The High Court has refused Danske Bank’s application for summary judgment against Tony Cantwell over a guarantee capped at €700,000, directing that the dispute proceed to a plenary hearing.
Mr Justice Hunt delivered the judgment on 23 March 2018. The claim concerned a guarantee Mr Cantwell signed on 1 August 2006 for banking facilities and advances to Adelphi Distributors Limited. The judge said Mr Cantwell did not dispute signing the guarantee or the company’s debt, but contested whether the bank could enforce it against him.
Cantwell raised several defences, including lack of consideration, absence of independent legal advice, pressure to sign, alleged misrepresentations about the guarantee’s effect, and limitation. The judge rejected the arguments based on consideration, lack of legal advice, duress and the defence of non est factum, finding that the affidavits did not provide meaningful evidence supporting those points.
The judge found, however, that there was an arguable defence that the guarantee had been procured by misrepresentation. Cantwell said a bank official had assured him the guarantee was “a mere formality” and “there was nothing to worry about”. The plaintiff’s affidavits did not specifically deny that those statements had been made.
The judgment also pointed to three later facility letters, issued in 2007 and 2008, which identified other guarantees as security but did not refer to Cantwell’s guarantee. The judge said this evidence could support Cantwell’s account that the bank had not intended to rely on his guarantee for later advances. He concluded that the misrepresentation issue was at least arguable and could not be resolved by summary judgment.
The judge said the limitation argument might also be arguable in light of the timeline, but did not examine it in detail because summary judgment was refused on other grounds. The court did not decide whether the guarantee was ultimately enforceable or whether Cantwell’s defence would succeed at trial.