Category Archives: Agency

In re Caerphilly Colliery Co, Pearson’s Case; CA 1877

References: (1877) 5 Ch D 336
Coram: Sir George Jessel MR and James and Baggallay LJJ
A company director, had received shares from the promoters and then acted for the company in its purchase of a colliery from the promoters.
Held: The shares were held on trust for the company.
This case is cited by:

  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    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 . .

Bagnall -v- Carlton; CA 1877

References: (1877) 6 Ch D 371
Coram: James, Baggallay and Cotton LJJ
Agents for a prospective company who made secret profits out of a contract made by the company were held to be ‘trustees for the company’ of those profits
This case is cited by:

  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    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 . .

Dunne -v- English; 1874

References: (1874) LR 18 Eq 524
Coram: Sir George Jessel MR
Because of the importance which equity attaches to fiduciary duties, ‘informed consent’ to a fiduciary acting for two parties is only effective if it is given after ‘full disclosure’.
This case is cited by:

  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    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 . .

Barker -v- Harrison; 16 Apr 1846

References: [1846] EngR 533, (1846) 2 Coll 546, (1846) 63 ER 854
Links: Commonlii
Coram: Sir James Knight-Bruce V-C
A vendor’s agent had secretly negotiated a sub-sale of part of the property from the purchaser at an advantageous price.
Held: that asset was held on trust for the vendor.
This case is cited by:

  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    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 . .

In re Morvah Consols Tin Mining Co, McKay’s Case; CA 1875

References: (1875) 2 Ch D 1
Coram: Mellish and James LJJ and Brett J
A company bought a mine, and shares in the vendor were promised to the company’s secretary.
Held: The shares were held by him for the company beneficially.
This case is cited by:

  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    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 . .

Eden -v- Ridsdale Railway Lamp and Lighting Co Ltd; CA 1889

References: (1889) 23 QBD 368
Coram: Lord Esher MR and Lindley and Lopes LJJ
The company was held to be entitled as against a director to shares which he had secretly received from a person with whom the company was negotiating.
This case is cited by:

  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    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 . .

Carter, Esq -v- Sir William Henry Palmer, Bart; 17 Mar 1842

References: [1842] EngR 397, (1841,1842) 8 Cl & Fin 657, (1842) 8 ER 256
Links: Commonlii
The employment of counsel as confidential legal adviser disables him from purchasing for his own benefit charges on his client’s etates, without his permission ; and although the confidential employment ceases, the disability continues as long as the reasons on which it is founded continue to operate.
C, a barrister, who had been for several years confidential and advising couunsel to P, and had, by reason of that relation, acquired an intimate knowledge of his property and liabilities, and was particularly consulted as to a compromise of securities given by P for a debt which C considered not to be recoverable for the full amount, purchased these securities for less than their nominal amount, without notice to P after ceasing to be his counsel.
Held: that C’s purchase, while the compromise proposed by P was feasible, was in trust for P ; and that C was entitled only to the sum he had paid, with interest according to the course of the Court.
This case is cited by:

  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    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 . .

In re Western of Canada Oil, Lands and Works Co, Carling, Hespeler, and Walsh’s Cases; CA 1875

References: (1875) 1 Ch D 115
Coram: James and Mellish LJJ, Bramwell B and Brett J
Shares which had been transferred by a person to individuals to induce them to become directors of a company and to agree that the company would buy land from the person, were held by the individuals on trust for the company.
This case is cited by:

  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    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 . .

Keppel -v- Wheeler; CA 1927

References: [1927] 1 KB 577
Coram: Bankes LJ, Atkin LJ
The plaintiff engaged the defendant estate agents to sell a property, instructing them to market it at £6,500 but that he would accept £6,000. The plaintiff accepted an offer of £6,150 ‘subject to contract’. Before exchange, another potential buyer offered £6,750. Instead of communicating that offer to their principal, the agents went to the original offeror, suggesting he could sell on and make a profit. They did so in good faith, believing that they had already fulfilled their duty to their principal, not understanding that only formal exchange of contract brings their duty to an end.
Held: The plaintiff was awarded damages for breach of the agents’ duty. These were the difference between the two prices, namely £600 less the extra commission which that £600 would have earned. But the plaintiff had to pay commission on the sale itself.
Bankes LJ: ‘The appellant contended that the agents have disentitled themselves to recover the commission, but I do not take that view at all. It seems to me that an agent might quite properly claim his commission, and yet have to pay damages for committing a bona fide mistake which amounts to a breach of duty. In these circumstances, I think the respondents are entitled to the claim which they make for commission.’
Atkin LJ said: ‘The other question is whether the respondents should succeed on their counterclaim. Now I am quite clear that if an agent in the course of his employment has been proved to be guilty of some breach of fiduciary duty, in practically every case he would forfeit any right to remuneration at all. That seems to me to be well established. On the other hand, there may well be breaches of duty which do not go to the whole contract, and which would not prevent the agent from recovering his remuneration; and as in this case it is found that the agents acted in good faith, and as the transaction was completed and the appellant has had the benefit of it, he must pay the commission. Therefore, I think, the defendants are entitled to recover on their counterclaim.’
This case is cited by:

  • Cited – Imageview Management Ltd -v- Jack CA (Bailii, [2009] EWCA Civ 63, Times, [2009] WLR (D) 56, WLRD, [2009] 1 All ER (Comm) 921, [2009] 2 All ER 666, [2009] 1 BCLC 724, [2009] 1 Lloyd’s Rep 436, [2009] Bus LR 1034)
    The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .

Robinson Scammel -v- Ansell; 1985

References: [1985] 2 EGLR 41
This case is cited by:

  • Cited – Imageview Management Ltd -v- Jack CA (Bailii, [2009] EWCA Civ 63, Times, [2009] WLR (D) 56, WLRD, [2009] 1 All ER (Comm) 921, [2009] 2 All ER 666, [2009] 1 BCLC 724, [2009] 1 Lloyd’s Rep 436, [2009] Bus LR 1034)
    The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .

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

References: [2013] EWCA Civ 17, [2013] 1 P &CR 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
The defendants had taken a secret commission when acting for the claimant. They had succeeded in ther action and had an order in their favour, but had been refused a proprietary remedy for the sum received.
Held:
This case cites:

  • Appeal from – FHR European Ventures Llp and Others -v- Mankarious and Others ChD (Bailii, [2011] EWHC 2308 (Ch), [2012] 2 BCLC 39)
    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 . .

This case is cited by:

  • Appeal from – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    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 . .

Brian Cooper & Co -v- Fairview Estates (Investments) Ltd; CA 13 Mar 1987

References: [1987] EGLR 18
Coram: Woolf LJ
A substantial property developer sought a tenant for its office block and agreed with his selling agent to pay ‘a full scale letting fee . . should you introduce a tenant by whom you are unable to be retained and with whom we have not been in previous communication and who subsequently completes a lease.’ There was an introduction but, after a number of months, a lease was completed by a company in respect of whose introduction the personnel in Fairview had no recollection, the tenant having been procured by other means.
Held: The agent was not an effective cause of the tenancy but the fee was payable. The court refused to imply the usual term requiring that the agent play an effective part was that an introduction was all that Fairview wanted; they had their own employers and lawyers who could do all the subsequent work and no further work after the introduction was expected of the agent. Woolf LJ thought the implied term would avoid the possibility of the client paying commission to more than one agent each of whom might be said to have ‘introduced’ a purchaser or lessee but only one of whom could be said to be the effective cause of the transaction, and said: ‘In a case where there are no express qualifications to be fulfilled other than that a purchaser should be introduced by the estate agent, then the need to imply a term as to effective cause can be readily appreciated, since otherwise if the vendor engages more than one agent there will be no way in which he can avoid being faced with an obligation to meet the claim for commission of more than one agent who each introduced the tenant. However, in this case there is virtually no danger of this happening because of the words ‘with whom we have not been in previous communication.’
This case is cited by:

  • Cited – The County Homesearch Company (Thames & Chilterns) Ltd -v- Cowham CA (Bailii, [2008] EWCA Civ 26)
    The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed a finding that they were obliged to pay his commission. The judge found that . .
  • Cited – Foxtons Ltd -v- Pelkey Bicknell and Another CA (Bailii, [2008] EWCA Civ 419, Times 01-May-08, [2008] All ER (D) 328 (Apr), [2008] 2 EGLR 23)
    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 . .

Habton Farms (an Unlimited Company) -v- Nimmo; CA 6 Feb 2003

References: Times 07-Feb-2003, [2003] EWCA Civ 68, [2003] 3 WLR 633, [2004] QB 1
Links: Bailii
Coram: Auld, Clarke, Jonathan Parker, LJJ
The first defendant had arranged for the purchase of a racehorse from the claimant, wrongly claiming to be acting as agent for the second defendant. The claimant did not then put forward the horse for sale in subsequent auctions, but then the horse contracted peritonitis and died.
Held: The first defendant was liable for breach of warranty of authority. Since the claimant had decided not to put the horse in the auction because he considered the horse to have been sold already, the damages were not to be reduced by what might have been recovered at auction, because that failure derived from the sale itself.

Doyle -v- Mount Kidston Mining and Exploration Property Ltd; 1984

References: [1984] 2 Qd R 386
Coram: McPherson J
(Queensland) McPherson J considered an estate agent’s contract: ‘it would have been quite artificial to suppose that the parties intended that the agent should earn his commission simply by finding an individual who, independently of any further action by the agent, later agreed to buy the subject property.’
This case is cited by:

  • Cited – The County Homesearch Company (Thames & Chilterns) Ltd -v- Cowham CA (Bailii, [2008] EWCA Civ 26)
    The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed a finding that they were obliged to pay his commission. The judge found that . .

Metropolitan Properties -v- Cordery; CA 1979

References: (1980) 39 P & CR 10, (1979) 251 EG 567, (1979) 39 P&CR 10
The tenant sought to impose knowledge by the landlord of the condition of the property. The landlord employed porters in the building.
Held: The presence of the porters was sufficient to fix the landlord with knowledge of the breach of his covenant. The Court applied the principle of deemed knowledge in the law of agency: ‘ When any fact or circumstance, material to any transaction, business or matter in respect of which an agent is employed, comes to his knowledge in the course of such employment, and is of such a nature that it is his duty to communicate it to his principal, the principal is deemed to have notice thereof as from the time when he would have received such notice if the agent had performed his duty, and taken such steps to communicate the fact or circumstance as he ought reasonably to have taken . . .’
This case is cited by:

  • Applied – Arundel Corporation -v- Khokher CA (Bailii, [2003] EWCA Civ 1784)
    The tenant had served a notice to review the rent. The tenent delivered a counter notice personally be posting it through the letter box. The lease provided that the notice was to be served at the last known business address of the landlord. The . .

Railton -v- Mathews and Leonard and Another; 14 Jun 1844

References: [1844] EngR 683, (1844) 10 Cl & Fin 934, (1844) 8 ER 993
Links: Commonlii
A party became surety in a bond for the fidelity of a commission agent to his employers. After some time the employers discovered irregularities in the agent’s accounts, and put the bond in suit. The surety then instituted a suit to avoid the ‘bond, on the ground of concealment by the employers of material circumstances affecting the agent’s credit prior to the date of the bond, and which, if communicated to the surety, would have prevented him from undertaking the obligation. On the trial of an issue whether the surety was induced to sign the bond by undue Concealment or deception on the part of the employers, the presiding Judge directed the jury, that the concealment, to be undue, must be wilful and intentional, with a view to the advantages the employers were thereby to gain : Held by the Lords (reversing the judgment of the Court of Session) that the direction was wrong in point of law. Mere non-communication of circumstances affecting the situation of the parties, material for the surety to be acquainted with, and within the knowledge of the person obtaining a surety bond, is undue concealment, though not wilful or intentional, or with a view to any advantage tor himself.

Hippisley -v- Knee Bros; CA 1903

References: [1905] 1 KB 1, [1905] 1 LJKB 68, [1905] 92 LT 20, [1905] 21 TLR 5, [1905] 49 Sol Jo 15
Coram: Lord Alverstone CJ, Kennedy J
The defendant auctioneers were employed by the plaintiff to sell some goods. The payment was to be percentage commission with a minimum of £20, certain fixed amounts and ‘all out of pocket’ expenses, particularly advertising. The sale triggered the minimum commission and the auctioneers’ bill included that plus the gross cost of the advertisements. In fact the auctioneers had received a discount on this cost. They included the gross sum in the bill in the honest but mistaken belief that there was a custom which entitled them to do this, the point being that if the client had ordered the advertisements directly, no discount would have been given. The bill was paid in full. When, later, the plaintiff discovered that there had been a discount he sued, not only for the amount of the discount, but also for the entire £20 commission.
Held: He succeeded in the first claim but not the second. The defendants were not entitled to charge more thatn they had been called upon to pay, but the discounts were received without fraud, and the recovery of expenses was only ancillary to the main item and purpose of the contract, so the commission itself remained payable.
Kennedy J: ‘With regard to the £20 claim, I agree with my Lord that this is not one of the cases in which it would be just to deprive the agent of his agreed remuneration as well as of his secret profit. I feel it is difficult to lay down any definite rule upon the subject with confidence, but I would venture to suggest the following: that where the agent’s remuneration is to be paid for the performance of several inseparable duties, if the agent is unfaithful in the performance of any one of those duties by reason of his receiving a secret profit in connection with it – and I here use that word ‘unfaithful’ as including a breach of obligation without moral turpitude – it may be that he will forfeit his remuneration, just as in certain cases a captain of a ship might be held in the Admiralty Court to forfeit his wages as a result of misconduct in any branch of his duty as a captain; but where the several duties to be performed are separable, as to my mind they are in the present case, the receipt of a secret profit in connection with one of those duties would not, in the absence of fraud, involve the loss of the remuneration which has been fairly earned in the proper discharge of the other duties. Here the auctioneers were employed for a certain commission to act faithfully as auctioneers. If they had improperly by connivance sold to a purchaser at a lower price than they could fairly have got they would clearly not have been able to recover their commission. There is nothing of this kind in the present case. But by the special terms of their contract they undertook, in addition to their duty as auctioneers, that if the plaintiff would pay them their out of pocket expenses they would truly account to the plaintiff for those expenses. And it seems to me that it would be wrong to say that because the defendants failed in the performance of their duty properly to account for the out of pocket expenses, therefore they are not to have their commission, although they performed all their duty as auctioneers faithfully.’
This case is cited by:

  • Cited – Stewart Chartering Ltd -v- Owners of the ship ‘the Peppy’; Stewart Offshore Services (Jersey) Ltd -v- Silan Maritime Co & Another AdCt ([1997] 2 Lloyds Rep 722)
    ComC Admiralty action in rem – dishonest withholding of freight paid – meaning of dishonesty – objective and subjective considerations – reimbursement of commission – Admiralty action in rem – entitlement to . .
  • Cited – Stubbs -v- Slater ([1910] 1 Ch 632)
    A deposit by guarantors who had agreed ‘to assign to [the Bank] their certificates of shares in [PPL] by way of deposit’, together with endorsed transfers in blank, would create an equitable mortgage with an implied power of sale. Neville J . .
  • Cited – Imageview Management Ltd -v- Jack CA (Bailii, [2009] EWCA Civ 63, Times, [2009] WLR (D) 56, WLRD, [2009] 1 All ER (Comm) 921, [2009] 2 All ER 666, [2009] 1 BCLC 724, [2009] 1 Lloyd’s Rep 436, [2009] Bus LR 1034)
    The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .

Piper -v- Hales; QBD 18 Jan 2013

References: [2013] EWHC B1 (QB)
Links: Bailii
Coram: Simon Brown QC
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.
This case cites:

  • Cited – Morris -v- CW Martin Ltd CA ([1966] 1 QB 716)
    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] 2 Lloyd’s Rep 403)
    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 ([1985] 2 All ER 712, [1985] 1 WLR 948, [1985] 2 Lloyds Rep 1, [1985] UKHL 15, Bailii)
    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 (Bailii, [2008] EWCA Civ 424)
    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 & Co (Malaya) Pte Ltd PC ([1987] 1 Lloyd’s Rep 207, Bailii, [1986] UKPC 57)
    (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] AC 113)
    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 (Bailii, [2010] EWCA Civ 647, [2010] Bus LR 1562, [2011] QB 357, [2010] 3 WLR 1677, [2010] RTR 33, [2011] 1 All ER (Comm) 460)
    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 (Bailii, [2011] EWCA Civ 610)
    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 . .

Robot Arenas Ltd and Another -v- Waterfield and Another; QBD 8 Feb 2010

References: [2010] EWHC 115 (QB)
Links: Bailii
Coram: Edelman QC J
The tenant company had defaulted under the lease, and the landlord had retaken possession. The landlord discarded the tenant’s possessions, and the tenant now sued, saying that the landlords as involuntary bailees owed duties to the proper owner.
Held: In the context of commercial goods, the purpose of which is to earn profit, the assessment of what the Claimant has lost and of the damages that would be reasonable as between the Claimant and the Defendant must take into account the commercial usefulness of the goods to the Claimant. If the reality is that what was destroyed was commercially useless to the Claimant, that cannot be ignored in the assessment of damages.
The defendants had not discharged the burden on them of proving abandonment. Liability was not strict, and it had to be shown that the defendants knew or ought to have known that the goods belonged to a third party. That could not be shown in this particular case, and the claim failed.
Statutes: Torts (Interference with Goods) Act 1977
This case cites:

  • Cited – AVX -v- EGM Solders Ltd QBD (Unreported 1 July 1982, Times 07-Jul-82)
    The defendants had agreed to the return of defective spheres of solder which they had manufactured for the plaintiffs. By mistake, as well as returning the defective solder in one box, the plaintiffs returned twenty-one boxes of capacitors which . .
  • Cited – Marcq -v- Christie, Manson & Woods Ltd CA (Bailii, [2003] EWCA Civ 731, Times 30-May-03, Gazette 10-Jul-03, [2004] QB 286)
    The claimant’s stolen painting was put up for sale by the defendant. On being withdrawn, they returned it to the person who had brought it in. The claimant sought damages.
    Held: There was no reported case in which a court has had to consider . .
  • Cited – The Harmonides ([1903] P 1)
    The measure of damages for the loss of a profitable ship is to include its economic value: ‘So that the real test, where there is no market is, as counsel on both sides agree, what is the value to the owners as a going concern, at the time the . .
  • Cited – Voaden -v- Champion ( ‘Baltic Surveyor’ ) CA (Bailii, [2002] EWCA Civ 89, [2002] 1 Lloyd’s Rep 623)
    The ‘Baltic Surveyor’ was lost at its moorings in a storm. A neighbouring ship had been negligently secured, and freed itself and sank the Baltic Surveyor. The owner appealed findings as to the value of the boat, and securing pontoon. She asserted . .
  • Cited – The Harmonides ([1903] P 1)
    The measure of damages for the loss of a profitable ship is to include its economic value: ‘So that the real test, where there is no market is, as counsel on both sides agree, what is the value to the owners as a going concern, at the time the . .
  • Cited – Sealce Shipping Company Limited -v- Oceanvoice Limited CA ([1991] 1 Lloyds Rep 120)
    The parties contracted for the sale of a ship, including a spare propeller. When the ship was delivered there was no spare propeller. It was common ground that there was no market for second-hand propellers. So the only way of providing a spare . .
  • Cited – Dominion Mosaics Limited -v- Trafalgar Trucking Co Limited CA ([1990] 2 All ER 246)
    The claimant’s building was destroyed by fire as a result of the defendant’s negligence. It was impracticable to rebuild and so, to keep its business going the claimant bought a 36 year lease of another building with 20% more floor space. In the . .

