Category: Agency

AMB Imballaggi Plastici Srl v Pacflex Ltd: CA 18 Jun 1999

A party who chose to contract as principal for the purpose of reselling the goods of the vendor on a speculative basis and for a profit, was not to be deemed to be a commercial agent of the first vendor, and so was not entitled to compensation on the breakdown of the relationship.

Judges:

Peter Gibson, Judge, Waller LJJ

Citations:

Gazette 07-Jul-1999, Times 08-Jul-1999, [1999] EWCA Civ 1618, [1999] CLC 1391, [1999] 2 All ER (Comm) 249, [1999] Eu LR 930, (1999) 18 Tr LR 153, [2000] ECC 381

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993 (1993 No 3053) Reg 2

Jurisdiction:

England and Wales

Cited by:

Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
Lists of cited by and citing cases may be incomplete.

Agency, European

Updated: 21 January 2023; Ref: scu.77776

Armagas Ltd v Mundogas SA (‘The Ocean Frost’): CA 1985

Proof of corruption not needed for bribe

In establishing that money was paid as an improper inducement or bribe, proof of corruptness or a corrupt motive was unnecessary.
When a court looks at a decision of a judge at first instance, the court stressed the need to look at the objective facts and the overall probabilities.
Held: Mundogas was not vicariously liable for Mr. Magelssen’s deceit.
Goff LJ said: ‘Speaking from my own experience I have found it essential in cases of fraud when considering the credibility of witnesses always to test their veracity by reference to objective facts proved independently of their testimony, in particular by reference to the documents in the case and also to pay a particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence . . Furthermore it is implicit in the statement of Lord MacMillan in Powell v. Streatham Manor Nursing Home at p. 256 that the probabilities and possibilities of the case may be such as to impel an appellate Court to depart from the opinion of the trial Judge formed upon his assessment of witnesses whom he has seen and heard in the witness box. Speaking from my own experience, I have found it essential in cases of fraud when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents, to the witnesses’ motives and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth. I have been driven to the conclusion that the Judge did not pay sufficient regard to these matters in making his findings of fact in the present case.’
On the facts as found and ‘the effect of the judge’s conclusion was that, although Mr. Magelssen did not have ostensible authority to enter into the contract, he did have ostensible authority to tell Mr. Jensen and Mr. Dannesboe that he had obtained actual authority to do so. This is, on its face, a most surprising conclusion. It results in an extraordinary distinction between (1) a case where an agent, having no ostensible authority to enter into a relevant contract, wrongly asserts that he is invested with actual authority to do so, in which event the principal is not bound; and (2) a case where an agent, having no ostensible authority, wrongly asserts after negotiations that he has gone back to his principal and obtained actual authority, in which event the principal is bound. As a matter of common sense, this is most unlikely to be the law.’

Judges:

Goff LJ, Staughton J, Dunn J

Citations:

[1985] 1 Lloyd’s Rep 1, [1985] 1 WLR 640

Jurisdiction:

England and Wales

Citing:

Cited – Hovenden and Sons v Millhoff 1900
Romer LJ said: ‘The courts of law in this country have always strongly condemned and, when they could, punished the bribing of agents, and have taken a strong view as to what constitutes a bribe. I believe the mercantile community as a whole . .
Cited – Industries and General Mortgage Co Ltd v Lewis 1949
When arranging with the plaintiff company to obtain a loan for the defendant V stipulated that he should be paid half the procuration fee which the defendant would be charged for the company’s services. The company knew that V was to receive from . .
Adopted – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .

Cited by:

Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
Adopted – Grace Shipping v CF Sharp and Co (Malaya) Pte Ltd PC 10-Dec-1986
(Singapore) When a court has to weigh the various and varying recollections of witnesses about what was said at meetings which occurred in the distant past, the surest guides are the contemporaneous documents and the overall probabilities.
Lord . .
Applied – Nina Naicker Gow v Dr Rosemary Harker CA 31-Jul-2003
The defendant had taken a blood sample. The claimant asserted that because the needle had been inserted incorrectly she had suffered damage to her wrist.
Held: Guidance from cases involving allegations of fraud could be relevant when assessing . .
Cited – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Appeal from – Armagas Ltd v Mundogas SA (‘The Ocean Frost’) HL 22-May-1985
Ostensible authority creates estoppel
Apparent authority as agent can arise where an employer by words or conduct has represented that his employee, who has purported to act on behalf of the employer, is authorised to do what he is purporting to do. Ostensible authority depends on a . .
Cited – Flannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
Cited – Fen and others v D’Cruz and others CA 13-Mar-2007
The parties disputed whether the first defendant had been held out to be a partner in the second defendant’s firm of solicitors. The first defendant had later absonded. Appeal dismissed. . .
Cited – In Re Selectmove Ltd CA 21-Dec-1993
Promisse to Pay Tax due is not Consideration
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
Cited – Thornton v Telegraph Media Group Ltd QBD 26-Jul-2011
The claimant alleged defamation and malicious falsehood in an article published and written by the defendants. She complained that she was said to have fabricated an interview with the second defendant for her book. An interview of sorts had now . .
Applied – Goodman v Faber Prest Steel CA 5-Mar-2013
The defendant appealed against the award of damages after being found liable for injuries caused in a road traffic accident. They disputed whether the injuries now complained of were the result of the accident.
Held: the appeal succeed and the . .
Cited – Nuttal and Another v Kerr and Another QBD 25-Jul-2019
The defendant sought to appeal from a judgment given only after a long delay.
Held: Permission to appeal was necessary, and given, but the appeal itself failed: ‘(1) There is no evidence of fault of the Judge at any or any material point other . .
Lists of cited by and citing cases may be incomplete.

Evidence, Torts – Other, Agency

Updated: 12 December 2022; Ref: scu.183409

Society of Lloyd’s v D Leighs and Others; Society of Lloyd’s v D Wilkinson and Others: ComC 20 Feb 1997

ComC Lloyd’s Litigation – issues relating to recovery from names.
Held: A name at Lloyd’s grants a power of attorney to the underwriting agent to execute that power which is irrevocable.

Judges:

Colman J

Citations:

[1997] CLC 759, [1997] 6 Re LR 214

Jurisdiction:

England and Wales

Cited by:

Appeal from – Society of Lloyd’s v Leighs; Lyon and Wilkinson and Canadian Names Intervenors CA 31-Jul-1997
. .
See Also – Society of Lloyd’s v D Leighs and Others; Society of Lloyd’s v D Wilkinson and Others (No. 2) ComC 23-Apr-1997
ComC Lloyd’s Litigation – Misrepresentation, fraudulent – Rescission, restitutio in integrum – Rescission, effect on third parties’ rights – Anti-set-off clauses, counterclaim for fraud – Pay now, sue later . .
Cited – Bailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Agency

Updated: 12 December 2022; Ref: scu.186614

McCullagh v Lane Fox and Partners Ltd: CA 19 Dec 1995

There was no duty in negligent mis-statement from a vendor’s estate agent to a purchaser for that purchaser’s financial loss after proceeding without first obtaining a survey relying upon the agent.
Hobhouse LJ said: ‘On the Sunday, Mr. Scott knew, or ought to have known, that his representation was likely to be relied on by Mr. McCullagh. However, he also knew that Mr. McCullagh had the Lane Fox particulars which included both the relevant statement and the disclaimer. In my judgment, the result of this is that the element of proximity was negatived. A reasonable person, appreciating that the statement which he was proposing to rely upon was a statement contained in the particulars and the fact that those particulars also stated that ‘all statements contained in these particulars as to this property are made without responsibility on the part of Lane Fox . . ‘ would understand that there was no assumption of responsibility by Lane Fox. This understanding would be reinforced by paras 3, 4 and 5 of the disclaimer. In my judgment, the disclaimer puts the present case on all fours with the actual decision in Hedley Byrne as explained earlier.’

Judges:

Hobhouse LJ

Citations:

Times 22-Dec-1995, [1996] 1 EGLR 35, [1995] EWCA Civ 8, [1996] PNLR 205

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – McCullagh v Lane Fox and Partners Ltd QBD 25-Jan-1994
A vendor’s estate agent was liable for a negligent misrepresentation to a party proceeding with a purchase relying upon what had been said, and without his own survey. . .
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .

Cited by:

Appealed to – McCullagh v Lane Fox and Partners Ltd QBD 25-Jan-1994
A vendor’s estate agent was liable for a negligent misrepresentation to a party proceeding with a purchase relying upon what had been said, and without his own survey. . .
Cited – First National Commercial Bank Plc v Loxleys (a Firm) CA 6-Nov-1996
The plaintiff claimed damages from the seller of land and from their solicitors for misrepresentation in the replies to enquiries before contract. He appealed a striking out of his claim.
Held: A lawyer’s disclaimer placed on his Replies to . .
Cited – Avrora Fine Arts Investment Ltd v Christie, Manson and Woods Ltd ChD 27-Jul-2012
The claimants had bought a painting (Odalisque) through the defendant auctioneers. They now claimed that it had been misattributed to Kustodiev, and claimed in negligence and misrepresentation.
Held: Based on the connoisseurship evidence, the . .
Lists of cited by and citing cases may be incomplete.

Agency, Professional Negligence

Updated: 09 December 2022; Ref: scu.83515

Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another: CA 1 Dec 1995

The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s agent.
Morritt LJ discussed section 199: ‘Counsel for the wife submitted that it did not apply as the knowledge came to the knowledge of the solicitors for the lender as such when they were instructed to act on behalf of the lender on 19 June 1990. In the case of the wife it was submitted that the solicitors were not instructed by her as ‘agents to know.’
I do not accept either of these submissions. In my view the section has to be applied in accordance with its terms to the facts of this case. There is no doubt that the information as to the true purpose of the remortgage loan imparted by the husband came to the knowledge of the solicitors on 12 June 1990 as the solicitors for the husband and wife alone for they were not instructed to act for the lenders until 19 June at the earliest. That knowledge once acquired remained with the solicitors and cannot be treated as coming to them again when they were instructed on behalf of the lenders. As counsel for the wife accepted, their knowledge cannot be treated as divided or disposed of and reacquired in that way. The conclusion seems to me to be inescapable, namely that knowledge of the relevant matters facts or things did not come to the solicitors as the solicitors for the lenders. Accordingly it did not come to them ‘as such.’ It was not disputed that the lender is a purchaser within the definition contained in section 205(1)(xxi) of the Law of Property Act 1925. Consequently section 199(1)(ii)…b) precludes the solicitors’ knowledge of the relevant matters or facts being imputed to the lender.’

Judges:

Morritt LJ

Citations:

Times 01-Dec-1995, Gazette 11-Jan-1996, [1996] Ch 207

Statutes:

Law of Property Act 1925 199

Jurisdiction:

England and Wales

Citing:

Appeal from – Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another ChD 27-Jun-1995
The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s . .

Cited by:

Cited – Scotlife Home Loans (No 2) Limited v Melinek and Melinek CA 9-Sep-1997
The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .
Cited – Hardy and others v Fowle and Another ChD 26-Oct-2007
Mortgagees claimed possession of the land. The occupiers claimed a right of occupation under a lease. The mortgagees argued that the lease had been surrendered.
Held: The lease had been surrendered by a deed. The defects in notice alleged did . .
Lists of cited by and citing cases may be incomplete.

Agency, Legal Professions, Banking

Updated: 09 December 2022; Ref: scu.81151

Mullens v Miller: 1892

Where an agent enters into a contract on behalf of a principal and the opposite party has been induced to enter into it by an innocent misrepresentation by the agent, the opposite party is entitled to rescission provided that the making of a representation of that kind was within the actual or apparent authority of the agent.

Citations:

[1892] 22 Ch D 194

Jurisdiction:

England and Wales

Cited by:

Cited – MCI Worldcom International Inc v Primus Telecommunications Inc ComC 25-Sep-2003
The claimant sought judgment, and the defendant leave to amend its defence. The question was whether the proposed defence had any reasonable prospect of success.
Held: The misrepresentation alleged was made by the claimant’s in-house . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 07 December 2022; Ref: scu.186443

Re W (Enduring Power of Attorney): 2000

The law allows those with capacity to take treatment decisions which on any objective view are reasonable. A power of an attorney to make gifts of the donor’s property is extremely limited and without the authorisation of the court does not extend to the making of gifts as part of inheritance tax planning.
The onus of establishing incapacity lies on the party who seeks to rebut the presumption.
Jules Sher QC said: ‘she ought to have known the law if she was to take on the responsibility of such an important fiduciary position, particularly as one of the few things expressly stated in part of the power itself is the following sentence: ‘I also understand my limited power to use the donor’s property to benefit persons other than the donor.”

