Category: Agency

Barton v Gwyn-Jones and Others: CA 21 Nov 2019

The court was asked whether a contract for a specified introduction fee, payable to an agent if a property is sold at a particular price, leaves no room for remuneration to be payable, nevertheless, where the property is sold for a lesser sum to the party who has been introduced.

Citations:

[2019] EWCA Civ 1999

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Agency

Updated: 13 September 2022; Ref: scu.644121

James Lawson, Merchant, Glasgow v John Tait, W S, Trustee for The Creditors and Representatives of John Hamilton, Deceased: HL 28 Apr 1779

Circumstances in which letters and other documents held not to prove that certain bills were granted merely as agent for a third party, and only to vouch the extent of the creditor’s advances to that party until a certain share in his trade in Virginia was given to him; notwithstanding it was admitted that the money so received, and for which the bills were given, was appropriated for that third party’s use, and he had agreed to give the creditor in the bills the share in the concern he desired.

Citations:

[1779] UKHL 2 – Paton – 505

Links:

Bailii

Jurisdiction:

Scotland

Agency, Contract

Updated: 08 September 2022; Ref: scu.562038

Knight Frank Llp v Du Haney: CA 12 Apr 2011

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 circumstances where the principal is nonetheless identified and his correct name capable of being established.
Held: The appeal failed. The judge’s findings made it clear that the claimant had not acted as principal but as agent.

Judges:

Lloyd, Wilson, Tomlinson LJJ

Citations:

[2011] EWCA Civ 404

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hersom v Bernett 1954
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 . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 06 September 2022; Ref: scu.432648

Crowson v HSBC Insurance Brokers Ltd: ChD 23 Nov 2010

The court was asked whether a person who is not in a contractual relationship with an insurance broker nonetheless has rights of action in tort and/or contract where the insurance to be arranged is also for his benefit.

Judges:

Bragge M

Citations:

[2010] EWHC B26 (Ch), [2010] Lloyd’s Rep IR 441

Links:

Bailii

Jurisdiction:

England and Wales

Insurance, Agency, Contract

Updated: 27 August 2022; Ref: scu.426469

De Comas v Prost and Kohler: PC 13 Mar 1865

New South Wales

Citations:

[1865] EngR 311, (1865) 3 Moo PC NS 158, (1865) 16 ER 59, [1865] UKPC 17

Links:

Commonlii, Bailii

Cited by:

Cited – Bailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Agency

Updated: 24 August 2022; Ref: scu.423908

Wincanton Ltd v P and O Trans European Ltd: CA 15 Feb 2001

Dyson LJ discussed the responsibilities of a bailee: ‘The critical question is always whether the parties agreed or intended (expressly or impliedly) that the obligations of the intermediate bailee should continue after he has parted with possession to a third party’

Judges:

Dyson LJ

Citations:

[2001] EWCA Civ 227, [2001] CLC 962

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kamidian v Holt (on Behalf of Certain Underwriters at Lloyd’s) and others ComC 27-Jun-2008
The claimant claimed to have bought what he believed to be a genuine Faberge Egg Clock, but which his insurers said was a copy. It was loaned to an exhibition, and insured, and damaged twice. The parties disagreed as to the disappreciation value, . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 21 August 2022; Ref: scu.218031

Mackay and Another v The Commercial Bank of New Brunswick and Others: PC 14 Mar 1874

(New Brunswick) It may be generally assumed that, in mercantile transactions, principals do not authorise their agents to act fraudulently, frauds are beyond the agent’s authority in the narrowest sense of which the expression admits; but that so narrow a sense would be opposed to justice and so a wider construction had been put on the words, and that it was difficult to define how far it went.

Judges:

Sir Montague Smith

Citations:

[1874] UKPC 20

Links:

Bailii

Jurisdiction:

Canada

Cited by:

Cited – Mohamud v WM Morrison Supermarkets plc SC 2-Mar-2016
The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Agency

Updated: 20 August 2022; Ref: scu.418905

Smith, Bailey Palmer v Howard and Hallam Ltd: QBD 14 Nov 2005

Claim for compensation after termination of commercial agency agreement.

Judges:

Overend J

Citations:

[2005] EWHC 2790 (QB), [2006] EuLR 578

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Flawed – Lonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd HL 4-Jul-2007
The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ . .
Lists of cited by and citing cases may be incomplete.

Agency, European

Updated: 15 August 2022; Ref: scu.258636

American Express International Banking Corporation v Hurley: ChD 1985

The property mortgaged was specialised sound and lighting equipment used at pop concerts. The mortgagee’s guarantor was dissatisfied with the way in which the receiver sold the equipment.
Held: Where a company receiver was appointed under a charge in common form, he acted as the agent of the the mortgagor until the mortgagor’s liquidation. Something more is required to constitute a relationship of principal and agent between the mortgagee and the receiver than the mere appointment under the terms of a debenture which in its normal form constitutes the receiver an agent for the mortgagor. While he was such, the mortgagee was not responsible for what the receiver did unless and until he directed or interfered with the receiver’s activities. Furthermore, the mortgagee, or receiver, had a duty of care to the guarantor of the mortgagor’s debt to obtain the true market value of the mortgaged property when either of them realised the property in the exercise of a power of sale. In the circumstances of this case the receiver had not taken reasonable care to obtain the true market value.
Mann J said: ‘In my judgment the receiver did not take reasonable care in all the circumstances of the case to obtain the true market value of the equipment. He had in his hands equipment which he knew had been valued at andpound;193,323 and which he knew was of a specialist nature. In regard to the disposal of the equipment he did nothing. Although advised by Edward Symmons Ltd that he should look to the trade the receiver did not do so but was content that the trade should look to him. In my judgment the failure to take reasonable care is manifest in these forms: (i) a failure to take specialist advice from a person in the popular music industry; (ii) a failure to advertise in publications concerning the popular music industry. The receiver is liable in negligence to the guarantor.’

Judges:

Mann J

Citations:

[1985] 3 All ER 564, [1986] BCLC 52

Jurisdiction:

England and Wales

Cited by:

Cited – Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency, Banking, Insolvency

Updated: 05 August 2022; Ref: scu.267746

The Winkfield: 1902

A bailee in possession has a right to recover for loss or damage to his bailor’s goods even though he would have had a good defence to an action by the bailor.

Citations:

[1902] P 42

Jurisdiction:

England and Wales

Cited by:

Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.

