES") seeks summary judgment against the defendant bank ("Calyon") in respect of two demands made on an on-demand bond, Performance Bond No E04123 ("the Bond"), provided to AES under a contract for the construction of a power plant in Bulgaria. The contractors under that engineer, procure and construct contract with AES ("the EPC Contract") are two Alstom Group companies, Alstom Power Systems GmbH ("Alstom") and Alstom Bulgaria EOOD. Because any liability of Calyon to pay under the Bond will be subject to an indemnity from Alstom it is evident that Alstom have an interest in these proceedings. In France Alstom have applied for and been successful in obtaining interim injunctions preventing Calyon from making payment to AES under the Bond. Preliminary matters[2]Alstom applied under CPR 19.2 to be joined as a defendant to these proceedings. At the commencement of the hearing I granted that application on the basis that it was desirable for Alstom to be a party so that the court could take account of Alstom's position to resolve all matters in dispute and it was convenient to deal with issues between Alstom and the existing parties.[3]At the commencement of the hearing I also granted AES permission to apply for summary judgment prior to filing of acknowledgement of service. Under CPR 24.4(1) such permission should have been obtained before the issue of the application but, when making the applications for summary judgment, AES included an application for permission to "serve" the summary judgment applications prior to acknowledgement of service. Given that all parties, including Alstom, had put in evidence which dealt with the summary judgment application and had filed detailed skeleton arguments, it was evidently appropriate that the necessary permission should be given under the overriding objective in the CPR so that the hearing of the summary judgment applications could proceed. I indicated that if any problems arose because of this abridgment of time such matters could be dealt with by way of case management. In the event no such problems occurred.[4]Finally by way of preliminary matters, Alstom submitted that a decision on Calyon's liability to make payment under the Bond should not be dealt with by way of summary judgment because of concerns that such a procedure may be perceived by the French Courts as being a default procedure rather than a trial on the merits. It is clear that an application under CPR Part 24 is a decision on the merits and, as provided by CPR 24.2 the Court may give summary judgement against a defendant if it considers that the defendant has no real prospect of successfully defending the claim and there is no other compelling reason why the case should be disposed of at trial. In the event AES submitted that, on the point of construction of the Bond raised by the first demand, I should make a final decision and, in the event, I have been able to do so. Background[5]The power station project for which the Bond was provided is situated in Galabovo, Bulgaria. When completed it will comprise a lignite-fired facility with two units, known as Units 1 and 2, each of 300MW net capacity. The power generated will be sold to a Bulgarian electricity authority.[6]The EPC Contract was originally executed by the parties on 7 April 2006 but has been amended on a number of occasions. The current amended target dates for Unit 1 Performance Acceptance and for Unit 2 Performance Acceptance are now 25 September 2010 and 25 October 2010 respectively. Alstom did not achieve Performance Acceptance of the Units by those dates and AES demanded payment of Late Completion Payments in respect of Unit 1 and Unit 2 on a monthly basis commencing in October 2010.[7]The Bond was dated 16 April 2006 and has been subject to a number of amendments which are not material. It contained the following provisions: (1) By Clause 2:
"Subject to Clauses 6 below, the Bank irrevocably undertakes that, on receipt of a demand from the Company which satisfies the requirements of Clause 4 below, but without any further condition, it will pay the amount specified in the demand to, or to the order of, the Company and that the payment will be made on and with value within three Banking Days after the date on which the Bank receives the demand." (2) By Clause 4: "
The Bank shall have no liability in respect of a demand which does not satisfy all the following requirements: ... (b) the demand contains a statement (or statements) to the effect (or substantially to the effect) that either: (i) the Contractor has failed to comply with its obligations in accordance with [the EPC Contract]; ... (f) the demand contains any notice to or claim against Contractor relating to the respective breach of its obligations to which the demand refers." (3) By Clause 7:
"This Bond is independent of [the EPC Contract] and shall remain in full force and effect notwithstanding any initial or subsequent illegality or invalidity, termination, disclaimer or discharge of [the EPC Contract] or any reconstruction, reorganisation or liquidation of the Contractor or any form of judicial, quasijudicial or nonjudicial arrangement or suspension of payments which discharges, reduces or otherwise affects the obligations of the Contractor under [the EPC Contract]." (4) By Clause 8: "
Subject to Clauses 4 and 6 above, more than one demand may be served under this Bond." (5) By Clause 10:
"This Bond is not a contract of suretyship but an undertaking to make payments against presentation of conforming demands." (6) By Clause13: "
This Bond is subject to the Uniform Rules for Demand Guarantees of the International Chamber of Commerce (Publication No 458), except that Article 20(a) of those Rules is hereby excluded and Article 10(a) of those Rules, which allows the Bank a reasonable time to examine a demand and to decide whether to pay or refuse a demand, shall apply within the time limits fixed by this Bond for payments by the Bank." (7) By Clause 14:
"This Bond is governed by English law and the courts of England shall have non-exclusive jurisdiction to settle any dispute connected with it."
