Category: Agency

Jordan Grand Prix Limited v Vodafone Group Plc: ComC 4 Aug 2003

The claimant asserted that the defendant had agreed in the course of a telephone conversation, to provide sponsorship, and sought to enforce that agreement. There were considerable conflicts of evidence.
Held: Evidence given on behalf of the claimant was inconsistent and incredible. No contract was made, the person dealing for Vodaphone did not have authority to make any final agreement, and this was known to the claimant. The claim failed entirely.

Judges:

The Honourable Mr Justice Langley

Citations:

[2003] EWHC 1956 (Comm), [2003] 2 Lloyds Rep. 874

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – First Energy (UK) Ltd v Hungarian International Bank Ltd CA 16-Apr-1993
A manager, though he lacked actual authority to authorise and offer a particular loan facility to the plaintiff, still did so by sending him a letter of offer which was accepted.
Held: Albeit the manager lacked actual authority to make the . .

Cited by:

Cited – Three Rivers District Council and others v The Governor and Company of the Bank of England ComC 12-Apr-2006
The claimants had pursued compensation over many years from the defendants alleging various kinds of misfeasance in regulating the bank BCCI. The action had collapsed.
Held: ‘this was extraordinary litigation which came to an abrupt albeit . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 07 June 2022; Ref: scu.185226

Gregory and Gregory v Turner, Turner; Regina (Morris) v North Somerset Council: CA 19 Feb 2003

The parties were involved in a boundary dispute. One granted an enduring power of attorney, and sought to appear as a litigant in person through the power.
Held: The right of a litigant in person to represent himself was a personal right, and as such was not capable of being delegated. The Act created a complete code setting out those with rights of audience. The 1995 Act did not change the underlying position, and the 1990 Act preserved exising rights. Those did not give a right for a non-qualified agent to act. However, a litigation friend does not have to act by a solicitor and can conduct the litigation on behalf of P, though a litigation friend who does not otherwise have a right of audience requires the permission of the court to act as an advocate on behalf of P.

Judges:

Lord Justice Brooke Lord Justice Sedley Lord Justice Carnwath

Citations:

Times 21-Feb-2003, [2003] EWCA Civ 183, [2003] 1 WLR 1149

Links:

Bailii

Statutes:

Enduring Powers of Attorney Act 1995, Courts and Legal Services Act 1990

Jurisdiction:

England and Wales

Citing:

Application for leave – Gregory and Another, Regina (on the Application Of) v Turner and Another CA 7-Dec-2001
Application for leave to appeal. . .
Applied – Regina (on the Application of Sivasubramaniam) v Wandsworth County Court Admn 13-Dec-2001
The applicant sought to appeal against a refusal of leave to appeal against an arbitration. There had been some delay for the applicant’s health.
Held: Leave to appeal having been refused there was no further right of appeal under the 1999 . .

Cited by:

Cited – Sinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .
Cited – Andre Agassi v S Robinson (H M Inspector of Taxes) (No 2) CA 2-Dec-2005
The taxpayer had been represented in proceedings throughout by tax law experts, Tenon Media, who were not legally admitted, but had a right to conduct litigation under the 1990 Act. The Inspector objected to paying costs as if the representatives . .
Cited – In re X and Others (Deprivation of Liberty) CoP 7-Aug-2014
inreX_dolCoP1408
The court considered the practical and procedural implications for the Court of Protection of what was expected too be a large increase in its case-load which following the Supreme Court’s decision in Surrey County Council v P where it was held that . .
Lists of cited by and citing cases may be incomplete.

Agency, Litigation Practice, Legal Professions

Updated: 07 June 2022; Ref: scu.179484

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

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.

Judges:

Mr Justice Scott Baker, Lord Justice Rix, Lord Phillips MR

Citations:

Times 13-Feb-2003, [2003] 2 WLR 1496, [2003] QB 1270, [2003] EWCA Civ 113

Links:

Bailii

Statutes:

Carriage of Goods by Road Act 1965, Convention for the International Carriage of Goods by Road Geneva 1956 23.4

Jurisdiction:

England and Wales

Citing:

Distinguished – James Buchanan and Co Ltd v Babco Forwarding and Shipping (UK) Ltd HL 1978
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 pounds, and on export no excise duty was to be paid. Being stolen in the course of transit, excise duty of . .
Lists of cited by and citing cases may be incomplete.

Damages, Agency

Updated: 07 June 2022; Ref: scu.179041

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 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 and Reynolds’s article 19, that is, unfair prejudice.’

Judges:

Lord Justice Schiemann, Robert Walker LJ

Citations:

Times 29-Aug-2002, Gazette 26-Sep-2002, [2002] EWCA Civ 762, [2003] Ch 182

Links:

Bailii

Statutes:

Companies Act 1985 35A

Jurisdiction:

England and Wales

Citing:

Cited – Pontin v Wood CA 1962
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 and Co ChD 17-Oct-2001
. .

Cited by:

Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
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 and Co and Another QBD 17-Dec-2008
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 and Co Solicitors and Others SC 19-May-2010
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 . .
Lists of cited by and citing cases may be incomplete.

Company, Agency

Updated: 06 June 2022; Ref: scu.174345

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

The court was asked whether the claimants were a commercial agent of the defendants under the 1993 regulations.
Held: It is common for agents acting in the sale of financial products, eg many types of insurance policies, to fix its own commission, and this arrangement can be consistent with the existence of a relationship of agency.

Judges:

Rix LJ, Waller LJ, Wilson LJ

Citations:

[2002] EWCA Civ 288, [2003] ECC 28, [2002] 1 All ER (Comm) 788, [2002] CLC 913, [2002] Eu LR 314

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993

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 – Revenue and Customs v Secret Hotels2 Ltd SC 5-Mar-2014
The Court was asked as to: ‘the liability for Value Added Tax of a company which markets and arranges holiday accommodation through an on-line website. The outcome turns on the appropriate characterisation of the relationship between the company, . .
Lists of cited by and citing cases may be incomplete.

Agency, European

Updated: 05 June 2022; Ref: scu.168082

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 prepared particulars, they had taken photographs, they had advertised the premises, they had prepared the particulars, they had sent the particulars to other agents. But they had not given the vendor’s name or telephone number to the ultimate purchaser.
Held: The claim was disallowed. The plaintiffs as principal agents had no authority to appoint sub-agents. Lord Denning: ”The introduction of Mr Rudd was not made by the agents, John McCann and Co, nor was it made by any authorised sub-agent’

Judges:

Lord Denning MR, Orr LJ, Browne LJ

Citations:

[1975] 1 All ER 129

Jurisdiction:

England and Wales

Cited by:

Cited – Burney v The London Mews Company Ltd CA 7-May-2003
The defendant sought to appeal judgment against him for his estate agent’s commission. They had been appointed sole agents. A second firm obtained the particulars for their own retained clients, but then copied the particulars onto their own . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 05 June 2022; Ref: scu.245315

In re F (Enduring power of Attorney): ChD 2 Apr 2004

Mrs F had given an enduring power to her son, but then became incapable and the power was registered. Her daughter had in the meantime applied to be appointed as her receiver. There was particular bitterness between the brother and sister. F called in the Lord Chancellor’s medical visitor and asked that her children settle their differences, and if they could not, then an independent receiver should be appointed.
Held: The issue was not whether the attorney appointed was suitable, but whether he was unsuitable. The master had held that the enduring power would continue to be a stumbling block to any reconciliation, however the only proper question was whether the mother’s more recently expressed view made him unsuitable. In a complex administration, co-operation between siblings might be necessary, but in simpler cases it might not. This was a simple case, and there was no evidence that the appointment of an independent receiver would do anything to reduce the hostility. Without clear evidence that the hostility would adversely affect the administration under the power, the power should be registered.