Agency, Transport

Updated: 04 August 2022; Ref: scu.218911

Taylor v Van Dutch Marine Holding Ltd and Others: ChD 22 Jul 2019

Judges:

Julia Dias QC sitting as a deputy High Court judge

Citations:

[2019] EWHC 1951 (Ch), [2019] WLR(D) 491

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – King and Another v Hoare 25-Nov-1844
A judgment (without satisfaction) recovered against one of two joint debtors is a bar to an action against the other: – Secus where the debt is joint and several. – And it is pleadable in bar, and not in abatement. – Such a plea need not contain a . .
Cited – Priestly v Fernie and Another CEC 23-Jun-1863
The master of a ship had been sued on a bill of lading. The plaintiff recovered judgment against the master but attempts to enforce it proved unsuccessful as the master became bankrupt. The plaintiff then discovered that the master had signed the . .
Cited – Kendall v Hamilton HL 1879
The plaintiff had made a loan to a partnership consisting of Wilson and McLay in order to finance certain shipments. Unknown to the plaintiff, the shipments were in fact for the joint benefit of Wilson, McLay and one Hamilton, who had authorised . .
Cited – Edinburgh and District Tramways Co Ltd v Courtenay SCS 29-Oct-1908
(Court of Session Inner House First Division) There was contract between a tramway company and an advertising firm, under which the firm paid a rental for the right to display advertising on the tramcars. It was up to the firm to provide the boards . .
Cited – Pendleton and Another v Westwater and Another CA 28-Nov-2001
. .
Cited – Pendleton and Another v Westwater CA 30-Apr-2001
. .
Lists of cited by and citing cases may be incomplete.

Contract, Agency, Litigation Practice

Updated: 28 July 2022; Ref: scu.640883

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

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 . . ‘

Judges:

Longmore LJ, Laws L, Lloyd L

Citations:

[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

Statutes:

Commercial Agents (Council Directive) Regulations 1993 2(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Claramoda Ltd v Zoomphase Ltd (T/A Jenny Packham) ComC 13-Nov-2009
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 3-Oct-2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
Lists of cited by and citing cases may be incomplete.

Agency, European

Updated: 28 July 2022; Ref: scu.347424

Adler v Ananhall Advisory and Consultancy Services Ltd: CA 18 Jun 2009

The parties disputed the effect of an agreement providing for commission on introduction of purchasers for a property. The client alleged fraudulent misrepresentation.

Judges:

Arden, Toulson, Goldring LJJ

Citations:

[2009] EWCA Civ 586

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Torts – Other

Updated: 28 July 2022; Ref: scu.347057

Burney v The London Mews Company Ltd: CA 7 May 2003

The defendant sought to appeal judgment against him for his estate agent’s commission. They had been appointed sole agents. A second firm obtained the particulars for their own retained clients, but then copied the particulars onto their own letterhead and advertised the property generally, finding the buyer. That buyer refused to buy through the second agents and approached the appellant direct. The appellant sold the house to the buyer telling the agent the house was withdrawn.
Held: Whilst a prudent draftsman would have put the point beyond doubt by making an express provision on the issue commission was payable because a purchaser was introduced ‘by another agent during that period’ within the terms of the relevant clause. ‘It would, as it seems to me, drive a coach and horses through the agreements which all estate agents make with vendors, if the mere fact that a would be purchaser. Who picked up the particulars from an estate agent’s desk, but carried out all the necessary bargaining thereafter, had the effect and of depriving the estate agent of their commission. . . What Kaye and Co did was to utilise the particulars. The effect of utilising the particulars was to introduce a purchaser — the very thing which the vendor hoped would happen by virtue of his employment of London Mews. London Mews did nothing wrong. They are not relying on something that they were not entitled to do, and in my view, the judge was right in the conclusion he came to that on the facts of this case, London Mews introduced Mr Cullinane to the transaction by use of their particulars, and I would uphold the judgment on that ground.

Judges:

Waller LJ, Kay LJ, Lindsay J

Citations:

[2003] EWCA Civ 766

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – McCann v Pow CA 1975
The estate agents, McCann, claimed a commission, earned as they alleged in their particulars of claim through the activities of persons they described as their ‘subagents’, a firm called Douglas and Co. They had taken a number of steps: they had . .
Cited – Wood (John D) and Co v Dantata; Beauchamp Estates v Dantata CA 1987
The purchaser liked inspecting houses and the vendor had appointed ten firms to act for him as estate agents. Each of the estate agents was approached by this purchaser and each of the estate agents took the would be purchaser over the property of . .
Cited – Peter Yates v Bullock 1992
Whether an introduction of a purchaser by an estate agent to the vendor was the ‘effective cause’ of the transaction which ultimately takes place must be resolved by an examination of the facts as a whole. . .
Cited – Nahum v Royal Holloway and Bedford New College CA 12-Nov-1998
An estate agent was entitled to his commission when he could show that it was he who had brought about the relationship of buyer and seller. Delay and actions of others intended to hide that causation did not defeat the claim. The defendant asked . .

Cited by:

Cited – Foxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
Cited – Glentree Estates Ltd and Others v Favermead Ltd ChD 20-May-2010
The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 28 July 2022; Ref: scu.183384

Smith v Henniker-Major and Co: ChD 17 Oct 2001

Judges:

Rimer J

Citations:

[2001] EWHC 484 (Ch), [2002] BCC 544

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Smith v Henniker-Major and Co CA 22-Jul-2002
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 . .
Lists of cited by and citing cases may be incomplete.

Company, Agency

Updated: 26 July 2022; Ref: scu.346884

Priestly v Fernie and Another: CEC 23 Jun 1863

The master of a ship had been sued on a bill of lading. The plaintiff recovered judgment against the master but attempts to enforce it proved unsuccessful as the master became bankrupt. The plaintiff then discovered that the master had signed the bill as agent on behalf of the shipowner and sought to implead the owner.
Held: The action could not be maintained.
Bramwell B said: ‘If this were an ordinary case of principal and agent, where the agent, having made a contract in his own name, has been sued on it to judgment, there can be no doubt that no second action would be maintainable against the principal. The very expression that where a contract is so made the contractee has an election to sue agent or principal, supposes that he can only sue one of them, that is to say, sue to judgment. For it may-be that an action against one might be discontinued and fresh proceedings be well taken against the other. Further, there is abundance of authority to shew that where the situation of the principal is altered by dealings with the agent as principal, the former is no longer subject to an action. But this is the case here. The defendants may or may not be liable to indemnify the master in respect of his costs or his imprisonment. But they are clearly liable to him or his estate, in respect of the damages recovered against him, and proceedings might have been taken against them as soon as judgment was recovered against the master, and before any payment by or execution against him. They are now therefore under a liability to the master or his estate to the extent of the whole claim, and yet it is sought to bring them under a fresh liability for that to the plaintiffs.’

