Screwfix/shoesmiths claimform - business debt covered by a pers guarantee

[AndyOrch]

Requires more than a Witness Statement and hear say evidence...the the Court would require disclosure of the PG.

[paulo1]

Hi,

 

I have not signed any separate forms, i.e. PG, only a credit agreement, which has the wording about the director guaranteeing performance of the company etc.

[AndyOrch]

Scratch that.....I see thay do refer to a credit agreement also.

 

Andy

[Ganymede]

So they haven't sent you the signed credit agreement at any point then?

Edited August 28, 2021 by dx100uk
unnecessary previous post quote removed

[paulo1]

nope.

 

and to clarify nothing came with the claim form.

Edited August 28, 2021 by dx100uk
unnecessary previous post quote removed

[unclebulgaria67]

You are never sent anything with the claim form, as most claims are just typed in online and the courts sends it out.

 

 

Any forms mentioned in the particulars would need to be provided if the claim was defended, before any court hearing.

 

Keep an eye on the defence due date and make sure you enter it, to ensure they can only enforce the debt, if they evidence your liability with copies of the PG and credit agreement, which they say you signed up to.

[paulo1]

hi,

 

so they replied and say the conform with the CPR31.14 duties, they say they sent the from twice and made phone calls!, but like i said earlier they are sending it to my accounts address (who i no longer deal with) and calling a phone number which does not exist. all they have provided is the trade credit agreement, no personal guarantee (there is'nt one)

 

they also sent the reply to my accountant even though i gave them my home address!!

 

what do i do now?

[AndyOrch]

Ring them up and ask for a copy of PG to be sent to your email address ? sure there wont be a problem ...if they have it ?

[paulo1]

i have rang them twice, they say they will get back to me, i've emailed them once....nothing.

 

i'm not chasing anymore, they don't have one I know they don't as the trade credit agreement is all i have signed.

 

how do i prepare my defence, what should I put in it, does anyone know?

 

Thanks in advance.

[AndyOrch]

I will help you draft a defence paul...what date is it due?

[paulo1]

thank you very much, it is due 30th Nov. I think, the court documents were dated 2nd Nov.

Edited August 28, 2021 by dx100uk
unnecessary previous post quote removed

[AndyOrch]

4th December...just give your post a bump a few days before.

[paulo1]

ok great, thank you very much.

Edited August 28, 2021 by dx100uk
unnecessary previous post quote removed

[Ganymede]

 

Are you 100% surer that there isn't a PG contained in that trade credit agreement?!

Edited August 28, 2021 by dx100uk
unnecessary previous post quote removed

[paulo1]

this is all it contains as mentioned in earlier posts.

 

I, the director, agree to guarantee performance of all the company's current

and future financial obligations to Trade UK including any subsequent increase/s in credit limit.

Edited August 28, 2021 by dx100uk
unnecessary previous post quote removed

[Ganymede]

Can you scan and post a copy of it please?

Edited August 28, 2021 by dx100uk
unnecessary previous post quote removed

[paulo1]

i can scan it, but don't know how to upload it?

 

post? why?

Edited August 28, 2021 by dx100uk
unnecessary previous post quote removed

[dx100uk]

Click upload

 

Dx

[paulo1]

think this is it

Edited November 25, 2015 by paulo1

[dx100uk]

Pers info showing page 2

 

Please READ the upload guide

Dx

[unclebulgaria67]

Account number showing on page 2

 

Delete it and add back.

 

The way i read it is that it means whovever signed up to this account is guaranteeing performance. I.e paying back the credit, whether the ltd company continues or not.

[AndyOrch]

Paul take a read of the following thread from 2011...exactly the same scenario

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?325859-Personal-Guarantee-Validity

 

Regards

 

Andy

[paulo1]

Account number showing on page 2

 

Delete it and add back.

 

The way i read it is that it means whovever signed up to this account is guaranteeing performance. I.e paying back the credit, whether the ltd company continues or not.

 

yes and it's how I read it, but surely this is not the correct way of drawing up a personal guarantee, especially as they are referring to it this way!

[SuperVillain]

The way I see it the document has been signed so there is in effect offer and acceptance in this contractual soup. The only questions here are:

 

1) does the PG constitute a separate contract to the trade credit agreement (logically yes because they've been enetered into by different parties),

 

2) if the answer to 1 is yes, was there any consideration for the second contract with the director. (In my view yes - the consideration is the value of the credit offered to the company on the trade account)

 

3) if the answer to 2 is yes the PG contract is probably valid.

