Judgment: 2019-12-18 · Court archive

Supreme Court leaves €9.2m guarantee judgment against Charles Fergus in place

The Court rejected his appeal over the bank’s proof of the company’s debt and the guarantees, leaving the High Court judgment undisturbed.

The Supreme Court · [2020] IESC 000

Who, what, where, when and why

Who
  • Bank of Scotland plc (Plaintiff)
  • Charles Fergus (Applicant)
  • Peter Charleton (Judge)
What

The Court rejected his appeal over the bank’s proof of the company’s debt and the guarantees, leaving the High Court judgment undisturbed.

Where

Places mentioned in the report

  • Donegal
  • Leitrim
When

Judgment:

Other dates in the report
  • 18 December 2020

    In a judgment delivered on 18 December 2020, Mr Justice Peter Charleton said the bank had proved its case at a plenary hearing after its original application for summary judgment was sent for trial. Fergus did not give evidence at that hearing. The Supreme Court concluded that the High Court judgment should stand.

  • 20 April 2012; 4 September 2008; 20 August 2004

    The judgment records that Fergus alleged in submissions that two guarantees dated 21 May and 20 August 2004 were forged. Charleton J noted that no evidence of forgery was given at trial and that the allegation was not repeated there. He also said Fergus did not dispute that the company had drawn down the money. The Court’s account states that the bank called in the loans on 4 September 2008, when the debt was €7,796,121.84; the amount recorded at the High Court judgment on 20 April 2012 was €9,211,764.

  • 1 June 2006

    The bank advanced multiple loans to the development company between 2003 and 2007 for property projects, many in Donegal and Leitrim. Fergus gave guarantees as facilities were issued. The Supreme Court said the judgment rested on a guarantee dated 1 June 2006, in which he undertook to cover the company’s existing and future debts. It rejected his argument that later guarantees for the same parties had extinguished earlier ones.

Why

Reasons reported in the judgment

In a judgment delivered on 18 December 2020, Mr Justice Peter Charleton said the bank had proved its case at a plenary hearing after its original application for summary judgment was sent for trial. Fergus did not give evidence at that hearing. The Supreme Court concluded that the High Court judgment should stand.

The Supreme Court has left in place a High Court judgment that Charles Fergus owed Bank of Scotland plc €9,211,764 under guarantees connected to loans made to Fergus Haynes Developments Ltd.

In a judgment delivered on 18 December 2020, Mr Justice Peter Charleton said the bank had proved its case at a plenary hearing after its original application for summary judgment was sent for trial. Fergus did not give evidence at that hearing. The Supreme Court concluded that the High Court judgment should stand.

The bank advanced multiple loans to the development company between 2003 and 2007 for property projects, many in Donegal and Leitrim. Fergus gave guarantees as facilities were issued. The Supreme Court said the judgment rested on a guarantee dated 1 June 2006, in which he undertook to cover the company’s existing and future debts. It rejected his argument that later guarantees for the same parties had extinguished earlier ones.

The judgment records that Fergus alleged in submissions that two guarantees dated 21 May and 20 August 2004 were forged. Charleton J noted that no evidence of forgery was given at trial and that the allegation was not repeated there. He also said Fergus did not dispute that the company had drawn down the money. The Court’s account states that the bank called in the loans on 4 September 2008, when the debt was €7,796,121.84; the amount recorded at the High Court judgment on 20 April 2012 was €9,211,764.

A central issue on appeal was whether the bank’s records and witness evidence were inadmissible hearsay. Charleton J held that the parties’ correspondence, loan records shared with the company and guarantees formed part of their course of dealing and could be relied on as admissions. He said the Bankers’ Books Evidence Act did not prevent a bank from giving evidence about its books and records, and that the hearsay objection did not succeed on the facts of this case.

Fergus also challenged the admission of evidence from bank witnesses under court rules. Charleton J agreed with the analysis of Mr Justice John McKechnie on procedural fairness and the rules issue, and found no basis to disturb the High Court’s handling of it. The judgment notes that Fergus had been given an adjournment to examine the statements and call an accountant, but did neither.

The Supreme Court’s decision was to leave the High Court judgment standing. It did not make a new damages award or state a different sum due.

Read the original court judgment

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