Judges:

Jules Sher QC

Citations:

[2000] 1 All ER 175, [2002] MHLR 411, [2000] Ch 343, [2000] 3 WLR 45

Jurisdiction:

England and Wales

Cited by:

Cited – X v Y, Z sub nom In re E (Enduring power of attorney) ChD 18-Feb-2000
The application was an appeal against an order registering an enduring power of attorney. The appeal from Master Lush was by way of rehearing. The donor had executed two powers. The second was invalid, and the donees of the first power sought to . .
Cited – PS, Regina (on the Application of) v Responsible Medical Officer, Dr G and others Admn 10-Oct-2003
The claimant had been compulsorily detained under the Act. He complained that the detention and compulsory medication infringed his rights, and amongst other things breached his religious beliefs.
Held: This was an exceptional case requiring . .
Lists of cited by and citing cases may be incomplete.

Health, Agency

Updated: 07 December 2022; Ref: scu.183097

Panama and South Pacific Telegraph Co v India Rubber, Gutta Percha, and Telegraph Co: 1875

Where his agent has taken a secret commission, the transaction is voidable at the election of the principal who can rescind it provided counter-restitution can be made.

Citations:

[1875] 9 Ch App 515

Jurisdiction:

England and Wales

Cited by:

Cited – Wilson and Another v Hurstanger Ltd CA 4-Apr-2007
The company sought to enforce its loan agreement and charge over the defendants’ property. The defendants appealed saying that the agreement was unenforceable under the Act, since a commission had been paid to the introducing broker, and his fee had . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 06 December 2022; Ref: scu.250997

Rama Corporation Limited v Proved Tin and General Investment Limited: QBD 1952

The court considered the doctrine of ostensible authority as regards the actions of a single director of a company, identifying three essential elements.

Judges:

Slade J

Citations:

[1952] 2 QB 147

Jurisdiction:

England and Wales

Cited by:

Cited – Ellis Tylin Limited (Now Known As Dalkia Technical Services Limited v Co-Operative Retail Services Limited TCC 8-Mar-1999
The claimant entered into a contract to provide maintenance to the defendant’s plant. Agents of the defendant did not have authority to enter in to a contract on their behalf. The contract was repudiated by the claimants in ceasing work, and that . .
Cited – Hill Street Services Company Ltd v National Westminster Bank Plc and Burjor Mistry ChD 19-Oct-2007
The claimant company said that the bank had allowed money to be removed from its account without authority. Originally it said the second defendant, its former director had authrised the payments. On the second defendant denying this, the company . .
Lists of cited by and citing cases may be incomplete.

Company, Agency

Updated: 06 December 2022; Ref: scu.181229

Re AFR: CoP 11 Nov 2015

Application by the Public Guardian to discharge two joint and several deputies for property and affairs on the grounds that they have behaved in a way that has contravened their authority or is not in their father’s best interests.

Judges:

Lush SJ

Citations:

[2015] EWCOP 73

Links:

Bailii

Jurisdiction:

England and Wales

Agency

Updated: 04 December 2022; Ref: scu.554599

Blake and Co. v Sohn: 1969

The defendant had falsely represented to their estate agents that they had been in undisputed exclusive possession of part of the land to be sold for 20 years and were able to prove title for the land. In fact, there was a long running dispute about title to the land. Contracts were exchanged but the sale could not be completed because of the vendors’ inability to complete the purchase. The purchaser successfully sued for rescission of the contract, whereupon the estate agents sued for their commission or damages. The estate agents contended, inter alia, that there was an implied term in the agreement between themselves and the vendors to the effect that the vendors had and would make out a good title to the property.
Held: Nield J rejected the contention. There was no justification for implying such a term. The representation as to undisputed possession did not amount to fraud.

Judges:

Nield J

Citations:

[1969] 3 All ER 123

Jurisdiction:

England and Wales

Cited by:

Cited – John D Wood and Co (Residential and Agricultural Ltd) v Craze QBD 30-Nov-2007
The claimant estate agents sought payment of its commission. The defendant appealed refusal of his request for the claim to be struck out. The agency said that the agency’s standard terms applied under which commission was payable on exchange. The . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 04 December 2022; Ref: scu.263807

Midgeley Estates Ltd v Hands: 1952

In the absence of some other clear expression of intent, the intention of the estate agent and vendor when entering into an agreement concerning the sale of a property is likely to be that the commission stipulated for should be payable only in the event of an actual sale resulting.

Judges:

Jenkins, LJ

Citations:

[1952] 2 QB 432

Jurisdiction:

England and Wales

Cited by:

Cited – John D Wood and Co (Residential and Agricultural Ltd) v Craze QBD 30-Nov-2007
The claimant estate agents sought payment of its commission. The defendant appealed refusal of his request for the claim to be struck out. The agency said that the agency’s standard terms applied under which commission was payable on exchange. The . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 04 December 2022; Ref: scu.263804

West London Commercial Bank v Kitson: 1883

Citations:

[1883] 12 QBD 157

Jurisdiction:

England and Wales

Cited by:

Cited – A and J Fabrications (Batley) Ltd v Grant Thornton and Others ChD 1998
The plaintiffs, the majority creditors of a company in liquidation, alleged that they had agreed with Grant Thornton, the defendants, to support the appointment of one of the firm’s partners or employees as liquidator of the company, with a view to . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 04 December 2022; Ref: scu.261595

Southern v How: 1616

A trader left counterfeit jewels with a factor who in turn arranged for an agent to sell them as genuine articles. The purchaser discovered the fraud, and had the agent arrested and had the money returned to him.
Held: No action lay as between the agent and the original trader. Even though the agent was innocent of the fraud, especially where the jury found no instruction from the trader to the factor to find an agent or to ask the factor to conceal the nature of the items. The factor having been authorised himself could not delegate that agency without authority from the trader.
Doderidge J: ‘An action upon the case was brought in the Common Pleas by a clothier, that whereas he had gained great reputation for his making of his cloth, and by reason whereof he had great utterance to his great benefit and profit, and that he used to set his mark to the cloth whereby it should be known to be his cloth, and another clothier perceiving it, used the same mark to his ill-made cloth on purpose to deceive him, it was resolved that an action did well lie’.

Judges:

Montague J, Doderidge J

Citations:

[1616-1618] J Bridg 125, Cro Jac 468, Poph 143, 123 ER 1248

Jurisdiction:

England and Wales

Cited by:

Cited – Magnolia Metal Co v Tandem Smelting Syndicate Ltd 1900
‘Going back . . as far as the reign of Elizabeth the form of action which this Statement of Claim adopts has undoubtedly been a form of action in which if the right of a man to have the reputation of selling that which is his manufacture as his . .
Cited – British Telecommunications Plc; Virgin Enterprises Ltd; J Sainsbury Plc; Marks and Spencer Plc and Ladbroke Group Plc v One In a Million Ltd and others CA 23-Jul-1998
Registration of a distinctive Internet domain name using registered trade marks and company names could be an infringement of a registered Trade Mark, and also passing off. It was proper to grant quia timet injunctions where necessary to stop . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 01 December 2022; Ref: scu.239039

Gresport Finance Ltd v Battaglia: CA 23 Mar 2018

Henderson LJ referred to the judgment of Neuberger LJ in Sephton in which he discussed the need for there to be an assumption that the claimant desires to know that there has been a fraud. Henderson LJ observed: ‘Another way to make the same point . . might be that the ‘assumption’ referred to by Neuberger LJ is an assumption on the part of the draftsman of section 32(1), because the concept of reasonable diligence only makes sense if there has been something to put the claimant on notice of the need to investigate whether there has been a fraud, concealment or mistake (as the case may be’.

Judges:

Henderson L

Citations:

[2018] EWCA Civ 540

Links:

Bailii

Statutes:

Limitation Act 1980 32(1)

Jurisdiction:

England and Wales

Citing:

Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .

Cited by:

Cited – Boyse (International) Ltd v Natwest Markets Plc and Another ChD 27-May-2020
Claim alleging misselling of interest rate hedging products. The court considered the defendants strike out application, and applications for leave to amend pleadings.
Held: it will normally be appropriate for summary judgment to be pursued on . .
Cited – DSG Retail Limited and Another v Mastercard Incorporated and Others CAT 14-Feb-2019
Roth J explained Henderson L’s observation in Gresport as meaning that: ‘ . . the concept of reasonable diligence is to be applied on the assumption that the claimant is on notice of the need to investigate’. . .
Cited – Granville Technology Group Ltd and Others v Infineon Technologies Ag and Another ComC 25-Feb-2020
Flaux J summarised the principles to be applied when considering what discovery of a fraud was, and what was ‘reasonable diligence’ so as to set the limitation clock started.
He observed that: ‘If section 32(1) involved a statutory assumption . .
Lists of cited by and citing cases may be incomplete.

Agency, Torts – Other, Limitation

Updated: 27 November 2022; Ref: scu.608348

Nahum v Royal Holloway and Bedford New College: CA 12 Nov 1998

An estate agent was entitled to his commission when he could show that it was he who had brought about the relationship of buyer and seller. Delay and actions of others intended to hide that causation did not defeat the claim. The defendant asked the plaintiff to look for buyers for three paintings, being paid 2.5% commission. A buyer was introduced who bought the first one, then, after come considerable delay a second. The defendant disputed that commission was payable on the second painting.
Held: The idea of ‘introduction’ included a causative element, and whether the agent had to be an effective cause or the effective cause mattered only when two agents sought commission. The agent had continued to work with the buyer’s own agent to press for the sale. He had earned his commission. It was unnecessary to consider further whether there were other events, such as the vendor’s own efforts, which could be described as a cause of the transaction between the vendor and the purchaser introduced by the agent.

Judges:

Waller LJ

Citations:

Times 19-Nov-1998, [1998] EWCA Civ 1760, [1999] EMLR 252

Jurisdiction:

England and Wales

Citing:

Cited – Allan v Leo Lines Ltd 1957
The court, considering whether an estate agent was entitled to his commission, emphasised the importance of the mere introduction of a buyer. In this case first the plaintiff was ‘the effective cause of the introduction’; and that that was ‘a very . .
Cited – Wood (John D) and Co v Dantata; Beauchamp Estates v Dantata CA 1987
The purchaser liked inspecting houses and the vendor had appointed ten firms to act for him as estate agents. Each of the estate agents was approached by this purchaser and each of the estate agents took the would be purchaser over the property of . .

Cited by:

Cited – Burney v The London Mews Company Ltd CA 7-May-2003
The defendant sought to appeal judgment against him for his estate agent’s commission. They had been appointed sole agents. A second firm obtained the particulars for their own retained clients, but then copied the particulars onto their own . .
Cited – Becerra v Close Brothers ComC 25-Jun-1999
ComC Claim for fee for introducing successful bidder at a controlled auction – no express contract – no implied contract based on City practice – claim for quantum meruit failed because no express or implied . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 27 November 2022; Ref: scu.145239

Shearman (T/A Charles Shearman Agencies) v Hunter Boot Ltd: QBD 22 Jan 2014

Termination of Commercial agency agreement – term contradicting rights under regulations ineffective

Judges:

Judge Mackie QC sitting as a High Court judge

Citations:

[2014] EWHC 47 (QB), [2014] WLR(D) 32

Links:

Bailii, WLRD

Statutes:

Commercial Agents (Council Directive) Regulations 1993

Jurisdiction:

England and Wales

Agency

Updated: 26 November 2022; Ref: scu.520133

Bagguley v E: CoP 25 Oct 2019

Application on behalf of Richard Bagguley, the Property and Affairs Deputy (The Deputy) for E, seeking authority for buccal cell samples to be taken from E for the purposes of DNA testing. The objective is to establish whether or not E is the father of each or any of three individuals D, P and A who are all adults. E is seventy-six years of age suffering from end stage severe dementia.

Judges:

Mr Justice Hayden

Citations:

[2019] EWCOP 49, [2019] WLR(D) 604, [2020] 2 WLR 236

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Agency, Health

Updated: 26 November 2022; Ref: scu.642853

TICC Limited v Cosco (UK) Limited: CA 5 Dec 2001

The claimants sought to have incorporated by notice into a contract of bill of lading, the terms of a freight surcharge. Notice had been given to the shipping agents in Hong Kong only. The shippers claimed the surcharge under the 1992 Act, saying the defendants inherited the notice from their shipping agents. The first court held that the parties were parties to the contract along with their agents.
Held: The company had not done enough to give notice to incorporate the surcharge within the contract. Appeal dismissed.

