Travis Perkins Personal Guarantee Problem

[Coody]

Hello

 

My company was wound up last year and as director I am now being chased for a debt of roughly £20k from Travis Perkins, based on me having signed what they purport to be a personal guarantee.

 

 

When they wrote to chase the debt initially I offered them £3500 settlement which they declined.

 

 

They then issued a Statutory Demand which I had set aside based on the arguement that I did not agree I had signed a personal guarantee.

Travis Perkins agreed to have the SD set aside as it had raised a trialable issue.

 

 

They then wote saying they would take our offer of £3500 in full and final settlement.

We said that we were no longer able to uphold this offer as

 

 

1. did not have the funds and

2. did not agree personal liability for the debt.

All then went quiet for 6 months.

 

 

Then we got a county court claim letter to which we responded by defending our case,

saying

1. I was not aware I had signed a personal guarantee

2. Nowhere on the guarantee part of the form was the word 'personal' used.

3. I signed in capacity of director and underlined the word 'Director' to show this.

 

 

I also contacted Travis perkins will a new settlement offer of £1200 to which I have not had a response.

 

 

I then received a 'Notice of proposed allocation to the Multi-track' which includes a questionnaire to complete.

It also states that proposed directions need to be filed but I am assuming this is by the claimant?

 

 

I know there have been others who have been caught out by these Travis Perkins personal guarantees and wonder has anyone got to where we are or even challanged the personal guarantee in court?

 

 

Any experiences or advise would be very much appreciated.

 

 

Thank you for your time.

 

I should have added that the following text is on the form, entitled 'Credit Guarantee':

 

Credit Guarantee - To be signed by the owner / director / company secretary of the company applying for credit

in consideration of your agreement to supply goods to the applicant company on credit, we the undersigned being owner / directors of the company jointly and severally guarantee payment of all financial obligations to ************ Company and its subsidiaries and successors including financial obligations arising from any increase in credit limit granted by ********** company or its subsidiaries and successors from time to time following review of the applicant company's account.

 

I Signed and dated this and also underlined the word 'Director' in the title.

[steampowered]

Unfortunately, even though you signed this as a "Director", I think the intention of the document is clear. The wording states that you are guaranteeing the obligations of the company. I cannot think of any other sensible explanation, your Defence is basically arguing that you signed a guarantee on behalf of the company for the company to guarantee its own obligations. With respect this explanation does not make sense. I think it will be very difficult to challenge this if they have a signed document.

 

It is the Claimant's responsibility to file proposed directions. In the multi-track you will be ordered to pay the Claimant's legal costs if you lose, if this goes all the way to trial you could easily be looking at an extra 5k-10k added onto the debt.

 

Unless there is something I am missing I think you should go back and try to settle this for £3500 immediately, before more legal costs are incurred. £3500 would be a very favourable settlement. Even if you cannot afford the full amount straight away, you are much better off negotiating monthly payments on a £3500 CCJ than a £2500+ plus CCJ. Sorry I don't have anything more positive to say.

[Coody]

Many thanks for your quick reply steampowered. I agree that we would be more likely to lose should the matter be tested in court. I am hoping that they would be reluctant to test this as if they lost this could in theory open a can of worms with regards to their past enforcements of personal guarantees?

[steampowered]

No, it would not affect past enforcement.

 

It could affect future enforcement if the document were found to be invalid in all circumstances, not just on the specific circumstances of your case, but I think this is pretty unlikely (and probably unlikely that the case would get publicly reported unless it is appealed).

 

The more important reason why they won't want to go all the way is that they will have to pay legal costs to do it, and they know there is no certainty you will repay the money. One strategy is to tell them £3500 is the maximum you can pay otherwise you will have to declare bankruptcy (there is no obligation to follow through on statements like that).

[Coody]

Thanks steampowered. I have noticed that TP have recently changed their trade application form and entitled the guarantee section 'Personal credit guarantee' followed by the text below. They seem to have changed it to make the 'personal' part far clearer than on the form I signed.

 

In consideration of your agreement to supply goods on credit to the Company described above applying for credit herein (‘the Company’ ) I/we the undersigned being director(s)/member(s) of the Company/LLP hereby

unconditionally and personally, jointly and severally guarantee payment of all monies due and owing by the Company to .... Trading Company Limited, its subsidiaries and successors, including all monies

due and owing by reason of any increases in the credit limit granted by ....Trading Company Limited from time to time following review of the Company's credit account and note the additional terms below.

 

Do you know if there's any way I could check for similar court cases please- I don't know if these are made public or not? Thank you

[steampowered]

You can search for reported cases on www.bailli.org. There are a number of cases on there involving Travis Perkins but I haven't looked through them. Most cases never get reported so this is not necessarily every case they have ever been involved with.

[BazzaS]

A judgement in the County Court wouldn't be binding on other County Court cases.

 

Only if a County Court judgement was appealed to a higher court would the higher court's judgement be able to be cited as binding case law.

 

None the less, if you feel you will likely lose any County Court case, you may be better to settle for a lower "full & final" settlement, unless you wish to go down the Insolvency route.

[BazzaS]

Interesting : would the fact that they have changed it be ammunition to demonstrate that it wasn't previously clear that it was a personal guarantee?

 

However, I agree that it seems obvious that it was a personal guarantee as a "non-personal" guarantee wouldn't be any guarantee at all. ........

[Coody]

Thank you for the link steampowered. I have had a look but the cases listed are not related to personal guarantees.

 

Thank you BazzaS for your reply. Like you say, it would be interesting to know if the fact they changed the form would make a difference.

 

It does seem that we are probably best to try and settle for a low amount now rather than take the chance that TP won't take it to court.

 

Do you think they would still accept the £3500 as they were prepared to earlier or do you think they will now push for more as they have started the county court claim?

[steampowered]

Difficult to say. You are still in the early stages of litigation so they might do. They might try to ask for £3500 plus legal costs to date, but I doubt there are many costs yet.

[Coody]

Ok, thank you steampowered. I think I will wait a while and see if TP come back to us regarding our offer, given that they will now have received a copy of our defense. If I don't hear anything by a week or so I think I will write again to increase the offer.

[brockers99]

Hi Coody. Did this get resolved with TP? As many others, I am in the same boat and would love to know how you managed to resolve this, if you have.

[Coody]

Hi,

 

Yes, we finally managed to get it resolved. There was a lot of toing and froing as we wanted to settle rather than let it go to court. We ended up reaching a settlement figure that we could just about afford which was about a third of the amount owed by the company. I hope that helps and good luck with it.

[nice guy]

My depressing contribution is that I have just lost a county court hearing against TP in which one of my lines of defence was that the guarantee was not personal. The judge agreed with them that it was personal.

 

I think they should have made it much clearer in the guarantee wording. Clearly the new form is an improvement.

[AndyOrch]

Thread moved to the correct forum.

 

Andy