In IS Prime Ltd v TF Global Markets [2022] EWHC 1004 (Comm) the Commercial Court considered, inter alia, the questions of (i) when a fiduciary duty is owed between commercial parties, specifically between firms providing matched principal brokerage services in FX and index swaps and (ii) the ‘passing on’ defence to a claim in unjust enrichment. As to the second question, the Court reviewed Kleinwort Benson Ltd v Birmingham City Council [1997] QB 380, in which the Court of Appeal had rejected the defence of ‘passing on’ in relation to ‘separate and independent’ hedge contracts made by the claimant banks in that case. The Court held that, applying that case (now to be understood in the light of the Supreme Court decision in Investment Trust Companies v Revenue and Customs Commissioners [2017] UKSC 29) to back-to-back, matched principal trades, the defence of ‘passing on’ is available in English law. I’m very happy to have been involved in this interesting case to date and thank the team at Harbottle & Lewis, in particular, Matthew Leverton, Ben Stevens and Dennis Brunner.
Judgement written by Adrian Beltrami QC.
