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BWG Foods UnLtd Company v J.A.J Supermarkets LTD and Anor (Approved)

High Court of Ireland

Dec 8, 2025

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Summary of Judgment — High Court (ex tempore)

Factual and Procedural Background

The Plaintiff sought summary judgment against the Second Defendant on foot of a written contract of guarantee dated 7 May 2012, by which the Second Defendant guaranteed the indebtedness of the First Defendant to the Plaintiff. The Plaintiff claimed €355,573.48. The summary summons issued on 16 June 2022. The Plaintiff obtained judgment in default of appearance against the First Defendant on 15 January 2024. The Second Defendant entered an appearance on 29 June 2022 and opposed summary judgment, asserting five grounds of defence. The judgment was delivered ex tempore by Judge Barr on 8 December 2025.

Legal Issues Presented

Whether the Second Defendant had established an arguable defence sufficient to defeat the Plaintiff's application for summary judgment on the guarantee dated 7 May 2012.
Whether the 2016 trading agreement (the "Spar Trading Agreement") containing a whole agreement clause superseded or rendered inoperative the 2012 guarantee in respect of indebtedness arising after 2016.
Whether the Plaintiff owed a duty (or was obliged as a matter of law or policy) to ensure that the Second Defendant obtained independent legal advice before executing the 2012 guarantee, and whether absence of such advice rendered the guarantee unenforceable.
Whether the Plaintiff's statements of account had properly credited substantial payments made by the First Defendant, such that the claimed quantum was inaccurate.
Whether the alleged transfer of the shop business and/or lease on or about 1 December 2021 to a third company (Company B) meant that indebtedness incurred after that date was not recoverable from the First Defendant and therefore not covered by the 2012 guarantee.

Arguments of the Parties

Second Defendant's Arguments

The Plaintiff had not produced evidence that the terms & conditions and price lists at the time of the 2012 guarantee were the same as those applying when goods were supplied in Oct 2021–Feb 2022.
The 2016 Spar Trading Agreement contained a whole agreement clause which superseded prior agreements; because the 2016 agreement did not refer to the 2012 guarantee, the guarantee became inoperative after 2016.
The Plaintiff had a policy of advising guarantors to obtain independent legal advice; the Second Defendant was not so advised and that renders the guarantee unenforceable or at least an arguable defence exists.
The Plaintiff's statement(s) of account did not properly credit substantial payments (asserted to be €263,674.15) allegedly made by the First Defendant, so the quantum claimed was overstated.
The First Defendant ceased trading as from 1 December 2021 with the business transferred (with alleged consent) to a third party (Company B); indebtedness after that date up to account closure (13 February 2022) is not recoverable by the Plaintiff from the First Defendant and so not covered by the guarantee.

Plaintiff's Position

The Plaintiff relied on affidavit evidence of Attorney Kilmartin, a copy of the 2012 written continuing guarantee signed by the Second Defendant, and statements of account establishing the balance claimed.
The Plaintiff submitted that the 2016 trading agreement was between the Plaintiff and the First Defendant only and that the Second Defendant was merely an addressee; therefore the whole agreement clause did not affect the 2012 guarantee to which the Second Defendant was a party.
The Plaintiff submitted there is no common-law duty on a creditor to ensure that a guarantor obtains independent legal advice; case law supports that no such duty rests on the creditor.
On quantum, the Plaintiff exhibited a fuller statement of account in a later affidavit which, it said, reflected all payments including the payments relied upon by the Second Defendant.
On the alleged transfer of business, the Plaintiff denied it had consented to any transfer prior to account closure and stated it had no knowledge of any such transfer; no documentary evidence of any transfer or lease to Company B was produced by the Second Defendant.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
First National Commercial Bank v Anglin [1996] 1 IR 75	Test for whether defendant has shown a fair or reasonable probability of a bona fide defence; court must look at whole situation.	The court relied on the Anglin formulation as the governing test for whether to grant leave to defend in summary judgment proceedings.
Banque de Paris v DeNaray [1984] 1 Lloyd's Law Rep 21	Underlying authority for the standard applied in summary judgment matters (see Anglin endorsement).	Referenced as part of the Anglin-endorsed test; used to support the legal threshold applied.
National Westminster Bank PLC v Daniel [1993] 1 WLR 1453	Authority referred to in establishing the summary judgment threshold.	Referred to by the court as part of the established approach to summary judgment.
Aer Rianta CPT v Ryanair Limited [2001] 4 IR 607	Articulation of key questions: is it very clear the defendant has no case; are issues simple; do affidavits fail to disclose an arguable case?	The court applied these questions as a practical guide to determine whether the Second Defendant had crossed the threshold.
Harrisrange Limited v Duncan [2003] 4 IR 1	Summary of principles applicable to summary judgment and leave to defend (authoritative guidance).	The court noted Harrisrange as helpful guidance and applied its principles (including that mere assertions may be insufficient).
Allied Irish Banks v Killoran [2015] IEHC 850	Warning against allowing spurious, fanciful or conjectural contentions to resist summary judgment.	The court relied on the dicta to reject contentions viewed as mere assertions or attempts to delay the inevitable.
Feniton Property Finance DAC v McCool [2022] IECA 217	Restatement that the defendant must show a fair and reasonable probability of a bona fide defence; caution in granting summary judgment but recognition of the low threshold.	The court applied the Feniton formulation to balance caution with the need to prevent unnecessary plenary hearings for straightforward debt claims.
Promontoria (Aran) Ltd. v. Burns [2020] IECA 87	Support for the proposition that straightforward debt claims should not routinely require plenary hearing and the court should consider public interest in avoiding delay/cost.	Referred to in the court's consideration of whether to remit matter to plenary hearing.
IBRC Ltd. v. McCaughey [2014] 1 IR 749	Examples of factual assertions that will not provide an arguable defence (mere assertions unsupported by evidence or realistic suggestion of evidence).	The court relied on this authority when assessing whether the Second Defendant's assertions had evidential support.
ACC Loan Management v Connelly [2017] IECA 119	Holds that a creditor is not under a common-law duty to ensure that a guarantor obtains independent legal advice.	The court applied ACC Loan Management to reject the submission that absence of independent legal advice rendered the 2012 guarantee unenforceable.

