The High Court has granted Bank of Scotland plc summary judgment against David Kennedy for €7.5 million, after finding that his asserted promissory estoppel defence could not succeed. The court left the calculation of interest, costs and any ancillary orders to be addressed separately.
The bank’s motion sought judgment on personal guarantees Kennedy had given between June 2006 and August 2007 for borrowings by Davitt Road Developments Limited, Rimley Limited, Eirmur Limited and Florence Investment Properties Limited. The judgment says the bank had demanded payment between March and April 2013 and asserted total liability of €7.5 million, plus ongoing interest. Kennedy did not dispute signing the guarantees or challenge their apparent validity.
Kennedy said that, in summer 2012, he and bank officers Andrew Seaton and Colum Breslin reached an arrangement: the bank would forbear from enforcing the guarantees while he used his best endeavours to procure repayment of separate facilities owed by Great Banner Limited and Muscadet Limited. He said he advised the trustees of the Jersey based Kennedy Family Discretionary Trust Settlement, which managed those companies, but was neither a trustee nor beneficiary and had no control over the trust.
Kennedy’s evidence was that Muscadet’s £2.4 million liability had been discharged and Great Banner’s borrowing had fallen from €18.207 million to €2,950,004.21, with refinancing advanced. The bank disputed that a release agreement had been concluded. Seaton’s affidavit described broader discussions involving other liabilities, including those of Eirmur, Florence Investment Properties and Patricia Kennedy, and said any agreement required credit committee approval, repayment by 31 December 2012 and a sworn statement of affairs. The bank also challenged Kennedy’s credibility.
Justice Brian J. McGovern held that even accepting Kennedy’s account at its highest, he had not shown personal reliance or detriment sufficient to support promissory estoppel. Any steps to pay down the separate facilities had been taken by corporate third parties; Kennedy’s role, on his own account, was to ask their directors to consider repayment. The court said any fees or higher interest incurred by those companies would not amount to detriment to Kennedy.
The judge also found the guarantees enforceable: they contained clauses addressing concessions or arrangements, and no deed of variation or concluded modifying agreement had been produced. The alleged promise was insufficiently precise, particularly as it concerned influencing third parties and had no stated deadline on Kennedy’s account. Although the parties’ factual accounts differed, the court concluded the dispute did not disclose an arguable defence requiring a plenary hearing. It granted summary judgment for the amount sought, with interest, costs and ancillary orders still to be determined.