RECLAIMING MOTION BY PROMONTORIA (HENRICO) LTD AGAINST JAMES FRIEL [2020] ScotCS CSIH_1 (10 December 2019)

RECLAIMING MOTION BY PROMONTORIA (HENRICO) LTD AGAINST JAMES FRIEL [2020] ScotCS CSIH_1 (10 December 2019)

The pursuers proved execution and tenor of the guarantee through credible evidence, including the independent solicitor's affidavit and contemporaneous documents. Sufficient casus amissionis was established, as the loss of the principal guarantee was not shown to be intentional or to extinguish the obligation. The certified copy assignation was admissible under section 6 of the 1988 Act, as it was authenticated by the responsible firm, and no formal challenge was properly raised. The assignation clearly covered the Glen TV debt and guarantee, and proper intimation was made. The defender's technical and substantive challenges failed.

Citation
[2020] ScotCS CSIH_1
Parties
Pursuers and Respondents: Promontoria (Henrico) Ltd; Defender and Reclaimer: James Friel
Jurisdiction
Scotland
Judgment Date
10 December 2019
Procedural Posture
Reclaiming Motion (appeal) in an Action of Proving the Tenor / Appeal Judgment
Outcome
Reclaiming motion refused; interlocutor of 8 January 2019 adhered to.
Legal Topics
Proving the Tenor of Lost Documents, Assignment of Debt and Guarantees, Admissibility of Certified Copies, Interpretation of Civil Evidence (scotland) Act 1988, Requirements for Proof of Casus Amissionis
Commercial Law Banking Law Civil Procedure Proving the Tenor of Lost Documents Assignment of Debt and Guarantees Admissibility of Certified Copies Interpretation of Civil Evidence (scotland) Act 1988 Requirements for Proof of Casus Amissionis

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 3 Authorities cited 11 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Promontoria (Henrico) Ltd

Pursuers and Respondents

James Friel

Defender and Reclaimer

Procedural Posture

Reclaiming Motion (appeal) in an Action of Proving the Tenor / Appeal Judgment

Legal Issues

  1. 1 Whether the pursuers adequately proved the tenor and casus amissionis of a lost guarantee document
  2. 2 Whether a certified copy assignation was admissible under section 6 of the Civil Evidence (Scotland) Act 1988
  3. 3 Whether the benefit of the guarantee was validly assigned to the pursuers

Ratio Decidendi

The pursuers proved execution and tenor of the guarantee through credible evidence, including the independent solicitor's affidavit and contemporaneous documents. Sufficient casus amissionis was established, as the loss of the principal guarantee was not shown to be intentional or to extinguish the obligation. The certified copy assignation was admissible under section 6 of the 1988 Act, as it was authenticated by the responsible firm, and no formal challenge was properly raised. The assignation clearly covered the Glen TV debt and guarantee, and proper intimation was made. The defender's technical and substantive challenges failed.

Court Disposition

Reclaiming motion refused; interlocutor of 8 January 2019 adhered to.

Orders

  • Declaration that the defender executed a personal guarantee in favour of Clydesdale Bank plc for up to £800,000 on 28 November 2008.
  • Decree against the defender for £800,000 in favour of the pursuers as assignees.