Insolvency proceedings, guarantees and contractual pre-conditions – Hardwicke Chambers

Posted August 29th, 2019 in contracts, guarantees, insolvency, news, statutory demands by sally

‘If you are considering commencing insolvency proceedings against another party, do ensure that they actually owe you a debt before you do so. This point is so obvious that it barely needs stating. However, Martin v McLaren Construction Ltd serves as an example of how things can go badly wrong if it is not double-checked.’

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Hardwicke Chambers, August 2019


HMRC statutory demand upheld against guarantor –

Posted January 25th, 2019 in bankruptcy, enforcement, guarantees, news, statutory demands by tracey

‘The High Court in England has ruled that a statutory demand based on a judgment debt is valid, despite the judgment debt arising from a guarantee which prohibited the creditor from enforcing the guarantee in bankruptcy proceedings. The High Court also clarified that judgment interest and costs do not form part of the debt and can be enforced separately.’

Full Story, 24th January 2019


General Mediterranean Holding SA SPF v Qucomhaps Holdings Ltd [2018] EWCA Civ 2416 – Hardwicke Chambers

Posted December 12th, 2018 in contracts, guarantees, news, surety by sally

‘GMH provided loans to Qucomhaps of around $4,000,000 to assist it in purchasing the business of the aircraft manufacturer, Moravan. Repayment was secured by a personal guarantee from Mr Harkin, Qucomhaps’ managing director. Further GMH was granted fixed and floating charges over the assets of Moravan Aviation, a wholly owned subsidiary of Qucomhap which had acquired the assets of Moravan.’

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Hardwicke Chambers, 28th November 2018


Nearly, but not quite: the difficulties of resisting payment of an on-demand guarantee – Practical Law: Construction Blog

Posted May 17th, 2018 in banking, construction industry, fraud, guarantees, news by tracey

‘It is notoriously difficult to resist payment following a call on an on-demand guarantee or bond. Generally, nothing less than a seriously arguable case of fraud by the beneficiary will suffice. The stringency of this test is backed by strong policy arguments militating in favour of protecting the integrity of the banking system. However, even where a seriously arguable case of fraud is made out, the balance of convenience may weigh against injunctive relief, as demonstrated recently in Tetronics (International) Ltd v HSBC Bank plc.’

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Practical Law: Construction Blog, 16th May 2018


Harbour View, contractor insolvency and the importance of a guarantee expiry date – Practical Law: Construction Blog

Posted February 21st, 2018 in construction industry, guarantees, insolvency, news, time limits by tracey

‘One of the interesting features of the recent decision of Coulson J in Ziggurat (Claremont Place) LLP v HCC International Insurance Company Plc is the effect on a guarantee of a contractor becoming insolvent many years after a construction project has been completed. In Ziggurat, the amended ABI model form of guarantee bond had not yet expired. This allowed the employer to make a claim under the guarantee arising out of the contractor’s insolvency, notwithstanding the fact that the contractor’s employment had already been terminated and the project had achieved practical completion.’

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Practical Law: Construction Blog, 21st February 2018


Supreme Court rules on contractor’s liability for design –

Posted August 4th, 2017 in construction industry, contracts, energy, guarantees, news by sally

‘A warranty provided by construction company MT Hojgaard (MTH) that the underlying works would have a service life of 20 years took precedence over conflicting terms in the contract, including adherence to industry standards, the UK’s highest court has ruled.’

Full Story, 3rd August 2017


Law firm should have warned property investor clients of “Mafia risk”, CA rules – Legal Futures

‘A law firm with offices in Italy and England has lost its appeal against a High Court ruling that it was under a duty to warn British and Irish property investors of the risks of investing in a part of Italy associated with organised crime.’

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Legal Futures, 2nd August 2017


High Court: commercial tenant cannot assign lease to its guarantor –

Posted March 23rd, 2016 in assignment, guarantees, insolvency, landlord & tenant, leases, news by tracey

‘Anti-avoidance provisions in the 1995 Landlord and Tenant (Covenants) Act prevent a tenant from assigning a lease to its guarantor, the High Court has ruled.’

Full story, 21st March 2016


Judge allows hotel companies to reassign leases without losing benefit of associated guarantees –

Posted January 21st, 2015 in assignment, guarantees, hotels, landlord & tenant, leases, news, third parties by sally

‘A High Court judge has approved arrangements allowing companies within the Hilton group to reassign leases between themselves without the landlord losing the benefit of a guarantee granted by the parent company.’

Full story, 20th January 2015


Constructing safety nets – Hardwicke Chambers

Posted November 18th, 2014 in construction industry, contracting out, guarantees, insolvency, news by sally

‘Notwithstanding the economic upturn, many UK contractors are still tendering for work at negative margins; sustaining losses; and arguably operating one major dispute away from the brink. This article examines the common forms of security used by employers to safeguard performance by contractors, and/or protect against insolvency, and considers the degree of comfort they afford.’