Re Hampshire Land Company; 1896

References: [1896] 2 Ch 743
Coram: Vaughan Williams J
A company had borrowed from a building society. The borrowing was not properly authorised by resolution. The court was asked whether whether the knowledge of the company secretary common to both the company and the society, as to the irregularity should be imputed to the society, so as to preclude the society from recovering the loan.
Held: The rule of law that information held by an agent in the course of his agency is to be imputed to his principal, has an exception where the agent is committing a fraud on his principal.
Vaughan Williams J said: ‘The case is very much more like the one which [counsel for the society] had to admit was an exception to the general rule that they sought to lay down, for they admitted that if Wills had been guilty of a fraud, the personal knowledge of Wills of the fraud that had had committed upon the company would not have been knowledge of the society of the facts constituting that fraud; because common sense at once leads one to the conclusion that it would be impossible to infer that the duty, either of giving or receiving notice, will be fulfilled where the common agent is himself guilty of fraud. It seems to me that if you assume here that Mr. Wills was guilty of irregularity – a breach of duty in respect of these transactions – the same inference is to be drawn as if he had been guilty of fraud. I do not know, I am sure, whether he was guilty of actual fraud; but whether his conduct amounted to fraud or to breach of duty, I decline to hold that his knowledge of his own fraud or of his own breach of duty is, under the circumstances, the knowledge of the company.’
This case is cited by:

  • Cited – Abbey National Plc -v- Tufts CA (Gazette 24-Feb-99, Bailii, [1999] EWCA Civ 794)
    A bankrupt husband, a mortgage broker, had applied for mortgage for his wife, fraudulently claiming that she had income. She appealed against an order for possession on the basis that he was agent of the bank, and that therefore the bank was fixed . .
  • Cited – Kouroush Fassihim, Andy Liddiardrams, International Ltd, Isograph Ltd -v- Item Software (UK) Ltd CA ([2004] EWCA Civ 1244, Times 21-Oct-04, Bailii, [2004] BCC 994, [2007] Lloyd’s Rep PN 17, [2005] ICR 450, [2005] 2 BCLC 91, [2004] IRLR 928)
    The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
    Held: A company . .
  • Cited – Moore Stephens (A Firm) -v- Stone Rolls Ltd (in liquidation) HL (Bailii, [2009] UKHL 39, Times, [2009] 1 AC 1391, [2009] Bus LR 1356, [2009] PNLR 36, [2009] 3 WLR 455)
    The appellants had audited the books of the respondent company, but had failed to identify substantial frauds by an employee of the respondent. The auditors appealed a finding of professional negligence, relying on the maxim ex turpi causa non . .
  • Cited – Stone & Rolls Ltd -v- Moore Stephens (A Firm) Comc (Bailii, [2007] EWHC 1826 (Comm), [2008] Bus LR 304, (2007) 157 NLJ 1154, [2008] PNLR 4, [2008] 1 BCLC 697)
    The company claimed against its chartered accountants for negligence when acting as auditors. The sole directing mind of the company had used it as a vehicle for substantial frauds. The court was asked ‘whether and if so when can a claim by a . .
  • Applied – Moore Stephens (A Firm) -v- Stone & Rolls Ltd CA (Bailii, [2008] EWCA Civ 644, [2008] Bus LR 1579, [2008] PNLR 36, [2008] 3 WLR 1146, [2008] 2 Lloyd’s Rep 319, [2008] 2 BCLC 461)
    The company claimed against its accountants for negligence in not discovering the substantial dishonesty of the claimant’s employee, its directing mind and sole shareholder.
    Held: Rimer LJ said that the critical question was whether it was . .

Vale -v- Armstrong, Armstrong; ChD 21 May 2004

References: [2004] EWHC 1160 (Ch)
Links: Bailii
Coram: Mr. Justice Evans-Lombe
The claimant sought to set aside a transfer of his house to the defendants made at an undervalue and under an enduring power of attorney, who had charged it to raise money for their business. He had received independent advice.
Held: The transaction was disadvantageous to the claimant and there was therefore a presumption of undue influence. However there was also evidence of independent advice etc to rebut that presumption, but ‘it by no means follows that prior legal advice rebuts the presumption.’
The independent advice had failed to bring home the true disadvantages of the transaction to the claimant. The defendant failed to rebut the presumption, and it was set aside.
This case cites:

  • Cited – CIBC Mortgages Plc -v- Pitt and Another HL (Gazette 17-Dec-93, Independent 22-Oct-93, Times 22-Oct-93, [1994] 1 AC 200, [1993] 3 WLR 802, [1993] 4 All ER 433, Bailii, [1993] UKHL 7)
    Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
    Held: A bank was not put on enquiry as to . .
  • Cited – Royal Bank of Scotland -v- Etridge (No 2); Barclays Bank plc -v- Harris; Midland Bank plc -v- Wallace, etc HL (House of Lords, Times 17-Oct-01, Bailii, [2001] UKHL 44, [2001] 3 WLR 1021, [2002] 2 AC 773, [2002] HLR 4, [2002] 1 Lloyd’s Rep 343, [2001] NPC 147, [2001] Fam Law 880, [2001] 43 EGCS 184, [2001] 2 All ER (Comm) 1061, [2001] 4 All ER 449, [2001] 2 FLR 1364, [2002] 1 P & CR DG14, [2001] 3 FCR 481)
    Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
    Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
  • Cited – Cheese -v- Thomas CA (Independent 30-Aug-93, Times 24-Aug-93, [1994] 1 WLR 129)
    A transaction entered into was manifestly disadvantageous to him. After a finding of undue influence, losses on the sale of a property are to be shared by both parties, so as to restore the parties to their original positions as near as might be. . .

Re Lewis ex parte Helder; CA 1883

References: (1883) 24 ChD 339
Coram: Sir Baliol Brett MR
An agent, in obedience to a previous instruction of his principal, paid away money of the principal which was in his hands knowing, before he made the payment, that when completed it would constitute an act of bankruptcy on the part of his principal. The principal was afterwards adjudicated bankrupt.
Held: The agent was not liable to account to the trustee for the money paid away. The Court did not rely upon the fact that the money was paid away before adjudication which would have been sufficient, but on the fact that the money did not become the trustee’s money until the completion of the act of bankruptcy to which his title would relate back, ie. until after the money had left the agent’s hands: ‘It appears to me that on this ground – that the money did not become the trustee’s money until the payment had been completed- Mr. Roberts is not liable to the trustee’
This case is cited by:

  • Cited – Re Dennis (A Bankrupt) CA (Ind Summary 22-May-95, [1995] 3 All ER 171, [1995] 3 WLR 367)
    A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; . .

Stanley Yeung Kai Yung and another -v- Hong Kong and Shanghai Banking Corporation; PC 1980

References: [1981] AC 787, [1980] 2 All ER 599
Coram: Lord Scarman
The shareholder had had his share certificates stolen. The thief lodged forged transfers with stockbrokers, who in good faith sent the share certificates and transfer deeds to the bank for registration and transfer, which was done. The transferee thus came to be registered and he then sold the shares. The innocent shareholder asked for his name to be restored to the register and for related relief. The bank brought third party proceedings against the stockbrokers. The original shareholder succeeded against the bank. As between the bank and the stockbrokers, at first instance and in the Hong Kong Court of Appeal the Judges relied on the Barclay implied indemnity and found the stockbrokers liable to indemnify the bank. The stockbrokers appealed to the Privy Council.
Held: The decision in Barclay was upheld.
Lord Scarman dealt with an argument advanced by the stockbrokers that it was truly the transferee rather than the stockbrokers who had requested the bank to act upon the transfer deeds and to issue new certificates and hence, as it was sought to argue, that, rather than the stockbrokers, it was only the transferee who was responsible for indemnifying the bank. As to that argument he said: ‘It is not the case that, if a principal is liable, his agent cannot be. The true principle of the law is that a person is liable for his engagements (as for his torts) even though he is acting for another, unless he can show that by the law of agency he is to be held to have expressly or impliedly negatived his personal liability. But, upon the view of the letters, which the Courts below accepted and this Board believes to be correct, the brokers cannot avoid personal responsibility for whatever consequences the law attaches to the making of the request and the bank’s compliance with it. It was their request – even though made on Mr Wong’s [the transferee’s] behalf.’
As to an indemnity, after quoting Dugdale v Lovering: ‘This ‘broad principle’, as Lord Davey called it, has been consistently followed, and Mr Leggatt for the brokers disclaimed any intention to invite their Lordships’ Board to review it. Their Lordships are satisfied that it is now firmly embedded in the law: see Bank of England -v- Cutler [1908] 2 KB 208; Secretary of State for India -v- Bank of India Ltd [1938] 65 Ind. App. 286 and Welch -v- Bank of England [1955] Ch 508 (per Harman J at pp. 548-549). ‘ and ‘For these reasons their Lordships find themselves in agreement with the Court of Appeal in holding that there was in the circumstances of this request a promise by the stockbroker to indemnify the bank if, by acting on the request, it caused actionable injury or damage to a third party. The promise was accepted by the bank acting on the request and became a contractual indemnity.’
This case cites:

  • Adopted – Sheffield Corporation -v- Barclay HL ([1905] AC 392)
    Authorised irredeemable stock in Sheffield Corporation was registered in the joint names of Timbrell and Honnywill. Timbrell executed an appropriate form of transfer of the stock in his own name but forged the signature of Honnywill. The forged . .
  • Cited – Dugdale -v- Lovering ([1875] LR 10 CP 196)
    The court adopted the position proposed by Mr Cave, for the Plaintiff: ‘It is a general principle of law when an act is done by one person at the request of another which act is not in itself manifestly tortious to the knowledge of the person doing . .

This case is cited by:

Tinsley -v- Dudley; CA 1951

References: [1951] 2 KB 18
Coram: Jenkins LJ
The plaintiff sought damages after the motorcycle he had parked in the defendant hotelier’s closed car park was stolen.
Held: An occupier is under no duty to protect goods from the risk of theft by third parties. The publican was not a bailee of the motorcycle in that there had been no transfer of possession to the publican.
Jenkins LJ remarked on the complete absence of any authority suggesting liability for the loss of a vistor’s property. He said that such a principle would produce: ‘a liability of a most comprehensive and sweeping character, and would have entered into a very great number of cases if it existed.’

Foxtons Ltd -v- Thesleff and Another; CA 19 Apr 2005

References: [2005] EWCA Civ 514, Times 17-May-2005, [2005] 2 EGLR 29
Links: Bailii
Coram: May LJ, Rix LJ, Jacob LJ
Estate Agents claimed their commission. They had originally acted as sole agents, but agreed to allow a multiple agency. Contracts were exchanged, but the vendor refused to complete. The vendor claimed that the variation left the agent’s contract ineffective, and that since at common law an estate agent becomes payable only on completion, no commission was due.
Held: The agent’s appeal succeeded. The contract clearly provided for this situation. The common law provision was overriden by terms in the contract that the commission was payable on exchange of contracts. The word ‘purchaser’ in the Regulations is not limited to a person to whom a fee simple absolute in possession is actually transferred, but also, as is natural in common parlance, to a person who contracts unconditionally to purchase the fee simple.
Statutes: The Estate Agents (Provision of Information) Regulations 1991
This case cites:

  • Cited – Midgley Estates -v- Hand CA ([1952] QB 432)
    An estate agent’s commission is normally payable upon completion of the sale, but that does not prevent parties from agreeing that it should be payable upon a different event. The question depends on the construction of the particular contract. . .

Clarke -v- Tipping; 18 Apr 1846

References: [1846] EngR 548, (1846) 9 Beav 284, (1846) 50 ER 352
Links: Commonlii
Coram: Wigram VC
The Defendant had bribed the Plaintiff’s agent to make extracts of false entries from the books of the Plaintiff. The Plaintiff did not move for an injunction on the Defendant’s answer; but, on the cause coming on for hearing, it appeared that Clarke had filed another bill in the Rolls Court, and had obtained in that suit an inspection of those books; and therefore the bill was dismissed. But the principle that an agent could not be allowed to communicate the contents of his employer’s books to another person, and that that person could not publish the information so improperly obtained, was directly admitted by the Vice-Chancellor. A person guilty of bribery takes the knowledge he obtains with no better right to use it than the party communicating it; but here there is neither bribery nor fraud.
This case cites:

This case is cited by:

  • Cited – Prince Albert -v- Strange ChD ((1849) 1 H & Tw 1, 2 De G & SM 293, (1849) 1 Mac & G 25, Bailii, [1849] EWHC Ch J20, [1849] EngR 255, Commonlii, (1849) 41 ER 1171, [1849] EngR 261, Commonlii, (1849) 47 ER 1302, (1849) 2 De Gex & Sim 652)
    The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
    Held: . .
  • See Also – Clarke -v- Tipping ([1852] EngR 434 (A), Commonlii, (1852) 16 Beav 12)
    . .

Loeschman -v- Machin; 1818

References: (1818) 2 Stark 311, [1818] EngR 36, (1818) 171 ER 656
Links: Commonlii
Coram: Abbott J
If a hirer of the goods sends them to an auctioneer to be sold, he is guilty of a conversion of the goods; and if the auctioneer afterwards refuses to deliver them to the owner, unless he will pay a sum of money which he claims, he is also guilty of a conversion.
This case is cited by:

  • Cited – Marcq -v- Christie, Manson & Woods Ltd CA (Bailii, [2003] EWCA Civ 731, Times 30-May-03, Gazette 10-Jul-03, [2004] QB 286)
    The claimant’s stolen painting was put up for sale by the defendant. On being withdrawn, they returned it to the person who had brought it in. The claimant sought damages.
    Held: There was no reported case in which a court has had to consider . .

Sagal (T/A Bunz UK) -v- Atelier Bunz Gmbh; CA 3 Jul 2009

References: [2009] EWCA Civ 700, [2009] CLC 1, [2009] 4 All ER 1253, [2010] 1 All ER (Comm) 104, [2009] ECC 30, [2009] 2 Lloyd’s Rep 303, [2009] Bus LR 1527
Links: Bailii
Coram: Longmore LJ, Laws L, Lloyd L
The court was asked whether the the appellant was a commercial agent of the defendant within the regulations, and so would be entitled to compensation on termination of the agency.
Longmore LJ said: ‘It does not follow that every agent acting on behalf of the principal is necessarily a ‘commercial agent . . ‘
Statutes: Commercial Agents (Council Directive) Regulations 1993 2(1)
This case is cited by:

  • Cited – Claramoda Ltd v Zoomphase Ltd (T/A Jenny Packham) ComC (Bailii, [2009] EWHC 2857 (Comm))
    The former distribution agent sought to claim under the Regulations. The defendant said that the claim had not been notified as it should, within one year. The agency was for the sale of fashion items. Termination had been informal, stating that it . .
  • Cited – Rossetti Marketing Ltd -v- Diamond Sofa Company Ltd and Another QBD (Bailii, [2011] EWHC 2482 (QB))
    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 . .

Foxtons Ltd -v- Pelkey Bicknell and Another; CA 23 Apr 2008

References: [2008] EWCA Civ 419, Times 01-May-2008, [2008] All ER (D) 328 (Apr), [2008] 2 EGLR 23
Links: Bailii
Coram: Lord Neuberger of Abbotsbury
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 buyers were re-introduced by a subsequent agent. The claimants claimed entitlement because the sale was to ‘a purchaser introduced by’ them.
Held: The appeal succeeded. Lord Neuberger of Abbotsbury said: ”A purchaser introduced by us’ meant a person who becomes a purchaser as a result of our introduction’. This was consistent with the intent of the 1991 Regulations, and the claimants interpretation would leave the sellers open to a claim at whatever future point the buyer was persuaded.
Lord Neuberger examined the case law and said: ‘More generally the judgments in those cases establish the following propositions. First, the term identified in Article 57 of Bowstead is ‘very readily’ implied, especially in a residential consumer context, unless the provisions of the particular contract or the facts of the particular case negative it . . Secondly, the main reason for implying the term is to minimise the risk of a seller having to pay two commissions . . Thirdly, it is not entirely clear whether the test is ‘an effective cause’ or ‘the effective cause’ . . Fourthly, whether an agent was the effective cause is a question whose resolution turns very much on the facts of the particular case . . Fifthly, while two commissions are to be avoided, there will be cases where the terms of the relevant contracts and the facts compel such a result . . Sixthly, where the term is implied, the burden is on the agent seeking the commission to establish that he was the effective cause.’
Statutes: Estate Agents (Provision of Information) Regulations 1991
This case cites:

  • Cited – Millar Son & Co -v- Radford CA ((1903) 19 TLR 575)
    For an estate agent to recover his commission, it was ‘necessary’ to show that the agent’s introduction was an ‘efficient’ (namely effective) cause in bringing about the transaction. . .
  • Cited – The County Homesearch Company (Thames & Chilterns) Ltd -v- Cowham CA (Bailii, [2008] EWCA Civ 26)
    The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed a finding that they were obliged to pay his commission. The judge found that . .
  • Cited – Burney -v- The London Mews Company Ltd CA (Bailii, [2003] EWCA Civ 766)
    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 – Standard Life Assurance Company (Incorporated Under Laws of Scotland By Act of Parliament) -v- Egan Lawson Limited CA (Bailii, [2000] EWCA Civ 293, [2001] 1 EGLR 27)
    The defendant appealed against judgment in favour of his (buyer’s) estate agent for his commission in finding the property for it. A previous offer was rejected by the seller, but a subsequent agent of the buyer obtained the acceptance of a further . .
  • Cited – Luxor (Eastbourne) -v- Cooper HL ([1941] AC 108)
    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 . .
  • Cited – Brian Cooper & Co -v- Fairview Estates (Investments) Ltd CA ([1987] EGLR 18)
    A substantial property developer sought a tenant for its office block and agreed with his selling agent to pay ‘a full scale letting fee . . should you introduce a tenant by whom you are unable to be retained and with whom we have not been in . .
  • Cited – Chasen Ryder & Co -v- Hedges CA ([1993] 1 EGLR 47, [1993] 39 EG 123)
    The vendor first instructed the plaintiffs to sell his residential home. They introduced several people, but no offers were made. The vendor went to another firm of agents. An extended planning consent was obtained, and one of the original enquirers . .
  • Cited – Peter Yates -v- Bullock ([1992] EGLR 24)
    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 – Wood (John D) & Co -v- Dantata; Beauchamp Estates -v- Dantata CA ([1987] 2 EGLR 23)
    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 . .

This case is cited by:

  • Cited – Charania -v- Harbour Estates Ltd CA (Bailii, [2009] EWCA Civ 1123)
    The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
  • Cited – Glentree Estates Ltd and Others -v- Favermead Ltd ChD (Bailii, [2010] EWHC 1120 (Ch), [2010] 21 EG 91)
    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 – Nicholas Prestige Homes -v- Neal CA (Bailii, [2010] EWCA Civ 1552)
    The estate agent had sought their commission on the sale of property, but phrased it now as a claim for damages for the property owners having breached their sole agency contract by appointing other agents who had been the effective cause of the . .
  • Cited – Glentree Estates Ltd -v- Holbeton Ltd CA (Bailii, [2011] EWCA Civ 755)
    The claimant estate agent appealed against dismissal of its claim for commission on the sale of the defendant’s property.
    Held: The appeal failed. Glentree failed to establish that it was either ‘the’ or ‘an’ effective cause of the sale. What . .

