Summary of Court of Appeal Opinion (Anonymized)

Factual and Procedural Background

This appeal concerns whether the Appellant was entitled to pursue proceedings in the Tribunal de Commerce in Paris challenging steps taken to enforce liabilities under bonds. The claim form in the initial proceedings was issued on 11 June 2025; an expedited trial was heard on 7–8 October 2025 and Judge Fancourt delivered judgment on 16 October 2025 (reported at [2025] EWHC 2673 (Ch)). The judge held that, on the true interpretation of an agreement dated 11 November 2024 (the "Additional Agreement"), the Appellant had given up the right to bring such proceedings.

The Appellant was represented on the appeal by Attorney Brodie and the Respondent by Attorney Boase. The bonds at issue were issued by two companies: Company A (the operating company) and Company B (its parent). The Appellant and Company C each held 50% of the shares in Company B. The original subscriber and bondholder was Company D; it is not disputed that the Respondent is the transferee of Company D's rights under the bonds.

The bonds were governed by French law and provided that the Tribunal de Commerce in Paris had exclusive jurisdiction to determine disputes arising under them. On 7 March 2023 security was provided in three forms:

• Lux Share Pledge (governed by Luxembourg law; exclusive jurisdiction in Luxembourg courts) over the shares in Company B;
• Lux Receivables Pledge (governed by Luxembourg law; exclusive jurisdiction in Luxembourg courts) over receivables owed by Company B; and
• A fiducie (the "Fiducie", governed by French law; exclusive jurisdiction in the Tribunal de Commerce in Paris) under which Company B transferred its shares in Company A to Company F as trustee.

On the same date the parties entered into an Intercreditor Agreement governed by English law. The bonds became immediately due and payable on 6 September 2024 and were not repaid, constituting an Event of Default. A period of forbearance was provided under a Standstill Agreement and, contemporaneously, the Additional Agreement (both dated 11 November 2024) was made, governed by English law.

Following expiry of the standstill and further communications in May 2025, Company E (the agent) issued a demand on 27 May 2025 and, on 28 May 2025, issued notices of enforcement in relation to the Lux Share Pledge and the Lux Receivables Pledge. The shares in Company B were appropriated to the Respondent and sold to Company G. Company E, exercising voting rights through the trustee (Company F), dismissed Company A's President and appointed a replacement.

With the permission of the Tribunal de Commerce in Paris, the Appellant began proceedings in that tribunal on 5 June 2025, asserting (in summary) that: (a) the assignment under the Fiducie was ineffective for non-compliance with specified clauses and for failure to notify change of control; (b) the demand was contrary to the obligation of good faith under Article 1104 of the French Civil Code; (c) a triggering event under the Fiducie had not occurred; and (d) the Respondent's enforcement steps were not permitted under the Fiducie and were therefore unlawful.

The issue on this appeal is whether, by the terms of the Additional Agreement, the Appellant had given up the right to challenge actions taken in enforcement (or purported enforcement) of the securities, which turns on the interpretation of clauses in the Additional Agreement (notably clause 5(a) and clause 5(d)).

Legal Issues Presented

1. Whether, on proper interpretation of the Additional Agreement, the Appellant agreed to give up any right to contest or prevent the validity or exercise of rights under the Finance Documents (including security documents) anywhere in the world.
2. Whether clause 5 of the Additional Agreement (and in particular clause 5(a) and clause 5(d)) operates to preclude the Appellant from bringing or continuing proceedings in the Tribunal de Commerce in Paris challenging enforcement steps taken by the Agent or the Respondent.
3. If clause 5 is capable of that effect, whether any limitation (temporal, geographic or limited to certain kinds of challenge) applies so as to preserve the Appellant's Paris proceedings.