Court's Reasoning and Analysis

The court proceeded through the following analytical steps, relying on the parties' affidavits, exhibits and legal submissions and applying settled summary judgment principles:

The court accepted Attorney Kilmartin's evidence and exhibits that a written continuing guarantee dated 7 May 2012 was signed by the Second Defendant and by Attorney Carter on behalf of the Plaintiff, guaranteeing the First Defendant's debts for goods and materials supplied and capital contributions paid by the Plaintiff.
The court found the 2016 trading agreement (the Spar Trading Agreement of 28 September 2016) to be a formal agreement between the Plaintiff and the First Defendant governing supply terms; the Second Defendant and Attorney Mahon were addressees and the signatures appended by the Second Defendant and Attorney Mahon were on behalf of the First Defendant.
The court addressed the whole agreement argument: although the 2016 agreement contained a whole agreement clause governing the relationship between the Plaintiff and the First Defendant, the court concluded that the Second Defendant was not a party to the 2016 agreement. Therefore absence of express reference to the 2012 guarantee in the 2016 document was irrelevant to the enforceability of the 2012 guarantee as between the Plaintiff and the Second Defendant.
On the alleged mismatch of terms & conditions/price lists between 2012 and the period when goods were supplied, the court held that the 2012 guarantee expressly covered future indebtedness arising from goods supplied under the terms and price list then applying when the goods were supplied, and thus found no substance in the point raised.
Concerning independent legal advice, the court accepted the Plaintiff's submission and authority (ACC Loan Management v Connelly) that there is no duty at common law on a creditor to ensure that a guarantor is advised to obtain independent legal advice; the Second Defendant did not aver non-signature, undue influence, or duress, and therefore the absence of advice did not render the guarantee unenforceable.
On quantum, the court analysed the statements of account. While the first two statements lacked detail, the third, later statement of account exhibited by Attorney Kilmartin showed the payments asserted by the Second Defendant (in the order of €263,674.15) had been credited. The court noted the Plaintiff had obtained judgment in default against the First Defendant and applied the principle that a surety cannot go behind a judgment obtained against the principal debtor to challenge the accuracy of that judgment.
Regarding the asserted December 2021 transfer of business to Company B, the court found the Second Defendant produced no primary evidence (no sale contract, lease, or consent documentation); the Plaintiff denied knowledge or consent of any such transfer prior to account closure; and the bank statements produced by the Second Defendant showed payments by the First Defendant to the Plaintiff after 1 December 2021. The court concluded the contention was a bare assertion unsupported by evidence and did not establish an arguable defence.
Applying the established summary judgment tests (Anglin; Aer Rianta; Feniton; Harrisrange etc.), the court concluded that the Second Defendant had not demonstrated a fair and reasonable probability of a bona fide defence and had not crossed the relatively low threshold required to defeat summary judgment.

Holding and Implications

Holding: The court granted summary judgment in favour of the Plaintiff against the Second Defendant in the sum of €355,573.48.

Implications: The direct consequence is that the Plaintiff obtains judgment against the Second Defendant for the full amount claimed. The court refused to remit the matter to plenary hearing because the Second Defendant did not establish an arguable defence to the claim or any part of it. The opinion does not purport to establish any new legal precedent; it applies established authorities concerning the threshold for resisting summary judgment and confirms that (a) a whole agreement clause in a subsequent agreement between creditor and principal debtor does not by itself discharge a separate guarantee given by a third party, (b) a creditor is not under a common-law duty to ensure a guarantor obtains independent legal advice, and (c) a surety cannot go behind a judgment obtained by the creditor against the principal debtor to challenge the accuracy of that judgment.

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