Does the absence of an actual seal on a document of Guarantee or Indemnity mean that the document is not executed "Under Seal" or does the fact that the document recites the words "Signed Sealed and Delivered" without a physical seal mean that it is an instrument under seal for the purpose of section 11 (5)(a) of the Statute of Limitations Act 1957?
If a document is an instrument executed under seal a limitation period of 12 years for the commencement of proceedings applies. However if a document is not executed under seal then any proceedings must issue within a period of 6 years.
This time limit is extremely important and may defeat a banks claim to enforce a personal guarantee if proceedings are not issued within the correct time period.
This point of law has never been determined by an Irish Court and Swaine Solicitors are in the unique position of advancing this defence on behalf of a client.
Mr Justice Michael Peart delivered Judgment on behalf of the Court of Appeal last Tuesday and ruled that the presence or absence of a seal on a personal guarantee is more than " a mere technical point" and in fact a question of law to be decided on. The case will now proceed to full Plenary hearing.