Judges:

Lord Justice Ward Lord Justice Kay And Lord Justice Rix

Citations:

[2001] EWCA Civ 1862

Links:

Bailii

Statutes:

Carriage of Goods by Sea Act 1992 3

Jurisdiction:

England and Wales

Citing:

Cited – Parker v South Eastern Railway Co CA 1877
The plaintiff took a parcel to a railway company depot for delivery, and received a ticket on which were printed conditions including a disclaimer. On the front of the ticket were printed the words ‘see back’. The jury was asked only if they . .
Cited – Hood v Anchor Line (Henderson Bros) Ltd HL 1-Jul-1918
An English court may exercise its jurisdiction in personam over the liquidator to enforce the contract between the chargee and the company, and may require the liquidator to pay the proceeds to the chargee, The Scottish courts did not recognise the . .
Cited – Thornton v Shoe Lane Parking Ltd CA 18-Dec-1970
The claimant had suffered damage at the defendant’s car park. The defendant relied upon an exemption clause printed on the ticket, and now appealed against rejection of its defence under the clause.
Held: The appeal failed. The more extreme an . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 25 November 2022; Ref: scu.167838

Mundell v Name 1: CoP 18 Sep 2019

‘The issue I have to decide is whether I have reason to believe that (name 1) lacks the relevant capacity to enter into marriage with (name 2) this coming Saturday, 21 September 2019. ‘

Citations:

[2019] EWCOP 50, [2019] WLR(D) 603, [2019] 4 WLR 139

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Health, Agency, Family

Updated: 25 November 2022; Ref: scu.642851

University Hospitals Bristol NHS Foundation Trust v RR: CoP 9 Aug 2019

The Court was asked to make declarations in relation to a young man specifically in relation to easing his passing. Specifically, his capacity to make decisions around his care for himself; and, secondly, if he lacks capacity, to consider and, if appropriate, approve a palliative care plan to allow him to die, (which is likely to be in the next few days), with the minimum of pain and stress.

Citations:

[2019] EWCOP 46

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Health, Agency

Updated: 25 November 2022; Ref: scu.642849

Hamilton v Dixon: 1873

The court heard an allegation concerning an alleged obligation to deliver pig iron.
Held: ‘it was too plain to require argument that in order to authorise an agent to give away his employer’s goods without consideration, direct and immediate sanction to the individual transaction would be necessary.’

Judges:

Lord Justice Clerk Moncrieff

Citations:

1873 1R 72

Jurisdiction:

England and Wales

Cited by:

Cited – McDowall v Inland Revenue SCIT 26-Jun-2003
Gifts had been made from an estate, purportedly under a power of attorney. During his lifetime, the deceased had made various gifts to his children. As he begand to suffer Alzheimers, he gave a power of attorney. He had substantial assets, well . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 24 November 2022; Ref: scu.224088

Collen v Wright: 1857

The law of breach of the warranty of authority should be read to imply a remedy to an innocent third party, with whom the agent has purported without authority to make a contract or to reach a settlement of outstanding liabilities under a contract, against the agent.

Citations:

(1857) 8 B and E 647

Jurisdiction:

England and Wales

Cited by:

Cited – OBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 24 November 2022; Ref: scu.223006

Shaw v Picton: 1825

Bayley J: ‘It is quite clear, that if an agent (employed to receive money, and bound by his duty to his principal from time to time to communicate to him whether the money is received or not,) renders an account from time to time which contains a statement that the money is received, he is bound by that account unless he can shew that that statement was made unintentionally and by mistake. If he cannot shew that, he is not at liberty afterwards to say that the money had not been received, and never will be received, and to claim reimbursement in respect of those sums for which he had previously given credit.’

Judges:

Bayley J

Citations:

(1825) 4 B and C 715

Jurisdiction:

England and Wales

Cited by:

Cited – Post Office Ltd v Castleton QBD 22-Jan-2007
The defendant ran a post office. A cash shortage was found, and he challenged the calculation of the account.
Held: The defendant was liable for the deficit in law. He had shown no sufficient reason to make the court think the calculations . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 23 November 2022; Ref: scu.247971

Bank Melli Iran v Barclays Bank Ltd: 1951

Citations:

[1951] 2 Lloyds Rep 362

Jurisdiction:

England and Wales

Cited by:

Cited – Marconi Communications International Ltd v Pt Pan Indonesia Bank Ltd Tbk ComC 4-Feb-2004
Marconi claimed damages for the defendant’s alleged breach of contract in respect of the latter’s failure to honour its obligations as a confirmer of a Letter of Credit. Marconi alleged that Panin Bank wrongfully failed to accept drafts properly . .
Cited – Pt Pan Indonesia Bank Ltd Tbk v Marconi Communications International Ltd CA 27-Apr-2005
The parties disputed the jurisdiction of the English courts over a letter of credit. It foresaw payment here and in sterling, made by the English bank as against the appropriate documents. Authority had been given for service out of the . .
Lists of cited by and citing cases may be incomplete.

Agency, Banking

Updated: 23 November 2022; Ref: scu.224968

Smelter Corporation v O’Driscoll: 1977

(Ireland) In an action for misrepresentation, it did not matter that the representation was made by an agent who did not know that the representation was untrue.

Citations:

[1977] IR 307

Jurisdiction:

England and Wales

Cited by:

Cited – Spice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Agency, International

Updated: 23 November 2022; Ref: scu.194201

Robertson v Wait: 1853

Citations:

(1853) 8 Ex 299

Jurisdiction:

England and Wales

Cited by:

Approved – Les Affreteurs Reunis SA v Leopold Walford (London) Ltd HL 1919
With regard to Robertson -v- Wait: ‘My Lords, so far as I am aware, that case has not before engaged the attention of this House, and I think it right to say plainly that I agree with that decision and I agree with the reasoning, shortly as it is . .
Cited – Nisshin Shipping Co Ltd v Cleaves and Company Ltd and others ComC 7-Nov-2003
One party sought a declaration that arbitrators should have no jurisdiction to determine claims for commission said to be due to the Respondent chartering brokers.
Held: Because he has in effect become a statutory assignee of the promisee’s . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 23 November 2022; Ref: scu.187708

Pharmed Medicare Private Ltd v Univar Ltd: CA 5 Nov 2002

An issue was raised that contracts entered into by the defendant by an ‘Industry Manager’ and an ‘Inside Sales Manager’ were not so entered as the two individuals had no authority and because the contracts were for substantial quantities of the goods in question. Longmore LJ said: ‘Here all Mr Waksman could rely on was the fact that the contract for 8 metric tons per month for a year (96 tons in all) was considerably greater than any previous contract. This is undoubtedly true but no suggestion is or can be made that Pharmed knew that Mr Somerville did not have authority to make such an agreement. The most that can be said is that they ought to have suspected he might not have such authority. But why? Previous transactions, albeit for smaller amounts, had been performed. Mr Waksman says that if Pharmed had only insisted on a Purchase Contract form for the full amount, the lack of authority would have become apparent. But if, as the Deputy Judge held (and this is not now challenged), there was no positive requirement derived from previous transactions that the contract be on Univar’s Purchase Contract form, there was nothing to suggest to Mr Aurora that the transaction might not be authorised. If there were a plausible assertion that Mr Aurora did in fact suspect that the transaction was beyond Mr Somerville’s authority, there might then have to be a trial. But no ground exists to support the existence of any such suspicion on his part.
The question whether such suspicion ought to have existed is a matter that can be decided without the need for oral evidence since Mr Aurora (and still less Mr Somerville) could give no relevant admissible evidence on that question. That is for the court and the Deputy Judge correctly decided he could determine the matter on the material before him.
For my part I cannot see why any grounds for suspicion should have existed. Previous transactions had been honoured. No one in Univar had made any suggestion that Mr Somerville’s authority was, in any way, limited. There was no reason to think that Univar would not want to acquire or be unable to distribute 8 metric tons per month, if the price was right. No complaint was, in fact, made about the transaction until Univar realised the price had not risen as far as they had expected. The authorities cited by Mr Waksman were entirely different from the facts of the present case. In Houghton the fact that should have put the third party on inquiry was the fact that the money of one company was being used to pay the debts of another; in Underwood it was the fact that the agent was paying into his own account a cheque made out to his principal. These were, on any view, surprising facts which truly rendered the transactions suspicious. There is nothing remotely comparable in the present case.
In these circumstances, despite the caution which a court must exercise before giving summary judgment, it seems to me that the Deputy Judge was right to conclude that it was clear that Mr Somerville had ostensible authority to conclude the contract of 14th August and that Univar was bound by it.’

Judges:

Lord Justice Chadwick, Lord Justice Longmore

Citations:

[2002] EWCA Civ 1569, [2003] 1 All ER (Comm) 321

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – CRJ Services Ltd v Lanstar Ltd (T/A CSG Lanstar) TCC 19-Apr-2011
The claimant hired out recycling plant and equipment and the defendant had been a customer. A local agent of the defendant had properly entered into certain contracts with the claimant acting as the company’s agent, but then created three long term . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 23 November 2022; Ref: scu.178110

Ingmar GB Limited v Eaton Leonard Technologies Inc: CA 31 Jul 1998

Case referred to ECJ.

Judges:

Peter Gibson, Aldous, Potter LJJ

Citations:

[1998] EWCA Civ 1366

Statutes:

Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents 17, Commercial Agents (Council Directive) Regulations 1993

Jurisdiction:

England and Wales

Citing:

Cited – Moore v Piretta Pta Ltd QBD 11-May-1998
M had a series of agency contracts selling women’s clothing. The last contract was in 1994, and on termination, M claimed an indemnity under the contract which itself applied the regulations. Reg 17(3) gave an indemnity for new customers, where the . .

Cited by:

Reference from – Ingmar Gb Ltd v Eaton Leonard Technologies Inc ECJ 16-Nov-2000
When a commercial agency was terminated in circumstances which under community law would entitle the agent to compensation, that compensation was payable even though the contract expressed itself to be governed by the law of California, and the . .
See Also – Ingmar GB Ltd v Eaton Leonard Inc QBD 31-Jul-2001
The applicants sought damages as commercial agents following the termination of their exclusive agency for the sale of the respondents goods in the UK. The defendants claimed the contract was governed exclusively by Californian law. The European . .
Lists of cited by and citing cases may be incomplete.

Commercial, Agency, European

Updated: 23 November 2022; Ref: scu.144845

Weld-Blundell v Stephens: HL 13 May 1920

The appellant in instructing his agent, the respondent, wrote him a letter containing defamatory statements about certain persons into whose hands the letter got through the agent’s partner negligently dropping it, when it was picked up by a third party and the contents communicated. The appellant was sued by these persons for defamation and had to pay pounds 1769.
The appellant sued the respondent for damages for breach of his duty to keep his instructions secret. The jury found that there was a breach of duty on the respondent’s part and that the actions of damages and consequent loss to the appellant were the natural and probable consequence of the respondent’s negligence, and assessed the damages at pounds 650. The presiding judge entered judgment for the respondent on the grounds ( a) that he had no duty to keep the letter secret, and ( b) that ex turpi causa non oritur actio.
Held that the respondent had a duty to keep the letter secret; that he negligently failed in his duty; that consequently an action lay against him; but that the appellant’s loss was not the natural and probable consequence of the respondent’s negligence; and that only nominal damages therefore were due.

Judges:

Lords Finlay, Dunedin, Sumner, Parmoor, and Wrenbury

Citations:

[1920] UKHL 646, 58 SLR 646

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Defamation

Updated: 20 November 2022; Ref: scu.631531

Great Eastern Railway Company v Lord’s Trustee: HL 1909

The House was asked whether the appellant railway company had delivered the goods unconditionally to the goods owner so as to lose its lien for the price of coal carriage, or was there an agreement conferring ‘a right in equity to any personal chattels or to any charge or security thereon’ under the 1878 Act.
Held: (Majority) It had not done so. The lien which it exercised, therefore, was based upon its actual possession as carrier of the goods, which was not destroyed by its contractual arrangements with the receiver or by delivery up of the goods. A lien is a mere personal right of detention and therefore requires actual possession.
The word ‘charge’ does not in its ordinary and accepted legal sense embrace a legal possessory lien even, so it would seem, if the contract gives the right of sale.

