In Saltri III Ltd v MD Mezzanine SA Sicar & Ors [2012] EWHC 3025 (Comm), the High Court held that a security trustee under an inter-creditor agreement owed duties to the mezzanine lenders that were equivalent to those owed by a mortgagee to a mortgagor, which were not fiduciary duties.  The security trustee was not under any duty as to the timing or method of any sale.  It was free to use its enforcement powers under an inter-creditor agreement to effect a non-consensual restructuring of the mezzanine liabilities that required the security trustee to release the security and sell the charged assets to an associated entity, leaving a zero return for the mezzanine lenders.

In circumstances where the amounts owing to the mezzanine lenders were entirely “under the water”, the mezzanine lenders could not be said to have suffered any loss as a result of the restructuring, and there was no actionable breach of duty by the security trustee.