Credit Agricole v BB Energy
Expertise: Banking & Finance
Summary of Judgment Given 25th March 2004 Commercial Court: Mr Justice Cooke
Banking Rescheduling Agreement – Conditions precedent not fulfilled – Applicability of anti-waiver provisions in loan documentation
For Credit Agricole – Charles Marquand instructed by Ashursts For BB Energy – Paul Downes instructed by Clyde & Co
The Claimant bank applied for summary judgment under a rescheduling agreement. The Defendant said that none of the conditions precedent had been fulfilled and that therefore the bank was not entitled to pursue it in the English Courts. The bank argued that since the conditions precedent were for its benefit it could waive them. BB Energy relied on a standard “anti-waiver” clause in the Rescheduling Agreement which stated that any waiver had to be express, and that no such waiver had occurred.
1. Such anti waiver clauses themselves could be waived.
2. The requirement that any waiver had to be express could itself be waived.
3. Therefore an anti-waiver clause such as the present could not be relied on by BB Energy to resist the bank’s waiver of the conditions precedent.