Citations:

[1909] AC 109

Statutes:

Bills of Sale Act 1878

Jurisdiction:

England and Wales

Cited by:

Cited – Trident International Limited v Barlow; Hughes and Goodman (the Joint Administrators of Hamley Plc and Jeffrey (Rogers) Imports Limited CA 30-Jul-1999
A contractual possessory lien, coupled with a right to sell and use the proceeds to discharge the customer’s outstanding indebtedness was not a floating charge because the company did not purport to have any right to exercise any right to take . .
Lists of cited by and citing cases may be incomplete.

Company, Contract, Agency

Updated: 19 November 2022; Ref: scu.414895

Reading v Attorney General: HL 1 Mar 1951

The applicant had been a sergeant in the army. He had misused army property and his uniform to assist in smuggling operations. After serving his sentence he now sought repayment of the money he had earned.
Held: His claim failed. The money had been earned by his msuse of his official position, and therefore his employer was entitled to keep the money even though it had been earned unlawfully. The soldier owed a fiduciary duty to the Crown, which was an additional ground on which he lost his claim.

Judges:

Viscount Jowitt LC, Lord Porter, Lord Normand, Lord Oaksey

Citations:

[1951] AC 507, [1951] UKHL 1, [1951] 1 All ER 617, [1951] 1 TLR 480, 95 Sol Jo 155

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Walsh (as executrix of the estate of David G Walsh) and Others v Deloitte & Touche Inc , Trustee of the estate of Bre-X Minerals Limited , a bankrupt PC 17-Dec-2001
(Bahamas) Shares were sold in a mining company whose prices had been buoyed by rumour, but where disclosure of difficulties had not been made, and eventually it became clear that samples had bee fraudulently salted. The company became insolvent, and . .
Lists of cited by and citing cases may be incomplete.

Agency, Armed Forces, Trusts

Updated: 18 November 2022; Ref: scu.180655

Wood v Commercial First Business Ltd and Others: CA 31 Mar 2021

Two separate appeals raising common issues, as to the circumstances in which a borrower is entitled to rescission of a loan contract and its accompanying mortgage or other security where the broker through whom the secured loan was arranged has received an undisclosed commission from the lender.

Judges:

Lord Justice David Richards

Citations:

[2021] EWCA Civ 471

Links:

Bailii

Jurisdiction:

England and Wales

Agency

Updated: 17 November 2022; Ref: scu.660778

Benham Limited v Kythira Investments Ltd and Another: CA 15 Dec 2003

The appellant complained that the judge had accepted a case of no case to answer before the close of the claimant’s case and without putting them to their election. The claimant estate agents sought payment of their account. The defendants alleged a fraud by an employee of the claimants who had now left. The claimants had been unable to call his evidence to support their claim.
Held: ‘Rarely, if ever, should a judge trying a civil action without a jury entertain a submission of no case to answer. That clearly was this court’s conclusion in Alexander -v- Rayson and I see no reason to take a different view today, the CPR notwithstanding. Almost without exception the dangers and difficulties involved will outweigh any supposed advantages. ‘
Scott Baker LJ: ‘It seems to me that the wise words of Romer LJ in Alexander v Rayson in 1936 still hold good today. Only in the most exceptional circumstances should a judge entertain a submission to dismiss an action at the close of the claimant’s evidence without putting the defendant to his election. This was not such a case and it is difficult to envisage many situations when such a course would be appropriate.’

Judges:

Lord Justice Simon Brown Mr Justice Keene Lord Justice Scott Baker

Citations:

[2003] EWCA Civ 1794

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Boyce v Wyatt Engineering and Others CA 1-May-2001
The discretion of a judge to deal with a case at the close of the claimant’s case, and without putting the defendants to their respective election was only to be exercised with the greatest caution. There was a risk that, if the claimant appealed . .
Cited – Bentley v Jones Harris and Co CA 1-May-2001
The judge below acceded to a submission of no case to answer without putting the defendant to his election.
Held: ‘At the time of this trial it was, it seems, common ground between counsel for both parties and the judge that under the CPR . .
Cited – Lloyd v John Lewis Partnership CA 1-Jul-2001
The judge allowed the defendant’s submission of no case to answer without putting them to their election and again the claimant’s appeal succeeded. The trial judge had been persuaded that the rule in Alexander -v- Rayson had been altered by the . .
Cited – Miller (T/A Waterloo Plant) v Cawley CA 30-Jul-2002
At the end of the claimant’s case the defendant wished to submit that there was no case for her to answer. The judge then put the defendant to an election as to whether or not she would call any evidence. She appealed.
Held: It is not . .
Cited – Wisniewski v Central Manchester Health Authority CA 1997
The court considered the effect of a party failing to bring evidence in support of its case, as regards the court drawing inferences: ‘(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a . .
Affirmed – Alexander v Rayson CA 1936
The action was for arrears of rent. The evidence at trial was that the plaintiff granted a lease to the defendant at a rent of pounds 1200 and contracted that certain services in connection with the flat would be performed. The plaintiff sent the . .

Cited by:

Cited – Neina Graham v Chorley Borough Council CA 21-Feb-2006
The defendant had submitted after the close of the claimant’s case that it had no case to answer. The judge did not put the defendant to its election as to whether to call evidence, but instead decided to accede to the submission. The claimant now . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Agency

Updated: 14 November 2022; Ref: scu.188848

Scotlife Home Loans (No 2) Limited v Melinek and Melinek: CA 16 Dec 1997

The claimant loaned money to the defendants. Mr M was a solicitor who, with his partner, perpetrated a fraud. Mrs M appealed an order for possession saying the claimant was fixed with notice of the fraud by the solicitors acting as its agent.
Held: The loan was completed before the documents were signed, and became mixed with other clients’ money, and was stolen by the solicitors before it was received by the borrowers. At that time they were acting as agent for the claimant. The charge must be set aside.

Judges:

The Vice-Chancellor (Sir Richard Scott) Lord Justice Otton Lord Justice Aldous

Citations:

[1997] EWCA Civ 3012

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Leave granted – Scotlife Home Loans (No 2) Limited v Melinek and Melinek CA 9-Sep-1997
The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .

Cited by:

Full Appeal – Scotlife Home Loans (No 2) Limited v Melinek and Melinek CA 9-Sep-1997
The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .
Lists of cited by and citing cases may be incomplete.

Agency, Legal Professions

Updated: 13 November 2022; Ref: scu.143411

FHR European Ventures Llp and Others v Mankarious and Others: CA 29 Jan 2013

The defendants had taken a secret commission when acting for the claimant. They had succeeded in their action and had an order in their favour, but had been refused a proprietary remedy for the sum received.
Held: The appeal was allowed, and a declaration made that Cedar had received the 10m Euros fee on constructive trust for the claimants absolutely.
Pill LJ described described the debate on the availability of a proprietary remedy as revealing ‘passions of a force uncommon in the legal world’.

Judges:

Sir Terence Etherton Ch, Pill, Lewison LJJ

Citations:

[2013] EWCA Civ 17, [2013] 1 P andCR DG24, [2014] 1 CH 1, [2013] 2 BCLC 1, 15 ITELR 902, [2013] 2 All ER (Comm) 257, [2013] 1 Lloyd’s Rep 416, [2013] WTLR 631, [2013] 3 WLR 466, [2013] WLR(D) 32, [2013] 2 EGLR 169, [2013] 3 All ER 29

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – FHR European Ventures Llp and Others v Mankarious and Others ChD 5-Sep-2011
The claimants sought return of what it said were secret commissions earned by the defendants when working as their agents, and the defendants counterclaimed saying that the commissions had been known to the claimants and that additional sums were . .

Cited by:

Appeal from – FHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Trusts, Agency, Torts – Other, Equity

Updated: 13 November 2022; Ref: scu.470617

Piper v Hales: QBD 18 Jan 2013

The claimant owned a very vauable vintage Porsche racing car. It was hired to the defendant. The car suffered severe mechanical damage whilst being driven, and the insurers declined liability.
Held: The Defendant as hirer was under an obligation to: ‘take reasonable care of the chattel and . . use reasonable skill in its management and use reasonable skill in its management and use’. The defendant claimed a custom that a driver should not beliable for mechanical failure. The court found no sufficiently clear custom.
The evidence overwhelmingly pointed to the cause of the engine damage being the Defendant’s failure to properly engage gear and over run the engine.

Judges:

Simon Brown QC

Citations:

[2013] EWHC B1 (QB)

Links:

Bailii

Citing:

Cited – Morris v CW Martin Ltd CA 1966
Diplock LJ said: ‘The legal relationship of bailor and bailee of a chattel can exist independently of any contract.’ Where goods are lost or damaged, the burden is on the bailee (or sub-bailee) to ‘show – that the loss or damage caused without any . .
Cited – Onassis and Calogeropoulos v Vergottis HL 1968
Lord Pearce (dissenting) discussed the assessment of a witness’ oral evidence: ‘Credibility involves wider problems than mere demeanour which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. . .
Cited – Rhesa Shipping Co SA v Edmonds (The Popi M) HL 16-May-1985
The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was . .
Cited – Ide v ATB Sales Ltd and Another CA 28-Apr-2008
Each appellant challenged how the judge had decided between alternative proofs of causation of the respective loss. In Ide, the claimant asserted a fault in a cycle handlebar, and in Lexus, the claimant asserted that it caught fire whilst . .
Cited – Grace Shipping v CF Sharp and Co (Malaya) Pte Ltd PC 10-Dec-1986
(Singapore) When a court has to weigh the various and varying recollections of witnesses about what was said at meetings which occurred in the distant past, the surest guides are the contemporaneous documents and the overall probabilities.
Lord . .
Cited – The Owners of the Steamship Mediana v The Owners, Master and Crew of the Lightship Comet HL 1900
A lightship was damaged by negligence. The plaintiff harbour board kept a ship ready for emergencies, and consequently the damaged ship was replaced with the spare while she was being repaired. The question was whether the claimant could recover . .
Cited – Beechwood Birmingham Ltd v Hoyer Group UK Ltd CA 10-Jun-2010
The defendant appealed against an award of damages for the results of an accident involving vehicles driven by the respective parties employees.
Held: The court extended the proposition that general damages are recoverable for loss of use to . .
Cited – In re Mumtaz Properties Ltd; Wetton v Ahmed CA 24-May-2011
Former directors appealed against finding as to their personal liability for directors’ and other loans.
Arden LJ discussed the task of a judge in fact finding: ‘By the end of the judgment, it is clear that what has impressed the judge most in . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 13 November 2022; Ref: scu.470494

Younger v Lansdowne Tutors Ltd: CA 28 Feb 2007

Renewed application for leave to appeal.

Judges:

Sedley LJ

Citations:

[2007] EWCA Civ 230

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Lansdowne Tutors Ltd v Younger CA 27-Jan-2000
Companies with shareholdings owned by the same individual granted one to the other an agreement which was deemed to be a protected interest as a lease of the premises. Eventually the landlord company served a notice to quit on the tenant company . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 10 November 2022; Ref: scu.250271

Harwood T/A RSBS Group v Smith and Smith and Bedwell Watts and Company (a Firm): CA 14 Nov 1997

An estate agent with sole selling rights was not entitled to claim commission on a sale where he had contributed no act to the sale, even though his terms were specific enough to deal with the particular circumstances which had arisen here. Such a clause should be interpreted tightly against those seeking to place reliance upon it. On a sensible reading of the whole statement, the liability to pay remuneration in a case such as this must, therefore, be limited to the purchaser who was introduced to the client by that estate agent during the period. If the purchaser is introduced to the client in any other way, the estate agent can only claim remuneration if he has conducted negotiations with the purchaser about the property during that period. Hobhouse LJ: ‘The purpose of section 18 and of the regulations is to attempt to ensure that the person instructing the estate agent shall know precisely what his liabilities to the estate agent are. Part of the mischief to which the Act and regulations were directed was the use by estate agents of expressions such as ‘Sole Agency’ or ‘Sole Selling Rights’, which had no clearly defined meaning and the implications of which would not be fully understood by the client.’

Judges:

Lord Justice Hobhouse, Lord Justice Pill, Lord Justice Mummery

Citations:

Times 08-Dec-1997, [1997] EWCA Civ 2725, [1998] 1 EGLR 5

Statutes:

Estate Agency Act 1979 18, Estate Agents (Provision of Information) Regulations 1991 (SI 1191 No 859) 5(1)

Jurisdiction:

England and Wales

Citing:

Cited – Wood (John D) and Co v Dantata; Beauchamp Estates v Dantata CA 1987
The purchaser liked inspecting houses and the vendor had appointed ten firms to act for him as estate agents. Each of the estate agents was approached by this purchaser and each of the estate agents took the would be purchaser over the property of . .
Cited – Peter Yates v Bullock 1992
Whether an introduction of a purchaser by an estate agent to the vendor was the ‘effective cause’ of the transaction which ultimately takes place must be resolved by an examination of the facts as a whole. . .

Cited by:

Approved – G and S Properties v Francis and Another SCS 13-Jun-2001
The pursuers were contracted to sell a property with sole selling rights. The contract was terminable on two weeks notice. Notice was given, and another company engaged. A buyer confused the two agents and obtained details from the pursuer’s office, . .
Lists of cited by and citing cases may be incomplete.

Agency, Consumer

Updated: 10 November 2022; Ref: scu.143124

Wilson and Another v Hurstanger Ltd: CA 4 Apr 2007

The company sought to enforce its loan agreement and charge over the defendants’ property. The defendants appealed saying that the agreement was unenforceable under the Act, since a commission had been paid to the introducing broker, and his fee had been added to the loan amount. The agreement was a fixed sum credit agreement regulated under the 1974 Act, but it did not say how the fee was to be repaid.
Held: The regulations provided some flexibility on how the sums were to be described, and the borrower’s appeal failed. Nevertheless the payment of the fee was to be deferred and the company’s appeal also failed. A secret commission would be repayable. Was the commission secret? The broker was their fiduciary agent, and the onus fell on him to demonstrate disclosure. There had been insufficient disclosure, and the fee was repayable.

Judges:

Waller LJ VP, Tuckey LJ, Jacob LJ

Citations:

Times 11-May-2007, [2007] EWCA Civ 299, [2007] 2 All ER (Comm) 1037, [2007] 1 WLR 2351, [2008] Bus LR 216, [2007] 4 All ER 1118

Links:

Bailii

Statutes:

Consumer Credit Act 1974 8 10(1)(b), Consumer Credit (Agreements) Regulations 1983 Sch6 p5

Jurisdiction:

England and Wales

Citing:

Cited – McGinn v Grangewood Securities Ltd CA 23-Apr-2002
The lender used part of the loan to repay a small amount of arrears of the claimant on another loan. The part so used was not part of the objective of the loan, but one of the costs of obtaining it.
Held: The deduction was properly part of the . .
Cited – O’Hagan v Wright CANI 15-Jun-2001
Lord Carswell CJ discussed the necessary contents of a consumer credit agreement: ‘the debtor must receive fairly precise information about the times and amount of repayments to be made’. . .
Cited – Panama and South Pacific Telegraph Co v India Rubber, Gutta Percha, and Telegraph Co 1875
Where his agent has taken a secret commission, the transaction is voidable at the election of the principal who can rescind it provided counter-restitution can be made. . .
Cited – Johnson v EBS Pensioner Trustees Limited CA 2002
The court considered a request for rescission. A guarantee had been given by one of the defendants as security for a loan made by solicitors to his company. He complained that the solicitor acting for him had a conflict of interest and had been in . .
Cited – Shipway v Broadwood 1899
Where an agent takes a secret commission, ‘the real evil is not the payment of money, but the secrecy attending it’ . .
Cited – Bartram and Sons v Lloyd 1904
A secret commission had been agreed and paid to the agent. The court was asked whether the principal had elected to affirm the contract with the other party at a later meeting when he was given some information about what had happened.
Held: . .
Cited – Mahesan v Malaysia Government Officers Co-operative Housing Society PC 1978
The appellant, the director and employee of a housing society was bribed by a real estate agent, one Manickam, and the appellant then caused the society to buy land at an overvalue. The agent was sued for money had and received (for the amount of . .
Appeal from – Hurstanger Ltd v Wilson 2006
(Coventry County Court) Michael Douglas discussed the 1983 Regulations, saying: ‘The 1983 Regulations prescribe, among other things, the minimum contents of a regulated agreement, the information which must be brought to the attention of the . .

Cited by:

Cited – Sternlight v Barclays Bank Plc QBD 22-Jul-2010
Various credit card customers said that the respondent banks had mis-stated the interest rates applied to them, in that the interest charged did not match the APR advertised, and that therefore the agreements were unenforceable.
Held: The . .
Cited – HSBC Bank Plc v Brophy CA 2-Feb-2011
The customer appealed against an order finding that his credit card agreement was binding upon him.
Held: The appeal failed. His argument that the application form amounted only to an invitation to treat, and that the contract was one made by . .
Lists of cited by and citing cases may be incomplete.

Consumer, Financial Services, Agency

Updated: 09 November 2022; Ref: scu.250988

Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd and Another: CA 18 Apr 1997

The defendant’s driver had taken a consignment of shoes to Spain, where they were stolen. The plaintiff alleged his gross negligence amounted to ‘wilful misconduct’ so as to disapply an exemption clause.
Held: Whether a bailee’s acts constituted wilful misconduct is dependent upon the standard ordinarily expected from someone in that position. Here the judge was entitled to find wilful misconduct on the driver’s part. The broker had been liable to insure the goods and the liability was not limited by the convention.
Beldam LJ said: ‘Further a person could be said to act with reckless carelessness towards goods in his care if, aware of the risk that they may be lost or damaged, he nevertheless deliberately goes ahead and takes the risk, when it is unreasonable in all the circumstances for him to do so.’
Brooke LJ discussed the burden of proof in such a case, saying that the trial judge: ‘should also have directed himself that since a charge of wilful misconduct was a serious charge to make, the evidence ought to have satisfied the degree of probability appropriate to the seriousness of the charge before it was appropriate to find it proved.’

Judges:

Beldam LJ, Brooke LJ

Citations:

Times 12-May-1997, [1997] 2 LL Rep 369, [1997] EWCA Civ 1454

Jurisdiction:

England and Wales

Citing:

Cited – Sheffield v Pickfords Limited and Pickfords Removals Limited CA 11-Feb-1997
The defendants had contracted to transport goods for the plaintiff. The goods had been left at empty premises and were damaged or stolen. The defendant sought to rely upon their clause excluding liability.
Held: The reasonableness of a . .
Cited – Graham v Belfast and Northern Counties Railway Co 1901
The court had to construe the phrase ‘wilful misconduct’.
Held: ‘Wilful misconduct in such a special condition means misconduct to which the will is party as contradistinguished from accident, and is far beyond any negligence, even gross or . .
Cited – Forder v Great Western Railway Company 1905
The court construed the phrase ‘wilful misconduct’.
Held: The court adopted the definition given in Graham, Lord Alverstone CJ adding: ‘The addition which I would suggest is, ‘or acts with reckless carelessness, not caring what the results of . .
Cited – Jones v Mrtin Bencher Ltd 1986
A deliberate disregard by a driver of EEC Regulations which govern the length of time that it was permissible for him to drive without a break amounted to ‘wilful misconduct’ when he fell asleep at the wheel and the goods he was carrying were . .
Cited – Circle Freight International Ltd v Medeast Gulf Imports Ltd CA 1988
The court considered the effect of a driver’s behaviour on the ability to claim under his insurance policy, on the basis that his behaviour would constitute ‘wilful misconduct’. Taylor LJ: ‘Mr Malins has sought to argue that although Huggins (the . .
Cited – Texas Instruments Ltd v Nason (Europe) Ltd 1991
A carrier, knowing of the high risk of theft from the area, left a trailer unattended in a car park in east London. His behaviour was held to be wilful misconduct allowing the insurance policy to be ineffective. . .
Cited – Keeton Sons and Co Ltd v Carl Prior Ltd CA 14-Mar-1985
The test of whether a clause has been incorporated into a contract is ‘Has reasonable notice of the terms been given?’. . .

Cited by:

Cited – TNT Global Spa and Another v Denfleet International Ltd and Another CA 2-May-2007
The driver of a lorry carrying the claimant’s goods was said to have fallen asleep at the wheel, and the cargo damaged in the accident. The carrier appealed a finding of liability for wilful misconduct.
Held: ‘I am unable to accept that mere . .
Cited – Scheps v Fine Art Logistic Ltd QBD 16-Mar-2007
The claimant bought fine art sculptures by Anish Kapoor at auction. They were stored by the defendant who when called upon to deliver them, said they had possibly been thrown away as rubbish. The defendant sought to limit its liability to the sum . .
Lists of cited by and citing cases may be incomplete.

Negligence, Contract, Agency

Updated: 06 November 2022; Ref: scu.141850

Oxford Aviation Services Limited v Godolphin Management Company Limited: QBD 13 Feb 2004

An aircraft crashed. It was owned by the claimant and flown by the defendant. The claimant sought payment of various heads of damages relating to the loss of the aircraft. The parties disputed the terms of the bailment.
Held: The evidence suggested the aircraft was on hire, and insured by the defendant, who had to pay damages accordingly.

Judges:

The Honourable Mr Justice Cooke

Citations:

[2004] EWHC 232 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Negligence

Updated: 05 November 2022; Ref: scu.193483

Lonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd: HL 4 Jul 2007

The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ notice was given.
Held: The agent’s appeal failed. The UK had chosen to implement both the allowed systems for calculating compensation, providing an indemnity if agreed by the parties, but otherwise as calculated under regulation 17. The system was derived from French law, and the court was entitled to look to that law for assistance. That did not mean that the British Court should follow French practice, based on commercial practice in France, and award two years’ commission; the article was not an endorsement of French practice, but left the calculation within the discretion of member states. This was not a business fro which anyone would pay the sum sought. Reference to the ECJ was refused.
Lord Hoffmann said: ‘the courts of the United Kingdom would not be acting inconsistently with the directive if they were to calculate the compensation payable under article 17(3) by reference to the value of the agency on the assumption that it continued: the amount which the agent could reasonably expect to receive for the right to stand in his shoes, continue to perform the duties of the agency and receive the commission which he would have received.’

Judges:

Lord Bingham of Cornhill, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Carswell, Lord Neuberger of Abbotsbury

Citations:

[2007] UKHL 32, Times 10-Jul-2008

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993, Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents 17

Jurisdiction:

England and Wales

Citing:

Appeal from – Lonsdale v Howard and Hallam Ltd CA 8-Feb-2006
The claimant sought damages after his agency with the defendants was terminated. The central issue was whether compensation was to be calculated at two years commission as derived from French practice or otherwise.
Held: ‘there is no clear . .
Cited – Inland Revenue Commissioners v Crossman HL 1937
For a valuation for estate taxes, the value is what a purchaser in the open market would have paid to enjoy whatever rights attached to the property at the relevant date.
Lord Russell of Killowen said that a share is the interest of a . .
Cited – Ingmar Gb Ltd v Eaton Leonard Technologies Inc ECJ 16-Nov-2000
When a commercial agency was terminated in circumstances which under community law would entitle the agent to compensation, that compensation was payable even though the contract expressed itself to be governed by the law of California, and the . .
Cited – Honyvem Informazioni Commerciali (Freedom Of Establishment) ECJ 23-Mar-2006
Europa Independent commercial agents – Directive 86/653/EEC – Entitlement of a commercial agent to an indemnity after termination of the contract. . .
Cited – Page v Combined Shipping and Trading Co Ltd CA 24-May-1996
Mr Page was taken on to trade in commodities for the defendant for a minimum period of four years. Six months later the defendant’s parent company decided to cease trading activities, and he began proceedings claiming compensation under regulation . .
Disapproved – King v T Tunnock Limited IHCS 2000
The pursuer had been employed as a commercial agent by the defendant which carried on business as a baker. The pursuer sold only the defendant’s cakes and biscuits. The defendant decided to close its bakery business. The claimant sought compensation . .
Cited – Barret Mckenzie and Co Ltd v Escada (UK) Ltd QBD 1-Feb-2001
The court considered the method of calculation of compensation payable to a commercial agent on termination of the agency. The directive provided that the agent should be compensated, not indemnified, and the way an English court calculated . .
Cited – Tigana Ltd v Decoro Ltd QBD 3-Feb-2003
The claimant sought compensation after its sales agency agreement with the defendant was terminated. He had opened up several substantial sales channels for the respondent’s products within the UK. There were difficulties in the products (leather . .
Flawed – Smith, Bailey Palmer v Howard and Hallam Ltd QBD 14-Nov-2005
Claim for compensation after termination of commercial agency agreement. . .
Lists of cited by and citing cases may be incomplete.

European, Agency

Updated: 04 November 2022; Ref: scu.254550

Lonsdale v Howard and Hallam Ltd: CA 8 Feb 2006

The claimant sought damages after his agency with the defendants was terminated. The central issue was whether compensation was to be calculated at two years commission as derived from French practice or otherwise.
Held: ‘there is no clear agreement on the principles governing the assessment of compensation under regulation 17(6) . . . the common law concept of mitigation has no part to play in the exercise, so that the court is not concerned with any steps that the agent might have taken to obtain other employment following the termination of the agency, and that a broad approach is to be adopted to the assessment of compensation.
However the basis of calculation remains unclear . . The two years’ commission rule derived from the practice of the French courts . . has been widely regarded as unsatisfactory and has rarely been applied. . [R]egulation 17(6) requires them to make an award of compensation that is just and equitable in all the circumstances, rather than an award that compensates the agent for any specific loss he has suffered.’ The Directive had not sought to impose a consistent method of calculation of compensation, but ‘the purpose of the regulation is not to provide compensation for damage caused by a breach of duty (for which a claim could be made outside the terms of the Regulations in any event), but to provide compensation for the loss of goodwill for which a claim would not otherwise arise.’ The damages did not only consist of loss of goodwill, but also loss of earnings. ‘The damage suffered by the agent as a result of the termination of his relations with his principal is normally the loss of the agency business, including whatever goodwill attaches to it.’ Any valuation should be at the date of termination.

Citations:

Times 21-Feb-2006, [2006] EWCA Civ 63, [2006] 1 WLR 1281

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993, Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents

Jurisdiction:

England and Wales

Citing:

Cited – King v T Tunnock Limited IHCS 2000
The pursuer had been employed as a commercial agent by the defendant which carried on business as a baker. The pursuer sold only the defendant’s cakes and biscuits. The defendant decided to close its bakery business. The claimant sought compensation . .
Cited – Tigana Ltd v Decoro Ltd QBD 3-Feb-2003
The claimant sought compensation after its sales agency agreement with the defendant was terminated. He had opened up several substantial sales channels for the respondent’s products within the UK. There were difficulties in the products (leather . .
Cited – Ingmar GB Ltd v Eaton Leonard Inc QBD 31-Jul-2001
The applicants sought damages as commercial agents following the termination of their exclusive agency for the sale of the respondents goods in the UK. The defendants claimed the contract was governed exclusively by Californian law. The European . .
Cited – Page v Combined Shipping and Trading Co Ltd CA 24-May-1996
Mr Page was taken on to trade in commodities for the defendant for a minimum period of four years. Six months later the defendant’s parent company decided to cease trading activities, and he began proceedings claiming compensation under regulation . .
Cited – Duffen v Fra Bo Spa CA 30-Apr-1998
The plaintiff had been appointed as an exclusive sales agent for the defendant for a minimum period of four years. The defendants terminated it eighteen months early claiming fraudulent misrepresentation.
Held: The clause setting the damages . .
Doubted in part – PJ Pipe and Valve Co. Ltd. v Audco India Ltd QBD 2-Sep-2005
The claimant was an agent in the petrochemical industry promoting and selling the defendant’s valves. There were two agency agreements, one relating solely to products to be supplied to a particular petro-chemical complex in Nanhai, the other being . .
Cited – Pure Fishing (UK) Ltd v Cooper Watkins and Bartle CA 29-Sep-2003
The claimant sought a compensation payment under the Regulations after its sales agency for fishing tackle was terminated. The defendant argued that compensation was payable only where the agency was terminated before its term.
Held: The . .
Cited – Litster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
Cited – Light and Others v Ty Europe Ltd CA 25-Jul-2003
The claimants sought damages under the regulations. They were self employed sales agents. At first they were sub agents but upon the ceasing to trade of the main agents they had acted directly for the principal. Those agencies had been terminated. . .
Cited – Francovich, Bonifaci and others v Italy ECJ 19-Nov-1991
LMA The claimants, a group of ex-employees sought arrears of wages on their employers’ insolvency. The European Directive required Member States to provide a guarantee fund to ensure payment of employees’ arrears . .

Cited by:

Cited – King v RCO Support Services Limited and Yorkshire Traction Company Limited CA 8-Dec-2000
The appellant was employed by the first respondents as a steam cleaning operative. The first respondent had contracted to supply cleaning services to the second respondent at one of the second respondent’s yards, where buses were cleaned. The . .
Cited – Clarke v Kato and Others; Cutter v Eagle Star Insurance Co Ltd HL 25-Nov-1998
Save exceptionally, a car park is not a road for the purposes of road traffic legislation on obligatory insurance. It is an unjustified strain on the language. A distinction made between the road ways and the parking bays was artificial and . .
Appeal from – Lonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd HL 4-Jul-2007
The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ . .
Lists of cited by and citing cases may be incomplete.

Agency, European

Updated: 04 November 2022; Ref: scu.238356

Page v Combined Shipping and Trading Co Ltd: CA 24 May 1996

Mr Page was taken on to trade in commodities for the defendant for a minimum period of four years. Six months later the defendant’s parent company decided to cease trading activities, and he began proceedings claiming compensation under regulation 17 and applied for an injunction to prevent the defendant from moving its assets abroad. The judge dismissed the application on the grounds that, since the defendant could have operated the agreement for the remainder of its term in a way that would not have enabled him to make any money, he did not have an arguable case that he was entitled to recover a significant sum by way of damages.
Held: The claimant’s appeal succeeded. It was arguable that Mr Page was entitled to recover compensation under regulation 17(7) calculated by reference to the amount of commission he would have earned if the contract had been performed in accordance with the parties’ original intention. Staughton LJ: ‘commercial agents are a down-trodden race and need and should be afforded protection against their principals’. The preamble to the Directive: ‘points fairly strongly to an intention to depart from the domestic legal provisions of the various countries in the Community, or at any rate some of them, and achieve a regime which is new to some and will be the same for all.’ It was arguable that the Directive and the Regulations provided a remedy that was not available at common law.

Judges:

Staughton LJ

Citations:

[1997] 3 All ER 656, [1996] EWCA Civ 1312

Links:

Bailii

Statutes:

Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents 17, Commercial Agents (Council Directive) Regulations 1993

Jurisdiction:

England and Wales

Cited by:

Cited – Ingmar GB Ltd v Eaton Leonard Inc QBD 31-Jul-2001
The applicants sought damages as commercial agents following the termination of their exclusive agency for the sale of the respondents goods in the UK. The defendants claimed the contract was governed exclusively by Californian law. The European . .
Cited – Tigana Ltd v Decoro Ltd QBD 3-Feb-2003
The claimant sought compensation after its sales agency agreement with the defendant was terminated. He had opened up several substantial sales channels for the respondent’s products within the UK. There were difficulties in the products (leather . .
Cited – Lonsdale v Howard and Hallam Ltd CA 8-Feb-2006
The claimant sought damages after his agency with the defendants was terminated. The central issue was whether compensation was to be calculated at two years commission as derived from French practice or otherwise.
Held: ‘there is no clear . .
Cited – Lonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd HL 4-Jul-2007
The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ . .
Lists of cited by and citing cases may be incomplete.

Agency, European

Updated: 04 November 2022; Ref: scu.179834

Tigana Ltd v Decoro Ltd: QBD 3 Feb 2003

The claimant sought compensation after its sales agency agreement with the defendant was terminated. He had opened up several substantial sales channels for the respondent’s products within the UK. There were difficulties in the products (leather furniture) meeting UK fire safety standards, and with which the claimant gave assistance. The defendants did not renew the agreement, but continued to trade successfully with parties introduced. The claimant sought compensation, and the defendant resisted the application of the Regulations.
Held: The claimant’s role had been envisaged to be one of introducing customers, not of managing the difficulties with the Fire Regulations. Regulation 8(a) is conjunctive and cumulative: the transaction is to be due to the agent’s efforts during the agency and the transaction is within a reasonable period after the agency contract terminated. The regulations are intended to be flexible. In this case, nine months was a reasonable period. The entitlement under regulation 17 continues where a contract expired by effluxion. The court set out fourteen factors to be allowed for in calculating an award: ‘the ‘damage’ suffered by a commercial agent as a result of the termination of the agency (Regulation 17 (6)) is – generally speaking (and breach of contract cases aside) – to be regarded as a putative loss and not simply (by common law standards) actual loss. This is shown by the exclusion of principles of mitigation and applicability of the compensation provisions to termination on death or retirement. Clearly one important element, as the recitals to the Directive show, is to avoid a principal being unjustly enriched by retaining for itself without payment the entirety of the benefit of goodwill to which the activities of the agent during the agency have contributed. But another element (which finds both reflection and emphasis in Regulation 17(7) (a)) is to compensate the agent for the loss of a beneficial agency contract. One can perhaps there see some analogy with redundancy payments in an employment context: although the analogy cannot be pushed too far, since the policy considerations behind redundancy payments for employees are rather different.’

Judges:

Mr Justice Davis

Citations:

[2003] ECC 23, [2003] EWHC 23 (QB), [2003] EuLR 189

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993 (SI 1993 No 3173) 8 17

Jurisdiction:

England and Wales

Citing:

Cited – Page v Combined Shipping and Trading Co Ltd CA 24-May-1996
Mr Page was taken on to trade in commodities for the defendant for a minimum period of four years. Six months later the defendant’s parent company decided to cease trading activities, and he began proceedings claiming compensation under regulation . .
Cited – Whitehead v Jenks and Cattell Engineering Ltd 1999
. .
Cited – David Frape v Emreco International Limited (2) SCS 2-Aug-2001
. .
Cited – King v T Tunnock Limited IHCS 2000
The pursuer had been employed as a commercial agent by the defendant which carried on business as a baker. The pursuer sold only the defendant’s cakes and biscuits. The defendant decided to close its bakery business. The claimant sought compensation . .
Cited – Moore v Piretta Pta Ltd QBD 11-May-1998
M had a series of agency contracts selling women’s clothing. The last contract was in 1994, and on termination, M claimed an indemnity under the contract which itself applied the regulations. Reg 17(3) gave an indemnity for new customers, where the . .

Cited by:

Cited – Lonsdale v Howard and Hallam Ltd CA 8-Feb-2006
The claimant sought damages after his agency with the defendants was terminated. The central issue was whether compensation was to be calculated at two years commission as derived from French practice or otherwise.
Held: ‘there is no clear . .
Adopted – Light and Others v Ty Europe Ltd CA 25-Jul-2003
The claimants sought damages under the regulations. They were self employed sales agents. At first they were sub agents but upon the ceasing to trade of the main agents they had acted directly for the principal. Those agencies had been terminated. . .
Cited – Lonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd HL 4-Jul-2007
The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ . .
Lists of cited by and citing cases may be incomplete.

Agency, Commercial, Damages, European

Updated: 04 November 2022; Ref: scu.178907

Ingmar GB Ltd v Eaton Leonard Inc: QBD 31 Jul 2001

The applicants sought damages as commercial agents following the termination of their exclusive agency for the sale of the respondents goods in the UK. The defendants claimed the contract was governed exclusively by Californian law. The European Court had decided that the compensation could not be excluded by contract. The court had to assess damages.
Held: There was no duplication to award both compensation for the termination and payment of outstanding commissions. The absence of a non-derogation article meant that the parties could derogate from articles 7 and 8. The regulations must be read consistently across the UK. Whilst there is no rule, the French guideline that in many cases the two-year purchase of average gross commission may be appropriate could apply. In this case however three years was appropriate. To apply the two year rule would result in injustice to the defendants and an excessive windfall for the claimants. He therefore considered it appropriate to depart from the guideline

Judges:

The Hon Mr Justice Morland

Citations:

[2001] EWHC QB 3

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993 (Regulations 7 and 8), Council Directive (EEC) 86/653

Jurisdiction:

England and Wales

Citing:

Cited – Page v Combined Shipping and Trading Co Ltd CA 24-May-1996
Mr Page was taken on to trade in commodities for the defendant for a minimum period of four years. Six months later the defendant’s parent company decided to cease trading activities, and he began proceedings claiming compensation under regulation . .
Cited – Tamarind International Ltd and others v Eastern Natural Gas (Retail) Ltd and Another QBD 27-Jun-2000
Where self employed agents had been taken on to market the respondent’s services, and those agencies were terminated, such activities were those of commercial agents within the Directive, and they were entitled to compensation. Whether he was a . .
See Also – Ingmar GB Limited v Eaton Leonard Technologies Inc CA 31-Jul-1998
Case referred to ECJ. . .
At ECJ – Ingmar Gb Ltd v Eaton Leonard Technologies Inc ECJ 16-Nov-2000
When a commercial agency was terminated in circumstances which under community law would entitle the agent to compensation, that compensation was payable even though the contract expressed itself to be governed by the law of California, and the . .

