Sucden Financial Ltd v Fluxo-Cane Overseas Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore |
| Judgment Date | 09 February 2010 |
| Neutral Citation | [2010] EWCA Civ 249 |
| Docket Number | Case No: A3/2009/2633 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 February 2010 |
[2010] EWCA Civ 249
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN's BENCH DIVISION
COMMERCIAL COURT
(Mr Justice Beatson)
Before: Lord Justice Longmore
Case No: A3/2009/2633
Mr S Snook (instructed by Messrs Hill Dickinson) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
Lord Justice Longmore:
This is an application, which is obviously very important to Mr Garcia, for permission to appeal the judgment of Beatson J given on Friday, 13 November 2009 in relation to a guarantee signed by Mr Garcia whereby he guaranteed to the claimants payment by his company of “all liabilities and monies for the time being, and from time to time, owing to you by the client”.
The guarantee proceeded to say that the notice of default was to be given from time to time if there was a default and, on receiving that notice, Mr Garcia would pay the amount stated therein:
“…such notice of default as being between you and me conclusive evidence that my liability hereunder has accrued in respect of the amount claimed.”
The judge gave judgment relying on the conclusive evidence provision for the amount that the claimant claimed was owing from Mr Garcia's company.
The business being done was that of sugar broking and the claimants are sugar brokers and required Mr Garcia to give a guarantee on behalf of his company so that they would have recourse if the company did not fulfil its obligations. There are disputes between the claimants and their client. The company says that money was entrusted to the claimants, which they failed to look after, and that the company has a good claim for failing to look after their funds. It is all related to the sugar business in London.
The judge, in coming to his conclusion that Mr Garcia was liable, obviously had in mind the terms of the guarantee and, although a conclusive evidence provision is not all that commonly seen in guarantees, it does sometimes appear and of course it is familiar to those who practise in the commodity trade where certificates to be provided in the context of sales of goods often have conclusive evidence provisions.
The judge also relied on the case of Bache and Co (London) Limited v Banque Vernes et Commerciale de Paris [1973] 2 Lloyd's Rep 437, also a sugar case, where a guarantee had been given, albeit in somewhat different terms, but with a conclusive evidence provision. The Court of Appeal in that case was concerned about such provisions, but decided they were not...
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