Judges:

Bramwell B

Citations:

[1863] EngR 737, (1865) 3 H and C 977, (1863) 159 ER 820

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Taylor v Van Dutch Marine Holding Ltd and Others ChD 22-Jul-2019
. .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 26 July 2022; Ref: scu.283392

Rhodes v Macalister: CA 1923

The plaintiff agent acted to find a seller of mineral rights for the defendant principal. He told his principal that the properties could be purchased for from andpound;8,000 to andpound;10,000. If the agent could find a seller at below andpound;9,000, then, the defendant agreed, the plaintiff could have the difference between the actual price and andpound;9,000. The agent found a seller at andpound;6,625 and claimed the difference, viz. andpound;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 andpound;8,000 to andpound;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.’

Judges:

Bankes, Scrutton, Atkin LJJ

Citations:

(1923) 29 Com Cas 19

Jurisdiction:

England and Wales

Citing:

Approved – Boston Deep Sea Fishing and Ice Co v Ansell CA 1888
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 and Co 1903
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 . .

Cited by:

Cited – Imageview Management Ltd v Jack CA 13-Feb-2009
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 5-Sep-2011
The claimants sought return of what it said were secret commissions earned by the defendants when working as their agents, and the defendants counterclaimed saying that the commissions had been known to the claimants and that additional sums were . .
Lists of cited by and citing cases may be incomplete.

Agency, Equity

Updated: 26 July 2022; Ref: scu.282636

Republic of Haiti v Duvalier: CA 1989

The defendant had fled from Haiti with a large part of that country’s assets while in power. Proceedings were pending in France which gave no jurisdiction to grant a worldwide freezing or disclosure order. He had used a firm of English solicitors as his agents to conceal the stolen assets.
Held: The court ordered the firm to give information about the funds, granting world wide relief meanwhile under section 25 of the 1982 Act. The Convention requires each contracting state to make available, in aid of the court of another contracting state, such provisional and protective measures as its own domestic law would afford if its courts were trying the substantive action. That would be harmonisation of jurisdiction, although not of remedies.

Judges:

Staughton LJ

Citations:

[1990] 1 QB 202, [1989] 2 WLR 261

Statutes:

Civil Jurisdiction and Judgments Act 1982 25

Jurisdiction:

England and Wales

Citing:

Applied – Babanaft International Co SA v Bassatne CA 30-Jun-1988
The court considered whether the state in which enforcement of a judgment will take place should be the place where the debt is situated upon which it is sought to execute.
Held: There was nothing to preclude English courts from granting . .
Cited – Siskina (owners of Cargo lately on Board) v Distos Compania Naviera SA HL 1979
An injunction was sought against a Panamanian ship-owning company to restrain it from disposing of a fund, consisting of insurance proceeds, in England. The claimant for the injunction was suing the company in a Cyprus court for damages and believed . .

Cited by:

Cited – Motorola Credit Corporation v Uzan and others (No 2) CA 12-Jun-2003
World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .
Cited – Derby and Co Ltd v Weldon CA 2-Jan-1989
The plaintiff sought damages for breach of contract, for negligence, breach of fiduciary duty and deceit and conspiracy. It sought a world-wide injunction.
Held: A freezing order (Mareva injunction) can be made in respect of assets which were . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Agency

Updated: 26 July 2022; Ref: scu.183505

Re HS: CoP 7 May 2015

Request for reconsideration of revocation of power of attorney and appointment of local authority to stand appointed instead.

Judges:

Lush SJ

Citations:

[2015] EWCOP 33

Links:

Bailii

Jurisdiction:

England and Wales

Health, Agency

Updated: 25 July 2022; Ref: scu.546451

Temple Legal Protection Ltd v QBE Insurance (Europe) Ltd: CA 6 Apr 2009

‘In the present case the binder gives Temple certain valuable rights, including a right in Section 27.1 to ‘retain’ commission out of premiums, but they do not include any rights of a security or proprietary nature to which the authority can be regarded as incidental. It is well established that the right to be paid commission does not fall under that head and I do not think that Temple can derive any support from the use of the word ‘retain’ in this case, which simply recognises that the premium is expected to pass through its hands. Temple’s authority to receive payment of commission on behalf of QBE was not, on the true construction of the binder, conferred in order to provide security for the payment of its commission. Under an agreement of this kind the agent is a fiduciary who must act in the interests of his principal, both in relation to the writing of insurance contracts and in administering the business arising out of them.’

Judges:

Rix, Moore-Baick LJJ, Bennett J

Citations:

[2009] EWCA Civ 453, [2009] Lloyd’s Rep IR 544, [2009] 1 CLC 553

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Temple Legal Protection Ltd v QBE Insurance (Europe) Ltd ComC 23-Apr-2008
. .

Cited by:

Cited – Bailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Agency

Updated: 24 July 2022; Ref: scu.330953

Bristol and West Building Society v Fancy and Jackson and similar: ChD 1 Jul 1997

The solicitor defendants (and others) had acted for both the lender and the borrower. Under their retainer they were required to notify the lender of any matters which might prejudice its security. The solicitors failed in one case to report that they did not have an official search certificate, in another case to report circumstances that suggested that the true price was lower than the basis on which the advance was made, and in a third case to report circumstances which might have suggested the need for a further valuation.
Held: in three of the eight cases the lender would have refused to proceed if the solicitor had complied with its duty to report some relevant fact. These were accordingly ‘no transaction’ cases. In the second case (Steggles Palmer) the solicitor was responsible for all the consequences of the borrower entering the transaction, because the lender, if it had known what it should have known, would have been unwilling to lend to that borrower at all; and in the third case (Colin Bishop), the solicitor should be liable only for what any further valuation would have shown was the extent of the overvaluation concerned, a matter yet to be adjudicated.
Chadwick J said: ‘In circumstances where the lender and the borrower instruct separate solicitors, I am not persuaded that a competent solicitor, acting for the lender, would be acting unreasonably if he accepted from the borrower’s solicitor a mortgage deed which appeared on its face to have been executed by the mortgagors and witnessed. If there was nothing irregular on the face of the document the lenders’ solicitor would be entitled to accept it without question. He would not be required to enquire into the circumstances in which it was executed. But – and this is, of course, an important safeguard – the lender would have the benefit of the implied warranty of authority given by the borrowers’ solicitor that he has the authority of the borrowers to complete the mortgage by delivering the mortgage deed – see the judgments of the Court of Appeal in Penn v Bristol and West . . I can see no reason why the position should be different in the circumstances that the same solicitor acts for both the lender and the borrowers. I do not hold that the duty of the solicitor, as solicitor for the lender, is increased by the fact that he acts also for the borrowers: but, equally, I can see no reason why, as solicitor for the borrowers, he should not be taken to warrant to the lender that he is acting for them in the transaction with their authority. That does not, necessarily, mean that that he is warranting that the signature on the mortgage deed is authentic; but it has much the same effect.’
and: ‘The fundamental reason why a person, purporting to act as agent for another would normally be deemed to have warranted his authority so to act is to ensure that any person dealing with the supposed agent is protected against the risk that he does not have the authority which he claims. The supposed agent will normally know whether he has the authority which he claims, or the ability to determine whether he has such authority; whereas any party dealing with him will not. So it is only right that the risk of lack of authority should be borne by the agent by way of an implied warranty. That risk normally manifests itself in the fact that, if the agent does not, in truth, have the authority which he claims, the other party will be deprived of any effective redress against the assumed principal. In such circumstances, the warranty of authority will give equivalent redress against the agent. This appears to have been a major consideration in the emergence and development of the doctrine. But its application is not limited to cases where a transaction entered into in reliance on the supposed authority of the agent was with the alleged principal himself. That is demonstrated by a number of reported cases, most recently Penn . . But I nonetheless agree with Mr Berkley that the core problem sought to be addressed by the imposition of a warranty of authority is whether the person acting as agent did or did not have authority so to act.’
However: ‘On the other hand, a person acting on behalf of another will not normally be deemed to warrant any particular attributes of his principal or any other aspects of the transaction in which he claims to be acting on his behalf’