Cited by:

Cited – Lonsdale v Howard and Hallam Ltd CA 8-Feb-2006
The claimant sought damages after his agency with the defendants was terminated. The central issue was whether compensation was to be calculated at two years commission as derived from French practice or otherwise.
Held: ‘there is no clear . .
Lists of cited by and citing cases may be incomplete.

Commercial, Agency, European

Updated: 04 November 2022; Ref: scu.159880

Bank of Ireland and Another v Jaffery and Another: ChD 23 May 2012

Claim for breach of fiduciary duty brought by the Bank against one of its erstwhile senior executives.
Held: Vos J concluded that forfeiture of agency fees would be disproportionate and inequitable for breach of an employment or agency agreement.

Judges:

Vos J

Citations:

[2012] EWHC 1377 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Hosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 31 October 2022; Ref: scu.459694

Lease Management Services Ltd v Purnell Secretarial Services Ltd: CA 1 Apr 1994

A leasing company adopting the style of a like supplier had to adopt that supplier’s representations.

Citations:

Times 01-Apr-1994, [1994] CCLR 127

Jurisdiction:

England and Wales

Cited by:

Cited – Anglo Group Plc, Winther Brown and Co Ltd v Winter Brown and Co Ltd, BML (Office Computers) Ltd, Anglo Group Plc, BML (Office Computers) Ltd TCC 8-Mar-2000
Contract – Contract for provision of computer services – purchaser contract with finance company – duty of co-operation to be implied in computer contracts – practice – responsibilities of expert witnesses generally – whether computer company liable . .
Lists of cited by and citing cases may be incomplete.

Consumer, Agency

Updated: 26 October 2022; Ref: scu.82976

First Energy (UK) Ltd v Hungarian International Bank Ltd: CA 16 Apr 1993

A manager, though he lacked actual authority to authorise and offer a particular loan facility to the plaintiff, still did so by sending him a letter of offer which was accepted.
Held: Albeit the manager lacked actual authority to make the loan and that no other person in the bank had held him out as having such authority, by reason of his very position he was a person who would ordinarily have authority to communicate the decision of more senior members of the bank who were authorised to make and/or approve such a loan and the plaintiff was accordingly entitled to rely upon the offer he had received. Steyn LJ said that a ‘theme that runs through our law of contract is that the reasonable expectations of honest men must be protected. It is not a rule or a principle of law. It is the objective which has been and still is the principal moulding force of our law of contract. It affords no licence to a Judge to depart from binding precedent. On the other hand, if the prima facie solution to a problem runs counter to the reasonable expectations of honest men, this criterion sometimes requires a rigorous re-examination of the problem to ascertain whether the law does indeed compel demonstrable unfairness’.

Judges:

Steyn LJ

Citations:

Independent 16-Apr-1993, [1993] 2 Lloyds Rep 194

Jurisdiction:

England and Wales

Cited by:

Cited – Sun Life Assurance Company of Canada (A Company Established Pursuant To the Laws of Canada) v CX Reinsurance Company Limited (Formerly CNA Reinsurance Company Ltd) CA 6-Mar-2003
The claimant appealed a refusal to order that a dispute between insurer and re-insurer be referred to arbitration. One party sought to avoid liability under the policy, alleging misrepresentation. Discussions had been undertaking settling a revised . .
Cited – Jordan Grand Prix Limited v Vodafone Group Plc ComC 4-Aug-2003
The claimant asserted that the defendant had agreed in the course of a telephone conversation, to provide sponsorship, and sought to enforce that agreement. There were considerable conflicts of evidence.
Held: Evidence given on behalf of the . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 26 October 2022; Ref: scu.80555

Arbuthnott v Feltrim; Deeny v Gooda Walker; Henderson v Merrett: CA 14 Dec 1993

Underwriters owe a professional duty of care to Lloyds names in underwriting, even though they were acting as agents.

Citations:

Times 30-Dec-1993, Independent 14-Dec-1993

Jurisdiction:

England and Wales

Citing:

Appeal from – Arbuthnot and Others v Feltrim and Others; Deeny and Others v Gooda Walker Ltd and Others QBD 12-Oct-1993
Lloyds’ names sought damages from their underwriting agents for negligence. The court had to decide as a preliminary issue whether any duty of care arose to the names.
Held: Until 1990, names signed an agreement with a member’s agent who in . .

Cited by:

Appeal from – Henderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
Lists of cited by and citing cases may be incomplete.

Agency, Professional Negligence

Updated: 26 October 2022; Ref: scu.77859

Day Morris Associates v Voyce and Another: CA 26 Feb 2003

The claimant estate agents appealed dismissal of their claim for commission. The owners were splitting up, and there was to begin with no clear instruction to market the property. Later the property was sold privately, but to a buyer introduced by the claimant to Mrs Voyce. The agent asked the court to go beyond its normal appellate function to remedy a defect in the trial in that the judge had relied upon a point unargued by the parties, as to whether Mrs Voyce had accepted the offer to act.
Held: The parties wre given some latitude in the scope of their arguments. The judge had not clearly identified the contractual history. A contractual acceptance has to be a final and unqualified expression of assent to the terms of the offer. Here Mrs Voyce’s behaviour had been enough to constitute such acceptance. Appeal allowed.

Judges:

Lord Justice Sedley Mrs Justice Black

Citations:

[2003] EWCA Civ 189

Links:

Bailii

Statutes:

Civil Procedure Rules 52.11(3)(b)

Jurisdiction:

England and Wales

Agency, Contract, Civil Procedure Rules

Updated: 24 October 2022; Ref: scu.179568

P and O Nedlloyd B v Dampskibsselskabet Af, 1912, Aktieselskab, Aktieselskabet Dampskibsselskabet Svendborg v Utaniko Limited, East West Corporation: CA 12 Feb 2003

The claimants shipped goods to Chile through the defendant shipping line. The goods were lost. The shippers rights of suit under the contract of carriage had been transferred to a third party.
Held: The shippers as the bank’s principals couldn’t be the holders of the bills endorsed to the banks, and the rights of suit were transferred with them. Nevertheless, the bailment to the shipping line continued, and the shippers rights as bailor continued. The defendants were in breach of their duties as bailees.
Mance LJ said: ‘The duties of a bailee arise out of the voluntary assumption of possession of another’s goods’

Judges:

Lord Justice Laws, Lord Justice Brooke, Lord Justice Mance

Citations:

Times 13-Feb-2003, [2003] QB 1509, [2003] EWCA Civ 83, [2003] 1 Lloyd’s Rep 239, [2003] 1 CLC 797, [2003] 2 All ER 700, [2003] 3 WLR 916, [2003] 1 All ER (Comm) 524

Links:

Bailii

Statutes:

Carriage of Goods at Sea Act 1992 5(2)

Jurisdiction:

England and Wales

Citing:

Appeal from – East West Corporation v DKBS 1912 and Another ComC 7-Feb-2002
. .
Appeal from – East West Corporation v DKBS 1912 and Another ComC 27-Feb-2002
‘The purpose of the award of an enhanced rate of interest or indemnity costs is to encourage parties to make offers of settlement in the ordinary sense of that word. It is to compensate the claimant who has made an offer that should have been . .
Cited – Obestain Inc v National Mineral Development Corporation (‘The Sanix Ace’) 1987
Hobhouse J affirmed an owner’s right to recover damages (in full) in respect of loss or damage to goods, subject to the one qualification that ‘his claim may be defeated if his right is a bare proprietary one and did not include any right to . .

Cited by:

Cited – Frans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .
Cited – Scottish and Newcastle International Limited v Othon Ghalanos Ltd HL 20-Feb-2008
The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have . .
Cited – Kamidian v Holt (on Behalf of Certain Underwriters at Lloyd’s) and others ComC 27-Jun-2008
The claimant claimed to have bought what he believed to be a genuine Faberge Egg Clock, but which his insurers said was a copy. It was loaned to an exhibition, and insured, and damaged twice. The parties disagreed as to the disappreciation value, . .
Lists of cited by and citing cases may be incomplete.

Transport, Agency, Banking

Updated: 17 October 2022; Ref: scu.179116

Rudra v National and Provincial Building Society; Stickley and Kent (Risk Management Unit) Ltd: CA 22 Aug 1997

Before the auction, the estate agents had signed a contract to sell the house to the claimant. The Society, as mortgagees, said that the agents did not have authority to bind it, and that the contract did not sufficiently identify the property so as to constitute a memorandum of the sale under the 1989 Act, and refused to complete. He sought damages from the agent. The claimant sought to bring in other evidence to join the memorandum with the special conditions of sale.
Held: The proposed amendment to the pleadings raised an arguable point of law. Leave to appeal was given.

Citations:

[1997] EWCA Civ 2310

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act l989 2

Jurisdiction:

England and Wales

Citing:

Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Williams v Attridge Solicitors (a Firm) CA 8-Jul-1997
The solicitor-defendants were seeking to prove a negative and to show at the very outset of the proceedings that the claim should be struck out without the need for any further inquiry. The court considered the admission of new evidence on an appeal . .

Cited by:

leave to Appeal – Rudra v Abbey National Plc and Stickley and Kent (Risk Management Unit) Limited CA 26-Feb-1998
The parties disputed whether a contract had been entered into for the sale of land, and whether new evidence could be entered on an appeal against a strike out. The estate agents had signed a contract as agents for the mortgagee in possession, but . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency, Land

Updated: 14 October 2022; Ref: scu.142708

Luxor (Eastbourne) v Cooper: HL 1941

The vendor company had instructed agents to sell properties on its behalf and had agreed to pay commission on completion of the sale. The sale was agreed with a prospective purchaser introduced by the agents. Before the sale was completed, the vendor company withdrew from the sale because of an objection by one of its directors. The vendor company later sold to someone who had not been introduced by the agents. The agents claimed their commission.
Held: A property owner was under no implied obligation not to deal with his property in such a way that the estate agent was deprived of the opportunity of earning the agreed commission. The House considered the use of implied terms.
Lord Wright said: ‘The expression ‘implied term’ is used in different senses. Sometimes it denotes some term which does not depend on the actual intention of the parties but on a rule of law, such as the terms, warranties or conditions which, if not expressly excluded, the law imports, as for instance under the Sale of Goods Act and the Marine Insurance Act. . But a case like the present is different because what it is sought to imply is based on an intention imputed to the parties from their actual circumstances.’
Viscount Simon LC said: ‘in contracts made with commission agents there is no justification for introducing an implied term unless it is necessary to do so for the purpose of giving to the contract the business effect which both parties to it intended it should have’.
Lord Russell said: ‘As to the claim for damages, this rests upon the implication of some provision in the commission contract, the exact terms of which were variously stated in the course of argument, the object always being to bind the principal not to refuse to complete the sale to the client whom the agent has introduced.
I can find no safe ground on which to base the introduction of any such implied term. Implied terms, as we all know, can only be justified under the compulsion of some necessity. No such compulsion or necessity exists in the case under consideration. The agent is promised a commission if he introduces a purchaser at a specified or minimum price. The owner is desirous of selling. The chances are largely in favour of the deal going through, if a purchaser introduced. The agent takes the risk in the hope of a substantial remuneration for comparatively small exertion . . There is no lack of business efficacy in such a contract, even though the principal is free to refuse to sell to the agent’s client.’ and
‘in my opinion there is no necessity in these contracts for any implication; and the legal position can be stated thus:- If according to the true construction of the contract the event has happened upon the happening of which the agent has acquired a vested right to the commission . . then no act or omission by the principal or anyone else can deprive the agent of that right; but until that event has happened, the agent cannot complain if the principal refuses to proceed with, or carry to completion, the transaction with the agent’s client’.

Judges:

Lord Wright, Viscount Simon LC, Lord Russell

Citations:

[1941] AC 108

Jurisdiction:

England and Wales

Citing:

Doubted – Prickett v Badger 1856
. .