 

I think an UCTA argument would be weak as it is questionable whether you were acting as a consumer for the purposes of that act.

 

Misrepresentation will be extremely difficult to prove (I'm guessing the fact that it's got this far means there isn't a smoking gun email or letter which shows they were misleading you when you signed it).

 

I don't want to be the forecaster of doom and gloom but the odds are against you at the moment.

 

In my view your only hope lies with the ruling in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1987] EWCA Civ 6 - essentially that a particularly onerous contractual term must be brought to the attention of the other party - but the court have been reluctant to apply that case to signed contracts.

[paulo1]

ok, so i am preparing my defence, below is what I have so far, could you review it and tell me if anything needs changing/amending.

 

Particulars of Claim

 

1.The claimants claim is for monies due from the defendant based upon a personal guarantee dated ...... signed by .........

Wherein the defendant promised to pay the claimant all monies due to the claimant from the company, should the company default in their payment.

 

2.The company named in the agreement has now defaulted and have not paid the claimant, and now the claimant seeks to invoke its agreement and seeks payment from the defendant. The defendant has been provided with a copy of the said guarantee.

 

 

AND the claimant claims the sum of ....... TOGETHER with interest pursuant to section 69 of the county courts act 1984 from .......... to ...........

at 8% per annum being .......... and further interest on daily basis until the date of payment or request for judgement at the rate

stated for the principal sum the daily rate being ......

 

3. Claimant has complied, as far as is necessary, with the Pr-Action conduct practice direction. costs ........

 

Proposed Defence

 

1: Paragraph 1 is denied .Misrepresentation – the document headed ‘Trade account card agreement’ and for it to be a Personal Guarantee is misrepresentation by the creditor.

 

2: Paragraph 2 is denied .I did not sign the form in a personal capacity but as a director of xxx Ltd. It is further submitted that if this application form is found to be a guarantee it has unreasonable indemnity clause within the meaning of unfair contract terms act 1977 (‘’the 1977 Act’’). The form that is the subject of this guarantee was between the claimant and xxx ltd. My involvement is a guarantor was purely a personal matter between myself and xxx Ltd.

 

3: My trade or profession is not that if a guarantor and I did not provide this guarantee in return for a fee or commission. It is therefore submitted that I was ‘’dealing as a consumer’’ within the meaning of section 12 of the 1977 Act (R&B Customs Broker Company Ltd v United Dominions Trust Ltd [1987] EWCA Civ 3).

 

4: As a result of the above case, the guarantee must be reasonable and it is submitted that the guarantee does not meet the reasonableness test of section 11 of the UCTA1977 Act and satisfies the requirement of reasonableness to show that it does.

 

5: It is my belief that the guarantee does not met the reasonableness test for the following reasons.

 

6: I had no intention of entering into a Personal Guarantee.

 

7: What is purporting to be a personal liability on xxx Limited and not myself personally?

 

8: It has been shown above that I am a consumer in this case. Under the unfair terms (consumer contract) Regulations 1999 (regulation 8) an unfair term is not binding on the consumer and therefore I cannot be held liable of the xxx Ltd debt.

 

9: Under regulation 5(1) of the UTCCR, a contractual term that is not individually negotiated will be regarded as unfair if, contrary to the requirements of good faith, it causes a significant imbalance in the parties rights and obligations arising under the contract, to the detriment of the consumer. The application form was clearly pre-printed and was a standard form of the claimant and therefore cannot have been individually negotiated. By trying to pass the liability of a third party to myself, without my knowledge, there has clearly been an imbalance in the parties’ right and is to the detriment of myself financially.

 

10. On the 9th Nov 2015 I sent a formal request for a copy of the Personal Guarantee Agreement to [Claimant] under CPR 31.14.

 

11. The Claimant has failed to comply with CPR 31.14, they have only supplied the ‘Trade Account Car Agreement’ therefore paragraph 3 is denied.

 

13. Under Civil Procedure Rule 16.5 (4) Wherwhere claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

 

14. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.

 

15. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

 

16. It is denied that the Claimant is entitled to the relief as claimed or at all.

Edited December 1, 2015 by Andyorch
Particulars added and numbered/Tweaked