Judges:

Patten J

Citations:

Times 29-Apr-2004

Statutes:

Enduring Powers of Attorney Act 1985 6(5)(e), Mental Health Act 1983 99

Jurisdiction:

England and Wales

Citing:

Cited – X v Y, Z sub nom In re E (Enduring power of attorney) ChD 18-Feb-2000
The application was an appeal against an order registering an enduring power of attorney. The appeal from Master Lush was by way of rehearing. The donor had executed two powers. The second was invalid, and the donees of the first power sought to . .
Cited – In Re W (Enduring Power of Attorney) CA 9-Jan-2001
A party who objected to the registration of an enduring power of attorney on the basis that the donor had not had the mental capacity to sign it, had the burden of proving that assertion.
Held: Hostility between the donee of a power and other . .
Lists of cited by and citing cases may be incomplete.

Agency, Family

Updated: 04 June 2022; Ref: scu.196575

Neste Oy v Lloyd’s Bank Plc: ChD 1983

A shipping agent (PSL), a client of the defendant, had become insolvent. The defendant sought to combine the accounts. PSL settled on behalf of their shipowner clients bills payable to harbour authorities, pilots, fuel merchants, and other providers of goods and services. The shipowners sometimes put them in funds in advance and sometimes reimbursed them in arrears. The plaintiff shipowners claimed that the unspent balance of six payments made by them to a general account of PSL were held for them in trust. Their primary case was that the payments were subject to an implied trust to pay the money to the suppliers. This arose either by virtue of the agency relationship or as a special purpose (or Quistclose) trust.
Held: The argument was rejected. However, there was a constructive trust of the sixth payment, which had been received after the directors of PSL had concluded that their company was insolvent.
Bingham J approved as ‘in accord with the general principles of equity as applied in England’: ‘the receiving of money which consistently with conscience cannot be retained is, in equity, sufficient to raise a trust in favour of the party for whom or on whose account it was received. This is the governing principle in all such cases. And therefore, whenever any controversy arises, the true question is, not whether money has been received by a party of which he could not have compelled the payment, but whether he can now, with a safe conscience, ex aequo et bono, retain it.’ from Story’s Commentaries on Equity Jurisprudence, 2nd ed.
He applied this to the facts of the case saying: ‘Given the situation of PSL when the last payment was received, any reasonable and honest directors of that company (or the actual directors had they known of it) would, I feel sure, have arranged for the repayment of that sum to the plaintiff’s without hesitation or delay. It would have seemed little short of sharp practice for PSL to take any benefit from the payment, and it would have seemed contrary to any ordinary notion of fairness that the general body of creditors should profit from the accident of a payment made at a time when there was bound to be a total failure of consideration. Of course it is true that insolvency always causes loss and perfect fairness is unattainable. The bank, and other creditors, have their legitimate claims. It nonetheless seems to me that at the time of its receipt PSL could not in good conscience retain this payment and that accordingly a constructive trust is to be inferred.’

Judges:

Bingham J

Citations:

[1983] 2 Lloyds Rep 658

Jurisdiction:

England and Wales

Citing:

Cited – Barclays Bank Ltd v Quistclose Investments Ltd; etc HL 31-Oct-1968
R Ltd were in serious financial difficulties. The company’s overdraft with the appellant bank was almost twice its permitted limit. The company sought a loan of 1 million pounds from a financier, who was willing to lend the company that sum provided . .

Cited by:

Not justified – 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.

Insolvency, Agency, Banking

Updated: 02 June 2022; Ref: scu.568652

Bailey and Another v Angove’s PTY Limited: ChD 2013

The liquidator of the company sought a declaration that sums received by the defendant sales agents on behalf of the insolvent company were to be paid out to the liquidators in full. The court was asked whether the payments by DWL and PLB made after the termination of the ADA were held on trust for Angove or were monies payable to DandD and therefore part of the estate of the insolvent company available for distribution amongst its general creditors.
Held: In the relevant respects the relationship between Angove’s and DandD was that of principal and agent only and not buyer and seller, and that DandD’s authority to collect the price from customers came to an end upon service of Angove’s termination notice.The only contract of sale for the wine that was ordered through DandD was between Angove and (in this case) DWL and PLB
Pelling QC said of the argument that that was insonsistent with the clause in the agreement: ’33. It was submitted on behalf of the Liquidators that because the effect of Clause 22(c) was to impose on the Company the obligation to pay the whole invoice sum due for the goods sold less commission in respect of which a credit note was to be issued for the benefit of the Company that necessarily negatives the true relationship between the Company and Angove being one of principal and agent. I am not able to accept that submission.
First, as I have said, the contract clearly distinguishes between those transactions in respect of which the Company is described as acting as agent and those where it is buying for its own account. It is only in respect of those transactions in respect of which the Company is described as acting as agent that commission is payable and to which the Clause 22 mechanism applies. Clearly therefore the parties considered that the transactions to which this mechanism applied were different from sales to the Company for its own account, which were expressly excluded from its application by Clause 21(a).
Secondly, I do not accept the premise of the submission – namely that because the Company undertakes a direct obligation to pay, that necessarily negatives the relationship being one of principal and agent in relation to transactions to which the mechanism applies. In Teheran – Europe Co. Ltd v. S.T. Belton (Tractors) Ltd [1968] 2 WLR 523, Donaldson J as he then was recognised at 528F that there were three ways in which an agent could conclude a contract on behalf of his principal, the second of which was by creating privity of contract between the third party, the principal and the agent. The outcome of that case was varied on appeal but there was no any disagreement by the Court of Appeal with this part of Donaldson J’s analysis. In the result, it does not follow that because an agent undertakes direct obligations owed to the principal therefore the relationship cannot be one of principal and agent.
I do not accept either the more restricted submission that because the obligation undertaken is one that involves accepting an obligation to pay for the goods that are being sold to the third party that necessarily prevents the relationship from being one of principal and agent. English law has long recognised the concept of a del credere agent – that is an agent who in consideration of a commission guarantees to his principal that third parties with whom he contracts on behalf of the principal will duly pay the sums due under those contracts.
As I have said the ADA must be read as a whole. So read, it applies specifically to at least two types of transaction. It applies primarily to sales to customers identified and introduced by the Company as agent for Angove (in respect of which commission is payable and the Clause 22 mechanism applies) and excepts from this mechanism sales to the Company for its own account. In relation to transactions falling within the last mentioned category the ADA imposes only the limited obligations I mentioned earlier.’

Judges:

Pelling QC HHJ

Citations:

[2013] EWHC 215 (Ch)

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Cited by:

Appeal from – Bailey and Another v Angove’s Pty Ltd CA 7-Mar-2014
The parties disputed the payment out of sums held by the company’s liquidators under an undertaking given by them. Their case was that if DandD (agents for the insolvent company) acted in the relevant respects as agents, their authority to collect . .
At first instance – 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.

Insolvency, Agency

Updated: 02 June 2022; Ref: scu.568645

Van Praagh v Everidge: ChD 1902

A power of attorney conferred by a bidder on an auctioneer of land to execute the memorandum of sale if it is knocked down to him was held to be irrevocable

Citations:

[1902] 2 Ch 266

Jurisdiction:

England and Wales

Cited by:

Appealed from – Van Praagh v Everidge CA 1904
. .
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.

Agency

Updated: 02 June 2022; Ref: scu.568648

Mak v Wocom Commodities Limited: PC 11 Nov 1996

(Hong Kong) The appellant had placed foreign exchange transactions with the respondents. He claimed that they were acting as his agents, and claimed that they had made undisclosed profits. They claimed to have been acting as principals. He now appealed a finding that he knew that they were so acting.
Held: The issue turned on the credibility of witnesses. Where there had been to consistent findings of fact in the lower courts, the settled procedure of the Board was not itself to make such an assessment. Matters such as the weight to be attached to particular evidence did not come within any exception to that rule.

