Barclays Mercantile Business Finance Ltd v Marsh [2002] EWCA Civ 948 (25 June 2002)

Barclays Mercantile Business Finance Ltd v Marsh [2002] EWCA Civ 948 (25 June 2002)

The guarantee in question was a contract of indemnity, not a contract of guarantee or suretyship, and thus Mr Marsh's liability was primary. Even if it were a guarantee, there was no evidence that Barclays Mercantile had released or failed to enforce securities in a manner that would discharge Mr Marsh. Clauses 4 and 5 of the guarantee were not subject to the Unfair Contract Terms Act 1977 in the way argued, and the doctrine of unconscionable bargain did not apply. Therefore, Mr Marsh had no defence to the claim, and judgment should be entered for Barclays Mercantile.

Citation
[2002] EWCA Civ 948
Parties
Claimant/appellant: Barclays Mercantile Business Finance Limited; Defendant/part 20 Claimant/respondent: Laurie Peter Marsh; Part 20 Defendant: Soundalive Limited
Jurisdiction
England and Wales
Judgment Date
25 June 2002
Procedural Posture
Appeal (civil) / Appeal From High Court (queen's Bench Division, Mercantile List) to Court of Appeal
Outcome
Appeal allowed. Judgment entered for Barclays Mercantile Business Finance Limited.
Legal Topics
Guarantee and Indemnity, Suretyship, Enforcement of Securities, Unfair Contract Terms, Case Management Procedure
Contract Law Commercial Law Guarantee and Indemnity Suretyship Enforcement of Securities Unfair Contract Terms Case Management Procedure

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 3 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Barclays Mercantile Business Finance Limited

Claimant/appellant

Laurie Peter Marsh

Defendant/part 20 Claimant/respondent

Soundalive Limited

Part 20 Defendant

Procedural Posture

Appeal (civil) / Appeal From High Court (queen's Bench Division, Mercantile List) to Court of Appeal

Legal Issues

  1. 1 Whether the defendant is discharged from liability under a guarantee due to the claimant's alleged failure to enforce securities or release of securities.
  2. 2 Whether the guarantee is a contract of indemnity or a contract of guarantee/suretyship.
  3. 3 Whether clauses 4 and 5 of the guarantee are subject to the Unfair Contract Terms Act 1977.

Ratio Decidendi

The guarantee in question was a contract of indemnity, not a contract of guarantee or suretyship, and thus Mr Marsh's liability was primary. Even if it were a guarantee, there was no evidence that Barclays Mercantile had released or failed to enforce securities in a manner that would discharge Mr Marsh. Clauses 4 and 5 of the guarantee were not subject to the Unfair Contract Terms Act 1977 in the way argued, and the doctrine of unconscionable bargain did not apply. Therefore, Mr Marsh had no defence to the claim, and judgment should be entered for Barclays Mercantile.

Court Disposition

Appeal allowed. Judgment entered for Barclays Mercantile Business Finance Limited.

Orders

  • Order of Judge Perrett set aside.
  • Judgment for Barclays Mercantile Business Finance Limited.