Judges:

Chadwick J

Citations:

[1997] 4 All ER 582

Jurisdiction:

England and Wales

Cited by:

Cited – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .
Lists of cited by and citing cases may be incomplete.

Agency, Legal Professions

Updated: 23 July 2022; Ref: scu.569932

English v Dedham Vale Properties Ltd: ChD 1978

A prospective purchaser of a property had applied for planning permission in the name of the vendor without telling the vendor what it was doing.
Held: The purchaser could fairly and accurately be described, as Slade J described the purchaser, as a ‘self-appointed agent’ for the vendor. As such the purchaser did owe fiduciary obligations to the vendor, and was liable to account for any profit made as a result of the self-appointed agency.
The categories of fiduciary relationships are not closed

Judges:

Slade J

Citations:

[1978] 1 WLR 93, [1978] 1 All ER 382

Jurisdiction:

England and Wales

Cited by:

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

Trusts, Agency

Updated: 19 July 2022; Ref: scu.223009

Crane (T/A Indigital Satelite Services) v Sky In-Home Ltd and Another: CA 3 Jul 2008

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 succeeded if it had been so brought. She concluded: ‘CPR 52.8 provides that an appellant’s notice may not be amended without the permission of the court. When the court gives its permission, it must take into account the overriding objective in the CPR, which is to deal with cases justly. An application to amend a notice of appeal raises special considerations which do not apply to an application to amend a pleading prior to a trial. In the case of a pleading the court will (subject to any prejudice to the parties or to the administration of justice) readily give permission to amend so that the real dispute between the parties can be adjudicated upon. But on appeal the position is different. The simple fact is that there has already been a trial, and the significance of that is that the parties will have had an opportunity to put forward their cases, and incurred costs, and there will have been a decision. These points were powerfully put by May LJ in Jones v MBNA:
Civil trials are conducted on the basis that the court decides the factual and legal issues which the parties bring before the court. Normally each party should bring before the court the whole relevant case that he wishes to advance. He may choose to confine his claim or defence to some only of the theoretical ways in which the case might be put. If he does so, the court will decide the issues which are raised and normally will not decide issues which are not raised. Normally a party cannot raise in subsequent proceedings claims or issues which could and should have been raised in the first proceedings. Equally, a party cannot, in my judgment, normally seek to appeal a trial judge’s decision on the basis that a claim, which could have been brought before the trial judge, but was not, would have succeeded if it had been so brought. The justice of this as a general principle is, in my view, obvious. It is not merely a matter of efficiency, expediency and cost, but of substantial justice. Parties to litigation are entitled to know where they stand. The parties are entitled, and the court requires, to know what the issues are. Upon this depends a variety of decisions, including, by the parties, what evidence to call, how much effort and money it is appropriate to invest in the case, and generally how to conduct the case; and, by the court, what case management and administrative decisions and directions to make and give, and the substantive decisions in the case itself. Litigation should be resolved once and for all, and it is not, generally speaking, just if a party who successfully contested a case advanced on one basis should be expected to face on appeal, not a challenge to the original decision, but a new case advanced on a different basis. There may be exceptional cases in which the court would not apply the general principle which I have expressed. But in my view this is not such a case.’
The court must examine each application on its own facts in the light of the guidance to be found in the authorities. On that, the starting point is a passage from the speech of Lord Hershell in The Tasmania: ‘My Lords, I think that a point such as this, not taken at the trial, and presented for the first time in the Court of Appeal, ought to be most jealously scrutinised. The conduct of a cause at the trial is governed by, and the questions asked of the witnesses are directed to, the points then suggested. And it is obvious that no care is exercised in the elucidation of facts not material to them’.
It appears to me that under these circumstances a Court of Appeal ought only to decide in favour of an appellant on a ground there put forward for the first time, if it be satisfied beyond doubt, first, that it has before it all the facts bearing upon the new contention, as completely as would have been the case if the controversy had arisen at the trial; and next, that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them when in the witness box.
Lord Hershell was there dealing with the situation where a party seeks to raise a new case by asserting that an accident happened in a different way from that which was suggested at trial. The passage stresses the importance of ensuring that the other party is not put at risk of prejudice. In his judgment in Jones v MBNA (a case under the CPR: see [27] of the judgment), Peter Gibson LJ helpfully elaborated the point, and expressed the view that it would be difficult to see how the court could ever, consistently with the overriding objective, allow a new point to be taken on appeal if further evidence might have been produced at trial on it or if the new point requires an evaluation by the appeal court of evidence which might be affected by seeing the witnesses.
38. It is not in dispute that to withdraw a concession or take a point not argued in the lower court requires the leave of this court. In general the court expects each party to advance his whole case at the trial. In the interests of fairness to the other party this court should be slow to allow new points, which were available to be taken at the trial but were not taken, to be advanced for the first time in this court. That consideration is the weightier if further evidence might have been adduced at the trial, had the point been taken then, or if the decision on the point requires an evaluation of all the evidence and could be affected by the impression which the trial judge receives from seeing and hearing the witnesses. Indeed it is hard to see how, if those circumstances obtained, this court, having regard to the overriding objective of dealing with cases justly, could allow that new point to be taken.
There is further useful guidance in this passage for the purposes of the present case. Peter Gibson LJ adopted the approach that, before allowing a new case to be raised on appeal, he had to be satisfied that, if the new case had been raised at trial, the other party would not have altered the way it conducted the case. Likewise, in this case, in my judgment the court has to be satisfied that SHS will not be at risk of prejudice if the new point is allowed because it might have adduced other evidence at trial, or otherwise conduct the case differently. It should consider for itself, as best it can, what factual issues are likely to be raised by the new case. Moreover, in circumstances such as the present, where there has been no disclosure relative to the new way in which the appellant seeks to put his case and virtually no opportunity to consider the matter, I do not consider that the court can reasonably expect the party against whom the amendment is sought to be made to be specific about the evidence he would have adduced had the point been raised earlier. If there is any area of doubt, the benefit of it must be given to the party against whom the amendment is sought. It is the party who should have raised the point at trial who should bare any risk of prejudice.
The circumstances in which a party may seek to raise a new point on appeal are no doubt many and various, and the court will no doubt have to consider each case individually. However, the principle that permission to raise a new point should not be given lightly is likely to apply in every case, save where there is a point of law which does not involve any further evidence and which involves little variation in the case which the party has already had to meet (see Pittalis v Grant [1989] QB 605).’