[8]AES say that by 20 December 2010 Alstom had failed to achieve Performance Acceptance by the amended target dates and that it was inevitable that Alstom would fail to complete Unit 1 by 25 December 2010 and was forecast to fail to complete Unit 2 before the end of 2010. As a result AES say that on 20 December 2010 they made and were entitled to make a demand on the Bond by a letter addressed to Calyon ("the First Demand"). That demand was in the following terms:
"Pursuant to Clause 2 of the Performance Bond we hereby demand payment of €93 million (ninety-three million Euros). The Contractor has failed to comply with its obligations in accordance with [the EPC Contract], including the following breaches: • The Date of Unit 1 Performance Acceptance was not achieved at the latest on the Guaranteed Unit 1 Performance Acceptance Date or by the Target Unit 1 Performance Acceptance Date; • The Date of Unit 2 Performance Acceptance was not achieved at the latest on the Guaranteed Unit 2 Performance Acceptance Date or by the Target Unit 2 Performance Acceptance Date; and • Late Completion Payments have not been paid when due. In accordance with Clause 4(f) of the Performance Bond, we attach and incorporate the following notices and claims relating to the breach of the Contractor's obligations referred to above:..."
[9]Attached to the First Demand were letters and demands for Late Completion Payments on Unit 1 from 26 September 2010 until 30 November 2010 and Unit 2 from 26 October 2010 until 30 November 2010. Those letters attached invoices which totalled some €27 million.[10]The First Demand then contained the following paragraph:
"For the avoidance of any doubt: • neither the Date of Unit 1 Performance Acceptance not the Date of Unit 2 Performance Acceptance has been achieved at the date of this demand; and • the Warranty Period has not expired. We reserve the right, as permitted by Clause 8 of the Performance Bond, to serve more than one demand."
[11]Following the First Demand no payment was received from Calyon. By a letter sent on 24 December 2010 Calyon stated that they had recently received correspondence from lawyers acting for Alstom who informed Calyon that they disputed the validity of the demand and were seeking a court order to stop Calyon from making payment.[12]Alstom applied to the Tribunal de Commerce de Nanterre and by order number 10.2342 dated 28 December 2010 it was ordered that, until a further hearing of the Tribunal de Commerce on 2 February 2011, Calyon was prevented from paying AES under the Bond. This injunction replaced an earlier one dated 27 December 2010 number 10.2340 which is in similar terms but where AES's name was incorrect.[13]On 31 December 2010 AES issued a first set of proceedings and the application for summary judgment in respect of the sum demanded by the First Demand.[14]On 7 January 2011 Calyon wrote to AES stating that the First Demand was defective because, in essence, the demand was for €93 million but only enclosed notices or claims against Alstom in the total sum of some €27million. Calyon contended that the First Demand therefore failed to satisfy the requirements of Clause 4(f) of the Bond.[15]On 17 January 2011 Calyon received a further letter of demand from AES dated 11 January 2011 ("the Second Demand"). That demand stated as follows:
"Pursuant to Clause 2 of the Performance Bond we hereby demand payment of the sum of €96,604,166.83 (Ninety-six million, six hundred and four thousand, one hundred and sixty six Euros and eighty three cents). The Contractor has failed to comply with its obligations in accordance with [the EPC Contract], including the following breaches: • the Date of Unit 1 Performance Acceptance was not achieved at the latest on the Guaranteed Unit 1 Performance Acceptance Date or by the Target Unit 1 Performance Acceptance Date; • the Date of Unit 2 Performance Acceptance was not achieved at the latest on the Guaranteed Unit 2 Performance Acceptance Date or by the Target Unit 2 Performance Acceptance Date; • Late Completion Payments have not been paid when due; • failure to make payment for construction power and/or electricity via the Grid System supplied by us in accordance with [the EPC Contract];and • Failure to pay interest on sums due. In accordance with Clause 4(f) of the Performance Bond, we attach and incorporate the following notices or claims relating to the breach of the Contractor's obligations referred to above:..."