Arguments of the Parties

Appellant's Arguments (as advanced on appeal)

• Attorney Brodie focused primarily on clause 5(d) and argued that the Additional Agreement lacked the clear words necessary to cause the Appellant to give up its right to access a court to challenge what it described as "illegality". He emphasised the fundamental constitutional nature of access to courts and argued that clear and unambiguous words were required to deprive a party of that right.
• The Appellant also relied on aspects of the skeleton argument developed below focusing on clause 5(a) (an undertaking to cooperate), contending that the obligation to co-operate related only to proposed or inchoate enforcement steps and did not preclude a later challenge to the lawfulness of Enforcement Action once taken.
• The Appellant argued that clause 5(d) should be read as referring only to disputes about whether the Agent had a right (i.e. discrete legal entitlement) and not as barring adjudication of the lawfulness of the Agent's conduct; thus, the clause should not be given the broad effect contended for by the Respondent.

Respondent's Arguments

• Attorney Boase argued that the security package created a hierarchy in which the Lux Pledges were the "nuclear option" and that the Additional Agreement—including clause 4 and clause 5—was intended to permit unilateral enforcement of that security in the prescribed way. Clause 4 created contractual estoppels as to default and inability to pay; clause 5 contained undertakings and an express release (clause 5(d)) by which the Company Parties agreed not to contest the validity or exercise of rights under the Finance Documents, thereby precluding challenges in any forum.
• The Respondent accepted that clause 5(d) did not preserve challenges based on fraud or dishonesty or challenges that were manifestly not an exercise of rights under a Finance Document, but submitted that those narrow exceptions did not apply on the facts and did not undermine the clause's broad bar to the Appellant's Paris proceedings.
• The Respondent contended that clause 5(a)'s undertaking to "co-operate fully" plainly required the Company Parties not to take steps to prevent enforcement and that reading clause 5 narrowly would strip it of commercial effect.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Case A [2023] UKSC 2	Principles of contractual interpretation: objective meaning, contextual approach, and an iterative process (summary given by Judge Hamblen).	The court adopted these principles as the starting point for interpreting the Additional Agreement and assessing the meaning of clause 5.
Case B [2021] UKSC 29	Clear words are required before concluding a party has given up a valuable right; contra proferentem modern approach.	Referenced to explain the presumption against parties giving up valuable rights without clear language; the court applied the presumption but emphasised that a proper textual-contextual analysis may nonetheless show a waiver.
Case C [2019] EWHC 347 (Comm)	Summary of the "clear words" principle (as explained by Andrew Burrows QC) regarding exclusion or waiver of rights.	Cited alongside Case B to support the proposition that waiver of significant rights requires clear language; the court considered this when evaluating clause 5(d).
Case D [2017] UKSC 51	The constitutional importance of access to the courts; that curtailment requires clear authorisation.	The court distinguished that case (a public law context) from this commercial contract between sophisticated parties and noted the same "clear words" test applies but within a freedom-of-contract context.
Case E [2011] UKSC 38	Reinforcement of party autonomy in commercial law and the desirability of giving effect to contractual terms agreed by parties, especially in complex financial instruments.	Used to support the proposition that parties can by contract curtail rights (including access to courts) in commercial settings and that such agreements should be respected where the contract so provides.
Case F [2016] EWCA Civ 1043	Recognition that where there are two possible meanings the court must apply full tools of interpretation; a court may adopt an interpretation that deprives a party of a legal right if that is what the contract really means.	Relied on to reject the submission that a clause must admit of no other meaning before a party is held to have given up rights; the court followed the analytical approach endorsed there.
Case G [2016] EWCA Civ 128	Emphasis on using linguistic, contextual, purposive and common-sense analysis to discern clause meaning.	Quoted in support of the approach that interpretation is an iterative exercise; the court applied that methodology.
Case H [1974] AC 689	Presumption that parties do not intend to give up rights the general law gives them; clear words needed to exclude or limit such rights.	Referenced as background authority for the presumption that informed the court's scrutiny of clause 5.
Case I [2013] EWCA Civ 916	Appellate courts need not repeat detailed discussions already dealt with correctly below; adoption of a sound lower-court judgment is legitimate.	The court expressly adopted the judge's reasoning below and refused to rehearse every point already considered carefully in the judgment under appeal.

Court's Reasoning and Analysis

The court began from well-established principles of contractual interpretation (objective meaning, whole-contract and contextual analysis, and an iterative approach). Because the documents were professionally drafted, textual analysis carried significant weight.