Anglo Group Plc, Winther Brown & Co Ltd -v- Winter Brown & Co Ltd, BML (Office Computers) Ltd, Anglo Group Plc, BML (Office Computers) Ltd; TCC 8 Mar 2000

References: [2000] EWHC Technology 127
Links: Bailii
Coram: Toulmin QC J
cs 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 to purchaser – whether purchaser liable to finance company.
The parties disputed the delivery and quality of a computer system. The buyer complained of many defects and eventually sought to reject the system.
Held: Anglo’s claim succeeded. The court provided updated Ikarian Reefer guidelines for expert witnesses. The court criticised one expert witness for failing to keep separate his role as negotiator and witness. It is normally inappropriate to seek to combine the two.
The court gave Ikarian Reefer guidelines updated to comply with the CPR:
‘1.An expert witness should at all stages in the procedure, on the basis of the evidence as he understands it, provide independent assistance to the court and the parties by way of objective unbiased opinion in relation to matters within his expertise. This applies as much to the initial meetings of experts as to evidence at trial. An expert witness should never assume the role of an advocate.
2. The expert’s evidence should normally be confined to technical matters on which the court will be assisted by receiving an explanation, or to evidence of common professional practice. The expert witness should not give evidence or opinions as to what the expert himself would have done in similar circumstances or otherwise seek to usurp the role of the judge.
3.He should co-operate with the expert of the other party or parties in attempting to narrow the technical issues in dispute at the earliest possible stage of the procedure and to eliminate or place in context any peripheral issues. He should co-operate with the other expert(s) in attending without prejudice meetings as necessary and in seeking to find areas of agreement and to define precisely arrears of disagreement to be set out in the joint statement of experts ordered by the court.
4.The expert evidence presented to the court should be, and be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of the litigation.
5.An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
6.An expert witness should make it clear when a particular question or issue falls outside his expertise.
7.Where an expert is of the opinion that his conclusions are based on inadequate factual information he should say so explicitly.
8.An expert should be ready to reconsider his opinion, and if appropriate, to change his mind when he has received new information or has considered the opinion of the other expert . He should do so at the earliest opportunity.’
Statutes: Supply of Goods and Services Act 1982 9
This case cites:

  • Clarified – National Justice Compania Naviera S A -v- Prudential Assurance Company Ltd (‘The Ikarian Reefer’) ([1993] 2 Lloyd’s Rep 68)
    Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

    1. Expert evidence presented to the Court should be, and should be seen to be, the . .

  • Cited – Graigola Merthyr Co Ltd -v- Swansea Corporation ([1928] 1 Ch 31)
    Tolmin J considered the duties of an expert witness: ‘long cases produce evils . . In every case of this kind there are generally many ‘irreducible and stubborn facts’ upon which agreement between experts should be possible and in my judgment the . .
  • Cited – Edwin John Stevens -v- R J Gullis and David Pile CA (Bailii, [1999] EWCA Civ 1978)
    The new Civil Procedure Rules underline the existing duty which an expert owes to the Court as well as to the party which he represents. . .
  • Cited – Tradition (UK) Ltd, Tradition Bond Brokers Limited, Howard, Harland -v- Cantor Fitzgerald International ChD (Times 19-May-99)
    When deciding whether a copying of a computer program was substantial, the test was not whether the program would run without that code. It had to be looked at as a whole allowing for the skill and labour which had gone into different sections of . .
  • Cited – Cala Homes (South) Ltd and others -v- Alfred McAlpine Homes East Ltd ChD (Bailii, [1995] EWHC 7 (Ch), [1995] FSR 818)
    The plaintiff alleged that the defendant had copied its house designs after a senior employee involved in creating the designs left and eventually came to work for the defendant. The plaintiff alleged that the copying was flagrant allowing . .
  • Cited – Cullinane -v- British ‘Rema’ Manufacturing Co Ltd CA ([1954] 1 QB 292)
    The court considered the possibility of a claim in breach of contract for damages for both capital loss and loss of profit.
    Lord Evershed MR said: ‘It seems to me, as a matter of principle, that the full claim of damages in the form in which . .
  • Cited – Hong Kong Fir Shipping Co -v- Kawasaki Kisen Kaisha Ltd CA ([1962] 2 QB 26, Bailii, [1961] EWCA Civ 7, [1962] 1 All ER 474)
    The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
  • Cited – Anglia Television -v- Oliver Reed CA ([1972] 1 QB 60, [1971] 3 All ER 690)
    The television company had agreed with the actor defendant for him to appear in a production. He breached the contract. The company sought both loss of profits and for the expense incurred. The issue before the Court of Appeal was whether such . .
  • Cited – Lep Air Services -v- Rolloswin Investments Ltd; Moschi -v- LEP Air Services HL ([1972] 2 All ER 393, [1973] AC 331)
    The obligation of a guarantor under a contract ‘is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something.’ When a repudiatory breach is accepted by the injured . .
  • Cited – Branwhite -v- Worcester Works Finance Ltd HL ([1969] 1 AC 552)
    A dealer may for some ad hoc purpose be the agent of a finance company. In relation to a purchase of a motor vehicle through a motor dealer, where the prospective purchaser completes an application for hire purchase in the office of the motor . .
  • Cited – Lease Management Services Ltd -v- Purnell Secretarial Services Ltd CA (Times 01-Apr-94, [1994] CCLR 127)
    A leasing company adopting the style of a like supplier had to adopt that supplier’s representations. . .
  • Cited – Sovereign Finance -v- Silver Crest ([1997] CCLR 76)
    . .
  • Cited – Dunlop Pneumatic Tyre Company Ltd -v- New Garage and Motor Company Ltd HL ([1915] AC 67, Bailii, [1914] UKHL 1, (1904) 12 SLT 498, (1904) 7 F (HL) 77)
    The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .

Reading -v- Attorney General; HL 1 Mar 1951

References: [1951] AC 507, [1951] 1 All ER 617, [1951] 1 TLR 480, 95 Sol Jo 155, [1951] UKHL 1
Links: Bailii
Coram: Viscount Jowitt LC, Lord Porter, Lord Normand, Lord Oaksey
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.
This case is cited by:

Hersom -v- Bernett; 1954

References: [1955] 1QB 98, [1954] 3 All ER 370, [1954] 3 WLR 737, (1954) 98 Sol Jo 805
Coram: Roxburgh J
The defendant had sold stolen goods to the plaintiff, saying that he acted as agent only for an undisclosed principal. The plaintiff had had to return the goods to the true owner. The court rejected the defendant’s assertion as to who was the true principal.
Held: The defendant should not be heard to name his principal. He was liable himself.
This case is cited by:

  • Cited – Knight Frank Llp -v- Du Haney CA (Bailii, [2011] EWCA Civ 404)
    The court was asked whether an agent, who in the course of making a contract with a third party misrepresents the name of his principal, attracts either liability for breach of warranty of authority or personal liability on the contract in . .

Mahesan -v- Malaysia Government Officers Co-operative Housing Society; PC 1978

References: [1979] AC 374, [1978] 2 All ER 405
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 the bribe paid in breach of the agent’s fiduciary duty) as well as in tort (for the loss suffered by the society for the overvalued land because of the agent’s fraud).
Held: The profit made by an intermediate purchaser, due to the fraud of the agent, was awarded as compensation on the basis that the principal had lost the opportunity to purchase at the lower price. Bribery and corruption are torts. A defrauded principal has alternative remedies against both the briber and the agent for money had and received where he can recover the amount of the bribe, or for damages for fraud where he can recover the amount of any actual loss sustained by entering into the transaction in respect of which the bribe was given. The plaintiffs need not elect between these alternatives before the time has come for judgment to be entered in their favour in one or other of those causes of action.
This case is cited by:

  • Cited – Islamic Republic of Pakistan -v- Zardari and others ComC (Bailii, [2006] EWHC 2411 (Comm))
    The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
  • Cited – Wilson and Another -v- Hurstanger Ltd CA (Times 11-May-07, Bailii, [2007] EWCA Civ 299, [2007] 2 All ER (Comm) 1037, [2007] 1 WLR 2351, [2008] Bus LR 216, [2007] 4 All ER 1118)
    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 . .

Hindmarsh & Another -v- Brigham & Cowan Ltd; 1943

References: (1943) Ll L Rep 141
Coram: Atkinson J
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 circumstances and of the nature and extent of the agent’s interest, consents.
This case is cited by:

  • Cited – FHR European Ventures Llp and Others -v- Mankarious and Others ChD (Bailii, [2011] EWHC 2308 (Ch))
    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 . .

ABTA Ltd -v- British Airways Plc; ComC 26 Nov 1999

References: Unreported, 26 November 1999
Coram: Timothy Walker J
IATA Airlines standard agency agreement – implied terms – whether travel agents can be lawfully instructed to give the public misleading documentation describing the passenger service charge at UK airports as a tax-whether the passenger service charge is included in fares applicable to air passenger transportation for the purposes of commission.
This case is cited by:

  • Appeal from – Association of British Travel Agents Ltd -v- British Airways Plc CA ([2000] 2 Lloyd’s LR 209)
    Sedley LJ described the common-law rule of contra preferentem, that any doubt as to the meaning of contractual words will be resolved by construing them against the party that put them forward, as ‘a principle not only of law but of justice’ and . .

Andrews -v- Ramsay; 1903

References: [1903] 2 KB 635
Coram: Lord Alverstone CJ, Wills J
The plaintiff asked the defendant estate agents to find a purchaser for his property at a price of £2,500 and if one such was found the agents’ fee would be £50. A purchaser, one Clutterbuck, at £2,100 was found. He paid the agents £100 by way of deposit. The agents paid the principal £50 and, with the principal’s consent, retained £50 as their commission. But it then transpired that the agents had had a side deal with Clutterbuck whereby he paid them £20. In the first action the principal claimed and recovered the £20 as a secret profit made by the agent in breach his duty of good faith. In the second action the principal claimed the return of the £50.
Held: He succeeded – even though he had had the benefit of the agent’s services.
Lord Alverstone CJ said: ‘It is said that the defendants ought not to be called upon to hand over the £50 to the plaintiff because the plaintiff has had the benefit of their services. The principle of Salomons v. Pender (1865) 3 H&C 639 seems to me to govern the case, and it is, in my opinion, amply sufficient to do so. In that case it was held that an agent who was himself interested in a contract to purchase property of his principal was not entitled to any commission from the principal. The principle there laid down is that, when a person who purports to act as an agent is not in a position to say to his principal, ‘I have been acting as your agent, and I have done my duty by you,’ he is not entitled to recover any commission from that principal. . . It seems to me that this case is only an instance of an agent who has acted improperly being unable to recover his commission from his principal. It is impossible to say what the result might have been if the agent in this case had acted honestly. It is clear that the purchaser was willing to give £20 more than the price which the plaintiff received, and it may well be that he would have given more than that. It is impossible to gauge in any way what the plaintiff has lost by the improper conduct of the defendants. I think, therefore, that the interest of the agents here was adverse to that of the principal. A principal is entitled to have an honest agent, and it is only the honest agent who is entitled to any commission. In my opinion, if an agent directly or indirectly colludes with the other side, and so acts in opposition to the interest of his principal, he is not entitled to any commission. That is, I think, supported both by authority and on principle; but if, as is suggested, there is no authority directly bearing on the question, I think that the sooner such an authority is made the better.’
Wills J said: ‘The £50 in question was paid by the purchaser to the defendants as agents for the plaintiff as part of the £100 deposit on the purchase, and the defendants were allowed by the plaintiff to retain £50 in the belief that they had earned that sum as commission. If the money had all been paid over, and the defendants had had to sue the plaintiff for commission, it seems to me perfectly clear that they could not recover it. They would have no chance whatever of succeeding in such an action, and I think that they ought not to stand in any better position because the plaintiff, believing that they had acted properly, had allowed them to retain the £50. The case ought to be the same whether the commission has already been paid or whether the agent has to sue for it.’
This case is cited by:

  • Cited – Imageview Management Ltd -v- Jack CA (Bailii, [2009] EWCA Civ 63, Times, [2009] WLR (D) 56, WLRD, [2009] 1 All ER (Comm) 921, [2009] 2 All ER 666, [2009] 1 BCLC 724, [2009] 1 Lloyd’s Rep 436, [2009] Bus LR 1034)
    The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
  • Cited – Nitedals Taenstikfabrik -v- Bruster ([1906] 2 Ch 671)
    Commission was allowed for an agent despite an alleged breach of duty. Neville J discussed Andrews v Ramsay saying its doctrine: ‘does not apply to the case of an agency where the transactions in question are separable’ . .

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

References: [1985] 1 Lloyd’s Rep 1
Coram: Goff LJ, Staughton J
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.
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.’
This case cites:

  • Cited – Hovenden and Sons -v- Millhoff ([1900] 83 LT 41)
    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] 2 All ER 573)
    The court discussed difficulties in defining what is a bribe, Slade J said: ‘For the purposes of the civil law a bribe means the payment of a secret commission, which only means (i) that the person making the payment makes it to the agent of the . .
  • Adopted – Watt (or Thomas) -v- Thomas HL ([1947] AC 484, 1947 SC (HL) 45)
    Where a question of fact has been tried by a judge without a jury, and there is no question of his having misdirected himself, an appellate court disposed to come to a different conclusion should not do so unless it is satisfied that the decision of . .

This case is cited by:

  • Cited – Dr Anya -v- University of Oxford and Another CA (Times 04-May-01, Bailii, [2001] EWCA Civ 405, [2001] IRLR 377, A1/2000/0293, [2001] ICR 847)
    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 & Co (Malaya) Pte Ltd PC ([1987] 1 Lloyd’s Rep 207, Bailii, [1986] UKPC 57)
    (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 (Bailii, [2003] EWCA Civ 1160, Gazette 02-Oct-03)
    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 ([2003] EWCA Civ 1446, Bailii, [2004] 1 All ER (Comm) 193, Gazette 20-Sep-03, [2004] QB 985)
    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 (Bailii, [2003] EWCA Civ 1048, Times 09-Sep-03, [2004] 1 BCLC 131)
    The company sought to recover damages from a director who had acted dishonestly. He replied that the claim was out of time. At first instance the first defendant had been found dishonest through non-disclosure, and that section 21 of the 1980 Act . .
  • Appeal from – Armagas Ltd -v- Mundogas SA (‘The Ocean Frost’) HL ([1986] AC 717, [1985] 1 Lloyd’s Rep 1, Bailii, [1985] UKHL 11, [1986] 2 All ER 385, [1986] 2 WLR 1063)
    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 Flannery -v- Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA (Times 04-Mar-99, Gazette 31-Mar-99, Bailii, [1999] EWCA Civ 811, [2000] 1 All ER 373, [2000] 1 WLR 377, (1999) 11 Admin LR 465, [1999] BLR 107, [2000] CP Rep 18, (1999) 15 Const LJ 313)
    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 (Bailii, [2007] EWCA Civ 319)
    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 (Times 13-Jan-94, Ind Summary 17-Jan-94, [1995] 1 WLR 474, Bailii, [1993] EWCA Civ 8, [1995] STC 406, [1995] 2 All ER 531)
    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 (Bailii, [2011] EWHC 1884 (QB), [2012] EMLR 8, [2011] 1 WLR 1985)
    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 (Bailii, [2013] EWCA Civ 153)
    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 . .

Grove And Another, Assignees of Liotard, A Bankrupt, -v- Dubois; 31 Jan 1786

References: [1786] EngR 42, (1786) 1 TR 112, (1786) 99 ER 1002
Links: Commonlii
A commission del credere is an absolute engagement to the principal from the broker, and makes him liable in the first instance. A broker with such a commission may set-off, under the general issue, a loss upon a policy happening before a bankruptcy, to an action by the assignees of the bankrupt, for premiums upon various policies under-written by him, and for which he had debited the broker : but such a loss carinot be proved under a riotice of set-off.

Charania -v- Harbour Estates Ltd; CA 27 Oct 2009

References: [2009] EWCA Civ 1123
Links: Bailii
Coram: Leveson, Wilson, Ward LJJ
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
Held: It was not enough that the agents had introduced the purchaser to the property, they must introduce him to the purchase. However the judge had concluded that the purchaser had acted deliberately to await the loss of involvement of the agent before seeking a lower price to reflect the saving to the seller. That conclusion of fact was capable of support on the facts, and an appeal court should not intervene. The appeal failed.
Statutes: Estate Agents (Provision of Information) Regulations 1991 (SI 1991/859) 5(1)(b), Estate Agents Act 1999 9
This case cites:

  • Cited – Millar Son & Co -v- Radford CA ((1903) 19 TLR 575)
    For an estate agent to recover his commission, it was ‘necessary’ to show that the agent’s introduction was an ‘efficient’ (namely effective) cause in bringing about the transaction. . .
  • Cited – Foxtons Ltd -v- Pelkey Bicknell and Another CA (Bailii, [2008] EWCA Civ 419, Times 01-May-08, [2008] All ER (D) 328 (Apr), [2008] 2 EGLR 23)
    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 – Subesh, Suthan, Nagulananthan and Vanniyasingam -v- Secretary of State for the Home Department CA (Bailii, [2004] EWCA Civ 56, [2004] Imm AR 112)
    The Immigration Appeal Tribunal should not interfere with an adjudicator’s decision unless it concludes that it is not merely able but is required to adopt a different view.
    Laws LJ discussed the caution required of an appellate court: ‘The . .
  • Cited – Assicurazioni Generali Spa -v- Arab Insurance Group (BSC) CA (Bailii, Times 29-Nov-02, Gazette 23-Jan-03, [2002] EWCA Civ 1642, [2003] 1 WLR 577, [2003] Lloyds Rep IR 131, [2003] 1 All ER (Comm) 140)
    The appellant asked the Court to reverse a decision on the facts reached in the lower court.
    Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
  • Cited – Nightingale & others v Parsons ([1914] 2 KB 621)
    . .
  • Cited – Biogen Plc -v- Medeva Plc HL (Times 01-Nov-96, [1997] RPC 1, Bailii, [1996] UKHL 18, (1997) 38 BMLR 149)
    A recombinant method of making the antigens of a hepatitis virus was patented with a priority date of 22 December 1978 but was conceded to have been obvious by 21 December 1979.
    Held: The claim for a DNA patent was too broad; no new principle . .
  • Cited – Benmax -v- Austin Motor Co Ltd HL ([1955] AC 370, (1955) 72 RPC 39)
    Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
  • Cited – Wood (John D) & Co -v- Dantata; Beauchamp Estates -v- Dantata CA ([1987] 2 EGLR 23)
    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 . .

Les Affreteurs Reunis SA -v- Leopold Walford (London) Ltd; HL 1919

References: [1919] AC 801
Coram: Lord Birkenhead LC, Viscount Finlay and Lords Atkinson Wrenbury
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 expressed, upon which the decision was founded. In this connection I would refer to the well-known case of In re Empress Engineering Company. In the judgment of Sir George Jessel MR the principle is examined which, in my view, underlies and is the explanation of the decision in Robertson v. Wait. The Master of the Rolls uses this language: ‘So, again, it is quite possible that one of the parties to the agreement may be the nominee or trustee of the third person. As Lord Justice James suggested to me in the course of the argument, a married woman may nominate somebody to contract on her behalf, but then the person makes the contract really as trustee for somebody else, and it is because he contracts in that character that the cestui que trust can take the benefit of the contract.’ It appears to me plain that for convenience, and under long established practice, the broker in such cases, in effect, nominates the charterer to contract on his behalf, influenced probably by the circumstance that there is always a contract between charterer and owner in which this stipulation, which is to enure to the benefit of the broker, may very conveniently be inserted. In these cases the broker, on ultimate analysis, appoints the charterer to contract on his behalf. I agree therefore with the conclusion arrived at by all the learned judges in Robertson v. Wait, that in such cases charterers can sue as trustees on behalf of the broker.’
This case cites:

This case is cited by:

  • Cited – Nisshin Shipping Co Ltd -v- Cleaves & Company Ltd and others QBD ([2003] EWHC 2602 (Comm), Bailii)
    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 . .