Judges:

Arden LJ, Dyson LJ

Citations:

[2008] EWCA Civ 978

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993 (SI 1993 No. 3053)

Jurisdiction:

England and Wales

Citing:

Appeal from – Crane T/A Indigital Satellite Services v Sky In-Home Service Ltd and Another ChD 26-Jan-2007
The Directive’s substantive provisions were modelled primarily on the provisions of German domestic law. . .
Cited – Pittalis v Grant CA 1989
A point was raised for the first time on appeal.
Held: Though an appellate court could exclude a pure question of law which had not been raised at first instance from being raised on appeal, the usual practice was to allow it to be taken where . .
Cited – Jones v MBNA International Bank CA 30-Jun-2000
. .

Cited by:

Cited – McKeown v British Horseracing Authority QBD 12-Mar-2010
The jockey claimant challenged disciplinary proceedings brought against him by the defendant authority.
Held: The findings were upheld in part but remitted for consideration of giving the claimant opportunity to challenge certain evidence. . .
Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
Cited – Deer v University of Oxford CA 6-Feb-2015
The claimant had previously succeeded in a claim of sex discrimination against the University, her former employer. She now appealed against rejection of her claims alleging later victimisation.
Held: Two appeals succeed, and those matters . .
Lists of cited by and citing cases may be incomplete.

Agency, European

Updated: 19 July 2022; Ref: scu.273157

McWilliam and Another v Norton Finance (UK) Ltd (T/A Norton Finance In Liquidation): CA 11 Mar 2015

Whether a credit broker, a member of the Finance Industry Standards Association, operating in the circumstances prevailing in 2006, owed to its consumer clients a fiduciary duty such that it is liable to account to its clients for commissions received without their informed consent.

Judges:

Lord Justice Tomlinson

Citations:

[2015] EWCA Civ 186

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Financial Services

Updated: 15 July 2022; Ref: scu.544226

Cooper and others v Pure Fishing (UK) Ltd: CA 18 Mar 2004

Citations:

[2004] EWCA Civ 375

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Citing:

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

Agency, European

Updated: 14 July 2022; Ref: scu.195103

Crane T/A Indigital Satellite Services v Sky In-Home Service Ltd and Another: ChD 26 Jan 2007

The Directive’s substantive provisions were modelled primarily on the provisions of German domestic law.

Judges:

Briggs J

Citations:

[2007] EWHC 66 (Ch), [2007] 1 CLC 389

Links:

Bailii

Statutes:

Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents

Jurisdiction:

England and Wales

Cited by:

Appeal from – Crane (T/A Indigital Satelite Services) v Sky In-Home Ltd and Another CA 3-Jul-2008
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 – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Agency

Updated: 13 July 2022; Ref: scu.248251

Watt v M’Pherson’s Trustees: HL 3 Dec 1877

Where a sale took place between a client and his agent, as seller and purchaser, which was fair and reasonable and otherwise free from objection, but for the ingredient that the client had not been made aware that the real purchaser was the agent, the purchase being made in the name of another.- Held that the sale fell to be reduced, although the non-disclosure did not arise from fraud.
Circumstances where (revg. the Court of Session) a sale by a client to an agent was reduced, on the ground that there had been no disclosure of the fact that the purchase was in part made for the latter himself.
Circumstances which were held (revg. the Court of Session) sufficient to impress the character of agent upon one who had occasionally acted for a trust.

Judges:

Lord Chancellor, Lord O’Hagan, Lord Blackburn, and Lord Gordon

Citations:

[1877] UKHL 208, 15 SLR 208

Links:

Bailii

Jurisdiction:

Scotland

Agency

Updated: 12 July 2022; Ref: scu.639647

Equitas Ltd and Another v Horace Holman and Company Ltd: ComC 27 Apr 2007

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.

Judges:

Andrew Smith J

Citations:

[2007] EWHC 903 (Comm)

Links:

Bailii

Cited by:

Cited – Equitas Ltd and Another v Horace Holman and Company Ltd and Another ComC 3-Oct-2008
The court considered the addition of a defendant under the 1981 Act after the main judgment had been unsatisfied on the insolvency of the first defendant. . .
Cited – Fairstar Heavy Transport Nv v Adkins and Another CA 19-Jul-2013
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 . .
Lists of cited by and citing cases may be incomplete.

Costs, Agency

Updated: 10 July 2022; Ref: scu.251543

Post Office Ltd v Castleton: QBD 22 Jan 2007

The defendant ran a post office. A cash shortage was found, and he challenged the calculation of the account.
Held: The defendant was liable for the deficit in law. He had shown no sufficient reason to make the court think the calculations were wrong, and the defence failed.

Judges:

Richard Havery QC

Citations:

[2007] EWHC 5 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Shaw v Picton 1825
Bayley J: ‘It is quite clear, that if an agent (employed to receive money, and bound by his duty to his principal from time to time to communicate to him whether the money is received or not,) renders an account from time to time which contains a . .
Cited – Camillo Tank Steamship Company Limited v Alexandria Engineering Works 1921
Viscount Cave (dissenting on other points) said: ‘The expression ‘account stated’ . . has more than one meaning. It sometimes means a claim to payment made by one party and admitted by the other to be correct. An account stated in this sense is no . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 09 July 2022; Ref: scu.247969

Manchester Universtity NHS Foundation Trust v DE: CoP 19 Apr 2019

Application b for a declaration that DE lacks capacity to conduct proceedings, and to consent to treatment on her left leg, and that it is lawful and in DE’s best interests for her to be given blood products if it becomes clinically necessary during an operation on her left leg.