The Additional Agreement was considered in its factual and contractual context. Clause 4 recorded continuing events of default and created a contractual estoppel as to past and continuing defaults and the parties' inability to pay unless the bonds were redeemed in full during the standstill. That context made clear that the effect of the Additional Agreement was to remove an obstacle to enforcement of the Luxembourg-governed pledges at the end of the standstill period.

The court analysed clause 5 (entitled "Co-operation regarding Enforcement Action") and its sub-clauses. It rejected a rigid division suggested by the Appellant between clause 6 (characterised as estoppels) and clause 5 (characterised as narrower). The court observed that:

• Clause 5(d) uses mandatory language ("shall") and contains an express waiver and release: the Company Parties "shall not contest, or seek to contest or otherwise prevent, the validity of, or exercise by the Agent of its rights under, any Finance Document" and "hereby irrevocably release any rights or claims they may have now or in the future in this regard." The court read this as a binding promise about future conduct, not merely as a statement of past fact.
• The phrasing "agree and acknowledge" does not automatically reduce the provision to a mere estoppel; whether it is an estoppel or an enforceable obligation depends on substance and context. The court agreed with the judge below that clause 5(d) created an obligation not to contest or prevent the exercise of rights under the Finance Documents.
• Clause 5(a)'s undertaking to "co-operate fully" plainly goes beyond creating a contractual estoppel; such an undertaking, the court held, necessarily includes an obligation not to take steps to impede enforcement. To interpret "co-operate fully" as permitting active steps to prevent enforcement would be commercially absurd and would strip the clause of effect.
• Clause 5(b) reinforced clause 5(d) by acknowledging that the Agent (on instructions of the Instructing Group) may enforce or refrain from enforcing Transaction Security "as the Instructing Group sees fit", supporting a commercially effective limitation on challenges to enforcement sequencing and choices.

The court addressed the Appellant's submissions that the clause must be read narrowly because the right of access to courts is fundamental. It accepted that the "clear words" principle applies, but rejected the submission that the bar was insurmountably high given the commercial context and party autonomy in complex financial arrangements. The court distinguished public-law authorities on access to courts and emphasised that sophisticated commercial parties may, by clear contractual language, curtail remedies and forum access.

The court also noted limited exceptions that were accepted by the Respondent and the judge below: clause 5(d) did not, as a matter of interpretation, purport to prevent challenges based on fraud or dishonesty or to cover conduct manifestly not the exercise of rights under a Finance Document. However, on the facts of the case those narrow exceptions did not apply.

The court agreed with the judge below that a contractually agreed waiver of judicial remedies in respect of enforcement action was commercially coherent and that clause 5 (read as a whole, and in light of the surrounding documents and circumstances) did operate to preclude the Appellant from contesting the validity or exercise of the Agent's rights in court. The court adopted the reasoning and conclusion of the judge below and dismissed the appeal.

Holding and Implications

APPEAL DISMISSED

Holding: The Court of Appeal upheld the judge below and concluded that, properly construed, the Additional Agreement (in particular clause 5, and clause 5(d) in particular) contained an express undertaking and irrevocable release by the Company Parties not to contest, seek to contest or otherwise prevent the validity or exercise by the Agent of its rights under the Finance Documents. That undertaking, together with the context and other clauses, precluded the Appellant from bringing the Paris proceedings to challenge the enforcement steps taken by the Respondent and the Agent.

Direct consequences: The Appellant's Paris proceedings are inconsistent with the contractual undertakings in the Additional Agreement and, as a result, the appeal was dismissed and the Appellant remains bound by the waiver/release it agreed. The court adopted the lower court's reasoning and did not create or announce a new principle of law beyond applying established interpretative principles to the contract at hand.

Broader implications: The judgment underscores that (i) sophisticated commercial parties can, by clear contractual language, limit their rights to litigate enforcement steps; and (ii) while a presumption exists against contracting away valuable rights without clear words, that presumption will be displaced where the contract, viewed textually and contextually, demonstrates a contrary intention. The court noted no novel precedent beyond applying these established points to the facts.

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Prepared from the anonymized text of the court's opinion. All names and identifiable entities referenced in the original opinion have been replaced with consistent generic placeholders.