McLaughlin, Re Suspension & Interdict [2010] ScotCS CSIH_24 (26 March 2010)

McLaughlin, Re Suspension & Interdict [2010] ScotCS CSIH_24 (26 March 2010)

The guarantee, properly construed, did not require a formal certificate for summary diligence; a written demand letter sufficed. The petitioner was entitled to proof before answer on waiver and personal bar, as the relevant clauses did not clearly exclude these defences. However, the guarantee imposed a primary obligation on the petitioner, and the terms excluded defences based on alleged prejudicial conduct by the lender. The pleadings on prejudicial conduct were irrelevant and lacking in specification.

Citation
[2010] ScotCS CSIH_24
Parties
Petitioner and Reclaimer: Maureen McLaughlin; First Respondents and Respondents: Anglo Irish Asset Finance plc (AIAF)
Jurisdiction
Scotland
Judgment Date
26 March 2010
Procedural Posture
Petition for Suspension and Interdict / Reclaiming Motion (appeal) From Dismissal of Petition at First Instance
Outcome
Lord Ordinary's interlocutor of 14 May 2009 recalled; petitioner's first and second pleas-in-law repelled; interim orders for suspension and interdict to be granted as necessary; proof before answer allowed restricted to waiver and personal bar; expenses reserved.
Legal Topics
Guarantees and Suretyship, Summary Diligence, Waiver, Personal Bar (estoppel), Interpretation of Contracts
Contract Law Banking and Finance Law Insolvency Law Guarantees and Suretyship Summary Diligence Waiver Personal Bar (estoppel) Interpretation of Contracts

Case Brief

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Parties

Maureen McLaughlin

Petitioner and Reclaimer

Anglo Irish Asset Finance plc (AIAF)

First Respondents and Respondents

Procedural Posture

Petition for Suspension and Interdict / Reclaiming Motion (appeal) From Dismissal of Petition at First Instance

Legal Issues

  1. 1 Whether summary diligence was competent without a formal certificate under the guarantee
  2. 2 Whether the petitioner was entitled to proof before answer on waiver and personal bar
  3. 3 Whether alleged prejudicial conduct by the lender could discharge the petitioner from liability under the guarantee

Ratio Decidendi

The guarantee, properly construed, did not require a formal certificate for summary diligence; a written demand letter sufficed. The petitioner was entitled to proof before answer on waiver and personal bar, as the relevant clauses did not clearly exclude these defences. However, the guarantee imposed a primary obligation on the petitioner, and the terms excluded defences based on alleged prejudicial conduct by the lender. The pleadings on prejudicial conduct were irrelevant and lacking in specification.

Court Disposition

Lord Ordinary's interlocutor of 14 May 2009 recalled; petitioner's first and second pleas-in-law repelled; interim orders for suspension and interdict to be granted as necessary; proof before answer allowed restricted to waiver and personal bar; expenses reserved.

Orders

  • Recall of interlocutor dismissing petition
  • Repel petitioner's first and second pleas-in-law