Banca Generali SpA v CFE (Suisse) SA & Anor

When construing a mandatory injunction, the court asks what the order means, not whether it ought to have been made in wider terms. The order is construed restrictively because breach may lead to penal consequences. Its words receive their natural and ordinary meaning in context, including the judgment giving the reasons for the order and its objective. Parties’ submissions and pre-order conduct require caution and cannot enlarge the order through hindsight. An order requiring disclosure of transactional documents constituting securitised receivables was limited to documents relating to the underlying receivables and associated security, rather than documents generated by later transfers or intermediate participation arrangements.

The claimant sought a declaration concerning the scope of a mandatory injunction made by Falk J on 15 June 2022. The order required the defendants to provide transactional documents constituting specified receivables, including loan agreements, guarantees, indemnities, promissory notes, security documents and letters of credit.

The dispute arose after the defendants produced documents concerning securitised receivables acquired through arrangements which could involve direct acquisition, sub-participation and later transfer to the issuer. The claimant contended that the order covered documents from all stages. The defendants submitted that it covered only documents relating to the underlying receivables. The issue was the proper construction of the order in its wording and context.

1. Construction of the order. The court applied the principles summarised by Flaux LJ in Pan Petroleum AJE Ltd v Yinka Folawiyo Petroleum Co Ltd & Ors [2017] EWCA Civ 1525, drawing on JSC BTA Bank v Ablyazov (No. 10) [2015] UKSC 64. The sole question was what the order meant. Questions whether it should have been granted, or made in wider terms, were irrelevant to construction. An injunction must be clear, unequivocal and restrictively construed before breach can result in contempt.
2. The words of the order had to be given their natural and ordinary meaning in context, including the historical context and the order’s objective. The judge’s reasons were an overt and authoritative statement of the circumstances regarded as relevant, consistently with Sans Souci Ltd v VRL Services Ltd (Jamaica) [2012] UKPC 6. The parties’ submissions and alleged course of dealing were not a reliable means of expanding the order, and the court followed the caution expressed by the majority in SDI Retail Services Ltd v Rangers Football Club [2021] EWCA Civ 790.
3. The order’s references to “Receivables” and “transactional documents which constitute those Receivables” were not governed by contractual definitions in the parties’ wider suite of documents. Capitalisation merely directed attention to the receivables identified in the schedules. The examples in the order, and the reasoning supporting it, pointed to documents concerning the underlying receivables and their security. They did not extend to documents generated by stages involving sub-participation, CFE’s acquisition of economic exposure, or transfer to SCO.
4. The claimant’s requested declaration was inconsistent with the ordinary meaning of the order read in context and was refused. The conclusion would have been the same even without the mandatory-injunction character of the order, although the penal notice reinforced the need for restrictive construction.

The judgment was a first-instance determination of an application to construe a mandatory injunction made by Falk J on 15 June 2022. No appeal or lower-court citation is stated.