[16]The letter exhibited letters and invoices which totalled the sum claimed of €96,604,166.83.[17]No payment was received from Calyon as a result of the Second Demand. On 19 January 2011 White & Case, instructed on behalf of Calyon, stated that their preliminary view was that the Second Demand "does appear on its face to satisfy the formal requirements of the Performance Bond". They said, however, that notwithstanding their preliminary view, Calyon remained bound by the terms of the interim injunction granted by the Nanterre Tribunal de Commerce.[18]By a further injunction dated 19 January 2011 the President of the Nanterre Tribunal de Commerce referred to the order dated 28 December 2010 and stated that that injunction applied to every demand for payment under the Bond. It therefore covered the Second Demand.[19]On 21 January 2011 AES issued a second set of proceedings and the second application for summary judgment under CPR Part 24 in relation to the sums claimed in the Second Demand.[20]On 24 January 2011 Alstom issued applications to be joined as a Defendant in both sets of proceedings. The evidence[21]In support of the application for summary judgment in relation to the First Demand AES served a Witness Statement of Peter Lithgow dated 31 December 2011 and in support of the second application for summary judgment served another statement of Peter Lithgow dated 21 January 2011.[22]Alstom served a Witness Statement of Daniel Gething dated 21 January 2011 seeking permission for Alstom to be joined in these proceedings and for the application for summary judgment to be dismissed. Calyon served a Witness Statement of Jason Yardley dated 24 January 2011 in opposition to the application for summary judgment on the First Demand. At paragraph 61 he set out that White & Case had confirmed that if AES were to issue proceedings in respect of the Second Demand, Calyon would not look to advance any argument that the Second Demand was not compliant with the Bond. However he stated that White & Case had advised that it was not appropriate for Calyon to consent to judgment in respect of the Second Demand in circumstances where the parties were on notice of Alstom's intention to apply to join the proceedings on the First Demand and it was highly likely that Alstom would also apply to join in the proceedings in the Second Demand and also in circumstances where Alstom had obtained the three injunctions from the French court so as to prevent any payment being made under the Bond.[23]AES served a second Witness Statement of Peter Lithgow dated 25 January 2011 which responded to the Witness Statements served by Calyon and Alstom.[24]I now turn to consider the two applications for summary Judgment, dealing first with the proceedings and application in respect of the First Demand. First Demand Submissions on Clause 4[25]Mr John Higham QC, on behalf of Calyon, submits that the First Demand was an invalid demand or, at least for the purpose of this application for summary judgment, there are triable issues upon which Calyon has a real prospect of success. The essence of Calyon's case is that under Clause 4(b)(i) and 4(f) of the Bond AES were not entitled to make a demand in respect of sums which had not become due before the date of the demand and for which no notice to or claim against Alstom had been provided under Clause 4(f).[26]In support of this contention Mr Higham QC referred to Clause 2 of the Bond which he submitted made Calyon's irrevocable undertaking to make payment conditional on receipt from AES of a demand which satisfied the requirements of Clause 4 (b)(i) and 4(f) of the Bond. He referred to Clause 13 of the Bond which, with the exception of Articles 20(a) and 10(a), applied the Uniform Rules for Demand Guarantees ("URDG") to the Bond. He referred me to Article 9 of URDG which provides as follows:
"All documents specified and presented under a Guarantee, including the demand, shall be examined by the Guarantor with reasonable care to ascertain whether or not they appear on their face to conform with the terms of the Guarantee. Where such documents do not appear so to conform or appear on their face to be inconsistent with one another, they shall be refused."