Judges:

Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Nolan, Lord Nicholls of Birkenhead, Sir John May

Citations:

[1996] UKPC 40

Links:

Bailii

Citing:

Cited – Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy and Others PC 30-Jul-1946
(Bengal) The appellant sought to claim a substantial inheritance. From many years before it had been thought that he had been buried after dying of syphilis. He claimed he had been resuscitated, taken away and brought up by sanyasi. His identity . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Agency, Commonwealth

Updated: 01 June 2022; Ref: scu.159200

J Jarvis and Sons Ltd v Castle Wharf Developments Ltd, Gleeds Management Services Ltd, Franklin Ellis Architects Ltd: CA 19 Jan 2001

Judges:

Peter Gibson, Arden LJJ, Collins J

Citations:

[2001] EWCA Civ 19, [2001] Lloyds Rep PN 308, (2001) 17 Const LJ 430, [2001] NPC 15

Links:

Bailii

Jurisdiction:

England and Wales

Construction, Professional Negligence, Agency

Updated: 31 May 2022; Ref: scu.147399

Standard Life Assurance Company (Incorporated Under Laws of Scotland By Act of Parliament) v Egan Lawson Limited: CA 21 Nov 2000

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 offer. Was the intriduction by the first agent the effective cause of the sale?
Held: None of the cases indicate that it is legally possible, in the absence of an express or implied contract to that effect, for the court to apportion the agreed commission between the two agents on an equitable basis that each introduction was a contributory cause of the purchase by the person introduced. Neither side proposed that solution as a legally permissible (or even desirable) result in this case. It is a case of winners and losers, all or nothing. In this case however, the claimants had not been the effective introducers. It was the action of the second agent which was the effective cause of the purchase. The actual purchase was not the same transaction proposed by the first agents.
Mummery LJ observed that: ‘In the case of two estate agents appointed by the vendor . . The first in time factor (and the interest that the initial introduction generates) is relevant, it is neither determinative nor paramount in resolving the rival claims to commission. It is necessary to consider the causal link between the instructions and the ultimate transaction.’

Judges:

Simon Brown LJ, Mummery LJ, Latham LJ

Citations:

[2000] EWCA Civ 293, [2001] 1 EGLR 27

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Wood (John D) and Co v Dantata; Beauchamp Estates v Dantata CA 1987
The purchaser liked inspecting houses and the vendor had appointed ten firms to act for him as estate agents. Each of the estate agents was approached by this purchaser and each of the estate agents took the would be purchaser over the property of . .
Cited – Chasen Ryder and Co v Hedges CA 1993
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 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 – MSM Consulting Ltd v United Republic of Tanzania QBD 30-Jan-2009
The claimants sought commission or a quantum meruit for the part they had taken in finding a suitable site for the defendant’s High Commission in London.
Held: The works undertaken were consistent with the claimant seeking work from the . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 31 May 2022; Ref: scu.147326

Michael Gerson (Leasing) Limited v Michael Wilkinson and State Securities Limited: CA 31 Jul 2000

Where goods were subject to a financing arrangement involving a sale and leaseback with a finance company, the goods were to be treated as constructively delivered to the finance company on the sale. Delivery required a voluntary act by the person in actual possession, but that could be satisfied by an acknowledgement of the rights of the purchaser. Such assumptions are in accordance with modern sensible commercial practice. The mere request for an invoice was not of itself sufficient to establish that a contract was in place where delivery might be expected to take place only on payment.

Citations:

Times 12-Sep-2000, Gazette 14-Sep-2000, [2000] EWCA Civ 250, [2000] EWCA Civ 251, [2001] QB 514 CA

Links:

Bailii, Bailii

Statutes:

Sale of Goods Act 1979 24 25

Jurisdiction:

England and Wales

Cited by:

Distinguished – Marcq v Christie, Manson and Woods Ltd CA 23-May-2003
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 – Sirius International Insurance Company (Publ) v FAI General Insurance Limited and others HL 2-Dec-2004
The appellant had taken certain insurance risks on behalf of the respondents, subject to banking indemnities. Disputes arose and were settled under a Tomlin order, which was now itself subject to challenge.
Held: The appeal was allowed. The . .
Lists of cited by and citing cases may be incomplete.

Contract, Financial Services, Agency

Updated: 31 May 2022; Ref: scu.147283

Christie Owen and Davies v Lampitt: CA 28 Jul 1999

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 unarguable, and his appeal against judgment should be allowed to continue.

Judges:

Lord Justice Sedley

Citations:

[1999] EWCA Civ 1993

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Chasen Ryder and Co v Hedges CA 1993
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 . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 31 May 2022; Ref: scu.146908

Parks v Esso Petroleum Company Limited: CA 23 Jul 1999

The claimant sought to add a claim under the regulations for compensation after termination of his agency for the defendants. The lower court had rejected his claim saying that the petrol products he sold were at a price fixed by Esso, and that since he did not negotiate the price he fell outside the regulations.
Held: The word ‘negotiate’ need not include the bargaining of price, but did require more than a collection of funds after a self-service sale: ‘he took no part in the customer’s choice and self-service.’

Judges:

Morritt, Thorpe, Popplewell LJJ

Citations:

[1999] EWCA Civ 1942

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993

Jurisdiction:

England and Wales

Citing:

Cited – Stergios Delimitis v Henninger Brau AG ECJ 28-Feb-1991
ECJ A beer supply agreement is prohibited by Article 85(1) of the EEC Treaty if two cumulative conditions are met. The first is that, having regard to the economic and legal context of the agreement at issue, it . .
Cited – Gibbs Mew Plc v Gemmell and Gibbs Mew Plc and Centric Pub Company Ltd v Gemmell CA 22-Jul-1998
The brewery sought possession of a public house, tied by type. The lessee claimed damages for breach of Art. 81 and a declaration that the Block Exemption was inapplicable to his lease. His appeal from the judge’s order in favour of the brewery was . .
Cited – Crehan v Courage Limited and Byrne and Inntrepreneur Beer Supply Co Ltd and Langton v Inntrepreneur Beer Supply Co Ltd CA 27-May-1999
The court considered the validity of beer ties affecting public houses. . .

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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Landlord and Tenant

Updated: 31 May 2022; Ref: scu.146857

Midland Silicones Ltd v Scruttons Ltd: CA 1960

Judges:

Hodson LJ

Citations:

[1961] 1 QB 106

Jurisdiction:

England and Wales

Citing:

Appeal from – 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:

Appeal from – 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 . .
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 – 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.

Contract, Agency

Updated: 30 May 2022; Ref: scu.251046

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.

Judges:

Diplock J

Citations:

[1959] 2 QB 171

Jurisdiction:

England and Wales

Cited by:

Appeal from – Midland Silicones Ltd v Scruttons Ltd CA 1960
. .
At first instance – 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 . .
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.

Contract, Agency

Updated: 29 May 2022; Ref: scu.280441

Mothew (T/a Stapley and Co) v Bristol and West Building Society: CA 24 Jul 1996

The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse to further borrowing when he knew that they were using an overdraft to obtain further funding. The plaintiff claimed in breach of trust.
Held: A claim for damages for a solicitor’s failure to disclose the existence of a 2nd mortgage must show that damage flowed from the failure alleged.
Millett LJ said: ‘A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary.’
He is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary: ‘A fiduciary who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of the obligation of undivided loyalty; he puts himself in a position where his duty to one principal may conflict with his duty to another . . This is sometimes described as ‘the double employment rule.” and
‘Finally, the fiduciary must take care not to find himself in a position where there is an actual conflict of duty so that he cannot fulfil his obligations to one principal without failing in his obligations to the other . . If he does, he may have no alternative but to cease to act for at least one and preferably both. The fact that he cannot fulfil his obligations to one principal without being in breach of his obligations to the other will not absolve him from liability.’
As to breach of the duty: ‘Breach of fiduciary obligation, therefore, connotes disloyalty or infidelity. Mere incompetence is not enough. A servant who loyally does his incompetent best for his master is not unfaithful and is not guilty of a breach of fiduciary duty.’
If the trustee has benefited from the breach, the court will order him to account for it on the application of the beneficiary. Millett LJ described such relief as ‘primarily restitutionary or restorative rather than compensatory’.