Citations:

[2019] EWCOP 19

Links:

Bailii

Jurisdiction:

England and Wales

Health Professions, Agency

Updated: 08 July 2022; Ref: scu.638765

PJ Pipe and Valve Co. Ltd. v Audco India Ltd: QBD 2 Sep 2005

The claimant was an agent in the petrochemical industry promoting and selling the defendant’s valves. There were two agency agreements, one relating solely to products to be supplied to a particular petro-chemical complex in Nanhai, the other being a general agency agreement under which the claimant was given exclusive rights to represent the defendant and other suppliers for a period of two years. The latter agreement was terminated as far as the defendant was concerned as a result of the defendant’s repudiation of it about twelve months before it was due to expire. The agent brought proceedings claiming commission or damages in respect of orders placed with the defendant for equipment required for three different phases of a construction project at Bonny Island, Nigeria and compensation under Regulation 17.
Held: the claimant had been the effective cause of the defendant’s obtaining orders for equipment required for all three phases of the project at Bonny Island and he therefore held that it had earned commission in respect of all that equipment. It therefore became unnecessary for him to consider the alternative claim for damages which was apparently limited to the amount of commission which the claimant said it would have earned in relation to the equipment ordered for that project. As to the compensation payable under the Regulations, the court declined to follow the general French rule as to two year’s commission. The claimant would have effected one further successful introduction during the remaining twelve months of the contract, the value of which he assessed by reference to the average gross commission earned by the claimant from the six previous projects it had obtained for the defendant. The court approached the assessment of compensation as one would approach the assessment of damages for breach of contract.

Judges:

Fulford J

Citations:

[2005] EWHC 1904 (QB)

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993 No 3053, Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents 17

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Agency, Damages

Updated: 07 July 2022; Ref: scu.230121

Midland Silicones Ltd v Scruttons Ltd: HL 6 Dec 1961

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.’

Judges:

Viscount Simonds, Lord Reid

Citations:

[1962] AC 446, [1961] UKHL 4

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Elder, Dempster and Co Ltd v Paterson, Zochonis and Co Ltd HL 1924
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 1960
. .
Affirmed – Tweddle v Atkinson, Executor of Guy, Deceased QBD 7-Jun-1861
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
A bailment arises when, albeit on a limited or temporary basis, the bailee acquires exclusive possession of the chattel or a right thereto. . .

Cited by:

Cited – Borkan General Trading Ltd v Monsoon Trading Ltd CA 8-Jul-2003
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 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;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 27-Jun-2008
The claimant claimed to have bought what he believed to be a genuine Faberge Egg Clock, but which his insurers said was a copy. It was loaned to an exhibition, and insured, and damaged twice. The parties disagreed as to the disappreciation value, . .
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 04 July 2022; Ref: scu.185204

Explora Group Plc v Hesco Bastion Ltd and Another: CA 20 Jul 2005

Judges:

Rix, Jonathan Parker, Longmore LJJ

Citations:

[2005] EWCA Civ 646

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Barbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 01 July 2022; Ref: scu.228922

Commissioners of Customs and Excise v Littlewoods Organisation plc: CA 26 Oct 2001

Agents of the taxpayer received commission on sales. They could take it in cash, or at an enhanced rate on goods purchased. How was the tax to be calculated on the goods sold to the agent? The right to take goods at the enhanced rate arose from a combination of her appointment as agent, and payments made in respect of the primary supply. There was no direct link between the right to take goods at the enhanced rate, and a service she had provided, and there was no basis for treating the services as a non-monetary element in the consideration for the supply of the secondary goods, and no basis for allowing for a non-monetary element under article 11 when ascertaining the taxable amount to be attributed to the supply. The commission in goods had to be treated as a price discount.

Judges:

Lord Justice Aldous, Lord Justice Chadwick and Lord Justice Sedley

Citations:

Times 07-Nov-2001, Gazette 29-Nov-2001, [2001] EWCA Civ 1542, [2002] BVC 71, [2001] BTC 5608, [2001] STC 1568, [2002] RTR 16, [2001] STI 1381

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Commissioners of Customs and Excise v Littlewoods Organisation Plc ChD 4-Jul-2000
The enhanced commission paid to mail order catalogue agents for supplying services to the company and which was to be set off against goods purchased by the agents themselves from the mail order company were vatable. The commission earned . .

Cited by:

Appealed to – Commissioners of Customs and Excise v Littlewoods Organisation Plc ChD 4-Jul-2000
The enhanced commission paid to mail order catalogue agents for supplying services to the company and which was to be set off against goods purchased by the agents themselves from the mail order company were vatable. The commission earned . .
Lists of cited by and citing cases may be incomplete.

VAT, Agency

Updated: 30 June 2022; Ref: scu.166843

NKR and Another v The Thomson Snell and Passmore Trust Corporation Ltd: CoP 21 Mar 2019

Application for the discharge of the appointment of an existing professional property and affairs deputy, and the appointment of another instead. The discharge of the current deputy is agreed but there is an issue as to who should be appointed instead.

Judges:

Hilder HHJ

Citations:

[2019] EWCOP 15

Links:

Bailii

Jurisdiction:

England and Wales

Agency

Updated: 30 June 2022; Ref: scu.637304

Foxtons Ltd v Thesleff and Another: CA 19 Apr 2005

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.

Judges:

May LJ, Rix LJ, Jacob LJ

Citations:

[2005] EWCA Civ 514, Times 17-May-2005, [2005] 2 EGLR 29

Links:

Bailii

Statutes:

The Estate Agents (Provision of Information) Regulations 1991

Jurisdiction:

England and Wales

Citing:

Cited – Midgley Estates v Hand CA 1952
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.
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 30 June 2022; Ref: scu.224905

Stewart v M’Clure, Naismith, Brodie, and Macfarlane, and Others: HL 22 Jul 1887

Agent and Client – Duty of Agent when lending Client’s Money on Security of Patent
A law-agent was employed by a client to obtain a loan on the security of a patent. Another client, after consulting the law-agent, lent pounds 5000. The patent was subsequently found to be invalid, having been anticipated by prior patents. An action was raised at the instance of the lender against the law-agent, for payment of the sum alleged to have been lost through the transaction, on the ground that before the loan was completed the defender had been advised by a patent-agent that a search ought to be made for the purpose of ascertaining the validity of the patent, and that this advice was concealed from the pursuer; that by reason of this concealment, and in ignorance of the advice given to the defender, the pursuer was led to advance his money on a worthless security. Held ( rev. judgment of First Division, diss. Lord Chancellor Halsbury) that the onus of proving that the communication had not been made lay upon the pursuer, and that he had failed to discharge it. Defenders assoilzied.

