Scottish Court of Session Decisions

In this action the pursuers conclude for payment to them by the defender of the sum of £200,000 with interest at the contractual rate of 14 per cent a year from 14 December 1998 until payment. That sum is said to be due in respect of a guarantee in terms of which the defender guaranteed payment to the pursuers of all sums due to them by a company called The Bond Corporation Limited up to that maximum amount.

In her defences the defender pleads inter alia that the guarantee was "impetrated by the Pursuers from the Defender when she was easily imposed upon and when the pursuers did not act in good faith" and that the guarantee should therefore be reduced ope exceptionis. The defender had also raised a separate action against the pursuers (case reference 7599, "the Wright action") in which she concluded inter alia for reduction of the guarantee, both on the ground mentioned in the defences in the present action and on the ground of fraudulent misrepresentation. In the Wright action the present pursuers pled that the averments in support of inter alia the conclusion for reduction of the guarantee were irrelevant. It was accepted on behalf of the present defender that if her pleadings in support of that conclusion were held to be irrelevant, she had no other maintainable defence to the present action. Both actions were accordingly appointed to debate at the same diet, but the principal discussion took place in the Wright action.

For the reasons which I have set out in my Opinion of even date in the Wright action, I have held that the pleadings in support of the first conclusion in that action, the conclusion for reduction of the guarantee, are irrelevant. I have therefore granted decree of dismissal in respect of that conclusion. The result is that the defender has no defence to the present action.

I shall accordingly sustain the pursuers' pleas-in-law, repel the defender's pleas-in-law, and grant decree for payment by the defender to the pursuers of the sum of £200,000 with interest thereon at the rate of 14 per cent a year from 14 December 1998 until payment.