Judges:

Millett LJ

Citations:

Times 02-Aug-1996, [1996] EWCA Civ 533, [1998] Ch 1, [1997] 2 WLR 436, [1996] 4 All ER 698

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Birmingham Midshires Building Society v Infields (A Firm) TCC 20-May-1999
The defendant solicitors had acted for the lenders and borrower in a mortgage transaction. The claimant sought repayment of the entire loan, alleging breach of fiduciary duty, in having preferred the interests of one client over those of another. . .
Cited – Arklow Investments Ltd and Another v Maclean and Others PC 1-Dec-1999
PC (New Zealand) Land was offered for sale. A potential buyer, the appellant was approached by a merchant bank with a proposal for finance. When he sought finance elsewhere, a company associated with the bank . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – The Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003
The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of . .
Cited – Marks and Spencer plc v Freshfields Bruckhaus Deringer (A Firm) ChD 2-Jun-2004
The claimant sought an injunction preventing the respondent form of solicitors acting for a client in a bid for the claimant, saying that the firm was continuing to act for it, and that a conflict of interest arose.
Held: Though the . .
Cited – Marks and Spencer Group Plc and Another v Freshfields Bruckhaus Deringer CA 3-Jun-2004
The defendant firm of solicitors sought leave to appeal against an injunction requiring them not to act for a client in making a bid to take over the business of the claimant, a former client of the firm.
Held: Leave was refused. The appeal . .
Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Cited – Hilton v Barker Booth and Eastwood HL 3-Feb-2005
The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
Cited – Lloyds TSB Bank Plc v Markandan and Uddin (A Firm) ChD 14-Oct-2010
The claimant sought damages saying that the defendant firm of solicitors had failed to deal properly with a conveyance having paid across the mortgage funds to a non-existent firm of solicitors and without obtaining the appropriate documents at all. . .
Cited – Barnes and Another v Black Horse Ltd QBD 31-May-2011
The claimants sought repayment by the bank of sums paid to them for Payment Protection Insurance policies sold to them in connection with loans made by the bank. The Bank now resisted an application for leave to amend the particulars of the . .
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Cited – Portman Building Society v Hamlyn Taylor Neck (a Firm) CA 22-Apr-1998
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 . .
Cited – Mortgage Express v Abensons Solicitors (A Firm) ChD 20-Apr-2012
The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation . .
Cited – Leeds and Holbeck Building Society v Arthur and Cole ChD 2001
A claim for breach of fiduciary duty by a solicitor as against his lender client, required that it be found that the solicitor ‘did not disclose matters which he admittedly ought to have done to the claimant, intentionally and consciously, knowing . .
Cited – FHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Cited – Halton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions, Equity, Agency

Updated: 29 May 2022; Ref: scu.140400

Marcq v Christe Manson and Woods (t/a Christies): QBD 29 Oct 2002

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 good faith. That meant that he was not aware that the person for whom he held the goods was not the true owner. The situation differed where the goods were purchased, and where ownership passed. A bailee could be liable if he did not act in good faith and without notice (Hollins). Christies had made enquiry in the art loss register, and been reassured that it was not stolen. In the circumstances the claimant had to be given an opportunity to deal with issues raised in the response. An auctioneer who receives goods from their apparent owner and simply redelivers them to him when they are unsold is not liable in conversion provided he has acted in good faith and without knowledge of any adverse claim to them.

Judges:

Jack J

Citations:

Times 25-Nov-2002, Gazette 28-Nov-2002

Statutes:

Limitation Act 1980 4

Jurisdiction:

England and Wales

Citing:

Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Hollins v Fowler HL 1875
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 . .
Cited – National Mercantile Bank v Rymill 1881
The plaintiff owned horses subject to a bill of sale. The grantor of the bill sold the horses privately in the defendant’s auction yard and following the sale, on the grantor’s instructions, the auctioneer delivered the horses to the buyer.
Cited – Turner v Hockey 1887
The owner of a cow gave a bill of sale over it (and others) but then asked the defendant auctioneer to sell it. He did not inform the auctioneer of the bill of sale.
Held: An auctioneer who unknowingly but in the ordinary course of business . .
Cited – Willis and Son v British Car Auctions Ltd CA 1978
A car on hire purchase was sold and delivered by auctioneers on the instructions of the hirer. The court was asked whether the auctioneers’ liability was affected by the fact that the car had been sold under their provisional bid procedure.

Cited by:

Appeal from – Marcq v Christie, Manson and Woods Ltd CA 23-May-2003
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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract, Torts – Other

Updated: 28 May 2022; Ref: scu.178298

Sovereign Finance v Silver Crest: 1997

Citations:

[1997] CCLR 76

Jurisdiction:

England and Wales

Cited by:

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

Agency

Updated: 26 May 2022; Ref: scu.269659

The Public Guardian v DA and Others: CoP 5 Oct 2018

The court considered the validity of lasting powers of attorney in the authorisation of euthanasia, and the appointment of multiple attorneys.

Judges:

Baker LJ

Citations:

[2018] EWCOP 26

Links:

Bailii

Statutes:

Mental Capacity Act 2005 57

Jurisdiction:

England and Wales

Citing:

Approved – The Public Guardian’s Severance Applications CoP 19-Jun-2017
18 applications by the Public Guardian for the severance of clauses in instruments intended to have effect as Lasting Powers of Attorney – When severance is and is not necessary – Construction of section 12 (gifts) in relation to providing for the . .
Cited – Re XZ; XZ v The Public Guardian CoP 19-May-2015
XZ executed an LPA which stipulated a number of restrictions and conditions designed to ensure that his attorneys did not act until his incapacity had been unequivocally confirmed by two psychiatrists, whose opinion was subject to review by a . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 25 May 2022; Ref: scu.625405

Re SH: CoP 17 Sep 2018

Application for appointment of person holding a named position within a trustee organisation rather than a named individual as a guardian – effect on succession to post.

Judges:

Hilder HHJ

Citations:

[2018] EWCOP 21

Links:

Bailii

Jurisdiction:

England and Wales

Agency

Updated: 25 May 2022; Ref: scu.625404

Stewart Chartering Ltd v Owners of the ship ‘the Peppy’; Stewart Offshore Services (Jersey) Ltd v Silan Maritime Co and Another: AdCt 15 Apr 1997

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 commission – collateral secret profit – secret profit – distinction.
David Steel QC said of the Hippisley case: ‘this decision of the Court of Appeal admirably demonstrates the difference between a collateral secret profit which preserves the right to commission and a secret profit (albeit honest) directly impacting on the moneys payable to the principal which may destroy the entitlement.’

Judges:

David Steel QC

Citations:

[1997] 2 Lloyds Rep 722

Jurisdiction:

England and Wales

Citing:

Cited – Hippisley v Knee Bros CA 1903
The defendant auctioneers were employed by the plaintiff to sell some goods. The payment was to be percentage commission with a minimum of andpound;20, certain fixed amounts and ‘all out of pocket’ expenses, particularly advertising. The sale . .
Lists of cited by and citing cases may be incomplete.