Judges:

Lord Chancellor (Halsbury), Earl of Selborne, Lord Watson, Lord Herschell, and Lord Macnaghte

Citations:

[1887] UKHL 153, 25 SLR 153

Links:

Bailii

Jurisdiction:

Scotland

Agency, Intellectual Property

Updated: 28 June 2022; Ref: scu.636754

Caithness Flagstone Quarrying Co v Sir Tollemache Sinclair: HL 7 Apr 1881

Writ – Holograph – Agreement Written by Factor to the Dictation of his Principal.
Held ( aff. judgment of the Court of Session) that an agreement written by the factor for one of the parties in the presence of the other party to the dictation of the factor’s principal, and unsigned, is not a valid holograph writ of the principal so as to constitute, when formally accepted and acted on, a completed contract between the two parties interested therein.

Judges:

Lord Chancellor Selborne, Lord Blackburn, and Lord Watson

Citations:

[1881] UKHL 466, 18 SLR 466

Links:

Bailii

Jurisdiction:

Scotland

Agency, Contract

Updated: 28 June 2022; Ref: scu.636792

Satnam Investments Ltd v Dunlop Heywood and Co Ltd and Others: ChD 21 Dec 1998

Allegation of wrongful disclosure by agent of confidential information

Judges:

Nourse, Shiemann, Brooke LJJ

Citations:

[1998] EWHC 321 (Ch), [1999] Lloyd’s Rep PN 201, [1999] 1 BCLC 385, [1999] 3 All ER 652, [1998] EG 190, [1999] FSR 722

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Intellectual Property

Updated: 18 June 2022; Ref: scu.341192

Alston’s Trustees v Gibson: HL 19 Mar 1895

C. R. and Co. wrote to G. offering him an investment upon the security of an estate in Ceylon, for which they acte as agents, and saying, ‘it is an excellent security, apart from our guarantee of principal and interest.’ G. replied, accepting the investment, ‘with C. R. and Co.’s guarantee of principal and interest.’
Held that C. R. and Co.’s letter amounted to a distinct offer of a guarantee, which became operative as soon as it was accepted, and the loan which was to be the consideration for it was made

Judges:

Lord Chancellor (Herschell), and Lords Watson, Macnaghten, Morris, and Shand

Citations:

[1895] UKHL 724, 32 SLR 724

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Contract

Updated: 13 June 2022; Ref: scu.634055

International Sponge Importers Ltd v Watt and Son: HL 31 Mar 1911

Circumstances in which held that the purchaser was not bound to pay over again for goods for which he had already paid, though such prior payment had been made, out of the usual course of business, in cash to the seller’s commercial traveller, who had embezzled the money.

Judges:

Lord Chancellor (Loreburn), Lord Atkinson, and Lord Shaw

Citations:

[1911] UKHL 515, 48 SLR 515

Links:

Bailii

Jurisdiction:

Scotland

Contract, Agency

Updated: 13 June 2022; Ref: scu.619191

Firbank’s Executors v Humphryes: CA 1886

The plaintiff was induced to enter into a transaction by the someone pretending to be the principal. The defence was that he was the principal’s innocent agent.
Held: Lord Esher MR discussed the warranty of authority: ‘The rule to be deduced is, that where a person by asserting that he has the authority of the principle induces another to enter into any transaction which he would not have entered into but for that assertion, and that assertion turns out to be untrue, to the injury of the person to whom it is made, it must be taken that the person making it undertook that it was true, and he is liable personally for the damage that has occurred.’

Judges:

Lord Esher MR

Citations:

(1886) 18 QBD 54

Jurisdiction:

England and Wales

Cited by:

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

Agency

Updated: 11 June 2022; Ref: scu.261593

Benford Ltd and Another v Lopecan Sl: QBD 30 Jul 2004

The parties disputed the coverage agreed under a distribution agreement.
Held: ‘The counterclaim operated as a defence by way of set off. In order to establish that defence the defendant will have to prove the losses pleaded . . . Until the end of the trial it may not be known whether in total those cross claims, if made out, will exceed in value the amount of the claim. If they did, then the court would find the amount proved under the various heads and then, if Mr Eder were right, refer the question of excess to an arbitration. At the arbitration, there would be an issue estoppel and the arbitrators would simply be asked to endorse the Court’s decision as to the excess. That cannot make commercial sense. If the cross claim did not amount to a transactional set-off, then I can quite understand that the Court would be obliged to refer such a claim to arbitration under section 9 of the Act. But the question is how clause 18.3 should be construed and I consider that Mr Dye’s emphasis on the word ‘action’ as apposite to cover both claim and cross claim, which is a partial set-off, makes commercial sense. The courts will, when construing an arbitration agreement seek to give it business sense against the likely background that parties will incline to what might be called a one-stop litigation process.’

Judges:

The Honourable Mr Justice Morison

Citations:

[2004] EWHC 1897 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Glencore Grain Ltd v Agros Trading Co Ltd; Agros Trading Co Ltd v Glencore Grain Ltd CA 1-Jul-1999
Even though a debt under commercial washout agreements between the parties was acknowledged, it was not enforceable in the context of unrelated arbitration awards between the parties. The non-payment of the washout agreement invoices created a . .
Cited – Aectra Refining and Marketing Inc v Exmar NN CA 15-Aug-1994
A time loss claim can found a legal set-off claim against ship owners, provided that the loss claim can be made in the same court. The court referred to a ‘transaction set-off and independent set-off’. Cross-claims must both be due and payable, and . .
Cited – Bim Kemi v Blackburn Chemicals Ltd CA 3-Apr-2001
The question was the degree of connection which must be shown between (1) a claim for unliquidated damages for breach of a contract and (2) a cross-claim for unliquidated damages for breach of a different contract between the same parties, in order . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 11 June 2022; Ref: scu.200250

Days Medical Aids Ltd v Pihsiang Machinery Manufacturing Co Ltd and others: CA 13 Jul 2004

Judges:

Langley J

Citations:

[2004] EWCA Civ 993, [2004] 1 All ER (Comm) 991, [2004] Eu LR 477, [2004] UKCLR 384

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Days Medical Aids Limited v Pihsiang Machinery Manufacturing Co Ltd, Pihsiang Wu (Also Known As Donald P H Wu), Chiang Ching-Ming Wu (Also Known As Jenny Wu) ComC 29-Jan-2004
Alleged repudiation of exclusive distribution agreement.
Held: The claim succeeded in part. . .
Cited – Sheffield District Railway co v Great Central Railway Co 1911
(Rail and Canal Commissioners) The Sheffield District Railway agreed (in a contract appended to a special Act of Parliament, with the Lancashire, Derbyshire and East Coast Railway for the operation of a short line with two stations by means of which . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 11 June 2022; Ref: scu.199987

Vale v Armstrong, Armstrong: ChD 21 May 2004

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.

