FL-2022-000014 - [2025] EWHC 2631 (Ch)

INTRODUCTION

These proceedings concern a programme of securitised notes originated by companies in the Greensill Group, which carried on the business of supply chain financing. The parent company was the Australian-incorporated Greensill Capital Pty Limited (“GCPL”).

The first claimant invested through its Credit Suisse (Lux) Supply Chain Finance Fund (“the SCF Subfund”) in notes that were originated and administered in England by Greensill Capital (UK) Limited (“GCUK”) and issued by Hoffman S.à.r.l. (“Hoffman”) through its Compartment MZ under a programme known as the Fairymead Multi-Obligor Programme (“the Fairymead Note Programme”).

The intended security for the Fairymead Note Programme consisted of certain rights (known as “Participations”) granted under a Participation Agreement dated 19 December 2019 (“the Participation Agreement”) by a special purpose vehicle, Greensill Limited (“GL”), to GCUK, its immediate parent company. These participation rights were assigned by GCUK to Hoffman and then to Citibank N.A., London Branch (“Citibank”) as note trustee for the Fairymead Note Programme (“the Note Trustee”). The Participations related to receivables sold, or purportedly sold, to GL pursuant to a Receivables Purchase Agreement dated 9 December 2019 (“the RPA”) by companies in the Katerra Group, a group of construction companies of which the parent was the Cayman-incorporated Katerra Inc. (“the Katerra Group” and “Katerra Cayman”).

The SCF Subfund holds the beneficial interests in outstanding notes purchased under the Fairymead Note Programme with an aggregate principal face value of c. $440 million (“the Fairymead Notes” or “the Notes”). All of these defaulted when they matured and/or otherwise fell due for payment in March 2021.

This claim is made pursuant to section 423 of the Insolvency Act 1986 (“the 1986 Act”) by the first claimant or, in the alternative, the second claimant, GLAS Trust Corporation Limited (“GLAS”), the current Note Trustee, on the basis that they are “victims” of certain transactions (“the Impugned Transactions”) entered into by GL in connection with an out-of-court restructuring of the Katerra Group which completed on 30 December 2020. The Impugned Transactions comprise a Contribution and Exchange Agreement (“the CEA”) and a Share Transfer Agreement (“the TA”), each dated 30 December 2020.

The claimants’ case is broadly as follows. As a result of the Impugned Transactions, GL was left with effectively no assets. It is now in liquidation. The effect of the Impugned Transactions was to render valueless the intended security for the Fairymead Notes. The First to Sixth Defendants (“the SoftBank Defendants” or “SBDs”), entities within the SoftBank Group, benefited from the Impugned Transactions and were culpably involved in bringing them about. The SoftBank Group was a significant indirect investor in and lender both to the Katerra Group and to the Greensill Group. The claimants seek relief against the SoftBank Defendants in order to restore the position to what it would have been if the Impugned Transactions had not been entered into and to protect the claimants’ interests.

The SoftBank Defendants deny that the claimants have any entitlement to relief against them under section 423 of the 1986 Act. They contend in outline as follows. The Impugned Transactions were part of a linked set of transactions that were intended to put the Greensill Group in funds to enable the repurchase or repayment of the Fairymead Notes. Pursuant to an arrangement agreed between certain of the SoftBank Defendants and the Greensill Group, in November 2020 the SoftBank Group provided $440 million to the Greensill Group on the understanding that the Greensill Group would use those funds to repay or repurchase the Fairymead Notes. The Greensill Group did not use in fact the funds for the agreed purpose but this was without the SoftBank Defendants’ knowledge. They only discovered this some time after 30 December 2020. They contend that the relevant “transaction” for the purposes of section 423 comprises the network of linked transactions; that GL did not have the relevant purpose of prejudicing creditors; that there was no undervalue and that, in any case, they did not materially benefit from the transactions. They also contend that the benefit they derived from the Impugned Transactions is limited to certain shareholdings in the Katerra Group and that these became valueless in June 2021 when the Katerra Group entered bankruptcy; and that this should be reflected in any relief the court might consider ordering.

GL, acting by its joint liquidators, takes a mostly neutral position in relation to the claim. The claimants seek no substantive relief against it.

UNCONTENTIOUS FACTS

It helps to start with the uncontentious facts. This section draws on the helpful document agreed by the parties with some minor amendments.