Transport, Agency

Updated: 25 May 2022; Ref: scu.186620

Floods of Queensferry Ltd, David Charles Flood v Shand Constructions Ltd, Morrison Shand Constructions Ltd, Morrison Construction Ltd: TCC 17 Dec 1999

The claimant alleged that it had entered into a sub-contract relying upon misrepresentations made by the defendant, SCL that it was the main contractor, and that it was still trading. The defendant company operated through associated companies for which it was an agent, but itself was treated as dormant, even though it still put its name to invitations to tender. The claimants had undertaken credit checks before the contract the results of which were adverse.
Held: To be actionable a representation needed to be as to an existing or past fact. The filed accounts were no promise as to the future activity of the company. The claimant could have stopped work at any time, and had not continued after being misled. The company would not have acted differently if the actual position had been made clear. Claim dismissed.

Judges:

His Honour Judge Humphrey Lloyd QC

Citations:

1994 ORB 826, [1999] EWHC Technology 183

Links:

Bailii

Statutes:

Misrepresentation Act 1967 2(2)

Citing:

See Also – Floods of Queensferry Limited v Shand Construction Limited, Morrison Shand Limited, Morrison Construction Limited QBD 13-Feb-1997
. .
Cited – Thomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Agency, Company, Construction

Updated: 23 May 2022; Ref: scu.135998

The Public Guardian’s Severance Applications: CoP 19 Jun 2017

18 applications by the Public Guardian for the severance of clauses in instruments intended to have effect as Lasting Powers of Attorney – When severance is and is not necessary – Construction of section 12 (gifts) in relation to providing for the needs of others from the donor’s estate
District Judge Eldergill compared and contrasted the new terminology in the latest versions of the prescribed forms with the statutory language in s.9(4): ‘It is always risky to depart from the statutory language when drafting forms and the adoption of the headings ‘Preferences’ and ‘Instructions’ in the forms introduced by the Amendment Regulations is potentially misleading.
The term ‘instructions’ is not synonymous with ‘conditions or restrictions’.
Equally, the term ‘preferences’ is not synonymous with ‘best interests’ or a donee’s duty when deciding what is in the donor’s best interests to consider anything written in section 7 of the form concerning the donor’s wishes, feelings, beliefs and values, and the other factors to be considered by their donee(s): see s.4(6) of the 2005 Act.’

Judges:

District Judge Eldergill

Citations:

[2016] EWHC COP 10

Links:

Bailii

Statutes:

Mental Capacity Act 2005 57

Jurisdiction:

England and Wales

Cited by:

Approved – The Public Guardian v DA and Others CoP 5-Oct-2018
The court considered the validity of lasting powers of attorney in the authorisation of euthanasia, and the appointment of multiple attorneys. . .
Lists of cited by and citing cases may be incomplete.

Agency, Health

Updated: 23 May 2022; Ref: scu.588180

Re XZ; XZ v The Public Guardian: CoP 19 May 2015

XZ executed an LPA which stipulated a number of restrictions and conditions designed to ensure that his attorneys did not act until his incapacity had been unequivocally confirmed by two psychiatrists, whose opinion was subject to review by a ‘protector’, and had endured for a minimum period of 60 days. The Public Guardian refused to register the LPA because he considered that the conditions imposed an unreasonable fetter on the attorneys’ power to act and were, therefore, ineffective as part of an LPA.
Held: Lush SJ granted a declaration that the LPA did not contain any provisions which would render it ineffective and made an order that the Public Guardian register the instrument. The court held that the Public Guardian’s function under paragraph 11 of Schedule 1 to the Act was limited to considering whether the conditions and restrictions in an LPA were ineffective as part of an LPA or would prevent the instrument from operating as a valid LPA. If he concluded that they could not be given legal effect, then he was under a duty to apply to the court for determination of the point under s.23(1). Otherwise, he had a duty to register the power. Neither the court nor the Public Guardian was concerned with whether a restriction that does not contravene the terms of the 2005 Act might pose practical difficulties in its operation. In this case, the Public Guardian had failed to identify any specific provision of the Act or the 2007 Regulations or the common law of agency that had been infringed by the provisions in XZ’s LPA.

Judges:

Lush SJ

Citations:

[2015] EWCOP 35

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – The Public Guardian v DA and Others CoP 5-Oct-2018
The court considered the validity of lasting powers of attorney in the authorisation of euthanasia, and the appointment of multiple attorneys. . .
Lists of cited by and citing cases may be incomplete.

Agency, Health

Updated: 23 May 2022; Ref: scu.546869

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

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.

Judges:

James and Mellish LJJ, Bramwell B and Brett J

Citations:

(1875) 1 Ch D 115

Jurisdiction:

England and Wales

Cited by:

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

Agency

Updated: 20 May 2022; Ref: scu.551502

Secured Residential Funding plc v Douglas Goldberg Hendeles and Co (a Firm): CA 19 Apr 2000

Two linked companies were in business from the same premises lending money on mortgage. A loan from one company was made but supported only by documentation in the name of the other. The error was noticed, but new documents not prepared until after completion. In possession proceedings, the lender had to show that the money had been advanced by its associate as its agent. The operative date was the date on which the mortgage advance was made, not on completion.

Citations:

Times 26-Apr-2000, Gazette 25-May-2000, [2000] EWCA Civ 144

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Land, Legal Professions

Updated: 20 May 2022; Ref: scu.89148

Ingmar Gb Ltd v Eaton Leonard Technologies Inc: ECJ 16 Nov 2000

When a commercial agency was terminated in circumstances which under community law would entitle the agent to compensation, that compensation was payable even though the contract expressed itself to be governed by the law of California, and the principal was resident in California. The regime was a mandatory one for the protection of such agents, and would override private contractual provisions.
ECJ Directive 86/653/EEC – Self-employed commercial agent carrying on his activity in a Member State – Principal established in a non-member country – Clause submitting the agency contract to the law of the country of establishment of the principal)

Citations:

Times 16-Nov-2000, C-381/98, [2000] ECR I-9305, [2000] EUECJ C-381/98, [2001] 1 CMLR 9, [2000] EUECJ C-381/98 – O

Links:

Bailii, Bailii

Statutes:

Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents 17

Citing:

Reference from – Ingmar GB Limited v Eaton Leonard Technologies Inc CA 31-Jul-1998
Case referred to ECJ. . .

Cited by:

At ECJ – Ingmar GB Ltd v Eaton Leonard Inc QBD 31-Jul-2001
The applicants sought damages as commercial agents following the termination of their exclusive agency for the sale of the respondents goods in the UK. The defendants claimed the contract was governed exclusively by Californian law. The European . .
Cited – Honyvem Informazioni Commerciali (Freedom Of Establishment) ECJ 23-Mar-2006
Europa Independent commercial agents – Directive 86/653/EEC – Entitlement of a commercial agent to an indemnity after termination of the contract. . .
Cited – 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’ . .
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, Commercial

Updated: 19 May 2022; Ref: scu.82330

Clarke (Executor of the Will of Francis Bacon, Deceased) v Marlborough Fine Art (London) Ltd and Another: ChD 5 Jul 2001

Francis Bacon sold his paintings through the defendant agents for many years. The original contractual arrangement grew into a fiduciary one. The claimants asserted that the defendants were in breach of that fiduciary duty, the defendants asserted that the relationship remained contractual, and that it was now time barred.
Held: There may be a true constructive trust which would not be time barred, rather than a remedial constructive trust. The test was whether the trustee was a true trustee, whether of a constructive or an express trust. Nor was it clear that a court of equity would have time barred a claim in undue influence.

Judges:

Patten J

Citations:

Times 05-Jul-2001

Statutes:

Limitation Act 1980 36(1)(f)

Cited by:

Cited – McLaughlin and Others v Newall QBD 31-Jul-2009
The claimant asked the court to strike out the defence that the claimant had compromised his claim by agreement. The defendant had written letters critical of the claimants who were governors of a school which had disciplined his daughter a teacher . .
Lists of cited by and citing cases may be incomplete.

