The High Court granted Ulster Bank Limited summary judgment for €126,077.36 against Walter de Kretser and Gillian Fox, ruling that the proposed defences did not show a fair or reasonable probability of a real or bona fide defence.
Mr Justice Hedigan delivered the judgment on 10 June 2015. The bank had applied for liberty to enter final judgment over a joint and several guarantee signed by the defendants on 5 July 2007. The guarantee covered obligations of Stones Finishes Supply Limited, a company of which both defendants were directors, in return for an overdraft facility. It was limited to €100,000 plus interest.
The defendants opposed the application and sought a plenary hearing. They said they had not had a proper chance to understand the guarantee, that Ms Fox signed under duress or her husband’s undue influence, and that neither had independent legal advice. They also argued that consideration for the guarantee was past and that it was not a continuing guarantee.
The bank disputed those grounds. It said the defendants had received the facility terms two weeks before signing and had each previously given multiple guarantees. The judge described them as experienced business people and found no evidence supporting the duress or undue influence claim. He also held that consideration was not an issue because the guarantee was executed under seal, and that the continuing-guarantee argument did not apply to the specific transaction.
A separate dispute concerned an offer to settle the claim using proceeds from an Ark Life Assurance policy. The defendants said the policy proceeds had been offered in settlement. The bank said its acceptance was conditional on payment within 28 days. The judge found that the condition was not met, so the acceptance had lapsed.
The judgment also addressed an error in the bank’s 7 January 2009 demand letter, which referred to the guarantee as dated 5 July 2008 rather than 5 July 2007. The judge found the defendants had not been in doubt about which guarantee was being called in and that the error had caused no prejudice in defending the claim.
The court therefore refused the request to send the matter to a plenary hearing and granted summary judgment for €126,077.36. The judgment does not state an additional order for interest.