RS Lender IV, SARL v Fernando Oscar Gil Marin

A party relying on a contractual prevention case must plead each material fact, including the alleged preventing acts or omissions, the contractual or implied-term basis, and the causal link to the asserted non-performance. Generalised allegations, serious accusations and evidence served later do not cure a deficient statement of case. A creditor’s appropriation of pledged shares does not make the creditor the debtor so as to extinguish the underlying obligation by merger. Where a valuation challenge under regulation 18(1) of the Financial Collateral Arrangements (No 2) Regulations 2003 is sufficiently arguable and requires the full context at trial, summary judgment should not be granted. The issue must nevertheless be properly pleaded.

RS Lender IV, SARL, a Luxembourg lender, advanced €37 million to Aster for Life SL under a facility agreement. Fernando Oscar Gil Marin gave a sponsor guarantee and was connected with the pledged shares in a related company. Following alleged default and insolvency, the claimant appropriated the shares at nil value, accelerated repayment and demanded payment under the guarantee.

The claimant brought proceedings in August 2025. The defendant’s Defence and Counterclaim relied on prevention, merger and a challenge to the valuation. The claimant applied to strike out parts of the pleading and the whole counterclaim, or alternatively for summary judgment. The central issues were whether the pleaded cases disclosed legally sustainable grounds and whether the valuation dispute was suitable for determination without a trial.

Disposition. The application was granted in part. The prevention and merger aspects of the Defence and Counterclaim were struck out. The valuation issues were sufficiently arguable to proceed to trial, subject to proper pleading.

1. Pleading and interlocutory standards. The Civil Procedure Rules 1998 and the Commercial Court Guide require a party to plead the material facts on which it relies. This enables the opponent to know the case to meet and the court to identify the issues for trial. Evidence served in response to an application, or a later response to a Part 18 request, does not substitute for a compliant statement of case. Strike-out is available where a pleading discloses no reasonable grounds for defending the claim. Summary judgment requires both no real prospect of defending the issue and no other compelling reason for trial (para [8]).
2. Prevention. The defendant had not pleaded the grounds for any alleged implied term, the individual acts or omissions said to hinder performance, the relevant circumstances or dates, the non-performance allegedly caused, or the necessary causal link. Generalised allegations of contrived defaults, obstruction, misuse of rights and bad-faith enforcement were inadequate, particularly given their seriousness. The court emphasised that pleading material facts does not require pleading evidence, but does require pleading each material fact said to be provable by evidence (paras [9]–[15]).
3. Merger. The claimant’s appropriation of the pledged shares, and the control said to follow from it, did not make the claimant the debtor under the facility obligation. The obligation was therefore not extinguished by merger. Arguments that merger involved mixed questions of fact and law or depended on valuation did not alter that conclusion (paras [16]–[18]).
4. Valuation. The claimant relied on the guarantee’s waiver of defences, its provision concerning security held pending payment, and the jurisdiction clause in the Share Pledge. The defendant relied on an equitable duty to obtain proper value and regulation 18(1) of the Financial Collateral Arrangements (No 2) Regulations 2003, which addresses commercially reasonable valuation on appropriation. The court was not prepared to say that the defendant had no real prospect of success. The issues required the full context at trial, and the court expressed no prediction about the ultimate outcome (paras [19]–[28]).
5. Orders. The defendant was directed to serve an Amended Defence and Counterclaim by 9 October 2026. The claimant had liberty to apply if the amended pleading remained deficient. The parties were invited to propose a revised timetable, but the trial date of 23 June 2027 was not to be moved (paras [29]–[33]).