Agency, Trusts, Limitation

Updated: 19 May 2022; Ref: scu.79197

Barret Mckenzie and Co Ltd v Escada (UK) Ltd: QBD 1 Feb 2001

The court considered the method of calculation of compensation payable to a commercial agent on termination of the agency. The directive provided that the agent should be compensated, not indemnified, and the way an English court calculated compensation need not follow other European jurisdictions. A tariff system would be unfair, and the court must make allowance for the amounts expended by the agent. Accordingly it would be unjust to base the compensation on the gross return, but it should rather be based upon the net income of the agency.

Judges:

Bowers J

Citations:

Times 15-May-2001, [2001] EWHC QB 462, [2001] EuLR 567, [2001] All ER (D) 78

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993 No 3053

Citing:

Cited – King v T Tunnock Limited IHCS 2000
The pursuer had been employed as a commercial agent by the defendant which carried on business as a baker. The pursuer sold only the defendant’s cakes and biscuits. The defendant decided to close its bakery business. The claimant sought compensation . .

Cited by:

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

Agency, Commercial, European, Damages

Updated: 18 May 2022; Ref: scu.78249

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 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.

Citations:

[1903] 72 LJKB 865

Cited by:

Approved – 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 . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 18 May 2022; Ref: scu.522275

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 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 andpound;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.’

Judges:

Bowen LJ, Cotton LJ, Fry LJ

Citations:

(1888) 39 ChD 339

Jurisdiction:

England and Wales

Cited by:

Cited – Fassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
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
The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he . .
Cited – RDF Media Group Plc and Another v Clements QBD 5-Dec-2007
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 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 . .
Approved – Rhodes v Macalister CA 1923
The plaintiff agent acted to find a seller of mineral rights for the defendant principal. He told his principal that the properties could be purchased for from andpound;8,000 to andpound;10,000. If the agent could find a seller at below . .
Cited – Mr H TV Ltd v ITV2 Ltd ComC 8-Oct-2015
The claimant had contracted with the defendant for the production of a series of reality TV shows featuring celebrities. After severe personal clashes between the people involved on the claimants side, the contract was terminated. The claim was that . .
Cited – Phones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .
Lists of cited by and citing cases may be incomplete.

Agency, Employment

Updated: 16 May 2022; Ref: scu.215864

Harmond Properties Ltd v Gajdzis: CA 1968

The County Court decided that a notice to quit given to a tenant by a director of the landlord company in his own name was valid.
Held: The decision was correct. The director had carried out the letting and acted as if he were the landlord in every way. He was held to have been the general agent of the landlord.

Citations:

[1968] 1 WLR 1858

Jurisdiction:

England and Wales

Cited by:

Cited – Dun and Bradstreet Software Services (England) Ltd; Dun and Bradstreet Software Services Ltd v Provident Mutual Life Assurance Association and General Accident Linked Life Assurance CA 9-Jun-1997
Break clauses had been exercised on behalf of the plaintiffs. The defendant landlords appealed a decision upholding the notices. A penalty rent had been sought.
Held: There had been no sufficient agency established to validate the notice. The . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Agency

Updated: 16 May 2022; Ref: scu.188164

Chaudry v Prabhakar: CA 1988

The plaintiff sued a friend of hers for wrongly advising her that a car she was thinking of buying was in good condition.
Held: An agent, even a volunteer, owed a duty of care appropriate for those circumstances. The measurement was objective, not subjective. The defendant knew he was to be relied upon, and the circumstances (a crumpled bonnet) suggested that further enquiry was required. The relationship may be material. If they are friends, the court may find that the arrangement was purely social, and according to the circumstances, did not give rise to a duty of care.
Stuart Smith LJ said: ‘When considering the question of whether a duty of care arises, the relationship between the parties is material. If they are friends, the true view may be that the advice or representation is made on a purely social occasion and the circumstances show that there has not been a voluntary assumption of responsibility.’
Stocker LJ said: ‘in my view, in the absence of other factors giving rise to such a duty, the giving of advice sought in the context of family, domestic or social relationships will not in itself give rise to any duty in respect of such advice.’
May LJ said: ‘I for my part respectfully doubt whether counsel’s concession in the instant case was rightly made in law. I do not find the conclusion that one must impose on a family friend looking out for a first car for a girl of 26 a Donoghue v Stevenson duty of care in and about his quest, enforceable with all the formalities of the law of tort, entirely attractive.’

Judges:

Stuart Smith, Stocker, May LJJ

Citations:

[1989] 1 WLR 29, [1988] 3 All ER 718

Jurisdiction:

England and Wales

Citing:

Dictum applied – Houghland v R R Low (Luxury Coaches) Ltd CA 1962
A passenger’s bag had been placed in one coach that had broken down was intended to be transferred to a second coach. When the second coach arrived at the passenger’s destination the bag was not in the hold.
Held: The duty of care of a bailee . .
Applied – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Lists of cited by and citing cases may be incomplete.

Agency, Negligence

Updated: 16 May 2022; Ref: scu.188809

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 the vendor. An estate agency’s clients resisted payment of his fees. Two agents were saying they were entitled to commission. The result depended upon whether the agent had introduced the purchaser. The parties had accepted that ‘in order to succeed one or other of the two firms had to show that they introduced the ultimate purchaser and that such introduction was the (my emphasis) effective cause of the purchase.’
Held: The familiar meaning of the word introduction was the bringing together of two people who have not previously met, and the phrase ‘introduction of a purchaser’ could only mean the ‘introduction of the person who ultimately purchases, not to the property, but to the purchase, or, if you look at it from the vendors angle, to the sale; in either case to the transaction that takes place’. The fact that one agent introduces a person who ultimately purchases after a later introduction by another agent will not necessarily entitle the first agent to commission. In such a case the court must determine which of the two agents was the effective cause of the transaction taking place.
Nourse LJ: ‘As I have said, the learned judge recorded an acceptance by all three counsel that in order to succeed one or other of the two firms had to show that they introduced the ultimate purchaser and that such introduction was the effective cause of the purchase. That would seem to suggest that there are two questions to be answered, and it would certainly explain the importance which the learned judge attached to the chief’s retention of a lively interest in the property when he went there again on September 9. In truth I think that there is but a single question to be answered: which of the two firms introduced the chief to the sale? Both language and authority establish that that question must be answered by answering this further question: which of the two firms was the effective cause of the sale? Here I would gratefully adopt the following statement of the law in Bowstead on Agency , 15th ed, at p230, to which the learned judge referred:
… the fact that one agent introduces a person who ultimately purchases after a later introduction by another agent will not necessarily entitle the first agent to commission. In such a case the court must determine which of the two agents was the effective cause of the transaction taking place.
The difficulties in clarifying the mind on this question are, I think, caused by the familiar meaning of the word ‘introduction’ as the bringing together of two people who have not previously met. Thus it is natural, when looking at the word in its present context, to attach significance to the first bringing together of the property and the person who ultimately purchases it. But the full phrase is ‘the introduction of a purchaser’ and I think that that can only mean the introduction of the person who ultimately purchases, not to the property, but to the purchase or, if you look at it from the vendor’s angle, to the sale: in either case to the transaction which ultimately takes place. And if you then apply the primary dictionary meaning of ‘introduction’, you find that what you are looking for is the leading or bringing in of the purchaser to that transaction. That makes it clear that first acquaintance is not paramount and it explains why the test is expressed by reference to the effective cause of the transaction.
Which of the two firms was the effective cause of the sale to the chief?’