[27]Mr Higham QC submitted that this showed that the commercial purpose for the documents provided under Clause 4(f) was to allow the bank to examine them and be satisfied that the documents supported the amount of the demand which was being made under the Bond. He referred to Clause 13, which limited the reasonable time for Calyon to examine any demand and decide whether to pay or refuse the demand provided for in Article 10(a) of the URDG, to the period of three days fixed at Clause 2 for Calyon to make payment after receipt of a demand. He submitted that this short period was consistent with the documents having to provide clear support for the demand made on the Bond.[28]He submitted that the effect of the provisions of Clause 4 of the Bond and Article 9 of the URDG was that the standard for testing the conformity of the demand with the terms of the Bond was a strict one and referred me to Paget's Law of Banking (13th Edition) at paragraphs 34.6,36.1 and36.2 and to the decisions of Leggatt, J in IE Contractors v Lloyds Bank [1989] 2 Lloyd's Rep 205 at 207 to 208 and of Staughton LJ in the Court of Appeal in that case at [1990] 2 Lloyd's Rep 496 at 499 to 501.[29]He also submitted that the statement in Article 9 of URDG that documents which did not appear on their face to conform with the terms of the Bond or were inconsistent with one another should be refused, reflected the general approach in law. He referred me to the statement of Hirst J in Siporex Trade SA v Banque Indo Suez [1986] 2 Lloyd's Rep 146 at 159, cited with approval by Leggatt J in IE Contractors at 206 to 207 and followed by Sir Christopher Bellamy QC in Frans Maas (UK) Limited v Habib Bank AG Zurich [2001] CLC 89 at [57] to [73].[30]In this case he submitted that the documents did not support a claim for €93 million. He submitted that the documents to be provided under Clause 4(f) were required to relate to the breach of the obligations to which the demand referred and there were no documents to support any claim in excess of some €27 million. He submitted that, on the evidence, it was clear that Mr Lithgow had made claims for sums which had not yet become due and payable but which Mr Lithgow said would inevitably become due and payable.[31]Mr Higham QC submitted that this was not sufficient because, reading Clauses 4(b)(i) and 4(f) together, the demand had to relate to sums which were due and payable at the date of the demand and were therefore capable of being supported by a notice to or a claim against Alstom and which were required to be supplied under Clause 4(f). He submitted that any other interpretation made no commercial sense because Calyon would not be able to verify that sums were due and payable under the Bond by reference to documents unless the sums forming the basis of the demand were supported by a notice to or claims against Alstom and were therefore claimed to be due and payable.[32]Accordingly, in summary, Mr Higham QC submits that the First Demand was not a valid demand because it claimed sums which were not due and payable and sums for which there was no notice to or claim against Alstom.[33]Those submissions were adopted by Mr David Friedman QC and Mr Thomas Crangle who appeared on behalf of Alstom.[34]On behalf of AES Mr Richard Wilmot-Smith QC and Mr Adam Robb submitted that AES were entitled to demand sums which had not yet become due and payable from Alstom but which, on the evidence of Mr Lithgow, were inevitably going to become due and payable within a short period after the demand. In such circumstances it was submitted that the First Demand had contained the necessary statement that Alstom had failed to comply with its obligations in accordance with the EPC Contract and AES had supplied the relevant notices to or claims against Alstom relating to the breach relied on.[35]Mr Wilmot-Smith QC relied on the general principles applicable to on-demand bonds, being that such bonds were payable against an appropriately worded demand accompanied by such documents as the demand required and without proof of the existence of a liability under the underlying contract. I was referred to a number of authorities in support of this submission includingEdward Owen Engineering Ltd v Barclays bank International Ltd[1978] 1 QB 159Esal Commodities v Oriental Credit [1985] 2 Lloyd's Rep. 546, IE Contractors v Lloyds Bank [1990] 2 Lloyd's Rep. 496, Gold Coast Ltd v Caja de Ahorros del Mediterraneo [2002] 1 Lloyd's Rep. 617, Enka Insaat Ve Sanayi AS v Banca Popolare Dell'alto Adige SPA [2009] EWHC 2410 (Comm), Vossloh Aktiengesellschaft v Alpha Trains (UK) Limited [2010] EWHC 2443 (Ch) andCarey Value Added SL v Grupo Urvasco SA [2010] EWHC 1905 (Comm).[36]He also submitted that there was no need for the sum claimed to be a sum which was payable by Alstom and that AES was entitled to claim for any sum including sums which inevitably would become payable. He relied on the following passage in Enka Insaat Ve Sanayi AS v Banca Popolare Dell'alto Adige SPA [2009] EWHC 2410 (Comm) at [37] where Teare J had said:
"I therefore consider that the meaning which the word "accordingly" in both the Performance and Advance Payment Guarantees would convey to the reasonable commercial man familiar with the nature of performance guarantees and bonds is that the entitlement to the sum demanded from the Banks arises under the guarantees in circumstances where, and because, a demand has been made under the guarantees stating that F&R has failed to fulfil its obligations under the sub-contract. That is consistent with the manner in which such guarantees have been understood to operate and is, on that account, not unreasonable. If it had been intended that, when claiming upon the performance guarantee, ENKA could only demand such sum as it estimated represented the loss and damage caused by F&R's breaches of contract the guarantee could easily have said so in clear terms. Similarly, if it had been intended that, when claiming upon the advance payment guarantees, ENKA could only demand such part of the advance payment as it claimed was at that time repayable the guarantees could easily have said so in clear terms. On the contrary "the demand shall be conclusive evidence of [BP's] liability and of the amount of the sum or sums which [BP is] liable to pay to [ENKA], notwithstanding any objection made by [F&R] or any other person."
That ENKA does not need to assert an entitlement to repayment from F&R does not appear to me to be so unreasonable that it cannot be the meaning which the words of the guarantees reasonably convey. An ability to call upon the advance payment guarantees in the event of breach is consistent with ENKA being kept out of pocket in the amount of the advance payments (less any deductions from the monthly progress payments) only so long as F&R is not in breach." Decision on Clause 4[37]It is evident that the question of whether there has been a relevant demand under an on-demand bond depends in each case upon the wording of the particular bond. I accept that the Bond in this case, like many on-demand bonds, was payable against an appropriately worded demand accompanied by such documents as the demand required and without proof of the existence of a liability under the underlying contract. In this case the issue is whether a claim for sums not yet alleged to be due and payable and for which there was no notice to or claim against Alstom can be demanded under the Bond.[38]I consider that reading Clauses 4(b)(i) and 4(f) together, there is a clear link between the documents which have to be supplied under Clause 4(f) and the requirement in Clause 4(b)(i) for a statement that Alstom has failed to comply with its obligations under the EPC Contract. I accept the submissions by Mr Higham QC that the proper construction of these two clauses, when also read together with the provisions of the URDG, means that the documents which have to be provided under Clause 4(f) are those which support the demand which is made for a failure to comply with the obligations of the EPC contract. In other words, the documents in Clause 4(f) have to support AES's demand which is based on the breach of Alstom's obligations referred to in Clause 4(b)(i). That requirement does not mean that there has to be any proof of breach of the underlying obligations under the EPC Contract. The only documents which are required are a notice to Alstom or claim against Alstom relating to the alleged breach of Alstom's obligations under the EPC Contract which is relied upon by AES in their demand. Given that Calyon are entitled to decide whether to pay or refuse to pay based upon those documents I do not consider that there could be a valid demand where, in this case, the notices or claims were in respect of some €27million but the claim was made for €93 million. There was therefore no document, whether a notice to or a claim against Alstom in respect of the balance of some €66 million. As a matter of construction of Clauses 4(b)(i) and 4(f) I do not consider that the parties to this commercial transaction can have intended payment when the documents supplied under Clause 4(f) did not provide support for the claim made.[39]The demand under Clause 4(b)(i) has to include a statement that Alstom has failed to comply with its obligations in accordance with the EPC Contract. Consistent with the demand stating that there has been a failure to comply with the EPC Contract and the provision of a notice or claim against Alstom relating to that breach, I consider that the claim has to be based on an assertion by AES that the sum is due and payable by Alstom for the breach of the obligation. The purpose of the documentation under the URDG strongly supports the fact that prospective claims for sums payable by Alstom at a future date are not to be the subject of demands under the Bond, even if those sums might inevitably be due and payable at a future date. That is not to say that in cases where, for instance, there are defects giving rise to claims for damages for breach of contract such claims could not be made. In such cases there is an accrued right to pay damages although the sum actually paid to make good those damages may not yet have been incurred. That is different from a case where it is not contended that AES had a right to payment, at 20 December 2010, to the sum demanded on that date.[40]I do not obtain assistance from the decision in Enka Insaat which was based on the different obligations under the Advance Payment Guarantees and the Performance Guarantee in that case. There was, under those instruments, no requirement to produce documents to support the demands and payment was to be made "without the need for proof or conditions" and the demand was "conclusive evidence of our liability and of the amount of the sum or sums which we are liable to pay..." . In such circumstances, the obligations under the instruments in that case cannot assist on the meaning of the Bond in this case.[41]In those circumstances, the First Defendant has established that they have a real prospect of successfully defending the claim on the First Demand, sufficient to defeat any application for summary judgment based on that demand. In this case, I was invited by Mr Wilmot-Smith QC to go further and decide this issue, it being a matter purely of construction of the Bond and the First Demand. Having heard the arguments and submissions I consider that this is an appropriate case for me to make a final decision that the First Demand was not a valid demand because it did not comply with Clause 4(f) of the Bond as it made a claim for which there was no notice to or claim against Alstom. In addition, the sums claimed were not due and payable by Alstom for any breach of obligation relied upon by AES in Clause 4(b)(i) of the First Demand and sums not yet due and payable by Alstom under the EPC Contract are not recoverable under the Bond.[42]Although that finding is sufficient to deal with the application for summary judgment in relation to the First Demand and deals with all the arguments put forward by Calyon, Alstom takes additional points which I should also deal with although they are not adopted by Calyon. Fraud[43]Alstom contends that the First Demand was made fraudulently. It is common ground that if that were so it would provide a good defence. In support of this contention Mr Friedman QC relies on paragraph 26(f) of Mr Lithgow's Witness Statement dated 31 December 2010 and paragraph 76 of his Witness Statement dated 21 January 2011. At paragraph 26(f) Mr Lithgow sets out calculations to justify the Claim for €93 million and states that he took into account the inevitable failure to complete Unit 1 by 25 December 2010 and the forecast failure to complete Unit 2 before the end of 2010 in coming to that total sum.[44]In paragraph 76 of his Witness Statement dated 21 January 2011 Mr Lithgow stated this:
"In addition, the Defendant's letter stated that the payments sought by the First Demand were not all due at the time it was made. This statement is correct. However, I am advised by AES's legal advisers that the sum demanded may exceed the liabilities of Alstom to AES on the date of the demand. As I explain at paragraph 34(f) above, Alstom either was already liable to pay or would inevitably have become liable to pay AES a sum in excess of €96 million. I therefore believe that a call for €93 million, more than €3million below the sum that Alstom would inevitably become liable to pay AES within a matter of days, was one which in my view AES was entitled to make in accordance with the terms of the bond."
[45]Mr Friedman QC submits that on the basis of this evidence, it is clear that Mr Lithgow was aware that the sums had not become due and therefore made a demand for a sum under the bond which it knew was not due at that time from Alstom. As a result, he submits that there is a triable issue whether the First Demand was made fraudulently. He relies on the following authorities: (1) The decision of David Steel J in Uzinterimpex v Standard Bank Plc [2007] 2 Lloyd's Rep. 187 at [107] where he said that:
"In the context of a performance bond or advance payment guarantee, a demand which the maker does not honestly believe to be correct as to its amount is a fraudulent demand: "…The question is whether when the demand was made the persons acting on behalf of the plaintiffs knew that the sum claimed was not due from Leadrail, and dishonestly made a demand despite that knowledge…": Balfour Beatty v Technical General Guarantee Company Ltd [1999] 68 Const LR 180." (2) The judgment of Parker LJ in GKN Contractors v Lloyds Bank Plc (1985) 30 BLR 48 at 63 where he stated that the fraud exception related to the situation "where the named beneficiary presents a claim which he knows at the time to be an invalid claim, representing to the bank that he believes it to be a valid claim."
[46]Mr Friedman QC also refers, for completeness, to the decision of Teare J in Enka Insaat Ve Sanayi A.S. v Banca Populare Dell'Alto Adige SPA[2009] EWHC 2410 (Comm) where it was held that a demand can only be a fraud where the terms of the bond itself require the party demanding payment to indicate that they believe that the sum is due from the relevant party. He submits that the decision of David Steel J is to be preferred and that, in any event, the need to give documents supports the contention that in this case AES must have a bona fide belief that the sums demanded are due from Alstom.[47]Mr Wilmot-Smith QC submits that there is no basis for the allegation of fraud in this case. He said that the evidence of Mr Lithgow only supports a case that, on the basis of the finding that I have made, there was a demand which did not conform with the terms of the Bond not that there was no honest belief in making the demand for the sum demanded.[48]I consider that there is no basis for the allegation of fraud in this case. The evidence provides no support whatsoever for an assertion that Mr Lithgow did not honestly believe the demand which was made to be a correct demand made under the Bond. This is not a case where there is any evidence that a party has deliberately made a claim which that party knew to be invalid when it made it. A mistaken belief that the Bond covered prospective loss may, as I have found, be a mistaken belief but I see no basis for drawing any inference that such conduct was dishonest or amounted to a fraudulent demand. In those circumstances I do not consider that Alstom has established that Calyon (who does not adopt this argument) has any real prospects of successfully defending the claim made on the First Demand on the basis that the demand was made fraudulently. Failure to include the letter of 19 December 2010[49]Alstom also relies on the fact that the demand did not contain a notice to or claim against Alstom which was made by AES in its letter of 19 December 2010. Again this is not a contention adopted by Calyon. That letter was mainly concerned with a claim by Alstom for a Scope Change Order on the basis that the lignite fuel supplied to Alstom did not comply with the provisions of the contract. For the first two pages and the top part of the third page the letter deals with those issues. It then contains the following paragraphs:
"The Company also reminds the Contractor that Late Completion Payments of €35,414,600 are due and payable as of 15 December 2010 but remain unpaid in breach of EPC Contract. Late Completion Payments continue to accrue, as does interest on unpaid Late Completion Payments and other unpaid sums due from the Contractor. The Company requires strict performance of all the Contractor's obligations under the EPC Contract and reserves all its rights."