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Hardwicke Chambers, 16th October 2014


Nominal damages for ‘negligent’ yacht advice – Law Society’s Gazette

Posted August 6th, 2014 in contracts, damages, guarantees, law firms, negligence, news, sale of goods by sally

‘A leading firm has avoided paying out significant damages despite admitting negligence when it gave advice on the purchase of a £3.6m yacht.’

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Law Society’s Gazette, 5th August 2014


Abercrombie and others v Aga Rangemaster Ltd – WLR Daily

Posted October 16th, 2013 in appeals, employment, guarantees, law reports, remuneration, working time by sally

Abercrombie and others v Aga Rangemaster Ltd [2013] EWCA Civ 1148; [2013] WLR (D) 381

“The question governing liability to make guarantee payments under section 28 of the Employment Rights Act 1996 was whether the employee ‘would normally be required to work [on the day in question] in accordance with his contract of employment’. The fact that an agreement introducing changes to an employee’s working hours was temporary did not prevent the day in question remaining ‘normally’ a working day.”

WLR Daily, 11th October 2013


“All Money” Guarantees Mean What They Say – Littleton Chambers

Posted July 31st, 2013 in banking, contracts, guarantees, interpretation, news, vicarious liability by sally

“On 9 July I looked at a Court of Appeal decision which showed that it remained arguable that a change in the arrangements between a creditor and the principal debtor might so alter the subject matter of what was guaranteed as to discharge the guarantor. This week comes a timely reminder that the first and fundamental step is to construe the contract to see what obligations are covered by the guarantee.”

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Littleton Chambers, 19th July 2013


Discharge of Guarantees – The Doctrine of “Purview of the Guarantee” – Is There a “Get Out of Jail Free Card” For Guarantors? – Littleton Chambers

Posted July 10th, 2013 in construction industry, contracts, guarantees, news, summary judgments by sally

“Well–drawn guarantees contain comprehensive ‘anti-discharge’ provisions, designed to prevent a guarantor being discharged from liability by any post-guarantee amendments to the principal transaction or extensions of time to pay or other indulgence given to the principal debtor without the guarantor’s knowledge or consent. This right to be discharged is generally known as the rule in Holme v Brunskill (1878) 3 QBD 495) after the leading case that set out the mature principle. Banks and others have continuously refined these ‘anti-discharge’ provisions to try to make sure that the rule in Holme v Brunskill is stripped of its effect.”

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Littleton Chambers, 9th July 2013


Essay writing service’s ad banned for implying ‘guaranteed’ grade – The Guardian

Posted May 8th, 2013 in advertising, complaints, examinations, guarantees, news, universities by sally

“An advert for an essay writing service has been banned for implying that students had a moneyback guarantee that they would get the grade they wanted.”

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The Guardian, 8th May 2013


Judicial review expected into handling of small firm loan scheme – The Guardian

Posted April 11th, 2013 in banking, guarantees, judicial review, loans, news, small businesses by sally

“The government is facing the threat of a judicial review into its handling of an investigation into Barclays’ involvement in a state-backed loan scheme.”

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The Guardian, 10th April 2013


Highbury Pension Fund Management Co and another v Zirfin Investments Ltd and others – WLR Daily

Posted February 22nd, 2013 in banking, debts, guarantees, law reports, loans by sally

Highbury Pension Fund Management Co and another v Zirfin Investments Ltd and others [2013] EWHC 238 (Ch); [2013] WLR (D) 71

“A creditor was entitled to invoke the equitable doctrine of marshalling to claim the benefit of securities held by a doubly-secured creditor even if the two securities did not both come from a debtor if one of the securities derived from a principal for whom the debtor stood surety.”

WLR Daily, 14th February 2013


Oxford college sued over using ‘selection by wealth’ for admissions – The Guardian

Posted January 21st, 2013 in fees, guarantees, news, universities by sally

“An Oxford college is being sued for discriminating against poorer students applying to study for postgraduate courses. St Hugh’s, which was founded in 1886, is being taken to court for choosing applicants not just on academic merit, but also on their ability to prove they can pay tens of thousands of pounds for tuition fees and living expenses.”

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The Guardian, 19th January 2013


Hackney Empire Ltd v Aviva Insurance Ltd – WLR Daily

Posted January 7th, 2013 in appeals, contracts, damages, guarantees, law reports, surety by sally

Hackney Empire Ltd v Aviva Insurance Ltd [2012] EWCA Civ 1716; [2013] WLR (D) 2

“The rule in Holme v Brunskill (1878) 3 QBD 495, permitting the discharge of a surety’s liability under a guarantee, only applied where the parties to the principal contract guaranteed had varied the terms of that contract without the surety’s consent.”

WLR Daily, 19th December 2012


Barclays to be investigated over claim they misused loan scheme – The Guardian

Posted September 21st, 2012 in banking, financial regulation, guarantees, loans, news, small businesses by tracey

“A government business lending specialist is to investigate a loan made by Barclays that turned sour and allowed the bank to collect nearly £70,000 in taxpayer guarantees.”

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The Guardian, 20th September 2012