Bartram & Sons -v- Lloyd; 1904

References: [1904] 90 LTR 357
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: He had not. The principal had still not made his election with full knowledge of the material facts. There had been an inadequate initial disclosure.
This case is cited by:

  • Cited – Wilson and Another -v- Hurstanger Ltd CA (Times 11-May-07, Bailii, [2007] EWCA Civ 299, [2007] 2 All ER (Comm) 1037, [2007] 1 WLR 2351, [2008] Bus LR 216, [2007] 4 All ER 1118)
    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 . .

Verderame -v- Commercial Union Assurance Co Plc; CA 2 Apr 1992

References: [1992] BCLC 793, Times 02-Apr-1992
Coram: Balcombe LJ
The insurance brokers, acting to arrange insurance for a small private limited company did not owe a duty in tort to the directors of that company personally. Where an action was brought in a tort and in breach of contract, damages could not be awarded on the tort where they were not available in contract.
This case cites:

  • Followed – Watts & Co -v- Morrow CA (Gazette 08-Jan-92, [1991] 4 All ER 939, [1991] 1 WLR 1421, Bailii, [1991] EWCA Civ 9)
    The defendant surveyor appealed an award of damages after his negligent survey of a property. The plaintiff sought damages for distress, and the cost of making good the defects. The appellant argued that he should pay or only the diminution in value . .

This case is cited by:

  • Cited – Johnson -v- Gore Wood and Co (a Firm) CA (Bailii, [1998] EWCA Civ 1763, [1999] BCC 474)
    The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
  • Cited – Hamilton Jones -v- David & Snape (a Firm) ChD (Gazette 29-Jan-04, [2004] 1 WLR 924, [2004] 1 All ER 657, Bailii)
    The claimant was represented by the respondent firm of solicitors in an action for custody of her children. Through their negligence the children had been removed from the country. She sought damages for the distress of losing her children.

Holland -v- Russell; 9 May 1863

References: [1863] EngR 546, (1863) 4 B & S 14, (1863) 122 ER 365
Links: Commonlii
This case cites:

  • See Also – Holland -v- Russell ([1861] EngR 728, Commonlii, (1861) 1 B & S 424, (1861) 121 ER 773)
    Insurance. Suppression of material fact. Principal and agent. Money had and received. A, as agent for a foreign owner, entered into a policy of insurance on a ship in the usual form. At the time of effecting the insurance, A was in possession of a . .

United Antwerp Maritime Agencies (Unamar) Nv -v- Navigation Maritime Bulgare; ECJ 17 Oct 2013

References: C-184/12, [2013] EUECJ C-184/12
Links: Bailii
Coram: M Ilesic P
ECJ Rome Convention on the law applicable to contractual obligations – Articles 3 and 7(2) – Freedom of choice of the parties – Limits – Mandatory rules – Directive 86/653/EEC – Self-employed commercial agents – Contracts for sale or purchase of goods – Termination of the agency contract by the principal – National implementing legislation providing for protection going beyond the minimum requirements of the directive and providing also for protection for commercial agents in the context of contracts for the supply of services
Statutes: Directive 86/653/EEC

Boston Deep Sea Fishing & Ice Co -v- Ansell; CA 1888

References: (1888) 39 ChD 339
Coram: Bowen LJ, Cotton LJ, Fry LJ
An employer having dismissed an employee (its managing director) later learnt of the employee’s fraud.
Held: The employer was allowed to rely upon that fraud to justify the dismissal. Where an agent is in wrongful repudiation of his contract with his principal, he loses his right to claim remuneration from his principal. It is sufficient if there was a fundamental breach of contract justifying a dismissal whether or not the employer knew of it at the time of dismissal. The managing director could not recover his salary for the part of the year which he had completed before his dismissal. His right to his salary was conditional on his fulfilling his duties for the year and that condition had not been fulfilled. The contract was indivisible, and no payment under it could be claimed.
Cotton LJ said: ‘Then when he was engaged in that contract, in respect of the matters of that very contract, he in one instance got a percentage of 1 per cent. from the Shipbuilding Company, and, in the other case, he insisted on getting – that is the evidence – and did get, a lump sum of £50. It is suggested that we should be laying down new rules of morality and equity if we were to so hold. In my opinion if people have got an idea that such transactions can be properly entered into by an agent, the sooner they are disabused of that idea the better. If a servant, or a managing director, or any person who is authorized to act, and is acting, for another in the matter of any contract, receives, as regards the contract, any sum, whether by way of percentage or otherwise, from the person with whom he is dealing on behalf of his principal, he is committing a breach of duty. It is not an honest act, and, in my opinion, it is a sufficient act to shew that he cannot be trusted to perform the duties which he has undertaken as servant or agent. He puts himself in such a position that he has a temptation not faithfully to perform his duty to his employer. He has a temptation, especially where he is getting a percentage on expenditure, not to cut down the expenditure, but to let it be increased, so that his percentage may be larger. I do not, however, rely on that, but what I say is this, that where an agent entering into a contract on behalf of his principal, and without the knowledge or assent of that principal, receives money from the person with whom he is dealing, he is doing a wrongful act, he is misconducting himself as regards his agency, and, in my opinion, that gives to his employer, whether a company or an individual, and whether the agent be a servant, or a managing director, power and authority to dismiss him from his employment as a person who by that act is shewn to be incompetent of faithfully discharging his duty to his principal.’
Bowen LJ said: ‘This is an age, I may say, when a large portion of the commercial world makes its livelihood by earning, and by earning honestly, agency commission on sales or other transactions, but it is also a time when a large portion of those who move within the ambit of the commercial world, earn, I am afraid, commission dishonestly by taking commissions not merely from their masters, but from the other parties with whom their master is negotiating, and with whom they are dealing on behalf of their master, and taking such commissions without the knowledge of their master or principal. There never, therefore, was a time in the history of our law when it was more essential that Courts of Justice should draw with precision and firmness the line of demarcation which prevails between commissions which may be honestly received and kept, and commissions taken behind the master’s back, and in fraud of the master. . . Now, there can be no question that an agent employed by a principal or master to do business with another, who, unknown to that principal or master, takes from that other person a profit arising out of the business which he is employed to transact, is doing a wrongful act inconsistent with his duty towards his master, and the continuance of confidence between them. He does the wrongful act whether such profit be given to him in return for services which he actually performs for the third party, or whether it be given to him for his supposed influence, or whether it be given to him on any other ground at all; if it is a profit which arises out of the transaction, it belongs to his master, and the agent or servant has no right to take it, or keep it, or bargain for it, or to receive it without bargain, unless his master knows it.
Fry LJ said: ‘In my judgment, the conduct of Ansell in so dealing was a fraud-a fraud on his principals-a fraud, not according to any artificial or technical rules, but according to the simple dictates of conscience, and according to the broad principles of morality and law, and I think it is the duty of the Courts to uphold those broad principles in all cases of this description.
We were invited to consider the state of mind of Mr. Ansell; whether he thought it wrong; in other words we are invited to take as the standard for our decision the alleged conscience of a fraudulent servant. I decline to accept any such rule as one on which the Court is to decide such questions.’
This case is cited by:

  • Cited – Kouroush Fassihim, Andy Liddiardrams, International Ltd, Isograph Ltd -v- Item Software (UK) Ltd CA ([2004] EWCA Civ 1244, Times 21-Oct-04, Bailii, [2004] BCC 994, [2007] Lloyd’s Rep PN 17, [2005] ICR 450, [2005] 2 BCLC 91, [2004] IRLR 928)
    The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
    Held: A company . .
  • Cited – Miles -v- Wakefield Metropolitan District Council HL ([1987] ICR 368, [1987] 2 WLR 795, [1987] AC 539, Bailii, [1987] UKHL 15, [1987] IRLR 193, [1987] 1 All ER 1089, [1987] 1 FTLR 533)
    The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He now complained of the deductions made from his wages for compliance with that instruction.
    Held: His . .
  • Cited – RDF Media Group Plc and Another -v- Clements QBD (Bailii, [2007] EWHC 2892 (QB), [2008] IRLR 207)
    The defendant had sold his business to the claimants and in part consideration had accepted restrictive covenants as to his not competing with them. On indicating his desire to leave the claimants and work for a competitor, made statements which the . .
  • Cited – Imageview Management Ltd -v- Jack CA (Bailii, [2009] EWCA Civ 63, Times, [2009] WLR (D) 56, WLRD, [2009] 1 All ER (Comm) 921, [2009] 2 All ER 666, [2009] 1 BCLC 724, [2009] 1 Lloyd’s Rep 436, [2009] Bus LR 1034)
    The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
  • Approved – Rhodes -v- Macalister CA ((1923) 29 Com Cas 19)
    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 £8,000 to £10,000. If the agent could find a seller at below £9,000, . .

Gilchrist Watt and Sanderson Pty Ltd -v- York Products Pty Ltd; PC 1970

References: [1970] 1 WLR 1262
Coram: Lord Pearson
(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: The defendants were liable. They: ‘took upon themselves an obligation to the plaintiffs to exercise due care for the safety of the goods, although there was no contractual relation or attornment between the defendants and the plaintiffs.’ A sub-bailee had only voluntarily taken into his possession the goods of another if he has sufficient notice that a person other than the bailee is interested in the goods so that it can properly be said that in addition to his duties to the bailee he has, by taking the goods into his custody, assumed towards that other person the responsibility for the goods which is characteristic of a bailee.
This case cites:

  • Approved – Morris -v- C W Martin & Sons Ltd CA ([1966] 1 QB 716, [1965] 3 WLR 276, [1965] 2 Lloyds Rep 63, [1965] 2 All ER 725)
    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 . .

This case is cited by:

  • Cited – Lister and Others -v- Hesley Hall Ltd HL (Times 10-May-01, Gazette 14-Jun-01, Bailii, House of Lords, [2001] UKHL 22, [2002] 1 AC 215, [2001] 2 All ER 769, [2001] 2 FCR 97, (2001) 3 LGLR 49, [2001] NPC 89, [2001] Fam Law 595, [2001] 2 WLR 1311, [2001] IRLR 472, [2001] ICR 665, [2001] Emp LR 819, [2001] 2 FLR 307, [2001] ELR 422)
    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 (Bailii, [2009] EWCA Civ 37, Times, WLRD, [2009] WLR (D) 34, (2009) 107 BMLR 47, [2009] LS Law Medical 126, [2009] 2 All ER 986, [2009] 3 WLR 118)
    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 . .

Midland Silicones Ltd -v- Scruttons Ltd; HL 6 Dec 1961

References: [1962] AC 446, [1961] UKHL 4
Links: Bailii
Coram: Viscount Simonds, Lord Reid
The defendant stevedores, engaged by the carrier, negligently damaged a drum containing chemicals. When the cargo-owners sued in tort, the stevedores unsuccessfully attempted to rely on a limitation clause contained in the bill of lading between the carriers and the cargo-owners.
Held: The House was not prepared to hold that the principle of vicarious immunity was as in the ratio of Elder, Dempster. The court described four conditions for establishing that a contract was made as agent for a third party who could thus take benefit, namely: Was the third party intended to benefit from the contractual term, whether it was clear that the contracting party was also contracting as agent for the third party, whether he had authority so to do, and whether any difficulty with consideration was overcome.
As to the doctrine of privity of contract, Viscount Simonds said: ‘[H]eterodoxy, or, as some might say, heresy, is not the more attractive because it is dignified by the name of reform. . . . If the principle of jus quaesitum tertio is to be introduced into our law, it must be done by Parliament after a due consideration of its merits and demerits. I should not be prepared to give it my support without a greater knowledge than I at present possess of its operation in other systems of law.’
This case cites:

  • Cited – Elder, Dempster & Co Ltd -v- Paterson, Zochonis & Co Ltd HL ([1924] AC 522)
    The question was asked whether, as a defence to a shipper’s action in tort for negligently stowing cargo, shipowners could rely on an exclusion clause in the bills of lading, despite the fact that the contract of carriage was between the shipper and . .
  • Appeal from – Midland Silicones Ltd -v- Scruttons Ltd CA ([1961] 1 QB 106)
    . .
  • Affirmed – Tweddle -v- Atkinson, Executor of Guy, Deceased QBD ((1861) 1 B & S 393, 121 ER 762, Bailii, [1861] EWHC QB J7, [1861] EngR 690, Commonlii, (1861) 121 ER 762, Bailii, [1861] EWHC QB J57)
    An agreement was made by the fathers of a bride and groom to pay the groom a sum of money. When the bride’s father failed to pay, the groom sued.
    Held: The claim failed. Wightman J said that no stranger to the consideration could take . .
  • At first instance – Midland Silicones Ltd -v- Scruttons Ltd QBD ([1959] 2 QB 171)
    A bailment arises when, albeit on a limited or temporary basis, the bailee acquires exclusive possession of the chattel or a right thereto. . .

This case is cited by:

  • Cited – Borkan General Trading Ltd -v- Monsoon Trading Ltd CA (Times 28-Jul-03)
    A contract for a tug expressly provided a benefit for a third party. He now sought to claim benefit under it.
    Held: If, in the absence of a trust in his favour a third party for whose benefit a contract had expressly been made, could not take . .
  • Mentioned – Beswick -v- Beswick HL ([1968] AC 58, [1967] 3 WLR 932, [1967] 2 All ER 1197 HL(E), Bailii, [1967] UKHL 2)
    The deceased had assigned his coal merchant business to the respondent against a promise to pay £5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
  • Cited – Kamidian -v- Holt (on Behalf of Certain Underwriters at Lloyd’s) and others ComC (Bailii, [2008] EWHC 1483 (Comm))
    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, . .
  • Cited – Yearworth and others -v- North Bristol NHS Trust CA (Bailii, [2009] EWCA Civ 37, Times, WLRD, [2009] WLR (D) 34, (2009) 107 BMLR 47, [2009] LS Law Medical 126, [2009] 2 All ER 986, [2009] 3 WLR 118)
    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 . .

Glentree Estates Ltd and Others -v- Favermead Ltd; ChD 20 May 2010

References: [2010] EWHC 1120 (Ch), [2010] 21 EG 91
Links: Bailii
Coram: Sir edward Evans-Lombe
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 agreement. The words ‘on the basis that one of you introduces an applicant who subsequently purchases the property’ placed on the agent an obligation to demonstrate that he had been the effective cause of the purchase in question in order to qualify for commission. The agents were unable to show that on the facts, and the claim failed.
This case cites:

  • Cited – Investors Compensation Scheme Ltd -v- West Bromwich Building Society HL (Times 24-Jun-97, House of Lords, Bailii, [1997] UKHL 28, [1998] 1 All ER 98, [1998] 1 WLR 896, [1998] AC 896)
    The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
    Held: Investors having once . .
  • Cited – Luxor (Eastbourne) -v- Cooper HL ([1941] AC 108)
    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 . .
  • Cited – Foxtons Ltd -v- Pelkey Bicknell and Another CA (Bailii, [2008] EWCA Civ 419, Times 01-May-08, [2008] All ER (D) 328 (Apr), [2008] 2 EGLR 23)
    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 – The County Homesearch Company (Thames & Chilterns) Ltd -v- Cowham CA (Bailii, [2008] EWCA Civ 26)
    The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed a finding that they were obliged to pay his commission. The judge found that . .
  • Cited – Burney -v- The London Mews Company Ltd CA (Bailii, [2003] EWCA Civ 766)
    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 . .

Rhodes -v- Macalister; CA 1923

References: (1923) 29 Com Cas 19
Coram: Bankes, Scrutton, Atkin LJJ
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 £8,000 to £10,000. If the agent could find a seller at below £9,000, then, the defendant agreed, the plaintiff could have the difference between the actual price and £9,000. The agent found a seller at £6,625 and claimed the difference, viz. £2,375. But secretly the agent had also negotiated with the seller, at a time when they made the contract with the buyer, to be paid a commission on the sale. Lush J had found for the defendant.
Held: The agent’s claim failed. It made no difference to the agent’s position that no damage was caused to his principal, or that the principal may be advantaged by the agent’s breach of duty in accepting the secret commission.
Bankes LJ said: ‘There seems to be an idea prevalent that a person who is acting agent or servant of another is committing no wrong to his employer in taking a commission or bribe from the other side, provided that in his opinion his employer or principal does not have to pay more than if the bribe were not given. There cannot be a greater misconception of what the law is, or what the duty of a servant or agent towards his master or principal in reference to such maters is, and I do not think the rule can too often be repeated or its application more frequently insisted upon. . . what was [the agent’s] position and what was his duty. Of course, as long as he was acting for the vendors of these properties only he was perfectly entitled to suggest to them that they should fix a price which would include a commission to himself, and he would be perfectly justified in receiving that commission or putting forward the price to an intending purchaser as the only price which he could persuade the vendors to give, so long as that was his real opinion. But the moment he accepted the position of agent for the intending purchasers his entire position in law changed. He could no longer consistently with his duty, unless he disclosed the facts, act as agent for the vendors to procure purchasers with the result of some commission or payment to himself. He could not retain that position consistently with his duty to the purchasers of obtaining these properties at as low a price as he possibly could. . . the moment he accepted the position of agent to procure these properties as cheap as possible for the intending purchasers his interest and duty conflicted, and he could no longer act honestly towards the intending purchasers without disclosing to them that in that figure of £8,000 to £10,000 which he had mentioned as the probable price of these properties he had included a figure which he intended should cover a commission to himself.’
Scrutton LJ said: ‘I agree with the judgment that has just been delivered and I only propose to re-state it in my own words because I think it is of very great importance that the principle upon which we are acting should be thoroughly understood, and from Mr Vachell’s argument it is not thoroughly understood by commercial men, especially in that part of the country from which his clients appear to come . . The law I take to be this: that an agent must not take remuneration from the other side without both disclosure to and consent from his principal. If he does take such remuneration he acts so adversely to this employer that he forfeits all remuneration from the employer, although the employer takes the benefit and has not suffered a loss by it. . . I hope it is thoroughly understood in London; and if it is not thoroughly understood in the Forest of Dean, then the sooner it is understood there the better for commercial honesty.’ and
‘But I decide it on the broad principle that whether it causes damage or not, when you are employed by one man for payment to negotiate with another man, to take payment from that other man without disclosing it to your employer is a dishonest act. It does not matter that the employer takes the benefit of his contract with the vendor; that has no effect whatever on the contract with the agent, and it does not matter that damage is not shown. The result may actually be that the employer makes money out of the fact that the agent has taken commission.
In this case, therefore, it appears that as one of the two joint agents has, in breach of his duty, taken commission from the other side, he forfeits, and they both forfeit, all right to remuneration from their employer. The more that principle is enforced the better for the honesty of commercial transactions. I have only repeated what my Lord has said because it cannot be repeated too often to commercial men – that in matters of agency they must act with strict honesty.’
Atkin LJ said: ‘This is a class of case where the Courts always have maintained, and do maintain, and I trust always will maintain, a very high standard of conduct on the part of agents. It is a standard of conduct which I am afraid sometimes conflicts with the standard of conduct adopted for themselves by commercial men – not by honourable men in commerce, but by a great many men engaged in mercantile transactions. I entirely agree with what has been said as to the importance of repeating and letting it be known as widely as possible what the standard of conduct expected of an agent is at law. . . Now that is not an impossible standard of attainment. It is laid down by the law and it is in respect of a practical matter. The remedy is a very simple one and it is well within the compass of any ordinary business man. The complete remedy is disclosure, and if an agent wishes to receive any kind of remuneration from the other side and wishes to test whether it is honest or not, he has simply to disclose the matter to his own employer and rest upon the consequences of that. If his employer consents to it, then he has performed everything that is required of an upright and responsible agent.’
This case cites:

  • Approved – Boston Deep Sea Fishing & Ice Co -v- Ansell CA ((1888) 39 ChD 339)
    An employer having dismissed an employee (its managing director) later learnt of the employee’s fraud.
    Held: The employer was allowed to rely upon that fraud to justify the dismissal. Where an agent is in wrongful repudiation of his contract . .
  • Approved – Andrew -v- Ramsay & Co ([1903] 72 LJKB 865)
    The defendant had been employed as agent by the plaintiff to sell property belonging to the plaintiff. The defendant achieved this and was paid his commission, but had also taken a secret commission from the buyer. The plaintiff sought repayment of . .

