On 24 June 2025, the Court of Appeal (Popplewell, Asplin and Zacaroli LJJ) dismissed VietJet’s appeal from the decision of Mr Justice Picken, which followed the first trial in proceedings brought by FWA Aviation (FWA) (summarised here).
That decision had been concerned primarily with whether the leasing of four Airbus A320 aircraft had been validly terminated and with whether FWA had successfully acquired rights under the leasing arrangements. The Court of Appeal confirmed that it had.
There were numerous and varied grounds of appeal, ranging from the correct interpretation of complex security documents, via the application of the UK/Japan Double Tax Treaty, to attribution for the purposes of corporate misconduct.
Ground 2 may be particularly noteworthy for banking and finance practitioners. That ground concerned the interpretation of the standard Loan Market Association (LMA) transfer provisions, which permit the transfer of rights “to another bank or financial institution or to a trust, fund or other entity, which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets”. That wording, introduced in 2001, updated the 1997 language used in the standard LMA agreement, which simply referred to “a bank or other financial institution” and had been the subject of the Court of Appeal’s decision in the well-known case of The Argo Fund v Essar Steel [2006] EWCA Civ 241.
In construing the updated language, Popplewell LJ (with whom Asplin and Zacaroli LJJ agreed) considered that:
(1) The wording introduced in 2001 was additional and alternative, and did not limit the meaning of “financial institution” as used in the 1997 form and as determined in Argo Fund ([59]);
(2) The new reference to “any other entity” was an attempt to capture “as wide as possible” a class ofentities that may take a transfer, noting that it is difficult to foresee and exhaustively describe all such entities (especially those created under foreign legal systems) ([62]); and
(3) Therefore, in determining whether an entity is a permitted transferee, the focus remains on the nature of the activity conducted by the relevant entity, rather than on the corporate form of the entity ([62]).
Separately, Ground 5 concerned the proper ambit of the principle in Re W [2016] EWCA Civ 1140, in which the Court of Appeal considered the circumstances in which it had jurisdiction to entertain an appeal notwithstanding that the appeal did not purport to be against a judgment or order; namely, where the findings on appeal were themselves an act breaching Art. 6 ECHR, and thus capable of being challenged as unlawful. In rejecting VietJet’s attempt to bring itself within that jurisdiction in relation to a finding of attribution for the purposes of a finding of misconduct or impropriety disqualifying it from relief from forfeiture, the Court emphasized the requirement for a breach of Art. 6 ECHR for there to be such an extension of its ordinary jurisdiction ([126]).
Richard Lissack KC, Robin Lööf and Orestis Sherman appeared for FWA (alongside Tom Smith KC of South Square, and Jonathan Peacock KC, Sarah Black, and Susanna Breslin of 11 New Square), instructed by Quinn Emanuel Urquhart & Sullivan LLP. Giles Robertson appeared for VietJet (alongside Lord Wolfson KC and Douglas Paine of One Essex Court, and Steven Thompson KC and Erin Hitchens of XXIV Old Buildings), instructed by King & Spalding.
