ABM Amro Commercial Finance Plc v McGinn & Ors

ABM Amro Commercial Finance Plc v McGinn & Ors

The deeds of indemnity impose primary liability on the defendants, not secondary; material variations to the Agreement do not discharge liability; conclusive evidence clause binds defendants to certified amounts unless manifest error is obvious; proofs of delivery are financial records; claimant's discretion in debt collection precludes mitigation defence.

Parties
Claimant: ABM AMRO Commercial Finance PLC; Defendant: Ambrose McGinn; Defendant: Ross Lawrance Beattie; Defendant: Marcus Leek
Jurisdiction
England and Wales
Judgment Date
23 May 2014
Procedural Posture
Commercial / Summary Judgment Application
Outcome
summary judgment granted on issues of principle
Legal Topics
Indemnity, Guarantee, Performance Bond, Conclusive Evidence Clause, Variation of Contract, Mitigation of Loss
Contract Commercial Banking Indemnity Guarantee Performance Bond Conclusive Evidence Clause Variation of Contract +1 more

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Parties

ABM AMRO Commercial Finance PLC

Claimant

Ambrose McGinn

Defendant

Ross Lawrance Beattie

Defendant

Marcus Leek

Defendant

Procedural Posture

Commercial / Summary Judgment Application

Legal Issues

  1. 1 Whether the deeds of indemnity impose primary or secondary liability
  2. 2 Whether the deeds of indemnity were discharged by material variations to the Agreement
  3. 3 Whether personal guarantees substituted the deeds of indemnity for the third defendant

Ratio Decidendi

The deeds of indemnity impose primary liability on the defendants, not secondary; material variations to the Agreement do not discharge liability; conclusive evidence clause binds defendants to certified amounts unless manifest error is obvious; proofs of delivery are financial records; claimant's discretion in debt collection precludes mitigation defence.

Court Disposition

summary judgment granted on issues of principle

Orders

  • Defendants' liability under deeds of indemnity is primary and not discharged by material variations.
  • Proofs of delivery constitute financial records under the Agreement.