Three of our most recent Case Studies

Indemnity hidden within wording of document

FACTS

N’s Company was incorporated in 2006. In 2011 N sought financial services from P and signed an agreement accordingly for and on behalf of the Company. On signing the agreement, and at no time leading up to the agreement, P did not enlighten her to the obligations to which she was signing up to. Indeed, the alleged indemnity was hidden in the latter pages of the agreement.

Of course, indemnities are more onerous than personal guarantees in that an indemnifier can be deemed to be the same as the Company in terms of contractual obligations.

N’s Company went into liquidation and P issued proceedings against N for the alleged debt of £22,000.

OUTCOME

N entered into the agreement on the belief that she was doing so as an authorised signatory of the Company and not in her personal capacity. Therefore the agreement failed as a contract due to the fact that there was no valid offer from N to be responsible for the alleged debt. Furthermore the alleged indemnity was concealed in the end of the agreement and no effort was made to bring it to N’s attention.
Consequently, P accepted £2,000 in full and final settlement.


Leasing Company pursuing on Personal Guarantee and refusing reasonable offer for purchase of assets

FACTS

C’s Company was a very specialist provider that utilised specialist equipment. The industry was struggling in general and C as one of the two guarantors had provided a termination notice on a personal guarantee for £150k with respect to a leasing agreement on some very specialist equipment.

The Company stopped trading within 9 months and the Directors had offered a more than fair market value for the equipment which otherwise might have been sold at best for scrap at auction and would settle all the leasing company’s obligations under the lease agreement in it’s entirety.

Notwithstanding this offer the leasing Company arranged for the specialist equipment to be recovered from the Company and placed into storage at some considerable cost and continued to refuse to entertain the offer made for the equipment whilst issuing demands on both the guarantors.

OUTCOME

In negotiating the matter on behalf of C and the co-guarantor we were able to set out the difficulties the leasing company would face in pursuing the personal guarantees should they continue to refuse such an offer and given the termination notice provided by one of the guarantors.

In a matter of a couple of weeks the leasing company agreed to sell the equipment to our clients at the price they offered and waived all costs in relation to storage and recovery whilst releasing our clients in full from the guarantee.


Termination notice by one guarantor assisted a co-guarantor when a demand was made

This story goes back to 2009 and has only just reached a successful conclusion.

It involved a £200k personal guarantee signed by 3 co-directors one of whom had a minority interest in the business. This minority interest guarantor was concerned about the long-term prospects of the business and gave 90 days notice in accordance with the terms of the guarantee. The bank failed to make a demand during that notice period and the business failed some 45 days after the expiry of the notice on the guarantee.

The other two directors continued to be pursued under the guarantees and before our client worked with us he had been making payments for a short period of time.

The matter was handed to solicitors who eventually issued proceedings. Our client was able to file a defence on these proceedings given that his position was prejudiced by the third guarantor giving notice on the same guarantee and settlement was agreed for 20% of the alleged claim.

Back to Case Studies