Judges:

Nourse LJ

Citations:

[1987] 2 EGLR 23

Jurisdiction:

England and Wales

Cited by:

Cited – Harwood T/A RSBS Group v Smith and Smith and Bedwell Watts and Company (a Firm) CA 14-Nov-1997
An estate agent with sole selling rights was not entitled to claim commission on a sale where he had contributed no act to the sale, even though his terms were specific enough to deal with the particular circumstances which had arisen here. Such a . .
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 . .
Considered – Chasen Ryder and Co v Hedges CA 1993
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 – Burney v The London Mews Company Ltd CA 7-May-2003
The defendant sought to appeal judgment against him for his estate agent’s commission. They had been appointed sole agents. A second firm obtained the particulars for their own retained clients, but then copied the particulars onto their own . .
Cited – Standard Life Assurance Company (Incorporated Under Laws of Scotland By Act of Parliament) v Egan Lawson Limited CA 21-Nov-2000
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 – Becerra v Close Brothers ComC 25-Jun-1999
ComC Claim for fee for introducing successful bidder at a controlled auction – no express contract – no implied contract based on City practice – claim for quantum meruit failed because no express or implied . .
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 – MSM Consulting Ltd v United Republic of Tanzania QBD 30-Jan-2009
The claimants sought commission or a quantum meruit for the part they had taken in finding a suitable site for the defendant’s High Commission in London.
Held: The works undertaken were consistent with the claimant seeking work from the . .
Cited – Charania v Harbour Estates Ltd CA 27-Oct-2009
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.
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 16 May 2022; Ref: scu.180396

Watteau v Fenwick: QBD 1893

The defendant brewers owned a beerhouse. They appointed a manager of the business; the license was always taken out in the name of the manager, whose name also appeared over the door. By the agreement between the defendants and their manager, the latter was forbidden to purchase certain articles for the purpose of the business, which were to be supplied by the defendants; but the manager, in contravention of his instructions, ordered such articles from the plaintiff for use in the business; the plaintiff supplied the goods and gave credit for them to the manager only. Subsequently, upon discovering that the defendants were the real owners of the business, the plaintiff sued them for the value of the goods’.
Held: The plaintiff succeeded as the defendants who were the real principals, were liable for all acts of their agent which were within the authority usually conferred upon as an agent of his particular character, although he had never been held out by the defendants as their agent, and although the authority given to him by them had been exceeded.
Wills J. said: ‘once it is established that the defendant was the real principal, the ordinary doctrine as to principal and agent applies — that the principal is liable for all the acts of the agent which are within the authority usually confided to an agent of that character, notwithstanding limitations, as between the principal and the agent, put upon that authority. It is said that it is only so where there has been a holding out of authority — which cannot be said of a case where the person supplying the goods knew nothing of the existence of a principal. But I do not think so. Otherwise, in every case of undisclosed principal, or at least in every case where the fact of there being a principal was undisclosed, the secret limitation of authority would prevail and defeat the action of the person dealing with the agent and then discovering that he was an agent and had a principal.’

Judges:

Wills J

Citations:

[1893] 1 QB 346

Jurisdiction:

England and Wales

Agency

Updated: 16 May 2022; Ref: scu.616745

Ultzen v Nicols: 1894

The plaintiff went to eat in the defendant’s restaurant. He gave over his coat to the waiter, who hung it on a hook. It was stolen.
Held: The defendant was liable as a bailee for reward. He was guilty of negligence in the care of the coat.

Citations:

[1894] 1 QB 92, (1894) 63 LJ QB 829, (1894) 70 LT 140, (1894) 10 TLR 25, (1894) 28 Sol Jo 26, (1894) 10 R 13 DC

Cited by:

Cited – Gnango, Regina v SC 14-Dec-2011
The prosecutor appealed against a successful appeal by the defendant against his conviction for murder. He and an opponent had engaged in a street battle using guns. His opponent had shot an innocent passer by. The court was now asked as to whether . .
Lists of cited by and citing cases may be incomplete.

Agency, Negligence

Updated: 15 May 2022; Ref: scu.467241

Raiffeisen Zentralbank Osterreich A G v Crossseas Shipping Ltd and Others: CA 2000

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’.

Citations:

[2000] 1 WLR 1135

Jurisdiction:

England and Wales

Citing:

Appeal From – Raiffeisen Zentralbank Osterreich A G v Crossseas Shipping Ltd and Others ComC 19-Mar-1999
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
A written contact may be avoided if somebody makes a material alteration to it after it has been signed and without his consent. . .

Cited by:

Cited – Mercury Tax Group Ltd and Another, Regina (On the Application of) v HM Revenue and Customs and Others Admn 13-Nov-2008
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 31-Jul-2013
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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 15 May 2022; Ref: scu.415070

Bexwell v Christie: 3 Feb 1776

Action does not lie against an auctioneer for selling a horse at the highest price bid for him, contrary to the owner’s express directions not to let him go under a larger sum named. Otherwise, if the owner had directed the auctioneer to set the horse up at such a particular price ; and not lower. The auctioneer might, after the bidding by the owner, have sold to the plaintiff on his first bidding : how then can the auctioneer’s authority have been countermanded?
The bidding by the owner of an item being sold at auction was, in law, fraudulent, and not a bidding at all.

Citations:

[1776] EngR 25, (1776) 1 Cowp 395, (1776) 98 ER 1150

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Warlow v Harrison QBD 25-Nov-1858
Whether Auctioneer liable to bidder – vendor’s bid
Three following horses were advertised for sale at auction being the property of a gentleman and sold without reserve. The auctioneer had knocked one down as sold for 61 guineas, but the bid was from the owner. The plaintiff sued the auctioneer, . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 15 May 2022; Ref: scu.373292

Beckford v Beckford: PC 28 Apr 1783

A. by will devises all his estates to his eldest son in tail male, with remainders over ; part of the property consisted of an estate in Jamaica, and therefore the testator added the following clause: ‘ And E recommend to my executors, that all sugars, rum, and other plantation produce that is sent to the port of London, be consigned to the house of Collet, Evans, and Co. until such time as any of my sons shall set up in the business of a sugar factor ; then my desire is, that the consignment may pass through his or their hands.’
C. a natural son of the testator’s, set up the business of a sugar factor, during the minority of the devisee, and accordingly got the consignments upon the devisee’s coming of age, C. accounted with him, but insisted on being entitled to his commission not only upon the produce which he had actually sold, but also upon the produce which had been consigned to him, but was not then arrived in the port of London. Held, that the words of the above clause were not imperative, or amounted to words of bequest in favour of C. but were recommendatory only. Held also, that C: was entitled to a commission only upon what he had actually sold, and not upon what was only consigned, but not delivered to him.
DECRETAL ORDPR of Chancery

Citations:

[1783] EngR 64, (1783) 4 Bro PC 38, (1783) 2 ER 26

Links:

Commonlii

Jurisdiction:

Commonwealth

Wills and Probate, Agency

Updated: 15 May 2022; Ref: scu.372193

Thornett v Haines: 28 Apr 1846

Where a sale by auction is advertised or stated by the auctioneer to be ‘without reserve’, the employment by the vendor of a puffer to bid for him, without notice, renders the sale void, and entitles the purchaser to recover back his deposit from the auctioneer/

Citations:

[1846] EngR 605, (1846) 15 M and W 367, (1846) 153 ER 892

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Warlow v Harrison CExC 26-Nov-1859
Unless public notice of this was given, a bid from the seller himself was fraudulent. He appealed against rejection of his claim against the auctioneer.
Held: The appeal failed on the existing pleadings, but said that the plaintiff might . .
Cited – Barry v Davies (T/A Heathcote Ball and Co) and Others CA 27-Jul-2000
The claimant sought damages from an auctioneer who had failed to accept his bid, and withdrawn the items from the sale.
Held: In an auction without reserve the auctioneer was not entitled to withdraw an item on the basis that the highest or . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 15 May 2022; Ref: scu.302500

Mainprice v Westley: 4 Jul 1865

Liability of auctioneer. Sale without reserve. Undisclosed principal – 1. A declaration alleged that the defendant, an auctioneer, published handbills representing that at a certain day and place he would offer certain premises for peremptory sale by public auction ; that the plaintiff, confiding in those representations, attended at that time and place, whose bid was the highest except a sum bidden by an agent on the part of the vendor, but the defendant would not accept the plaintiff as a purchaser. It appeared in evidence that the handbills stated that on the day and place in question the premises would be offered by the defendant ”for peremptory sale by auction, by direction of the mortgagee with a power of sale, subject to such conditions as will be then declared. For further particulars apply to Mr. H., solicitor, or to the auctioneer.’ H. was the person who brought in the premises. Held, that no contract on which the defendant could be sued personally was proved. 2. Semble, per Cockburn C.J. and Shee J, dubitante Blackburn J., that where an auctioneer, without disclosing his principal, advertises a sale without reserve, he personally contracts that there shall be a sale without reserve.

