PROMONTORIA (HENRICO) LIMITED AGAINST JAMES FRIEL [2019] ScotCS CSOH_2 (08 January 2019)

PROMONTORIA (HENRICO) LIMITED AGAINST JAMES FRIEL [2019] ScotCS CSOH_2 (08 January 2019)

The pursuer proved the execution and tenor of the personal guarantee for £800,000, and sufficiently established the circumstances of its loss. The certified copy assignation was admissible under section 6 of the Civil Evidence (Scotland) Act 1988, and the pursuer had title to sue. The defender's arguments regarding the sum and admissibility failed. Declarator granted in favour of pursuer.

Citation
[2019] ScotCS CSOH_2
Parties
Pursuer: Promontoria (Henrico) Ltd; Defender: James Friel
Jurisdiction
Scotland
Judgment Date
08 January 2019
Procedural Posture
Commercial Action / Judgment After Proof
Outcome
Declarator granted in favour of pursuer; defender's pleas repelled.
Legal Topics
Personal Guarantee, Assignation, Proving the Tenor, Best Evidence Rule, Title to Sue
Commercial Law Banking Law Evidence Personal Guarantee Assignation Proving the Tenor Best Evidence Rule Title to Sue

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Parties

Promontoria (Henrico) Ltd

Pursuer

James Friel

Defender

Procedural Posture

Commercial Action / Judgment After Proof

Legal Issues

  1. 1 Whether the pursuer proved the tenor of the lost personal guarantee
  2. 2 Whether the pursuer proved its title to sue under the guarantee via assignation
  3. 3 Whether the certified copy assignation was admissible evidence

Ratio Decidendi

The pursuer proved the execution and tenor of the personal guarantee for £800,000, and sufficiently established the circumstances of its loss. The certified copy assignation was admissible under section 6 of the Civil Evidence (Scotland) Act 1988, and the pursuer had title to sue. The defender's arguments regarding the sum and admissibility failed. Declarator granted in favour of pursuer.

Court Disposition

Declarator granted in favour of pursuer; defender's pleas repelled.

Orders

  • Declarator that the personal guarantee granted by the defender in favour of the bank in respect of the company on 28 November 2008 was of the tenor of the copy lodged and equivalent to the original deed.
  • Pursuer entitled to payment under the guarantee.