Charles Thompson McKinlay against Avellierie LTD & Kenneth Scott (Sheriff Appeal Court Civil) [2025] SACCIV 6 (10 March 2025)

Charles Thompson McKinlay against Avellierie LTD & Kenneth Scott (Sheriff Appeal Court Civil) [2025] SACCIV 6 (10 March 2025)

The Deed of Assignation, by its wording assigning 'whole right, title and interest in and to the claim of debt arising under the Deed of Loan', was sufficiently wide to include the rights under the Personal Guarantee, as these formed part of Croftwalk's interest in the claim of debt. Limiting the assignation to the principal debt would render the guarantee valueless and offend commercial sense. The appeal is refused.

Citation
[2025] SACCIV 6
Parties
Pursuer and First Respondent: Charles Thompson McKinlay; First Defender and Second Respondent: Avellierie Limited; Second Defender and Appellant: Kenneth Scott
Jurisdiction
Scotland
Judgment Date
10 March 2025
Procedural Posture
Civil Appeal / Appeal Judgment
Outcome
appeal refused
Legal Topics
Assignation of Debt, Personal Guarantee, Construction of Contracts, Accessory Security Rights
Contract Law Commercial Law Assignation of Debt Personal Guarantee Construction of Contracts Accessory Security Rights

Case Brief

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Parties

Charles Thompson McKinlay

Pursuer and First Respondent

Avellierie Limited

First Defender and Second Respondent

Kenneth Scott

Second Defender and Appellant

Procedural Posture

Civil Appeal / Appeal Judgment

Legal Issues

  1. 1 Whether the Deed of Assignation transferred the rights under the Personal Guarantee as well as the principal debt
  2. 2 Whether Scots law implies assignation of accessory security rights with the principal debt

Ratio Decidendi

The Deed of Assignation, by its wording assigning 'whole right, title and interest in and to the claim of debt arising under the Deed of Loan', was sufficiently wide to include the rights under the Personal Guarantee, as these formed part of Croftwalk's interest in the claim of debt. Limiting the assignation to the principal debt would render the guarantee valueless and offend commercial sense. The appeal is refused.

Court Disposition

appeal refused

Orders

  • appellant found liable to the first respondent in the expenses of the appeal process