FBME Bank Ltd v Elwes & Anor [2012] EWHC 2209 (QB) (25 July 2012)

FBME Bank Ltd v Elwes & Anor [2012] EWHC 2209 (QB) (25 July 2012)

Mr. Aspin is liable to pay the first instalment of £10,000 under the guarantee as of 15 March 2012. The guarantee is enforceable as signed by Mr. Aspin, regardless of FBME's signature. FBME was entitled to refuse the drawdown under the clear terms of the facility agreement, and any breach by FBME did not discharge Mr. Aspin's liability due to the exclusion of set-off and counterclaims in the guarantee.

Citation
[2012] EWHC 2209
Parties
Claimant: FBME Bank Limited; First Defendant: Jonathan Elwes; Second Defendant: Kevin Aspin
Jurisdiction
England and Wales
Judgment Date
25 July 2012
Procedural Posture
Civil / Trial Judgment
Outcome
judgment for claimant in part
Legal Topics
Guarantee Enforcement, Loan Facility Agreements, Personal Guarantees, Contractual Interpretation
Contract Law Banking Law Guarantee Enforcement Loan Facility Agreements Personal Guarantees Contractual Interpretation

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Parties

FBME Bank Limited

Claimant

Jonathan Elwes

First Defendant

Kevin Aspin

Second Defendant

Procedural Posture

Civil / Trial Judgment

Legal Issues

  1. 1 Whether the guarantee signed by Mr. Aspin is enforceable despite not being signed by FBME.
  2. 2 Whether FBME was entitled to refuse the drawdown request under the Second Facility Agreement.
  3. 3 Whether the addendum to the guarantee altered the timing of payment obligations.

Ratio Decidendi

Mr. Aspin is liable to pay the first instalment of £10,000 under the guarantee as of 15 March 2012. The guarantee is enforceable as signed by Mr. Aspin, regardless of FBME's signature. FBME was entitled to refuse the drawdown under the clear terms of the facility agreement, and any breach by FBME did not discharge Mr. Aspin's liability due to the exclusion of set-off and counterclaims in the guarantee.

Court Disposition

judgment for claimant in part

Orders

  • Mr. Aspin to pay FBME Bank Limited £10,000