This case is cited by:

  • Cited – Imageview Management Ltd -v- Jack CA (Bailii, [2009] EWCA Civ 63, Times, [2009] WLR (D) 56, WLRD, [2009] 1 All ER (Comm) 921, [2009] 2 All ER 666, [2009] 1 BCLC 724, [2009] 1 Lloyd’s Rep 436, [2009] Bus LR 1034)
    The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
  • Cited – FHR European Ventures Llp and Others -v- Mankarious and Others ChD (Bailii, [2011] EWHC 2308 (Ch))
    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 . .

Townsends Carriers Ltd -v- Pfizer Ltd; 1977

References: [1977] 33 P&CR 361
Coram: Sir Robert Megarry VC
A break notice had been served not by the tenant company but by an associated company, the service not being on the landlord company but an associated company.
Held: Because the tenant and the landlord had allowed their respective associated companies to deal with the property as if they were landlord and tenant respectively in respect of matters such as an increase in the rent and variations of the lease, the break notice had been validly served.
This case is cited by:

Mercantile International Group Plc -v- Chuan Soon Huat Industrial Group Ltd; CA 8 Mar 2002

References: [2002] EWCA Civ 288, [2003] ECC 28, [2002] 1 All ER (Comm) 788, [2002] CLC 913, [2002] Eu LR 314
Links: Bailii
Coram: Rix LJ, Waller LJ, Wilson LJ
The court was asked whether the claimants were a commercial agent of the defendants under the 1993 regulations.
Statutes: Commercial Agents (Council Directive) Regulations 1993
This case is cited by:

  • Cited – Claramoda Ltd v Zoomphase Ltd (T/A Jenny Packham) ComC (Bailii, [2009] EWHC 2857 (Comm))
    The former distribution agent sought to claim under the Regulations. The defendant said that the claim had not been notified as it should, within one year. The agency was for the sale of fashion items. Termination had been informal, stating that it . .

Heskell -v- Continental Express Ltd; 1950

References: [1950] 1 All ER 1033
Coram: Devlin J
The court discussed how a warranty of authority could arise in an agent: ‘An agent who warrants that he has authority need warrant no more than the bare fact. In the absence of special circumstances, he makes no warranty or representation about how he got his authority, whether it is express or implied, specific or general. Still less does he warrant that an event, on which the proper exercise of a general authority may depend, has in fact taken place.’ Two causes of the damage at issue were equally operative ‘in that if either had ceased the damage would have ceased’: Where the wrong is a tort, it is clearly settled that the wrongdoer cannot excuse himself by pointing to another cause. It is enough that the tort should be a cause and it is unnecessary to evaluate competing causes and ascertain which of them is dominant . . In the case of breach of contract the position is not so clear . . . Whatever the true rule of causation may be I am satisfied that if a breach of contract is one of two causes, both co-operating and both of equal efficacy, as I find in this case, it is sufficient to carry judgment for damages. Reischer v Borwick [1894] 2 QB 548 establishes that for the purposes of a contract of insurance it is sufficient if an insured event is, in this sense, a co-operating cause of the loss. I do not think that Yorkshire Dale SS Co Ltd v Minister of War Transport [1942] AC 691, with its insistence on the ascertainment of ‘the cause’, disapproved this principle. The case decided that the cause of a loss has to be ascertained by the standard of common sense of the ordinary man. Common sense is a blunt instrument not suited for probing into minute points, and I cannot believe that if the ordinary man thinks that two causes are of approximately equal efficacy, he cannot say so without being interrogated on fine distinctions.
This case is cited by:

  • Applied – Plant Construction Plc -v- Clive Adams Associates, JMH Construction Services (2) TCC (1996 ORB 750)
    The case had been remitted to the court to settle the apportionment of damages in a case of breach of contract, rather than in tort. When assessing levels of contribution causation alone is important but not the entire criteria. In cases where both . .
  • Cited – Hedley Byrne & Co Ltd -v- Heller & Partners Ltd HL ([1964] AC 465, [1963] 2 All ER 575, UBC, Bailii, [1963] UKHL 4, [1963] 1 Lloyds Rep 485, [1963] 3 WLR 101)
    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 . .

Raiffeisen Zentralbank Osterreich A G -v- Crossseas Shipping Ltd & Others; CA 2000

References: [2000] 1 WLR 1135
The claimant creditor bank made changes to the guarantee executed by the guarantee without its approval and after it had been signed and duly executed, by inserting the details of a service agent.
Held: The insertion did not work to alter the guarantor’s liability, and had not been prejudicial to its legal rights and obligations and accordingly was not material. The guarantee remained enforceable. An alteration to the contract after signature did not invalidate it unless it was material in the sense of being ‘potentially prejudicial to the legal rights or obligations of the affected party’.
This case cites:

  • Appeal From – Raiffeisen Zentralbank Osterreich A G -v- Crossseas Shipping Ltd & Others ComC ([1999] 1 All ER (Comm), [1999] Lloyd’s Rep Bank 164, [1999] CLC 973)
    ComC The rule in Pigot’s case. Whether alteration to a guarantee by the insertion of the name and address of a service agent was material so as to render the guarantee unenforceable. . .
  • Cited – Pigot’s Case ([1614] 11 Co Rep 266, Commonlii, [1572] EngR 180, (1572-1616) 11 Co Rep 26, (1572) 77 ER 1177)
    A written contact may be avoided if somebody makes a material alteration to it after it has been signed and without his consent. . .

This case is cited by:

  • Cited – Mercury Tax Group Ltd and Another, Regina (On the Application of) -v- HM Revenue & Customs and Others Admn (Bailii, [2008] EWHC 2721 (Admin), [2009] STC 743, [2009] BTC 3, [2008] STI 2670, [2009] Lloyd’s Rep FC 135)
    The claimant sought judicial review of the lawfulness of search warrants given to the Commissioners and executed at their various offices. The Revenue had suspect the dishonest implementation of a tax avoidance scheme. The claimants said that there . .
  • Cited – Pickenham Romford Ltd -v- Deville ChD (Bailii, [2013] EWHC 2330 (Ch))
    The claimant company’s administrators sought an order to have vacated unilateral notices entered against land titles registered to the claimant. The court now gave its reasons for making the order as requested by way of summary relief. The notices . .

Smith -v- Henniker-Major & Co; CA 22 Jul 2002

References: Times 29-Aug-2002, Gazette 26-Sep-2002, [2002] EWCA Civ 762, [2003] Ch 182
Links: Bailii
Coram: Lord Justice Schiemann, Robert Walker LJ
The claimant appealed the strike-out of his claim for professional negligence against the respondent solicitors. He claimed that the solicitors had acted in breach of their duty, and he then called a company meeting. Only he attended. He mistakenly believed that he had the power to assign to himself from the company the right of action. He later arranged for a deed to be issued which purported to rectify the mistake.
Held: Section 35A allowed somebody dealing with a company in good faith not to be affected by a failure to comply with the company’s constitution. The section was intended to forgive procedural irregularities, not to rectify what was otherwise a nullity. In this case however, the error sought to be forgiven was that of the chairman, and he was the party also seeking to rely on the section. He could not, by forgiving his own error, turn a nullity into a decision of the board. Robert Walker LJ considered the rule on ratification by a company: ‘Ratification is not effective where to permit it would unfairly prejudice a third party, and in particular-(1) where it is essential to the validity of an act that it should be done within a certain time, the act cannot be ratified after the expiration of that time, to the prejudice of any third party; (2) the ratification of a contract can only be relied on by the principal if effected within a time after the act ratified was done which is reasonable in all the circumstances.’ and ‘I am inclined to think that this debate (as to whether the exception is limited to ratification affecting property rights) may not be particularly profitable. Even though the operation of the Limitation Act 1980 is normally to bar the remedy rather than to extinguish the right, an accrued defence under the Act has often been spoken of in terms approximating to a property right of which a party ought not to be deprived. In my view the right approach would be to regard the deprivation of an accrued right as an important example of the general rationale identified in Bowstead & Reynolds’s article 19, that is, unfair prejudice.’
Statutes: Companies Act 1985 35A
This case cites:

  • Cited – Pontin -v- Wood CA ([1962] 1 QB 594, [1962] 2 WLR 258, [1962] 1 All ER 294)
    The writ had been issued just before the expiration of the relevant limitation period in a defective form in that it was endorsed merely with the words ‘the plaintiffs’ claim is for damages for personal injuries’. The judge in chambers held that the . .
  • Appeal from – Smith -v- Henniker-Major & Co ChD (Bailii, [2001] EWHC 484 (Ch))
    . .

This case is cited by:

  • Cited – Kilcarne Holdings Ltd -v- Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD (Bailii, [2004] EWHC 2547 (Ch), (2005) 2 P&CR 8)
    The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
  • Cited – Parker and Another -v- SJ Berwin & Co and Another QBD (Bailii, [2008] EWHC 3017 (QB))
    The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
  • Cited – Roberts -v- Gill & Co Solicitors and Others SC ([2010] WLR (D) 130, WLRD, Bailii, [2010] UKSC 22, SC, SC Summ, Bailii Summ, [2010] PNLR 30, [2010] WTLR 1223, [2010] 2 WLR 1227, [2011] AC 240)
    The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .

Lyell -v- Kennedy; HL 1889

References: (1889) 14 App Cas 437
The true owner may recover money which was rightfully his from a person to whom the money in question had been wrongly paid by the collector of the money. A fiduciary is one who has undertaken, whether on request or without request, of his own motion to act on behalf of another in circumstances in which equity will not allow him ‘to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect’.
This case cites:

  • See Also – Lyell -v- Kennedy (No 3) ((1884) 27 ChD 1)
    The plaintiff claimed to be entitled to land as purchaser from the heir-at-law of an intestate, who had died many years earlier. The land was in the possession of the defendant, and the central issue in the action was whether the defendant’s . .

This case is cited by:

  • Cited – Fisher -v- Brooker and Another ChD (Bailii, [2006] EWHC 3239 (Ch))
    The claimant said that he had contributed to the copyright in the song ‘A Whiter Shade of Pale’ but had been denied royalties. He had played the organ and particularly the organ solo which had contrbuted significantly to the fame of the record.
  • Cited – Clarence House Ltd -v- National Westminster Bank Plc CA (Bailii, [2009] EWCA Civ 1311)
    The defendant tenants, anticipating that the landlord might delay or refuse consent to a subletting entered into a ‘virtual assignment’ of the lease, an assignment in everything but the deed and with no registration. The lease contained a standard . .

TICC Limited -v- Cosco (UK) Limited; CA 5 Dec 2001

References: [2001] EWCA Civ 1862
Links: Bailii
Coram: Lord Justice Ward Lord Justice Kay And Lord Justice Rix
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.
Statutes: Carriage of Goods by Sea Act 1992 3
This case cites:

  • Cited – Parker -v- South Eastern Railway Co CA ((1877) 2 CPD 416, (1877) 46 LJQB 768)
    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 Brothers) Limited HL ([1918] AC 837)
    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 ([1971] 1 All ER 686, [1971] 2 WLR 585, [1971] 2 QB 163, Bailii, [1970] EWCA Civ 2, [1971] 1 Lloyd’s Rep 289, [1971] RTR 79)
    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 . .

Blackburn, Low & Co -v- Vigors; HL 1887

References: (1887) 12 App Cas 531
Coram: Lord Macnaghten, Lord Watson, Lord Fitzgerald
There was a condition precedent of full disclosure of material facts in an insurance contract. The duty of an agent to disclose circumstances within his own knowledge to the insurer is independent of the duty of the insured to make disclosure, but: ‘it would, in my opinion, be a dangerous extension of the doctrine of constructive notice to hold that persons who are themselves absolutely innocent of any concealment or misrepresentation, and who have not wilfully shut their eyes or closed their ears to any means of information, are to be affected with the knowledge of matters which other persons may be morally though not legally bound to communicate to them.’
This case cites:

  • Appeal from – Blackburn, Low & Co -v- Vigors CA ((1886) 17 QBD 553)
    Lord Esher MR: ‘This seems to me to be the true doctrine. The freedom from mis-representation or concealment is a condition precedent to the right of the assured to insist on the performance of the contract, so that on a failure of the performance . .

This case is cited by:

  • Appealed to – Blackburn, Low & Co -v- Vigors CA ((1886) 17 QBD 553)
    Lord Esher MR: ‘This seems to me to be the true doctrine. The freedom from mis-representation or concealment is a condition precedent to the right of the assured to insist on the performance of the contract, so that on a failure of the performance . .
  • Cited – HIH Casualty and General Insurance Limited and others -v- Chase Manhattan Bank and others HL (House of Lords, Bailii, [2003] UKHL 6, [2003] 1 All ER Comm 349, [2003] 2 Lloyd’s Law Reports 61, [2004] ICR 1708, [2003] Lloyds Rep IR 230, [2003] 1 CLC 358)
    The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .

Office Of Fair Trading -v- Foxtons Ltd; CA 2 Apr 2009

References: [2009] EWCA Civ 288
Links: Bailii, Times
Coram: Lord Justice Waller, Lady Justice Arden and Lord Justice Moore-Bick
The OFT had sought and obtained an injunction regarding the use of certain standard terms in their estate agency business. Both parties appealed.
Held: The OFT’s appeal succeeded. The court had been wrong to restrict the effect of the injuncion to contracts not already in existence. It should extend to existing contracts. The Regulations were intended to implement the Directive, and the court must have power to give it proper and full effect, though it was for the court seised of the matter to decide whether such an order was correct in the circumstances.
Statutes: Unfair Terms in Consumer Contracts Regulations (SI 1999 No2083), Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts (OJ April 21, 1993, L95/29)
This case cites:

  • Appeal from – Office of Fair Trading -v- Foxtons Ltd ChD (Bailii, [2008] EWHC 1662 (Ch))
    Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
    Held: On a challenge to an individual contract, the court would be able to see . .
  • Cited – Director General of Fair Trading -v- First National Bank HL (House of Lords, Times 01-Nov-01, Bailii, [2002] 1 AC 481, [2001] UKHL 52, [2001] 3 WLR 1297, [2002] 1 LLR 489, [2001] 2 All ER (Comm) 1000, [2002] 1 All ER 97, [2002] ECC 22, [2002] 1 Lloyd’s Rep 489)
    The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
    Held: The term was not covered by the Act, and was not unfair under the . .

Parker -v- McKenna; CA 1874

References: (1874) LR 10 Ch 124
Coram: James LJ, Lord Cairns LC
The directors of a bank acquired for themselves, and made a profit on, certain shares the subject of a new issue that were not taken up by the bank’s shareholders.
Held: James LJ said: ‘I do not think it is necessary, but it appears to me very important, that we should concur in laying down again and again the general principle that in this court no agent in the course of his agency, in the matter of his agency, can be allowed to make any profit without the knowledge and consent of his principal; that that rule is an inflexible rule, and must be applied inexorably by this court, which is not entitled, in my judgment, to receive evidence, or suggestion, or argument as to whether the principal did or did not suffer any injury in fact by reason of the dealing of the agent; for the safety of mankind requires that no agent shall be able to put his principal in the danger of such an inquiry as that.’
Lord Cairns LC said: ‘The Court will not inquire, and is not in a position to ascertain, whether the bank has or has not lost by the acts of the directors. All that the Court has to do is to examine whether a profit has been made by an agent, without the knowledge of his principal, in the course and execution of his agency, and the Court finds, in my opinion, that these agents in the course of their agency have made a profit, and for that profit they must, in my opinion, account to their principal.’
This case is cited by:

  • Cited – Bhullar and others -v- Bhullar and Another CA (Bailii, [2003] EWCA Civ 424, [2003] 2 BCLC 241)
    The claimants were 50% shareholders in a property investment company and sought relief alleging prejudicial conduct of the company’s affairs. After a falling out, two directors purchased property adjacent to a company property but in their own . .
  • Cited – O’Donnell -v- Shanahan and Another CA (Bailii, [2009] EWCA Civ 751, Times)
    The claimant appealed against dismissal of her petition for an order for the defendants to purchase her shares at a fair value, saying that they had acted unfairly toward her. Her co-directors had acquired, for another company of which they were . .

Mercantile Credit Co Ltd -v- Hamblin; CA 1964

References: [1965] 2 QB 242, [1964] 1 WLR 423
Coram: Pearson LJ
Pearson LJ said: ‘There is no rule of law that in a hire purchase transaction the dealer never is, or always is, acting as agent for the finance company or as agent for the customer.Nevertheless, the dealer is to some extent an intermediary between the customer and the finance company, and he may well have in a particular case some ad hoc agencies to do particular things on behalf of one or the other or, it may be, both of those two parties.’ and ‘In a typical hire purchase transaction the dealer is a party in his own right, selling his car to the finance company, and he is acting primarily on his own behalf and not as general agent for either of the other two parties. There is no need to attribute to him an agency in order to account for his participation in the transaction. Nevertheless the dealer is to some extent an intermediary between the customer and the finance company, and he may well have in a particular case some ad-hoc agencies to do particular things on behalf of one or other or it may be both of those two parties.’
An advocate should draw the attention of the court to the fact that an act relied on by a party is unlawful, if that is the case.
This case is cited by:

  • Approved – Branwhite -v- Worcester Works Finance Ltd HL ([1969] 1 AC 552)
    A dealer may for some ad hoc purpose be the agent of a finance company. In relation to a purchase of a motor vehicle through a motor dealer, where the prospective purchaser completes an application for hire purchase in the office of the motor . .
  • Cited – Norman Hudson -v- Shogun Finance Ltd CA (Times 04-Jul-01, [2001] EWCA Civ 1000)
    A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
    Held: The dealer had not taken all the steps he might have done to check the identity of the . .
  • Cited – London Borough of Lewisham -v- Malcolm and Disability Rights Commission CA (Bailii, [2007] EWCA Civ 763, [2008] 2 WLR 369, [2008] Ch 129, [2008] L & TR 4, [2008] HLR 14, [2007] 32 EG 88, [2008] BLGR 189)
    The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .

Equitas Ltd and Another -v- Horace Holman & Company Ltd; ComC 27 Apr 2007

References: [2007] EWHC 903 (Comm)
Links: Bailii
Coram: Andrew Smith J
A principal or employer is entitled to delivery up of original documents (or other property) retained or removed by an agent or employee and relating to transactions done as agent.
This case is cited by:

Great Atlantic Insurance Co -v- Home Insurance Co; 1981

References: [1981] 2 Ll R 219
Coram: Lloyd J
Lloyd J said: ‘if the principal has held out his agent as having a certain authority, it hardly lies in his mouth to blame the agent for acting in breach of a secret limitation placed on that authority’.
This case is cited by:

  • Appeal from – Great Atlantic Insurance -v- Home Insurance CA ([1981] 2 All ER 485, [1981] 2 Lloyds Rep 138, [1981] 1 WLR 529)
    The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
    Held: The entirety of the document was privileged, but by disclosing part, the . .
  • Dictum doubted – OBG Ltd OBG (Plant & Transport Hire) Ltd -v- Raymond International Ltd; OBG Ltd -v- Allen CA (Bailii, [2005] EWCA Civ 106, Times 24-Feb-05, [2005] QB 762, [2005] 2 All ER 602, [2005] BPIR 928, [2005] PNLR 27, [2005] 1 All ER (Comm) 639, [2005] BLR 245, [2005] 1 BCLC 711, [2005] 2 WLR 1174)
    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 . .

Carnfoote -v- Fowke; 1840

References: [1840] 6 M&W 358
The phrase ‘some positive wrongful conduct’ in cases of misrepresentation, is directed to the case where the principal does something with the intention that the innocent agent will mislead the third party by a misrepresentation due to his ignorance of the truth.
This case is cited by:

  • Cited – MCI Worldcom International Inc -v- Primus Telecommunications Inc ComC (Bailii, [2003] EWHC 2182 (Comm))
    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 . .

Fairstar Heavy Transport Nv -v- Adkins and Another; CA 19 Jul 2013

References: [2013] EWCA Civ 886
Links: Bailii
Coram: Mummery, Patten, Black LJJ
The court was asked whether the appellant company was entitled to an order requiring its former Chief Executive Officer, after the termination of his appointment, to give it access to the content of emails relating to its business affairs, and stored on his personal computer in England, were sent or received by him on behalf of the company. The claimant asserted an enforceable proprietory claim in those rent or received on their behalf. At first instance the court had found that there existed no property in information.
Held: In effect Fairstar claimed a right which it descibed as ‘proprietory’ to the content of the emails, entitling it to inspect and make copies of the content of the emails, either directly or through an independent person instructed for that purpose. The assertion of such a right failed.
However, the claimant was able to achieve its aims through the law of agency.
This case cites:

  • Cited – Lamb -v- Evans CA ([1893] 1 Ch 218)
    The plaintiff printed and published a multi-lingual European trade directory, engaging the defendants as commission agents to solicit paid entries for the directory. The businessmen could, if they wished, supply wood blocks or other materials from . .
  • Cited – Universal Thermosensors Ltd -v- Hibben and Others ChD (Gazette 08-Jul-92, [1992] 1 WLR 840)
    After complex litigation, the remaining issues were a claim for damages by the claimant in respect of the defendant’s misuse of confidential information and a counterclaim by the defendants for loss falling within the claimant’s cross-undertaking in . .
  • Cited – Pennwell Publishing (UK) Ltd -v- Ornstien and others QBD (Bailii, [2007] EWHC B5 (QB))
    A former employee the defendant had copied contact information from the employer’s Microsoft Outlook into an Excel spreadsheet. It was not disputed that during the course of his employment the employee had himself added many names and addresses to . .
  • At TCC – Fairstar Heavy Transport Nv -v- Adkins and Another TCC ([2012] 2 CLC 795, Bailii, [2012] EWHC 2952 (TCC))
    The claimant had obtained a without notice order restraining the first defendant, its former senior consultant from deleting or otherwsie interfering with emails from his time with the company. The defendant said that there had been no emergency . .
  • Cited – Nicrotherm Electrical Company -v- Percy CA ([1957] RPC 207)
    Lord Evershed MR said: ‘a man who thinks of a mechanical conception and then communicates it to others for the purpose of their working out means of carrying it into effect does not, because the idea was his (assuming that was), get proprietary . .
  • Cited – Force India Formula One Team Ltd -v- 1 Malaysia Racing Team Sdn Bhd and Others ChD (Bailii, [2012] EWHC 616 (Ch), [2012] RPC 29)
    The claimants alleged misuse by the defendants of confidential information.
    Held: Arnold J said: ‘Confidential information is not property, however, even though businessmen often deal with confidential information as if it were property and . .
  • Not on Point – Pattihis -v- Jackson ([2002] EWHC 2480)
    The employer complained of the alleged misuse of property taken during the course of his employment by the defendant. . .
  • Appeal from – Fairstar Heavy Transport Nv -v- Adkins TCC (Bailii, [2012] EWHC 3294 (TCC))
    . .
  • Cited – Huddleston -v- Control Risks ([1987] 1 WLR 702)
    The plaintiffs were protesters against Apartheid. The defendant, a political risks consultancy, was to sell a report on the activities of anti-apartheid groups, their relationship with terrorist groups and their intentions. The claimants were . .
  • Cited – WRN Ltd -v- Ayris QBD (Bailii, [2008] EWHC 1080 (QB))
    The claimant sought to enforce post employment contracts against the defendant. One issue was whether or not business cards that had been given to the employee in the course of his employment, as well as cards that were already in his possession and . .
  • Cited – Lady Beresford -v- Driver ([1851] EngR 754, Commonlii, (1851) 14 Beav 387, (1851) 51 ER 335)
    The defendant, the plaintiff’s ex-land agent was ordered to deliver up documents to former principal relating to her estate and its management . .
  • Cited – Re Ellis & Ellis ((1908) 25 TLR 38)
    A client’s former solicitors were ordered to deliver up payment vouchers to the trustee in bankruptcy of the former client. . .
  • Cited – Chantrey Martin -v- Martin ([1953] 2 QB 286)
    The professional working papers of a firm of accountants were held not to be the property of the client, but letters and other papers created by accountants as agent for client were the client’s property. . .
  • Cited – Gomba Holdings UK Ltd -v- Minories Finance Ltd CA ([1988] 1 WLR 1231, [1989] 1 All ER 261, (1988) 5 BCC 27, [1989] BCLC 115)
    The court was asked as to ownership of documents coming into existence in the course of a receivership. The plaintiff companies had argued that all documents belonged to them because the receivers were their agents and the documents were created in . .
  • Cited – Equitas Ltd and Another -v- Horace Holman & Company Ltd ComC (Bailii, [2007] EWHC 903 (Comm))
    A principal or employer is entitled to delivery up of original documents (or other property) retained or removed by an agent or employee and relating to transactions done as agent. . .
  • Cited – Pennwell Publishing (UK) Ltd -v- Ornstien and others QBD (Bailii, [2007] EWHC B5 (QB))
    A former employee the defendant had copied contact information from the employer’s Microsoft Outlook into an Excel spreadsheet. It was not disputed that during the course of his employment the employee had himself added many names and addresses to . .
  • Cited – Yasuda Fire and Marine Insurance Company Europe Ltd -v- Orion Marine Insurance Underwriters Ltd ChD (Times 27-Oct-94, [1995] QB 174)
    An agent’s fiduciary duty to his principal survived the determination of his contract and he had a continuing duty to provide accounts. The court recognised the right of a principal to inspect and copy the content of both computerised and hard copy . .

Chasen Ryder & Co -v- Hedges; CA 1993

References: [1993] 1 EGLR 47, [1993] 39 EG 123
Coram: Sir Donal Nicholls V-C, Staughton LJ
The vendor first instructed the plaintiffs to sell his residential home. They introduced several people, but no offers were made. The vendor went to another firm of agents. An extended planning consent was obtained, and one of the original enquirers returned and evetually bought the property. The vendor paid the second agent only. The first agent sued, and the defendant now appealed.
Held: The test of whether an estate agent can sue for having introduced a purchaser is whether he has introduced the purchaser to the purchase transaction, not merely to the property. The burden lay first on the agent to show that his introduction had been the effective cause of the purchase. The court might infer that causation from the introduction, but the defendant might show another effective casue of the sale. Here the first introduction had not produced a result, but the second did. The first agent was not the effective cause of the sale and was not to be paid.
This case cites:

This case is cited by:

  • Cited – Christie Owen and Davies -v- Lampitt CA (Bailii, [1999] EWCA Civ 1993)
    An estate agent sued for his commission. The eventual purchaser had previously shown interest in the property, and approached the defendant, who only then approached the claimants and instructed them.
    Held: The defendants case was not . .
  • Cited – Standard Life Assurance Company (Incorporated Under Laws of Scotland By Act of Parliament) -v- Egan Lawson Limited CA (Bailii, [2000] EWCA Civ 293, [2001] 1 EGLR 27)
    The defendant appealed against judgment in favour of his (buyer’s) estate agent for his commission in finding the property for it. A previous offer was rejected by the seller, but a subsequent agent of the buyer obtained the acceptance of a further . .
  • Cited – Foxtons Ltd -v- Pelkey Bicknell and Another CA (Bailii, [2008] EWCA Civ 419, Times 01-May-08, [2008] All ER (D) 328 (Apr), [2008] 2 EGLR 23)
    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 . .

Hughes -v- Percival; 1883

References: (1883) 8 App Cas 443, [1881-85] All ER 44, (1883) 8 AC 443
Coram: Lord Blackburn
The parties were neighbouring householders with a party wall. A builder working in the defendant’s house negligently cut into the party wall, causing the partial collapse of both the defendant’s house and the Plaintiff’s house next-door.
Held: Lord Blackburn said: ‘The first point to be considered is what was the relation in which the defendant stood to the plaintiff. It was admitted that they were owners of adjoining houses between which was a party-wall the property of both. The defendant pulled down his house and had it rebuilt on a plan which involved in it the tying together of the new building and the party-wall which was between the plaintiff’s house and the defendant’s, so that if one fell the other would be damaged. The defendant had a right so to utilize the party-wall, for it was his property as well as the plaintiff’s; a stranger would not have had such a right. But I think the law cast upon the defendant, when exercising this right, a duty towards the plaintiff. I do not think that duty went so far as to require him absolutely to provide that no damage should come to the plaintiff’s wall from the use he thus made of it, but I think that the duty went as far as to require him to see that reasonable skill and care were exercised in those operations which involved a use of the party-wall, exposing it to this risk. If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself, and, if they so agreed together, to take an indemnity to himself in case mischief came from that person not fulfilling the duty which the law cast upon the defendant; but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled. This is the law I think clearly laid down in Pickard v Smith 10 CB (NS) 470, and finally in (1881) Dalton v Angus 6 App Cas 740. But in all the cases on the subject there was a duty cast by law on the party who was held liable.’
This case is cited by:

  • Cited – Woodland -v- Essex County Council SC (Bailii, [2013] UKSC 66, WLRD, [2013] 3 WLR 1227, [2013] WLR(D) 403, Bailii Summary, UKSC 2012/0093, SC Summary, SC)
    The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .

Andrew -v- Ramsay & Co; 1903

References: [1903] 72 LJKB 865
The defendant had been employed as agent by the plaintiff to sell property belonging to the plaintiff. The defendant achieved this and was paid his commission, but had also taken a secret commission from the buyer. The plaintiff sought repayment of the commission.
Held: The action succeeded. Where an agent takes a commission secret from his principal, the principal may refuse to pay or recover any commission under the main agency contract. The action for and recovery of the secret commission had not operated as a ratification of the sale.
This case is cited by:

  • Approved – Rhodes -v- Macalister CA ((1923) 29 Com Cas 19)
    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 £8,000 to £10,000. If the agent could find a seller at below £9,000, . .

Lady Beresford -v- Driver; 31 Jul 1851

References: [1851] EngR 754, (1851) 14 Beav 387, (1851) 51 ER 335
Links: Commonlii
The defendant, the plaintiff’s ex-land agent was ordered to deliver up documents to former principal relating to her estate and its management
This case is cited by:

  • Cited – Fairstar Heavy Transport Nv -v- Adkins and Another CA (Bailii, [2013] EWCA Civ 886)
    The court was asked whether the appellant company was entitled to an order requiring its former Chief Executive Officer, after the termination of his appointment, to give it access to the content of emails relating to its business affairs, and . .

Peter Yates -v- Bullock; 1992

References: [1992] EGLR 24
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.
This case is cited by:

  • Cited – Harwood T/A RSBS Group -v- Smith and Smith and Bedwell Watts and Company (a Firm) CA (Times 08-Dec-97, Bailii, [1997] EWCA Civ 2725, [1998] 1 EGLR 5)
    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 . .
  • Cited – Burney -v- The London Mews Company Ltd CA (Bailii, [2003] EWCA Civ 766)
    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 – Foxtons Ltd -v- Pelkey Bicknell and Another CA (Bailii, [2008] EWCA Civ 419, Times 01-May-08, [2008] All ER (D) 328 (Apr), [2008] 2 EGLR 23)
    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 . .

Morris -v- CW Martin Ltd; CA 1966

References: [1966] 1 QB 716
Coram: Diplock LJ, Lord Denning MR
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 neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty.’
This case is cited by:

  • Cited – Scottish & Newcastle International Limited -v- Othon Ghalanos Ltd HL (Bailii, [2008] UKHL 11)
    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 – Piper -v- Hales QBD (Bailii, [2013] EWHC B1 (QB))
    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 . .
  • Cited – Woodland -v- Essex County Council SC (Bailii, [2013] UKSC 66, WLRD, [2013] 3 WLR 1227, [2013] WLR(D) 403, Bailii Summary, UKSC 2012/0093, SC Summary, SC)
    The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .

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

References: [2011] EWHC 2308 (Ch), [2012] 2 BCLC 39
Links: Bailii
Coram: Simon J
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.
This case cites:

  • Cited – Hindmarsh & Another -v- Brigham & Cowan Ltd ((1943) Ll L Rep 141)
    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 (Bailii, [2007] EWHC 2122 (QB))
    Claim for commission – introduction of purchaser – denial of verbal contract. . .
  • Cited – Rhodes -v- Macalister CA ((1923) 29 Com Cas 19)
    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 £8,000 to £10,000. If the agent could find a seller at below £9,000, . .

This case is cited by:

  • See Also – FHR European Ventures Llp and Others -v- Mankarious and Others ChD (Bailii, [2011] EWHC 2999 (Ch))
    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 (Bailii, [2013] EWCA Civ 17, [2013] 1 P &CR 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)
    The defendants had taken a secret commission when acting for the claimant. They had succeeded in ther 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 (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    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 . .

Allan -v- Leo Lines Ltd; 1957

References: [1957] 1 LL 127
Coram: Devlin J
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 important consideration in determining who is the cause of the sale because in these matters the introduction is perhaps often the main difficulty.’ Negotiations and efforts by the buyer personally did not displace the causative effect of the introduction which was the effective cause of the sale. If a broker effects an introduction and is willing to go on with the usual business negotiation, it hardly lies in the mouth of an owner who takes it out of his hands to say that he has made no further contribution.
This case is cited by:

  • Cited – Nahum -v- Royal Holloway and Bedford New College CA (Times 19-Nov-98, Bailii, [1998] EWCA Civ 1760, [1999] EMLR 252)
    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 . .

Imageview Management Ltd -v- Jack; CA 13 Feb 2009

References: [2009] EWCA Civ 63, [2009] WLR (D) 56, [2009] 1 All ER (Comm) 921, [2009] 2 All ER 666, [2009] 1 BCLC 724, [2009] 1 Lloyd’s Rep 436, [2009] Bus LR 1034
Links: Bailii, Times, WLRD
Coram: Mummery LJ, Dyson LJ, Jacob LJ
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The agent now appealed.
Held: The side deal was within the agency and should have been disclosed.
Jacob LJ said: ‘The law imposes on agents high standards. Footballers’ agents are not exempt from these. An agent’s own personal interests come entirely second to the interest of his client. If you undertake to act for a man you must act 100%, body and soul, for him. You must act as if you were him. You must not allow your own interest to get in the way without telling him. An undisclosed but realistic possibility of a conflict of interest is a breach of your duty of good faith to your client.’ This was not an honest breach of contract. This was a secret profit and a breach of fiduciary duty because of the conflict of interest. Not only was the secret payment to be paid across, but no further agency fees were payable.
This case cites:

  • Cited – Salomons -v- Pender ([1865] EngR 365, Commonlii, (1865) 3 H & C 639, (1865) 159 ER 682)
    When a person who purports to act as an agent is not in a position to say to his principal, ‘I have been acting as your agent, and I have done my duty by you,’ he is not entitled to recover any commission from that principal.
    Bramwell B said: . .
  • Cited – Hippisley -v- Knee Bros CA ([1905] 1 KB 1, [1905] 1 LJKB 68, [1905] 92 LT 20, [1905] 21 TLR 5, [1905] 49 Sol Jo 15)
    The defendant auctioneers were employed by the plaintiff to sell some goods. The payment was to be percentage commission with a minimum of £20, certain fixed amounts and ‘all out of pocket’ expenses, particularly advertising. The sale . .
  • Cited – Boston Deep Sea Fishing & Ice Co -v- Ansell CA ((1888) 39 ChD 339)
    An employer having dismissed an employee (its managing director) later learnt of the employee’s fraud.
    Held: The employer was allowed to rely upon that fraud to justify the dismissal. Where an agent is in wrongful repudiation of his contract . .
  • Cited – Andrews -v- Ramsay ([1903] 2 KB 635)
    The plaintiff asked the defendant estate agents to find a purchaser for his property at a price of £2,500 and if one such was found the agents’ fee would be £50. A purchaser, one Clutterbuck, at £2,100 was found. He paid the agents . .
  • Cited – Nitedals Taenstikfabrik -v- Bruster ([1906] 2 Ch 671)
    Commission was allowed for an agent despite an alleged breach of duty. Neville J discussed Andrews v Ramsay saying its doctrine: ‘does not apply to the case of an agency where the transactions in question are separable’ . .
  • Cited – Stubbs -v- Slater ([1910] 1 Ch 632)
    A deposit by guarantors who had agreed ‘to assign to [the Bank] their certificates of shares in [PPL] by way of deposit’, together with endorsed transfers in blank, would create an equitable mortgage with an implied power of sale. Neville J . .
  • Cited – Rhodes -v- Macalister CA ((1923) 29 Com Cas 19)
    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 £8,000 to £10,000. If the agent could find a seller at below £9,000, . .
  • Cited – Keppel -v- Wheeler CA ([1927] 1 KB 577)
    The plaintiff engaged the defendant estate agents to sell a property, instructing them to market it at £6,500 but that he would accept £6,000. The plaintiff accepted an offer of £6,150 ‘subject to contract’. Before exchange, . .
  • Cited – O’Sullivan -v- Management Agency and Music Limited CA ([1985] QB 428, (1984) 2 IPR 499, [1984] 3 WLR 448, [1985] 3 All ER 351)
    The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the . .
  • Cited – Dalkia Utilities Services Plc -v- Celtech International Ltd ComC (Bailii, [2006] EWHC 63 (Comm), [2006] 1 Lloyd’s Rep 599, [2006] 1 LLR 599, [2006] 2 P & CR 9)
    The Court was asked to decide (i) which, if either, of the two parties to a 15 year agreement lawfully terminated it; (ii) whether, if one of them did so, it was by giving notice under a contractual termination clause or by way of acceptance of the . .
  • Cited – Phipps -v- Boardman HL ([1966] 3 All ER 721, [1967] 2 AC 46, Bailii, [1966] UKHL 2)
    A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to . .
  • Cited – Robinson Scammel -v- Ansell ([1985] 2 EGLR 41)
    . .
  • Cited – Kelly -v- Cooper and Another PC (Gazette 25-Nov-92, [1993] AC 205, [1992] 3 WLR 936, [1993] ANZ Conv R 138)
    There was a dispute between a client and an estate agent in Bermuda. The client sued the estate agent for damages for breach of duty in failing to disclose material information to him and for putting himself in a position where his duty and his . .
  • Cited – Warman International Ltd -v- Dwyer ([1995] 128 ALR 201)
    (High Court of Australia) A fiduciary diverted a business in breach of his fiduciary duty.
    Held: ‘The outcome in cases of this kind will depend upon a number of factors. They include the nature of the property, the relevant powers and . .
  • Cited – Murad & Another, Al Saraj & Aotherr -v- Al-Saraj & Anr Murad & Another CA (Bailii, [2005] EWCA Civ 959, [2005] All ER (D) 503)
    . .

