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Banking & Finance - Letter of guarantees - Liberty to enter final judgment - Absence of independent legal advice - Duty of care of the lender - Bona fide and arguable defence

Posted 10/11/2016

Facts: Following an appearance in action entered by the defendants, the plaintiff sought liberty to enter final judgment against each of the three defendants. The plaintiff’s claim against each of the defendants was for a sum, plus the appropriate interest on foot of guarantees in writing referable to an advance of money to the borrower. The plaintiff contended that the defendants had no bona fide defence to the proceedings and that the appearances entered were solely for the purpose of delay. The defendants raised many defences, including the absence of legal advice, personal issues, etc.
Held: Mr. Justice Hunt held that the plaintiff would have liberty to enter the final judgment against each of the defendants. The Court found that the issues raised by the defendants were simple and easily determined and that the defendants failed to raise any bona fide and arguable defence to the claim of the plaintiff. The Court held that the absence of independent legal advice in commercial context did not establish an arguable defence as there was no duty of care on the lender to advise the borrower about the necessity of availing of the legal advice prior to the execution of relevant documents. The Court held that mere difficulties would not be sufficient to avoid liability unless they were of a nature to adversely impact the capacity to contract. 
Allied Irish Banks PLC v Meade, Adrian and ors
3/10/2016 No. 2014/2784 S [2016] IEHC 562

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