The High Court has given judgment for Bank of Scotland plc against businessman Charles (otherwise Charlie) Fergus for €9,211,764, finding that a guarantee he signed on 1 June 2006 covered the company’s debt to the bank, including liabilities arising after later facility changes. The court limited the award to the amount due in February 2011 and deferred the question of costs.
The bank sued as successor to Bank of Scotland (Ireland) Ltd, which had provided facilities to Fergus Haynes (Developments) Ltd, a company involved in developments, particularly in Donegal. Fergus was its chief executive, principal promoter and a director. After the company failed to repay a demand for €7,796,121.84 in September 2008, the bank appointed a receiver. The company was wound up later that month.
The bank initially pleaded 17 guarantees and indemnities, but at trial pursued four. The case had been remitted from the Commercial List to a plenary hearing after Fergus challenged the guarantees’ validity or enforceability. He disputed that the guarantees could be enforced and put the bank to proof of the debt. He did not give evidence or call evidence challenging the bank’s account records.
A bank manager testified that electronic records and statements showed €9,211,764 due across three company accounts in February 2011. The judge accepted the records as admissible, prima facie evidence of the debt and found that the bank had proved the amount on the balance of probabilities. The court also recorded a net receivership realisation of €323,488, receiver expenses of €471,500 and a deficit of €148,012, based on the manager’s evidence.
The judge considered the 1 June 2006 guarantee first. It named the principal company as “Fergus Haynes Developments Ltd”, omitting brackets used in the company’s correct name. The court treated this as an obvious mistake and found from the facility documents and surrounding context that the guarantee referred to Fergus Haynes (Developments) Ltd.
The original document included an unsigned confirmation page after its execution clause and a signed version attached after the back sheet. The judge accepted that the signed page was probably added after execution and disregarded it as part of the guarantee at signing. She nevertheless held that the complete guarantee terms appeared in writing on the preceding pages and were signed by Fergus, satisfying the Statute of Frauds even if the instrument was a guarantee rather than an indemnity.
The guarantee’s terms covered all sums due or later becoming due on any account. The judge found that Fergus had not established that it was intended to cover only a particular facility, despite the bank’s practice of taking repeated guarantees and what she described as less than careful dealings. She held the 2006 guarantee valid and enforceable, and entered judgment for €9,211,764. The judgment addressed that guarantee; costs were reserved for a further hearing.