Judges:

Mr. Justice Evans-Lombe

Citations:

[2004] EWHC 1160 (Ch)

Links:

Bailii

Citing:

Cited – CIBC Mortgages Plc v Pitt and Another HL 21-Oct-1993
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 11-Oct-2001
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 24-Aug-1993
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. . .
Lists of cited by and citing cases may be incomplete.

Land, Undue Influence, Agency

Updated: 10 June 2022; Ref: scu.197075

Property Choice Limited v Fronda: 1991

Citations:

[1991] 2 EGLR 249

Jurisdiction:

England and Wales

Cited by:

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

Agency

Updated: 10 June 2022; Ref: scu.231526

Dacre Son and Hartley Ltd v North Yorkshire Trading Standards: Admn 27 Oct 2004

The defendants appealed a conviction under the Act complaining of the adequacy of the evidence presented. A buyer had found dampness in a property. It was later remarketed by the defendant who asked if it suffered dampness. She was told it did not.
Held: ‘the informations each described the specific offence charged in ordinary language and gave sufficient particulars so that the appellant was provided with reasonable understanding of the nature and detail of the charges. ‘ and ‘if a defendant genuinely considers that lack of particularity in the information (as opposed, for instance, to a defect inherently fatal to the charge) has created the potential for unfairness e.g. because of uncertainty as to the case the defendant has to meet — this should usually be raised in advance of the trial, so that the court can consider the position. Deliberately deferring the issue until midway through the trial will usually make it materially more difficult for the defendant to complain that the trial is unfair. ‘

Judges:

Thomas LJ, Fulford J

Citations:

[2004] EWHC 2783 (Admin)

Links:

Bailii

Statutes:

Property Misdescriptions Act 1991 1, Magistrates’ Courts (Advance Information) Rules 1985 4(1)(a), Property Misdescriptions (Specified Matters) Order 1992, Magistrates’ Court Rules 1981 100

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Galbraith CCA 1981
Rejection of Submission of No Case to Answer
The defendant had faced a charge of affray. The court having rejected his submission of having no case to answer, he had made an exculpatory statement from the dock. He appealed against his conviction.
Held: Lord Lane LCJ said: ‘How then . .
Cited – Moran v Director of Public Prosecutions Admn 30-Jan-2002
The appellant had requested the magistrates to state a case as to why they had ruled against his submission that he had no case to answer. The established rule is that they do not have to give such reasons. He argued that the new Human Rights duties . .
Cited – Regina v Aylesbury Justices, Ex parte Wisbey 1965
If a defendant considers that the particulars provided in an information are insufficient the court has the power, at any time after the charge has been preferred, to require the prosecution to furnish him with better and more complete particulars. . .
Lists of cited by and citing cases may be incomplete.

Agency, Crime

Updated: 10 June 2022; Ref: scu.220180

Refuge Assurance Co Ltd v Kettlewell: HL 5 Mar 1909

(on Appeal From The Court of Appeal In England) A person holding a policy of life insurance intended to give it up. An agent of the company informed her falsely that by paying for four years more she would become entitled to a fully paid-up policy. On the faith of this she continued paying premiums. At the end of the time the company refused to grant a free policy but retained her premiums.
Held that she was entitled to be repaid the premiums paid by her for the four years.

Judges:

Lord Chancellor (Loreburn), the Earl of Halsbury, Lords Ashbourne, Macnaghten, and James Of Hereford

Citations:

[1909] UKHL 1030, 46 SLR 1030

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Torts – Other

Updated: 09 June 2022; Ref: scu.620573

Days Medical Aids Limited v Pihsiang Machinery Manufacturing Co Ltd, Pihsiang Wu (Also Known As Donald P H Wu), Chiang Ching-Ming Wu (Also Known As Jenny Wu): ComC 29 Jan 2004

Alleged repudiation of exclusive distribution agreement.
Held: The claim succeeded in part.

Judges:

The Honourable Mr Justice Langley

Citations:

[2004] EWHC 44 (Comm), [2004] Eu LR 477, [2004] UKCLR 384, [2004] 1 All ER (Comm) 991

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Days Medical Aids Ltd v Pihsiang Machinery Manufacturing Co Ltd and others CA 13-Jul-2004
. .
Lists of cited by and citing cases may be incomplete.

Contract, Agency, European

Updated: 09 June 2022; Ref: scu.192285

Pure Fishing (UK) Ltd v Cooper Watkins and Bartle: CA 29 Sep 2003

The claimant sought a compensation payment under the Regulations after its sales agency for fishing tackle was terminated. The defendant argued that compensation was payable only where the agency was terminated before its term.
Held: The regulations provided that compensation was payable also where the agency simply expired by effluxion. ‘termination having been given a wide meaning under Regulation 17, a principal can be regarded under Regulation 18(a) as having terminated an agency contract when he fails to renew it. ‘

Judges:

Lord Justice Schiemann, Lord Justice Rix

Citations:

[2003] EWCA Civ 1349, [2004] Eu LR 664

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Agency, European

Updated: 08 June 2022; Ref: scu.187103

Light and Others v Ty Europe Ltd: CA 25 Jul 2003

The claimants sought damages under the regulations. They were self employed sales agents. At first they were sub agents but upon the ceasing to trade of the main agents they had acted directly for the principal. Those agencies had been terminated.
Held: In addition to the question of whether they were agents within the directive, a claimant also had to have a contractual relationship. That did not apply here, and the claims failed.

Judges:

Ward, Tuckey LJJ, Lightman J

Citations:

Times 21-Aug-2003, [2003] EWCA Civ 1238, Gazette 02-Oct-2003, [2003] EuLR 858

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993 (1993 No 3173) 2(1)

Jurisdiction:

England and Wales

Citing:

Adopted – Tigana Ltd v Decoro Ltd QBD 3-Feb-2003
The claimant sought compensation after its sales agency agreement with the defendant was terminated. He had opened up several substantial sales channels for the respondent’s products within the UK. There were difficulties in the products (leather . .

Cited by:

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

European, Agency

Updated: 08 June 2022; Ref: scu.186034