Bank of Scotland v Forbes [2011] ScotCS CSIH_23A (18 March 2011)

Bank of Scotland v Forbes [2011] ScotCS CSIH_23A (18 March 2011)

The appellant's averments, if proved, could entitle him to inquiry as to whether the bank's response to his enquiry amounted to a full and fair representation, given ongoing negotiations and the granting of an unsecured overdraft. The pleadings are not irrelevant and a proof before answer is warranted.

Citation
[2011] ScotCS CSIH_23A
Parties
Pursuer/respondent: Bank of Scotland PLC; Defender/appellant: William Forbes
Jurisdiction
Scotland
Judgment Date
18 March 2011
Procedural Posture
Appeal From Sheriffdom of Glasgow and Strathkelvin / Appeal to Court of Session, Inner House, Extra Division
Outcome
Appeal allowed; interlocutors recalled; proof before answer granted.
Legal Topics
Guarantee Enforcement, Duty of Disclosure, Fair Dealing in Contracts of Caution
Contract Law Banking Law Guarantee Enforcement Duty of Disclosure Fair Dealing in Contracts of Caution

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Parties

Bank of Scotland PLC

Pursuer/respondent

William Forbes

Defender/appellant

Procedural Posture

Appeal From Sheriffdom of Glasgow and Strathkelvin / Appeal to Court of Session, Inner House, Extra Division

Legal Issues

  1. 1 Whether the bank owed a duty of disclosure to the guarantor
  2. 2 Whether the guarantee is unenforceable due to alleged lack of fairness and disclosure
  3. 3 Whether the appellant's averments are relevant to entitle him to proof

Ratio Decidendi

The appellant's averments, if proved, could entitle him to inquiry as to whether the bank's response to his enquiry amounted to a full and fair representation, given ongoing negotiations and the granting of an unsecured overdraft. The pleadings are not irrelevant and a proof before answer is warranted.

Court Disposition

Appeal allowed; interlocutors recalled; proof before answer granted.

Orders

  • Recall interlocutor of Sheriff Principal dated 22 January 2010
  • Recall interlocutor of sheriff dated 10 September 2009