[50]On this basis Mr Friedman QC submits that this is a notice to or claim against Alstom and that under the provisions of Clause 4(f) of the Bond the demand should have contained that letter.[51]Mr Wilmot-Smith QC submits that this is not a notice or claim within the meaning of Clause 4(f) of the Bond. He says that all the letter is saying is that by 15 December 2010 the total accrued Late Completion Payment stood at €35,414,600. He says that the Late Completion Payments for December 2010 for Units 1 and 2 were claimed in letters dated 6 January 2011 which formed the basis of the claim under the Second Demand.[52]This letter was referring to sums which were continuing to accrue from further delay but which had not yet been claimed and were not yet due and payable under the EPC Contract. On the basis of my finding that AES could not make a demand under the Bond for sums which had not become due and payable from Alstom on the date of the demand, those sums could not form part of the First Demand. In those circumstances there was no need for the First Demand to include the letter of 19 December 2010. If I had held otherwise as to the sums which AES could recover under the Bond then this letter may have been relevant. Summary on the First Demand[53]As set out above I consider that Calyon has raised arguable defences on the basis that the First Demand was invalid because it did not comply with Clause 4(f) of the Bond and sought sums which, as at the date of the First Demand were not due and payable from Alstom. I also make a final decision, as invited to do so by AES, that the First Demand was invalid because it did not contain notices to or claims against Alstom except for the amount of some €27 million and therefore did not comply with Clause 4(f) of the Bond. In addition the demand was invalid because it sought sums which were not due and payable at the date of the First Demand. The Second Demand Submissions by Calyon[54]Calyon whilst not consenting to judgment in relation to the Second Demand does not seek to put forward any grounds by way of defence. Rather it accepts that the documentation which was served with the Second Demand properly supported the sums claimed and conformed to the terms of the Bond. They do not adopt the arguments put forward by Alstom but I take those arguments into account in deciding on this application for summary judgment. Invalidity of Second Demand[55]Alstom first relies on a contention that, having made the First Demand, AES's Second Demand is defective because AES cannot make another demand for the same sums in circumstances where the First Demand has not been withdrawn.[56]On the basis that I have found that the First Demand was invalid I do not consider that the potential problems raised by Alstom now arise. There was only one valid demand, the Second Demand. If I had found that Calyon had no real prospects of successfully defending the claim on the First Demand based on the invalidity of that demand then I can see that there would be difficulty in making a second valid demand for the same sums. In the circumstances I do not have to resolve that difficulty. Effect of Fraudulent First Demand[57]Alstom contends that, on the basis that the First Demand was fraudulent, this relieves Calyon from further performance under the Bond and they rely on a passage from the decision of Moore-Bick LJ in Habibsons Bank Ltd. v Standard Chartered Bank (Hong Kong) Ltd [2010] EWCA Civ 1335 at [35]. Having found that there was no arguable basis for alleging fraud in relation to the First Demand, the issue of the impact that any fraud on one demand might have on a later demand does not arise. Failure to include the letter of 19 December 2010[58]Mr Friedman QC also submits that, like the First Demand, the Second Demand was also invalid because the letter of 19 December 2010 should have been attached to comply with Clause 4(f) of the Bond. However, by the time of the Second Demand there had been notice to and a claim against Alstom in respect of sums which were due and payable under the EPC contract for the further delay in Performance Acceptance and the relevant documents were included with the Second Demand. In those circumstances there was no reason to produce the letter of 19 December 2010 which, in any event, was not a relevant notice or claim against Alstom for the sums claimed on the Second Demand. Failure to include the letter of 29 December 2010[59]In addition Alstom relies on the failure to include a letter of 29 December 2010 written by AES to Alstom. That letter was dealing with a notification which AES had received from Alstom concerning unit performance testing. It dealt with performance tests on Unit 2, hot commissioning of Unit 1 and the contention that the lignite fuel supplied was out of specification. On the second page it stated as follows:
"As a consequence of the matters set out above, the Company hereby gives the Contractor notice pursuant to article 15.11(h) of the EPC Contract that the Contractor had failed to perform its obligations under the EPC Contract in a manner not otherwise addressed in Article 15.11 and requires the Contractor to remedy such failure by re-starting and re-commencing commissioning of Unit 1 and Unit 2 immediately. The Company reserves its rights to deliver further or additional notices in respect of the Contractor's breaches of the EPC Contract and its failure to perform its obligations under that contract. The Company will also look to the Contractor for full compensation for any damage suffered by any part of the facilities as a result of the Contractor's decision to cease hot commissioning of Unit 1 and Unit 2."