Peter Long and Partners v Burns; CA 1956

References: [1956] 1 WLR 1083
Coram: Romer LJ, Singleton LJ, Morris LJ
The estate agency agreement at issue said that commission was payable on the agents ‘introducing a person ready, willing and able to enter into a binding contract to purchase’. The purchaser entered into the contract, but then resiled after discovery of a misrepresentation. The contract was cancelled by agreement between the parties on payment of a sum of money by the purchaser. The estate agents claimed their commission but the vendor refused to pay. The agent failed in their action for breach of contract. That action failed.
Held: In this context, a ‘binding contract’ meant one which was legally enforceable by the vendor against the purchaser. Since the contract had been rendered unenforceable by the vendor as a result of the innocent misrepresentation of the estate agents, no commission was payable. The estate agents argued that the vendor could not take advantage of the misrepresentation made by them to the purchaser since she herself had given the relevant information to the estate agents. Singleton LJ did not agree. The making of such a representation to the purchaser without checking the information given by the vendor bordered on recklessness.
Romer, LJ, said: ‘I have no doubt that the contract which [the purchaser] did sign was not a binding contract within the terms of the commission note. I agree . . that ‘a binding contract’ in this context is the same as a legally binding contract, and that means a contract binding on the purchaser and legally enforceable against the purchaser by the vendor. The contract which [the purchaser] signed was never legally enforceable against her by [the vendor] because of the innocent misrepresentation which was made to her by [the estate agents’ representative]. Moreover, the contract was voidable by [the purchaser], who could rescind it the moment that she discovered what the true facts were. Accordingly, it appears to me impossible to say that it was a binding contract within the meaning of that phrase as used in the commission note.
A voidable contract, when rescinded, is avoided ab initio.’
Morris LJ said: ‘The Plaintiffs further submit there was an estoppel. They plead as follows in paragraph 3 of the reply: ‘If it is found that the said contract was not binding on [the purchaser] [the estate agents] will further say that [the vendor] having innocently misled [the estate agents’ representative] who upon [the vendor’s] said instructions innocently misled [the purchaser], [the vendor] is estopped from setting up her own misrepresentation, resulting in the rescission of her contract with [the purchaser], to defeat [the estate agents’] claim for commission.’ But, in my judgment, this is not a case where the doctrine of estoppel can be relied upon. There was nothing to prevent [the purchaser] from proving that there had been an innocent misrepresentation and so from resiling from the contract. Upon proof that [the purchaser] did disaffirm the contract it was shown there had been no binding contract and so that commission had not been earned. There is no evidence, for no oral evidence was called, that had Mrs Pritchard known the true facts as to the road widening she might have purchased at a lower figure and so enabled [the estate agents] to earn some commission. There was no evidence to that effect.
What, then, is the legal basis of [the estate agents’] complaint? [The estate agents] may say that they wasted some time because they had some dealing with [the purchaser] which led to an abortive contract. But there is no claim against [the vendor] on that basis; nor do I see there could be. [The vendor] made no fraudulent misrepresentation to [the estate agents], and no sort of suggestion of that kind is or could be made. [The estate agents] do not suggest that [the vendor] gave any warranty to them of the truth of the representation which she made.’
This case is cited by:

  • Cited – John D Wood & Co (Residential and Agricultural Ltd) -v- Craze QBD (Bailii, [2007] EWHC 2658 (QB))
    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 . .

Starkey -v- The Bank of England; HL 1903

References: [1903] AC 114
Coram: Earl of Halsbury LC
Frederick and Edgar Oliver jointly owned Consols and bank stock. Frederick instructed Starkey a stockbroker to sell them. Frederick signed the necessary powers of attorney in his own name and forged Edgar’s signature. Starkey presented the powers of attorney to the Bank of England, who duly affected the transfer. Once the forgery was established the Bank was liable to replace the Consols and the stock, and sued Starkey for breach of warranty of authority.
Held: Starkey was liable. The Earl of Halsbury LC set out the notion that it was necessary to establish a contract between the purported principal and the plaintiff as illogical, and confusing the question whether the facts established a contractual warranty between plaintiff and defendant, with the question as to whether a contract follows in consequence of a representation. He said: ‘that which does enforce the liability is this – that under the circumstances of this document being presented to the Bank for the purpose of being acted upon, and being acted upon on the representation that the agent had the authority of the principal, which he had not, that does import an obligation – the contract being for good consideration – an undertaking on the part of the agent that the thing he represented to be genuine was genuine.’
This case is cited by:

  • Cited – A & J Fabrications (Batley) Ltd -v- Grant Thornton and Others ChD (Times 05-Aug-99, Gazette 11-Aug-99, [1998] 2 BCLC 227)
    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 . .

Rossetti Marketing Ltd -v- Diamond Sofa Company Ltd and Another; QBD 3 Oct 2011

References: [2011] EWHC 2482 (QB)
Links: Bailii
Coram: Cranston J
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 meaning of the Directive or the Regulations is a straightforward matter, to be determined by reference to the terms and the context of the agreement at the date it is concluded. The Regulations envisaged two types of Agent, but ‘None of this means that the non-derogable obligations of the commercial agent under article 3.1 and regulation 3(1), to look after the interests of the principal, and to act dutifully and in good faith, are to be imported into the definition of a commercial agent so that an agent acting for multiple principals does not fall within it.’ The correspondence indicated an implied term allowing the claimants to conduct additional competing agencies. The agreement was subject to the 1993 Regulations.
Statutes: Commercial Agents 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
This case cites:

  • Cited – Crane T/A Indigital Satellite Services -v- Sky In-Home Service Ltd and Another ChD (Bailii, [2007] EWHC 66 (Ch), [2007] 1 CLC 389)
    The Directive’s substantive provisions were modelled primarily on the provisions of German domestic law. . .
  • Cited – Sagal (T/A Bunz UK) -v- Atelier Bunz Gmbh CA (Bailii, [2009] EWCA Civ 700, [2009] CLC 1, [2009] 4 All ER 1253, [2010] 1 All ER (Comm) 104, [2009] ECC 30, [2009] 2 Lloyd’s Rep 303, [2009] Bus LR 1527)
    The court was asked whether the the appellant was a commercial agent of the defendant within the regulations, and so would be entitled to compensation on termination of the agency.
    Longmore LJ said: ‘It does not follow that every agent acting . .
  • Cited – Tamarind International Ltd and others -v- Eastern Natural Gas (Retail) Ltd and Another QBD (Times 27-Jun-00, Gazette 29-Jun-00, [2000] EuLR 708, [2000] CLC 1397, [2000] EuLR 908)
    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 . .
  • Cited – Marleasing SA -v- La Comercial Internacional de Alimentacion SA ECJ ((1992) 1 CMLR 305, C-106/89, [1990] ECR I-4135, Bailii, [1990] EUECJ C-106/89, [1990] 1 ECR 3313)
    LMA Oviedo sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
  • Cited – Ingmar Gb Ltd -v- Eaton Leonard Technologies Inc ECJ (Times 16-Nov-00, Europa, Europa, C-381/98, [2000] ECR I-9305, Bailii, [2000] EUECJ C-381/98, [2001] 1 CMLR 9, Bailii, [2000] EUECJ C-381/98_O)
    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 – Director General of Fair Trading -v- First National Bank HL (House of Lords, Times 01-Nov-01, Bailii, [2002] 1 AC 481, [2001] UKHL 52, [2001] 3 WLR 1297, [2002] 1 LLR 489, [2001] 2 All ER (Comm) 1000, [2002] 1 All ER 97, [2002] ECC 22, [2002] 1 Lloyd’s Rep 489)
    The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
    Held: The term was not covered by the Act, and was not unfair under the . .
  • Cited – Crane (T/A Indigital Satelite Services) -v- Sky In-Home Ltd and Another CA (Bailii, [2008] EWCA Civ 978)
    Arden LJ considered the principles to be applied when considering whether a party to civil litigation should be allowed to appeal a trial judge’s decision on the basis that a claim, which could have been brought before him but was not, would have . .
  • Cited – Crane T/A Indigital Satellite Services -v- Sky In-Home Service Ltd and Another ChD (Bailii, [2007] EWHC 66 (Ch), [2007] 1 CLC 389)
    The Directive’s substantive provisions were modelled primarily on the provisions of German domestic law. . .
  • Cited – Kelly -v- Cooper and Another PC (Gazette 25-Nov-92, [1993] AC 205, [1992] 3 WLR 936, [1993] ANZ Conv R 138)
    There was a dispute between a client and an estate agent in Bermuda. The client sued the estate agent for damages for breach of duty in failing to disclose material information to him and for putting himself in a position where his duty and his . .
  • Cited – Henderson -v- Merrett Syndicates Ltd HL ([1995] 2 AC 145, [1994] 3 All ER 506, Times 26-Jul-94, Bailii, [1994] UKHL 5, [1994] 3 WLR 761)
    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 . .
  • Cited – Tolhurst -v- Associated Portland Cement Manufacturers (1900) Ltd HL ([1903] AC 414)
    Tolhurst had contracted to sell a quantity of chalk from his quarries to the Imperial Company for fifty years. The Imperial Company afterwards assigned the Contract and sold its land, works and business to the Associated Company, and went into . .
  • Cited – Amb Imballaggi Plastici Srl -v- Pacflex Ltd CA (Gazette 07-Jul-99, Times 08-Jul-99, Bailii, [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)
    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 . .
  • Cited – Linden Gardens Trust Ltd -v- Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd -v- Sir Robert McAlpine HL (Times 23-Jul-93, Gazette 08-Dec-93, Independent 30-Jul-93, [1994] 1 AC 85, Bailii, [1993] UKHL 4, [1993] 3 All ER 417)
    The benefit of a contract may be assigned to a third party without the consent of the other contracting party. If this is not desired, it is open to the parties to agree that the benefit of the contract shall not be assignable by one or either of . .

Bryant Powis & Bryant -v- La Banque du Peuple; PC 1893

References: [1893] AC 170
Coram: Lord Macnaghten
Powers of Attorney are to be construed strictly.
This case is cited by:

  • Cited – McDowall -v- Inland Revenue SCIT (Bailii, [2003] UKSC SPC00382)
    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 . .

Branwhite -v- Worcester Works Finance Ltd; HL 1969

References: [1969] 1 AC 552
Coram: Lord Morris of Borth-y-Gest, Lord Wilberforce, Lord Reid, Lord Upjohn
A dealer may for some ad hoc purpose be the agent of a finance company. In relation to a purchase of a motor vehicle through a motor dealer, where the prospective purchaser completes an application for hire purchase in the office of the motor dealer, he forwards it to the finance company for approval, and if approved, the dealer delivers the motor vehicle to the customer. The finance company provides the purchase price to the motor dealer and the customer pays periodic payments to the finance company. The dealer is not acting as an agent of the finance company, merely arranging a finance application to be made by a prospective customer. If the dealer forwarded the finance application to a finance broker, the broker would be acting on behalf of the prospective customer.
Lord Wilberforce said that while in all hire purchase cases much must depend on the individual facts ‘such questions as arise of the vicarious responsibility of finance companies for the acts or defaults of dealers cannot be resolved without reference to the general mercantile structure within which they arise, or if one prefers the expression, to commercial reality.’
After citing Lord Pearson in Garnac, he went on: ‘The significant words for the present purpose are ‘if they have agreed to what amounts in law to such a relationship’These I understand as pointing to the fact that while agency must derive from consent, the consent need not necessarily be to the relationship of principal and agency itself (indeed the existence of it may be denied) but may be to a state of facts on which the law imposes the consequences which results from Agency. It is consensual not contractual. So interpreted this formulation allows the establishment of an agency relationship in such cases as the present.’
Lord Upjohn (with whom Lord Guest Agreed) considered that the acts of holding stock of Worcester’s formes of hire purchase agreement, filling them in with particulars including Worcester’s charges, having a prospective hirer sign the documents, and forwarding the forms to Worcester, showed that Raven was assisting the proposed hirer but did not establish that it had actual or apparent authority from the financier.
Statutes: Hire Purchase Act 1965
This case cites:

  • Approved – Mercantile Credit Co Ltd -v- Hamblin CA ([1965] 2 QB 242, [1964] 1 WLR 423)
    Pearson LJ said: ‘There is no rule of law that in a hire purchase transaction the dealer never is, or always is, acting as agent for the finance company or as agent for the customer.Nevertheless, the dealer is to some extent an intermediary between . .
  • Cited – Garnac Grain Co Inc -v- HMF Faure and Fairclough PC ([1967] 2 All ER 353, [1968] AC 1130, [1967] 3 WLR 143)
    The Board was asked what was necessary to establish the raltionship of principal and agent.
    Held: In the essence of agency is the element of consent.
    Lord Pearson said: ‘The relationship of principal and agent can only be established by . .

This case is cited by:

Sandeman Coprimar Sa -v- Transitos Y Transportes Integrales S L , Bradford Cargo Terminal Limited, Spain Tir Centro Transportes Internacionales S A , Interserve International Freight Plc, Joda Freight; CA 11 Feb 2003

References: Times 13-Feb-2003, [2003] 2 WLR 1496, [2003] QB 1270, [2003] EWCA Civ 113
Links: Bailii
Coram: Mr Justice Scott Baker, Lord Justice Rix, Lord Phillips MR
Sub-bailees had lost Spanish tax seals which vouched for the respective tax having been paid whilst whisky was being transported from Scotland to Spain. The seals themselves were made of paper and had no intrinsic value. The importers claimed for the tax which would have to be paid again. The carriers appealed.
Held: No carrier could anticipate the losses without specific knowledge of the nature and purpose of the seals. This was a consequential loss, and was too remote to be claimed. The liability under the guarantees was not recoverable either by describing the it as a ‘charge incurred in respect of the carriage of goods’. The Babco case could be distinguished, and should not be applied where it was not absolutely binding.
Statutes: Carriage of Goods by Road Act 1965, Convention for the International Carriage of Goods by Road Geneva 1956 23.4
This case cites:

  • Distinguished – James Buchanan and Co Ltd -v- Babco Forwarding and Shipping (UK) Ltd HL ([1978] AC 141)
    A consignment of whisky was stolen whilst on consignemt from a bonded warehouse under CMR terms for Teheran. In bond, it was worth £7,000, and on export no excise duty was to be paid. Being stolen in the course of transit, excise duty of . .

Moore Stephens (A Firm) -v- Stone Rolls Ltd (in liquidation); HL 30 Jul 2009

References: [2009] UKHL 39, [2009] 1 AC 1391, [2009] Bus LR 1356, [2009] PNLR 36, [2009] 3 WLR 455
Links: Bailii, Times
Coram: Lord Phillips of Worth Matravers, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance
The appellants had audited the books of the respondent company, but had failed to identify substantial frauds by an employee of the respondent. The auditors appealed a finding of professional negligence, relying on the maxim ex turpi causa non oritur actio.
Held: (Mance and Scott LL dissenting) The appeal succeeded. The company could not bring a claim which was based upon its own unlawful actions. The Hampshire Land principle that knowledge of an agent would not be imputed to its principal where that knowledge related to the agents own breach of duty to the principal was a general principle of the law of agency and was not limited to claims. In the case of a one man company, the sole actor test could be applied to impute to the company the knowledge of its agent – in this case as to the fraud he was undertaking.
Lord Phillips summarised his conclusions: ‘1) Under the principle of ex turpi causa the court will not assist a claimant to recover compensation for the consequences of his own illegal conduct.
2) This appeal raises the question of whether, and if so how, that principle applies to a claim by a company against those whose breach of duty has caused or permitted the company to commit fraud that has resulted in detriment to the company.
3) The answer to this question is not to be found by the application of Hampshire Land or any similar principle of attribution. The essential issue is whether, in applying ex turpi causa in such circumstances, one should look behind the company at those whose interests the relevant duty is intended to protect.
4) While in principle it would be attractive to adopt such a course, there are difficulties in the way of doing so to which no clear resolution has been demonstrated.
5) On the extreme facts of this case it is not necessary to attempt to resolve those difficulties. Those for whose benefit the claim is brought fall outside the scope of any duty owed by Moore Stephens. The sole person for whose benefit such duty was owed, being Mr Stojevic who owned and ran the company, was responsible for the fraud.
6) In these circumstances ex turpi causa provides a defence to the claim.’
This case cites:

  • At First Instance – Stone & Rolls Ltd -v- Moore Stephens (A Firm) Comc (Bailii, [2007] EWHC 1826 (Comm), [2008] Bus LR 304, (2007) 157 NLJ 1154, [2008] PNLR 4, [2008] 1 BCLC 697)
    The company claimed against its chartered accountants for negligence when acting as auditors. The sole directing mind of the company had used it as a vehicle for substantial frauds. The court was asked ‘whether and if so when can a claim by a . .
  • Appeal from – Moore Stephens (A Firm) -v- Stone & Rolls Ltd CA (Bailii, [2008] EWCA Civ 644, [2008] Bus LR 1579, [2008] PNLR 36, [2008] 3 WLR 1146, [2008] 2 Lloyd’s Rep 319, [2008] 2 BCLC 461)
    The company claimed against its accountants for negligence in not discovering the substantial dishonesty of the claimant’s employee, its directing mind and sole shareholder.
    Held: Rimer LJ said that the critical question was whether it was . .
  • Cited – Re Hampshire Land Company ([1896] 2 Ch 743)
    A company had borrowed from a building society. The borrowing was not properly authorised by resolution. The court was asked whether whether the knowledge of the company secretary common to both the company and the society, as to the irregularity . .
  • Cited – Hall -v- Hebert ([1993] 2 SCR 159, (1993) 101 DLR (4th) 129, 1993 CanLII 141, Canlii)
    (Canadian Supreme Court) McLachlin J discussed the need for a consistent and defensible principle for the operation of the doctrine ex turpi causa: ‘a need in the law of tort for a principle which permits judges to deny recovery to a plaintiff on . .
  • Cited – Gray -v- Barr CA ([1971] 2 QB 554)
    A husband had accidentally shot and killed his wife’s lover after threatening him with a shotgun.
    Held: The court confirmed the decision at first instance. He was not liable to be indemnified by his insurers for the losses claimed against him . .
  • Cited – Thackwell -v- Barclays Bank plc ([1986] 1 All ER 676)
    The plaintiff was party to a fraudulent scheme under which a cheque had been made payable to him. The plaintiff’s signature endorsing the cheque to a third party was forged and in reliance on the forgery the bank credited the third party. The . .
  • Cited – Al Saudi Banque -v- Clarke Pixley ([1990] 2 WLR 344, [1990] Ch 313)
    An auditor does not generally owe a duty of care in tort to a company’s creditors. Millet J referred to the Court of Appeal decision in Caparo: ‘In my judgment, Caparo’s case is binding authority for the following propositions. (i) In cases of . .
  • Cited – Caparo Industries Plc -v- Dickman and others HL ([1990] 2 AC 605, Bailii, [1990] UKHL 2, [1990] 1 All ER 568)
    The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
    Held: The . .
  • Cited – Meridian Global Funds Management Asia Ltd -v- Securities Commission PC (Gazette 19-Jul-95, Times 29-Jun-95, [1995] 2 AC 500, Bailii, [1995] BCC 942, [1995] 3 All ER 918, [1995] UKPC 5, [1995] 3 WLR 413, [1995] 2 BCLC 116)
    (New Zealand) The former managing director of Meridian used the company’s funds to make it a substantial security holder but neither he nor anyone else gave the requisite statutory notice requiring every person who became a ‘substantial security . .
  • Cited – Tinsley -v- Milligan HL (Independent 06-Jul-93, Times 28-Jun-93, [1994] 1 AC 340, Bailii, [1993] UKHL 3, [1993] 3 WLR 126, [1993] 3 All ER 65)
    Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
  • Cited – Alexander -v- Rayson CA ((1936) 1 KB 169)
    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 £1200 and contracted that certain services in connection with the flat would be performed. The plaintiff sent the . .
  • Cited – Hewison -v- Meridian Shipping Pte, Coflexip Stena Offshore Ltd, Flex Installer Offshore Ltd CA (Times 28-Dec-02, Bailii, [2002] EWCA Civ 1821, [2003] PIQR 252, [2003] ICR 766, [2002] All ER (D) 146)
    The claimant was awarded damages for injuries suffered in his work as a seaman. The respondents claimed that he should not receive damages, since he had made false declarations as to his health in order to obtain employment, hiding his epilepsy . .
  • Cited – Cross -v- Kirkby CA ([2000] EWCA Civ 426, Bailii, Times 05-Apr-00)
    The court considered the ambit of the defence of ‘ex turpi cause non oritur actio’: ‘In my view the principle applies when the claimant’s claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court . .
  • Cited – United Project Consultants Pte Ltd -v- Leong Kwok Onn ([2005] 4 SLR 214)
    (Singapore) In determining whether to impose a duty of care in cases of pure economic loss, the courts have ‘consistently adopted a restrictive approach. . .

