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05 February 2009
Issue: 7355 / Categories: Opinion , Company , Banking , Commercial
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Banking on UCTA

Christopher Coffin & Sarah Quilliam look for guarantees in commercial contracts

Barclays Bank plc v Alfons Kufner [2008] EWHC 2319, [2008] All ER (D) 102 (Oct) establishes that the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) do, contrary to previous authority, apply to a guarantee—however it restricts the circumstances in which a guarantor will have their protection. As a result, the claimant bank was able to rely on a term excluding its equitable duty not to impair or release securities. The decision also extends the reflective loss principle so that loss suffered by a guarantor, if also a shareholder, is not separate and distinct from the company’s loss.

Factual background
Barclays Bank plc (the bank) made a loan to an Isle of Man company, Kel, owned and controlled by Mr Kufner (AK). AK is a German national with a background in the manufacture of car parts. The loan was to enable Kel to purchase a yacht and was secured by a personal guarantee from AK and a mortgage on the yacht. The yacht

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NEWS
The Attorney General, Ellie Reeves KC MP, and Solicitor General, Andy Slaughter KC MP, marked the 25th anniversary of Pro Bono Week by joining lawyers, charities, students and parliamentarians at events celebrating voluntary legal work
Witness evidence can be compromised by AI before a solicitor sees the draft, leaving safeguards focused on authorship incomplete
Possession claims are entering a new digital era, with procedural traps awaiting practitioners who assume familiar rules still govern every step
A polished legal defence may owe more to artificial intelligence than legal merit—and creditors risk paying the price in delay and expense
An indemnity costs battle with a £20m gap could reopen an important question: what weight should an approved budget carry?
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