[60]Mr Friedman QC submits that this is a notice to or claim against Alstom which should have been included with the Second Demand. Mr Wilmot-Smith QC on behalf of AES submits that this is not a relevant document because there is no claim made within the Second Demand for any sums relating to this notice requiring the Contractor to remedy a failure by re-starting and re-commencing commissioning of Units 1 and 2 or the decision to cease hot commissioning.[61]I accept that submission. It is not a condition of the Bond that every notice to or claim against Alstom made by AES should be attached to the demand.It is only notices or claims which relate to the breach of Alstom's obligations to which the demand refers. It is not a possible commercial interpretation of that provision that AES has to provide every notice or claim. Evidently, as I have stated above, what is required are notices to or claims against Alstom which relate to the relevant failure to comply with the obligations set out in the demand so as to support the demand. In this case the letter of 29 December 2010 does not fall within that category. Summary on Second Demand[62]In those circumstances I consider that Calyon has no real prospect of successfully defending the claim made in relation to the Second Demand. The relief to be granted[63]As a result of the matters set out above the order I would normally make would be an order that AES is entitled to summary judgment under Part 24 in the sum of €96,604,166.83. In this case, Calyon submit that whilst I might grant a declaration of the obligations under the Bond I should not grant judgment against Calyon because of the existence of the orders of the Tribunal de Commerce in Nanterre.[64]Calyon is a French Bank which issued the Bond from its head office in Paris. I accept that Calyon is the subject of orders issued by the President of the Tribunal de Commerce in Nanterre which, at present, prevent it from making any payments under the Bond. Those orders are equivalent to an interim injunction issued by the French Court which evidently has jurisdiction over Calyon. The injunctions have the equivalent of a return date on 2 February 2011.[65]In those circumstances Mr Higham QC submits that it is a well established principle of English law that the English Courts will not enforce performance of an English law governed contract that requires a party thereto to perform actions, the performance of which would be illegal under the law of the county of their place of performance and he relies on the decision of the Court of Appeal in Ralli Bros v Compania Naviera Sota y Aznar [1920] 2 KB 287 at 291-292, 295-296 and 299-300.[66]Mr Wilmot-Smith QC does not challenge that statement but submits that this should not prevent the grant of summary judgment for the sums due under the Second Demand.[67]I accept the submission made by Mr Higham QC as to the principle to be derived from the decision in Ralli Bros. However I consider that there is a distinction to be drawn between a judgment which determines what, as a matter of contractual obligation, a party is obliged to do and the enforcement of any payment obligation under that judgment. In this case, as a matter of contractual obligation Calyon is obliged to pay to AES the sum of €96,604,166.83. I see no reason why this court cannot express a judgment in those terms. What the French injunctions do is to prevent Calyon from currently complying with their obligations under the Bond or that judgment. What Ralli Bros establishes is that the English court will not, in such circumstances, require Calyon to act in a manner which is illegal under French law because of the existence of the injunctions.[68]The expectation would be that on the basis of this judgment, handed down by a Court which has jurisdiction to determine liability under the Bond, the French Court would discharge the injunction. That however is matter for the French Court.[69]Subject to any further argument on this aspect and to the precise wording of the order I would propose to grant summary judgment in the sum of €96,604,166.83 but order that the judgment in that sum is not to be enforced so long as Calyon is prevented from complying with that judgment by an Order of the French Court. Obviously the order would also be subject to any further order of this Court in case any further guidance is necessary.

Cited in 1 later judgment