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[2] The defender has refused to make payment. This is on the basis that the certificate of default omitted to state, as required by the bond agreement, that the pursuer had given the company written notice of its failure in the restoration obligations not less than 60 business days prior to the date of the certificate, and that the company had failed to remedy the breach. In fact no such notice of failure had been served upon the company.
The terms of the bond [5] The relevant terms of the bond are as follows. Sub-clause 2.1 provided:
"The cautioner hereby guarantees the performance and discharge by the operator of the restoration obligations and any liability or payment obligation of the cautioner hereunder shall be discharged and satisfied by payment to (or by direction of) the Council in accordance with sub-clause 2.2".
"Subject to clause 3.1, following the service upon the cautioner of a certificate of default the cautioner shall within ten (10) business days pay the sum demanded to the Council in accordance with clause 4".
"Any demand served by the Council in accordance with sub-clause 2.2 shall be conclusive evidence of the liability of the cautioner to pay the sum thereby demanded to the Council, and any payments made to the Council shall constitute a full and sufficient receipt to the extent of such payment".
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[2026] EWCA Civ 21
Common Room
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