Re W (Enduring Power of Attorney); 2000

References: [2000] 1 All ER 175, [2002] MHLR 411, [2000] Ch 343, [2000] 3 WLR 45
Coram: Jules Sher QC
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.”
This case is cited by:

  • Cited – X -v- Y, Z sub nom In re E (Enduring power of attorney) ChD (Bailii, [2000] EWHC Ch 144, [2001] Ch 364, [2000] 1 FLR 882, [2000] 3 All ER 1004, [2000] 3 WLR 1974)
    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 (Bailii, [2003] EWHC 2335 (Admin), [2004] 1 MHLR 1)
    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 . .

Re MRJ JT and KT (Reconsideration of Order); CoP 10 Apr 2014

References: [2014] EWHC B15 (COP)
Links: Bailii
Coram: Lush LJ
The court had made an order transferring responsibility for MRJ’s affairs from the appointed attorney to the local authority. The order had been made on the papers, and the court now heard an application for it to be reconsidered.
Held: The orders made were confirmed. The court recognised that the interference in a person’s choice of attorney was an interference in their right to private and family life under article 8 of the Convention, and must only be allowed where fully warranted. The evidence now before the court established even more clearly the mismanagement of the patient’s affairs by the agent.
Statutes: Mental Capacity Act 2005, Court of Protection Rules 2007, European Convention on Human Rights 8
This case cites:

  • Cited – Re S & S CoP ([2008] COPLR Con Vol 1074)
    Hazel Marshall QC J described the system of reconsideration under the 2007 Rules: ‘ Such a reconsideration is not an appeal. The processes in the Court of Protection are intended to give the court wide flexibility to reach a decision quickly, . .
  • Cited – Re Harcourt CoP ([2013] COPLR 69)
    Unless warranted under Article 8.2, the revocation by the Court of Protection an LPA, which a donor executed when they had capacity and in which they chose a family member to be their attorney, would be a violation of their Article 8.1 right to . .

Hovenden and Sons -v- Millhoff; 1900

References: [1900] 83 LT 41
Coram: Romer LJ
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 appreciate and approve of the court’s views on the subject. But some persons undoubtedly hold laxer views. Not that these persons like the ugly word ‘bribe’ or would excuse the giving of a bribe if that word be used, but they differ from the courts in their view as to what constitutes a bribe. It may, therefore, be well to point out what is a bribe in the eyes of the law. Without attempting an exhaustive definition I may say that the following is one statement of what constitutes a bribe. If a gift be made to a confidential agent with a view of inducing the agent to act in favour of the donor in relation to transactions between the donor and the agent’s principal and that gift is secret as between the donor and the agent – that is to say , without the knowledge and consent of the principal – then the gift is a bribe in the view of the law. If a bribe be once established to the court’s satisfaction then certain rules apply. Amongst them the following are now established, and, in my opinion, rightly established in the interests of morality with the view of discouraging the practice of bribery. First, the court will not enquire into the donor’s motive in giving the bribe, nor allow evidence to be gone into as to the motive. Secondly, the court will presume in favour of the principal and as against the briber and the agent bribed, that the agent was influenced by the bribe; and this presumption is irrebuttable. Thirdly, if the agent be a confidential buyer of goods for his principal from the briber, the court will assume as against the briber that the true price of the goods as between him and the purchaser must be taken to be less than the price paid to, or charged by the vendor by, at any rate, the amount or value of the bribe. If the purchaser alleges loss or damage beyond this, he must prove it ‘.
This case is cited by:

  • Explained – Industries and General Mortgage Co Ltd -v- Lewis ([1949] 2 All ER 573)
    The court discussed difficulties in defining what is a bribe, Slade J said: ‘For the purposes of the civil law a bribe means the payment of a secret commission, which only means (i) that the person making the payment makes it to the agent of the . .
  • Cited – Anangel Atlas Compania Naviera SA -v- Ishikawajima-Harima Heavy Industries Co Ltd ([1990] 1 Lloyd’s Reports 167)
    The plaintiffs sought recovery of moneys paid by the defendants to one George Thomas Richardson Campbell, a distinguished naval architect on the ground that such payments has been made secretly while Mr Campbell has been acting for the plaintiffs in . .
  • Cited – Tesco Stores Limited -v- Simon Pook, Natasha Kersey Pook, Universal Projects (Uk) Limited ChD (Bailii, [2003] EWHC 823 (Ch), [2004] IRLR 618)
    A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
  • Cited – Armagas Ltd -v- Mundogas SA (‘The Ocean Frost’) CA ([1985] 1 Lloyd’s Rep 1)
    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 . .

Re Chapman ex parte Edwards; CA 1884

References: (1884) 13 QBD 747
Coram: Baggallay LJ
The solicitor for the petitioning creditor was liable to account to the trustee for money which he had received from the debtor after he (necessarily) had notice of the act of bankruptcy on which the petition was founded and which he had paid to his client before the debtor was adjudicated bankrupt.
Held: The solicitor ‘knew perfectly well that, if an adjudication of bankruptcy was made on the petition, the title of the trustee in the bankruptcy would relate back to the act of bankruptcy, and that all the property which would otherwise have belonged to the bankrupt would be the property of the trustee as from the date of the act of bankruptcy.’ An agent is liable to make restitution to the third party because he knew that his principal was no more entitled to the money than he was himself.
This case is cited by:

  • Cited – Re Dennis (A Bankrupt) CA (Ind Summary 22-May-95, [1995] 3 All ER 171, [1995] 3 WLR 367)
    A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; . .
  • Cited – Portman Building Society -v- Hamlyn Taylor Neck (a Firm) CA ([1998] 4 All ER 202, Bailii, [1998] EWCA Civ 686)
    The mortgage advance had been against an express requirement that the client use the property as his private residence. After the client defaulted, the appellant lender discovered that the solicitors acting for themselves and the lay client had . .

Smith, Stone and Knight Limited -v- Birmingham; 1939

References: [1939] 4 All ER 116
Coram: Atkinson J
An application was made to set aside a preliminary determination by an arbitrator. The parties disputed the compensation payable by the respondent for the acquisition of land owned by Smith Stone and held by Birmingham Waste as its tenant on a yearly tenancy. Birmingham Waste was a wholly owned subsidiary of Smith Stone and was said in the Smith Stone claim to carry on business as a separate department and agent for Smith Stone. As a yearly tenant, Birmingham Waste, however, had no status to claim compensation. The question was whether, as a matter of law, the parent company could claim compensation for disturbance to the business carried on at the acquired premises. The arbitrator’s award answered this in the negative. Smith Stone applied to set the award aside on the ground of technical misconduct.
Held: An implied agency existed between the parent and subsidiary companies so that the parent was considered to own the business carried on by the subsidiary and could claim compensation for disturbance caused to the subsidiary’s business by the local council. In determining whether a subsidiary was an implied agent of the parent, Atkinson J examined whether, on the facts as found by the arbitrator and after rejecting certain conclusions of fact which were unsupported by evidence, Smith Stone was in fact the real owner of the business and was therefore entitled to compensation for its disturbance.
The rule to protect the fact of separate corporate identities was circumvented because the subsidiary was the agent, employee or tool of the parent. The subsidiary company was operating a business on behalf of its parent company because its profits were treated entirely as those of the parent company’s; it had no staff and the persons conducting the business were appointed by the parent company, and it did not govern the business or decide how much capital should be embarked on it. In those circumstances, the court was able to infer that the company was merely the agent or nominee of the parent company.
Atkinson J formulated six relevant criteria, namely:
‘(a) Were the profits treated as profits of the parent?
(b) Were the persons conducting the business appointed by the parent?
(c) Was the parent the head and brain of the trading venture?
(d) Did the parent govern the venture, decide what should be done and what capital should be embarked on the venture?
(e) Did the parent make the profits by its skill and direction?
(f) Was the parent in effectual and constant control?’
This case is cited by:

  • Cited – Reed -v- Marriott (Solicitors Regulation Authority) Admn (Bailii, [2009] EWHC 1183 (Admin))
    The appellant solicitor had entered into an arrangement with a company to receive referrals of personal injury cases. She said that the agreements were deliberately devised to hide the fact that unlawful referral fees were to be paid, by requiring . .

Re Harcourt; CoP 2013

References: [2013] COPLR 69
Unless warranted under Article 8.2, the revocation by the Court of Protection an LPA, which a donor executed when they had capacity and in which they chose a family member to be their attorney, would be a violation of their Article 8.1 right to respect for their private and family life
Statutes: European Convention on Human Rights 8.2, Mental Capacity Act 2005
This case is cited by:

  • Cited – Re MRJ JT and KT (Reconsideration of Order) CoP (Bailii, [2014] EWHC B15 (COP))
    The court had made an order transferring responsibility for MRJ’s affairs from the appointed attorney to the local authority. The order had been made on the papers, and the court now heard an application for it to be reconsidered.
    Held: The . .

Lonsdale (T/A Lonsdale Agencies) -v- Howard & Hallam Ltd; HL 4 Jul 2007

References: [2007] UKHL 32, Times 10-Jul-2008
Links: Bailii
Coram: Lord Bingham of Cornhill, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Carswell, Lord Neuberger of Abbotsbury
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.’
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
This case cites:

  • Appeal from – Lonsdale -v- Howard & Hallam Ltd CA (Bailii, [2006] EWCA Civ 63, Times 21-Feb-06, [2006] 1 WLR 1281)
    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] AC 26)
    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 (Times 16-Nov-00, Europa, Europa, C-381/98, [2000] ECR I-9305, Bailii, [2000] EUECJ C-381/98, [2001] 1 CMLR 9, Bailii, [2000] EUECJ C-381/98_O)
    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 (C-465/04, Bailii, [2005] EUECJ C-465/04, [2006] ECR I-02879)
    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 ([1997] 3 All ER 656, Bailii, [1996] EWCA Civ 1312)
    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 – Douglas King -v- T Tunnock Limited IHCS (Bailii, ScotC, [2000] Eur LR 531, [2000] SLT 744, [2000] ScotCS 70, 2000 SC 424)
    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 (Times 15-May-01, Bailii, [2001] EWHC QB 462, [2001] EuLR 567, [2001] All ER (D) 78)
    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 (Bailii, [2003] ECC 23, [2003] EWHC 23 (QB), [2003] EuLR 189)
    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 (Bailii, [2005] EWHC 2790 (QB), [2006] EuLR 578)
    Claim for compensation after termination of commercial agency agreement. . .

Hollins -v- Fowler; HL 1875

References: (1875) LR 7 HL 757
Coram: Blackburn J, Brett J
One who deals with goods at the request of the person who has the actual custody of them, in the bona fide belief that the custodier is the true owner, or has the authority of the true owner, should be excused for what he does if the act is of such a nature as would be excused if done by the authority of the person in possession if he was a finder of the goods or intrusted with their custody. Thus a warehouseman with whom goods had been deposited is guilty of no conversion by keeping them or restoring them to the person who deposited them with him, though that person turns out to have had no authority from the true owner. The same principle applies to persons ‘acting in a subsidiary character, like that of a person who has the goods of a person employing him to carry them, or a caretaker, such as a wharfinger’. Blackburn J (Advising the House): ‘If, as is quite possible, the changes in the course of business since the principles of law were established make them cause great hardships or inconvenience, it is the province of the Legislature to alter the law.’
This case cites:

  • Appeal from – Fowler -v- Hollins ((1872) LR 7 QB 616)
    The plaintiff claimed in conversion of bales of cotton bought in good faith through a broker in Liverpool.
    Held: The purchasers were strictly liable. Cleasby J: ‘the liability under it is founded upon what has been regarded as a salutary rule . .

This case is cited by:

  • Cited – Marcq -v- Christe Manson and Woods (t/a Christies) QBD (Times 25-Nov-02, Gazette 28-Nov-02)
    The claimant sought damages for conversion from the respondent auctioneers as bailees. The painting had been registered as stolen. It failed to achieve its reserve and had been returned.
    Held: It was for a bailee to prove that he had acted in . .
  • Cited – Marcq -v- Christie, Manson & Woods Ltd CA (Bailii, [2003] EWCA Civ 731, Times 30-May-03, Gazette 10-Jul-03, [2004] QB 286)
    The claimant’s stolen painting was put up for sale by the defendant. On being withdrawn, they returned it to the person who had brought it in. The claimant sought damages.
    Held: There was no reported case in which a court has had to consider . .
  • Cited – Consolidated Co -v- Curtis & Son QBD ((1892) 1 QB 495)
    An auctioneer who sold and delivered goods the subject of a bill of sale. An auctioneer who sells and delivers is liable in conversion because he is acting as more than a mere broker or intermediary.
    Held: It is not easy to draw the line at . .
  • Cited – Douglas and others -v- Hello! Ltd and others; similar HL (Bailii, [2007] UKHL 21, Times 03-May-07, [2007] 2 WLR 920, [2008] 1 AC 1)
    In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .

Industries and General Mortgage Co Ltd -v- Lewis; 1949

References: [1949] 2 All ER 573
Coram: Slade J
The court discussed difficulties in defining what is a bribe, Slade J said: ‘For the purposes of the civil law a bribe means the payment of a secret commission, which only means (i) that the person making the payment makes it to the agent of the other person with whom he is dealing; (ii) that he makes it to that person knowing that that person is acting as the agent of the other person with whom he is dealing; and (iii) that he fails to disclose to the other person with whom he is dealing that he has made that payment to the person whom he know to be the other person’s agent. Those three are the only elements necessary to constitute the payment of a secret commission or bribe for civil purposes.’ and ‘Yes, but earlier the learned judge has said that if a gift be made to a confidential agent with a view to inducing him, it is a bribe, and, therefore, in using the later language and referring to the bribes the learned judge is in effect saying: ‘I am using these later presumptions in cases where a bribe has been established and I have already defined a bribe as being only something which has been established as being paid with a certain motive.’ That, of course, would tear up the whole of the learned judge’s observation because he says lower down that the courts will not receive evidence as to what is the motive of the person making the payment. The motive will be conclusively inferred against him.’
This case cites:

  • Explained – Hovenden and Sons -v- Millhoff ([1900] 83 LT 41)
    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 . .

This case is cited by:

C -v- V; CoP 25 Nov 2008

References: [2008] EWHC B16 (COP), [2008] EWHC B16 (Fam), [2009] LS Law Medical 97, [2009] WTLR 315
Links: Bailii, Bailii
Coram: Marshall QC J
The court heard an appeal objecting to the appointment of a sibling as Deputy for the parents now lacking capacity. Both daughters had at one time been appointed under Enduring Powers of Attorney, acting jointly, but the daughters became estranged. V who had charge of the bookkeeping came to want to register the power, but C objected. After conflicting expert reports, the Court considered that something needed to be done and appointed V deputy (on her application), rather than an independent person, using his powers under the 2005 Act.
Held: The appeal succeeded. The decision had failed to take proper account of the parents’ expressed wishes: ‘the learned judge was wrong to dismiss as non-existent the implications from the EPAs’ having been joint appointments of the two daughters and not joint and several appointments. The difference between those two regimes is clearly spelled out in the notes on the form itself, and it must be assumed was appreciated and intended by Mr and Mrs S. On that basis, it was an almost inescapable inference that they, as donors of the powers, wanted relevant decisions either to be joint, or to be made by neither appointee, and did not want their affairs to be dealt with by the sole decision of one appointee alone.’
Both experts had recommended an independent professional as deputy, and ‘the possible disadvantages of having an impersonal Deputy managing their affairs at a formal level rather than V have been sufficiently conveyed to Mr and Mrs S as to mean that even the later expressions of their preferences are not invalidated, and should not be downgraded in weight on that account.’ As occasion allowed in due course the parents should be consulted as to whether this was working.
Marshall QC described the situation under the new Act: ‘there has been a whole sea change in the attitude of the law to persons whose mental capacity is impaired’ and ‘Two major changes are therefore embodied in the statute. The first is official recognition that capacity is not a blunt ‘all or nothing’ condition, but is more complex, and is to be treated as being issue specific. A person may not have sufficient capacity to be able to make complex, refined or major decisions but may still have the capacity to make simpler or less momentous ones, or to hold genuine views as to what he wants to be the outcome of more complex decisions or situations.
The second change is the emphasis throughout the Act on the ascertainment of the actual or likely wishes, views and preferences of the person lacking full capacity, and on involving him in the decision making process. This approach underlies s.1(2) (presumption of capacity), s 1(3) (duty to help P to make his own decision if he can), 1(4) (recognition that a person’s capacity, and therefore right, to make decisions does not depend on how objectively ‘wise’ those decisions are), s1(6) (P’s rights and freedom of action should be restricted as little as practicable), and s 4(4) (duty on decision maker to involve P in decisions), and it is the only conceivable reason for imposing the duty to consider P’s wishes or likely wishes (s 4.(6)) and to take trouble to ascertain them s (4 (7)).’
Statutes: Mental Capacity Act 2005 1
This case cites:

  • Cited – G -v- G (Minors: Custody appeal) HL ([1985] 1 WLR 647)
    The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
    Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
  • Cited – Tanfern Ltd -v- Cameron-MacDonald, Cameron-MacDonald CA (Times 17-May-00, Gazette 15-Jun-00, Bailii, [2000] 1 WLR 1311, [2000] EWCA Civ 152, [2000] 2 All ER 801, Bailii, [2000] EWCA Civ 3023)
    The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .
  • Cited – Asiansky Television Plc and Another -v- Bayer-Rosin CA (Bailii, [2001] EWCA Civ 1792, [2002] CPLR 111, [2001] EWCA 1792)
    The court considered the circumstancs allowing a striking out.
    Held: Consideration should be given to the question whether striking out the claim or defence would be disproportionate and, except perhaps where striking it out would be plainly . .