Cited by:

Cited – Hughes and Another v Greenwich London Borough Council HL 26-Oct-1993
A headmaster’s occupation of a house in the school was not ‘for the better performance of his duties’, and so was not a tied house, and so he had the right to buy it. A term could not be implied into his contract to require him to occupy the house. . .
Cited – Brodie, Marshall and Co (Hotel Division) Ltd v Sharer 1988
The defendant resisted payment of his estate agent’s charges. The agency contract gave the agent sole selling rights, but the purchaser was found on the vendor’s own initiative. The terms made commission was payable if ‘we introduce directly of . .
Cited – G and S Properties v Francis and Another SCS 13-Jun-2001
The pursuers were contracted to sell a property with sole selling rights. The contract was terminable on two weeks notice. Notice was given, and another company engaged. A buyer confused the two agents and obtained details from the pursuer’s office, . .
Cited – John D Wood and Co (Residential and Agricultural Ltd) v Craze QBD 30-Nov-2007
The claimant estate agents sought payment of its commission. The defendant appealed refusal of his request for the claim to be struck out. The agency said that the agency’s standard terms applied under which commission was payable on exchange. The . .
Cited – Foxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
Cited – Glentree Estates Ltd and Others v Favermead Ltd ChD 20-May-2010
The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original . .
Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Cited – Wells v Devani SC 13-Feb-2019
Mr W was selling apartments in a block of flats. Mr D, an estate agent, sought commission. W argued that D had not had signed his terms, and that therefore no contract existed. The court considered whether a contract had come into being when a major . .
Cited – Duval v 11-13 Randolph Crescent Ltd SC 6-May-2020
The Court was asked whether the landlord of a block of flats is entitled, without breach of covenant, to grant a licence to a lessee to carry out work which, but for the licence, would breach a covenant in the lease of his or her flat, where the . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Leading Case

Updated: 05 October 2022; Ref: scu.183485

F and C Alternative Investments (Holdings) Ltd v Barthelemy and Another: ChD 28 Oct 2011

Judges:

Sales J

Citations:

[2011] EWHC 2807 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – F and C Alternative Investments (Holdings) Ltd v Barthelemy and Another ChD 14-Jul-2011
The parties applied to the court for a conclusion to their action without the draft judgment being handed down and published, they having reached agreement.
Held: It was within the judge’s discretion and in this in the public interest for the . .
See Also – F and C Alternative Investments (Holdings) Ltd v Barthelemy and Another (No 2) ChD 14-Jul-2011
The court was asked as to the fiduciary obligations owed by members of the board of a limited liability company.
Held: Sales J said that: ‘there is nothing in the Act to qualify the usual fiduciary obligations which an agent owes his principal . .

Cited by:

See Also – F and C Alternative Investments (Holdings) Ltd and Others v Barthelemy and Another CA 22-Jun-2012
The parties, former partners in a limited liability partnership providing investment funds management, had been involved in protracted and bitter litigation. The appellant now challenged the award of indemnity costs. . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 25 September 2022; Ref: scu.447648

FHR European Ventures Llp and Others v Mankarious and Others: ChD 5 Sep 2011

The claimants sought return of what it said were secret commissions earned by the defendants when working as their agents, and the defendants counterclaimed saying that the commissions had been known to the claimants and that additional sums were due. The claimants had employed the defendants as their agents in the acquisition of an interest in a very substantial hotel. The defendants had also taken a commission of 10m euros from the sellers.
Held: The court found the second defendant, while acting with the first and third defendants for the claimants in the purchase of a hotel, not to have made proper disclosure that it was to receive a substantial commission from the vendor. The court made a declaration of liability for breach of fiduciary duty by the second defendant for its failure to obtain the claimants’ consent in respect of the fee, and had ordered it to pay that sum to the claimants. The court declined to grant the claimants a proprietary remedy in respect of that sum sum.

Judges:

Simon J

Citations:

[2011] EWHC 2308 (Ch), [2012] 2 BCLC 39

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hindmarsh and Another v Brigham and Cowan Ltd 1943
An agent may not put himself in a position or enter into a transaction in which his personal interest, or his duty to another principal may conflict with his duty to his principal, unless his principal, with full knowledge of all the material . .
See Also – Aboualsaud v Aboukhater and Another QBD 19-Sep-2007
Claim for commission – introduction of purchaser – denial of verbal contract. . .
Cited – Rhodes v Macalister CA 1923
The plaintiff agent acted to find a seller of mineral rights for the defendant principal. He told his principal that the properties could be purchased for from andpound;8,000 to andpound;10,000. If the agent could find a seller at below . .

Cited by:

See Also – FHR European Ventures Llp and Others v Mankarious and Others ChD 15-Nov-2011
A costs order was to be made. The court now considered whether it should be against one defendant alone, or against all defendants jointly and severally.
Held: The court should (i) make a declaration of liability for breach of fiduciary duty . .
Appeal from – FHR European Ventures Llp and Others v Mankarious and Others CA 29-Jan-2013
The defendants had taken a secret commission when acting for the claimant. They had succeeded in their action and had an order in their favour, but had been refused a proprietary remedy for the sum received.
Held: The appeal was allowed, and a . .
At ChD – FHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Agency, Equity

Updated: 19 September 2022; Ref: scu.444300

Kelly v Cooper and Cooper Trading As Cooper Associates (A Firm) Co: PC 19 Oct 1992

Bermuda – The fiduciary obligations imposed on an agent will depend on the express and implied terms of the contract. Although an agent is, in the absence of contractual provision, in breach of his fiduciary duties if he acts for another who is in competition with his principal, if the contract under which he is acting authorises him so to do, the normal fiduciary duties are modified accordingly

Citations:

[1993] AC 205, [1992] UKPC 30, [1992] 3 WLR 936, [1993] ANZ Conv R 138

Links:

Bailii

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Agency, Trusts

Updated: 17 September 2022; Ref: scu.442494

Port Swettenham Authority v T W Wu and Co (M) Sdn Bhd: PC 19 Jun 1978

A gratuitous bailee assumes a duty to take reasonable care of the chattel: ‘This standard, although high, may be a less exacting standard than that which the common law requires of a bailee for reward [but] the line between the two standards is a very fine line, difficult to discern and impossible to define.’
‘When, a bailee puts goods which have been bailed to him in the care of his servants for safe custody, there can be no doubt that the bailee is responsible if the goods are lost through any failure of those servants to take proper care of the goods . . Cheshire v Bailey [1905] 1 KB 237 laid down the startling proposition of law that a master who was under a duty to guard another’s goods was liable if the servant he sent to perform the duty for him performed it so negligently as to enable thieves to steal the goods, but was not liable if that servant joined with the thieves in the very theft. This proposition is clearly contrary to principle and common sense, and to the law: Morris v C W Martin and Sons Ltd [1966] 1 QB 716,740. Their Lordships agree with the decision in Morris v C W Martin and Sons Ltd and consider that Cheshire v Bailey mis-stated the common law.’

Citations:

[1979] AC 580, [1978] UKPC 13, [1978] 3 WLR 530, [1979] 1 Lloyd’s Rep 11, [1978] 3 All ER 337

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Approved – Morris v C W Martin and Sons Ltd CA 1965
The plaintiff took her mink stole to the defendants for cleaning. An employee received and stole the fur. The judge had held that the defendants were not liable because the theft was not committed in the course of employment.
Held: The . .

Cited by:

Cited – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Thakrar v The Secretary of State for Justice Misc 31-Dec-2015
County Court sitting at Milton Keynes. The claimant prisoner sought damages saying that his personal property had been damaged whilst in the care of the defendant.
Held: The claims succeeded in part. Some damage was deliberate. There was a . .
Cited – Armes v Nottinghamshire County Council SC 18-Oct-2017
The claimant had been abused as a child by foster parents with whom she had been placed by the respondent authority. The court was now asked, the Council not having been negligent, were they in any event liable having a non-delegable duty of care . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Agency, Transport

Updated: 16 September 2022; Ref: scu.214666

Morris v C W Martin and Sons Ltd: CA 1965

The plaintiff took her mink stole to the defendants for cleaning. An employee received and stole the fur. The judge had held that the defendants were not liable because the theft was not committed in the course of employment.
Held: The defendants were liable. Bailment includes as an element an assumption of responsibility by the bailee to keep the goods safe, that is to say to take reasonable care of the goods. In a bailment for reward the duty was non-delegable.
The employee had converted the fur in the course of his employment. Though the authorities were not straightforward, he had not commiteed the act while ‘on a frolic of his own’.
Diplock LJ said: ‘If the principle laid down in Lloyd v Grace, Smith and Co [1912] AC 716 is applied to the facts of the present case, the defendants cannot in my view escape liability for the conversion of the plaintiff’s fur by their servant Morrissey. They accepted the fur as bailees for reward in order to clean it. They put Morrissey as their agent in their place to clean the fur and to take charge of it while doing so. The manner in which he conducted himself in doing that work was to convert it. What he was doing, albeit dishonestly, he was doing in the scope or course of his employment in the technical sense of that infelicitous but time-honoured phrase. The defendants as his masters are responsible for his tortious act.’ and
‘ If the bailee in the present case had been a natural person and had converted the plaintiff’s fur by stealing it himself, no one would have argued that he was not liable to her for its loss. But the defendant bailees are a corporate person. They could not perform their duties to the plaintiffs to take reasonable care of the fur and not to convert it otherwise than vicariously by natural persons acting as their servants or agents. It was one of their servants to whom they had entrusted the care and custody of the fur for the purpose of doing work upon it who converted it by stealing it. Why should they not be vicariously liable for this breach of their duty by the vicar whom they had chosen to perform it? . . ‘ and
‘ . . Nor are we concerned with what would have been the liability of the defendants if the fur had been stolen by another servant of theirs who was not employed by them to clean the fur or to have the care and custody of it. The mere fact that his employment by the defendants gave him the opportunity to steal it would not suffice . . .. I base my decision in this case on the ground that the fur was stolen by the very servant whom the defendants as bailees for reward had employed to take care of it and clean it.’
Salmon LJ said: ‘the defendants are liable for what amounted to negligence and conversion by their servant in the course of his employment’. He emphasised the importance of the thief being the servant through whom the defendants had chosen to discharge their duty to take reasonable care of the fur.’ A bailee for reward is not answerable for a theft by any of his servants but only for a theft by such of them as are deputed by him to discharge some part of his duty of taking reasonable care . . So in this case, if someone employed by the defendants in another depot had broken in and stolen the fur, the defendants would not have been liable. Similarly . . if a clerk employed in the same depot had seized the opportunity of entering the room where the fur was kept and had stolen it, the defendants would not have been liable . .’
Lord Denning said: ‘Once a man has taken charge of goods as a bailee for reward, it is his duty to take reasonable care to keep them safe: and he cannot escape that duty by delegating it to his servant. If the goods are lost or damaged, whilst they are in his possession, he is liable unless he can show – and the burden is on him to show – that the loss or damage occurred without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty.’

Judges:

Diplock LJ, Salmon LJ, Lord Denning MR

Citations:

[1966] 1 QB 716, [1965] 3 WLR 276, [1965] 2 Lloyds Rep 63, [1965] 2 All ER 725

Jurisdiction:

England and Wales

Citing:

Cited – Lloyd v Grace, Smith and Co HL 1912
Mrs Lloyd delivered the title deeds of her cottages at Ellesmere Port to the solicitors’ managing clerk, who defrauded her.
Held: Vicarious liability can extend to fraudulent acts or omissions if those were carried out in the course of the . .
No longer good law – Cheshire v Bailey CA 1905
A silversmith hired a coach and coachman from the defendants in order to show his wares to customers around London. But the coachman entered into a conspiracy with others to steal the silver. Held The Court dismissed the claim for damages against . .

Cited by:

Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Cited – Frans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .
Cited – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Approved – Port Swettenham Authority v T W Wu and Co (M) Sdn Bhd PC 19-Jun-1978
A gratuitous bailee assumes a duty to take reasonable care of the chattel: ‘This standard, although high, may be a less exacting standard than that which the common law requires of a bailee for reward [but] the line between the two standards is a . .
Explained – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
Approved – Gilchrist Watt and Sanderson Pty Ltd v York Products Pty Ltd PC 1970
(New South Wales – Australia) The defendants were stevedores who had lost two cases of clocks that they had received as sub-bailees of the shipowners, who in turn owed a duty to deliver them to the plaintiffs under the bills of lading.
Held: . .
Cited – Mattis v Pollock (T/A Flamingo’s Nightclub) QBD 24-Oct-2002
The claimant sought damages after being assaulted by a doorman employed by the defendant.
Held: The responsibility of the nightclub owner for the actions of his aggressive doorman was not extinguished by the separation in time and place from . .
Cited – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
Cited – Armes v Nottinghamshire County Council SC 18-Oct-2017
The claimant had been abused as a child by foster parents with whom she had been placed by the respondent authority. The court was now asked, the Council not having been negligent, were they in any event liable having a non-delegable duty of care . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Negligence, Agency

Updated: 16 September 2022; Ref: scu.214665