THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND v. BRIAN MORTON

The Sheriff Principal having resumed consideration of the appeal recalls the interlocutor of the Sheriff dated 8 December 1999; allows the parties before answer a proof of their respective averments; remits the cause to the Sheriff to assign a diet of proof; finds the respondents liable to the appellant in the expenses of the appeal and of the debate as taxed; allows an account of expenses to be given in and remits the same, when lodged, to the Auditor of Court to tax and to report; sanctions the employment of counsel in connection with the appeal.

"stipulated for inter alia a "First Standard Security" over Hazelburn and a "Third Standard Security" over premises known as Club 2000".

1.2 The Bank did not obtain a first standard security (or as it is called elsewhere in the pleadings a "first ranking standard security"). When LLH went into receivership the floating charges became fixed and both had priority over the standard security which had been granted in favour of the Bank. It was said that the result of that priority is that no sums will be recovered in terms of the standard security. The Bank avers that no security was granted in their favour in respect of the Club 2000 premises.

It was decided at a debate at an earlier stage in this case that that aspect of the case will have to go to proof.

1.4 This appeal is concerned with the relevancy of the next part of the case for the appellant, which has been added by amendment subsequent to the earlier debate. That part is predicated on the assumption that the Bank is entitled to enforce the guarantee and that there was no essential error induced by the Bank. On that basis the appellant claims that the Bank failed to obtain a first ranking security over Hazelburn because of a failure on their part to perfect the security. The appellant's case continues: