NATIONAL WESTMINSTER BANK PLC V RABOBANK NEDERLAND (NO 3)

[2007] EWHC 1742 (Comm), Queen’s Bench Division, Commercial Court, Sir Anthony Colman, 30 October 2007

Conflict of laws – Costs – Claimants successfully defending foreign proceedings brought in contravention of agreement – Whether claimants entitled to damages representing costs of defending proceedings on indemnity basis – Whether claimants entitled to costs of claim for damages on indemnity basis

The dispute between the parties concerned sums loaned by both NWB and Rabobank to a company, YFG, under a credit facility. The agreement between the parties, a Deed of Transfer, precluded any action by Rabobank against NWB for misrepresentation. Following the failure of YFG, Rabobank commenced proceedings in California against NWB, in breach of the Deed of Transfer. NWB in the present action was held by Sir Anthony Colman to be able to recover: (a) damages for breach of the Deed of Transfer, calculated by the costs of defending the California awarded on an indemnity basis; and (b) the costs of the English action for damages, also assessed by reference to an indemnity rather than standard basis.