Judges:

Cockburn CJ, Shee J

Citations:

[1865] EngR 651, (1865) 6 B and S 420, (1865) 122 ER 1250

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Cited – Warlow v Harrison CExC 26-Nov-1859
Unless public notice of this was given, a bid from the seller himself was fraudulent. He appealed against rejection of his claim against the auctioneer.
Held: The appeal failed on the existing pleadings, but said that the plaintiff might . .

Cited by:

Cited – Barry v Davies (T/A Heathcote Ball and Co) and Others CA 27-Jul-2000
The claimant sought damages from an auctioneer who had failed to accept his bid, and withdrawn the items from the sale.
Held: In an auction without reserve the auctioneer was not entitled to withdraw an item on the basis that the highest or . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 15 May 2022; Ref: scu.281563

Lowenstein and Co Limited v Durable Wharfage Co Limited: 1973

Citations:

[1973] 1 Lloyds Rep 221

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.

Contract, Agency

Updated: 15 May 2022; Ref: scu.270465

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 represented in part a discount on the goods purchased, but in reality was also a consideration for the supply of the agents’ services.

Citations:

Times 04-Jul-2000

Statutes:

Sixth Council Directive 77/388/EEC

Citing:

Appealed to – 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 . .

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

VAT, Agency

Updated: 15 May 2022; Ref: scu.79388

Starkey v The Bank of England: HL 1903

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.’

Judges:

Earl of Halsbury LC

Citations:

[1903] AC 114

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, Financial Services

Updated: 14 May 2022; Ref: scu.261594

Shipway v Broadwood: 1899

Where an agent takes a secret commission, ‘the real evil is not the payment of money, but the secrecy attending it’

Judges:

Chitty LJ

Citations:

[1899] 1 QB 369

Cited by:

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

Agency

Updated: 14 May 2022; Ref: scu.250998

Australasian Steam Navigation Co v Morse: PC 1872

Sir Montague Smith: ‘when by the force of circumstances a man has the duty cast upon him of taking some action for another, and under that obligation, adopts the course which, to the judgment of a wise and prudent man, is apparently the best for the interest of the persons for whom he acts in a given emergency, it may properly be said of the course so taken, that it was, in a mercantile sense, necessary to take it.’

Judges:

Sir Montague Smith

Citations:

(1872) LR 4 PC 222

Cited by:

Cited – F v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 14 May 2022; Ref: scu.250062

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 more than an admission of a debt out of court; and whilst it is no doubt cogent evidence against the admitting party, and throws upon him the burden of proving that the debt is not due, it may, like any other admission, be shown to have been made in error.’

Judges:

Viscount Cave

Citations:

(1921) 38 TLR 134

Cited by:

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

Agency

Updated: 14 May 2022; Ref: scu.247972

Chesterfield v Zahid: 1989

Citations:

[1989] CLY 54

Cited by:

Considered – Chasen Ryder and Co v Hedges CA 1993
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 . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 13 May 2022; Ref: scu.229215

Pape v Westacott: 1894

The landlord’s agent, in breach of his authority, released a licence to assign a lease taking a cheque (instead of cash) for the outstanding rent due from the existing tenant. This took place in the presence of the assignee, who did not however know of the excess of authority.
Held: The court dismissed a suggestion that the landlord could still have distrained against the assignee. The agent had as far as the assignee was concerned been held out as acting with authority, but the agent was liable to the landlord for exceeding his authority.

Citations:

[1894] 1 QB 272

Cited by:

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

Agency

Updated: 13 May 2022; Ref: scu.223008

The National Insurance and Guarantee Corporation Plc v Imperio Reinsurance Company (UK) and Another: ComC 30 Sep 1997

ComC Reinsurance broker, whether in breach of duty to effect cover, whether waiver, estoppel or ratification a good defence; relationship between ratification and waiver; nature of principal’s representation as to satisfaction with cover; availability of estoppel where Law Reform (Contributory Negligence) Act applicable, extent of discount for contributory negligence of a principal reassured

Judges:

Colman J

Citations:

Unreported, 30 September 1997

Jurisdiction:

England and Wales

Agency, Insurance

Updated: 13 May 2022; Ref: scu.220798

Banbury v Bank of Montreal: PC 1918

A bank manager employed by the respondents had advised one customer to invest in a project of another. The bank could not advise on investments.
Held: The fact that the second customer owed money to the ban under an overdraft did not make the bank his agent so as to make it responsible to the first as the second’s agent,

Citations:

[1918-19] All ER Rep 1, [1918] AC 626, 87 LJKB 1158, 119 LT 446, 36 Digest (Rep 1) 14

Jurisdiction:

Canada

Banking, Agency

Updated: 13 May 2022; Ref: scu.216352

Said v Butt: 1920

The plaintiff wanted to go to a play’s first night. He had fallen out with the management of the theatre, and knew that he would not get a ticket in his own name. He got a friend to go to the theatre and buy a ticket for him without disclosing the fact. When he turned up for the performance he was refused admission. He brought a claim against Sir Alfred Butt the managing director of the theatre.
Held: His claim was dismissed. Said had not established that a contract existed between himself and the company, and that he had consequently failed to prove that Sir Alfred had caused any breach of the alleged contract in refusing Mr Said admission to the theatre.
A first night is a special event with characteristics of its own, and tickets are only given or sold to persons whom the management selects and wishes to favour. The purchaser’s identity was a material element in the formation of the contract and that the failure to disclose the fact that the ticket was bought on his behalf prevented the plaintiff from asserting that he was the undisclosed principal.
Where a company breaches a contract the company employee whose conduct within the scope of employment is ascribed to the company is not usually personally liable for inducing breach of that contract.
McCardie J said: ‘But the servant who causes a breach of his master’s contract with a third person seems to stand in a wholly different position. He is not a stranger. He is the alter ego of his employer. In such a case it is the master himself, by his agent, breaking the contract he has made, and in my view an action against the agent under the Lumley v Gye principle must therefore fail, just as it would fail if brought against the master himself for wrongly procuring a breach of his own contract.

Judges:

McCardie J

Citations:

[1920] 3 KB 497, [1920] All ER 232, 11 BRC 317

Jurisdiction:

England and Wales

Cited by:

Cited – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Cited – John Louis Carter Fourie v Allan Le Roux and others CA 7-Mar-2005
The defendant’s company in South Africa had become insolvent and the claimant had recovered judgment for arrears of rent. They obtained a freezing order against the defendant. The defendant appealed saying the court did not have jurisdiction, and . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 12 May 2022; Ref: scu.188452

Basma v Weekes: PC 1950

The appellant requested specific performance of an agreement by which the first three respondents had agreed to sell to him two houses, of which they were tenants in common. The respondents pleaded, inter alia, that the agreement alleged was not a sufficient memorandum to comply with the requirements of the Statute of Frauds in that the purchaser named therein was acting, to the knowledge of the respondents, as agent for the appellant who was the principal and that the agreement did not identify the appellant as purchaser.
Held: An agent who contracted in his own name did not cease to be contractually bound because it was proved that the other party knew when the contract was made that he was acting as agent. Also the agreement which was made in his name did not cease in that event to contain the names of the contracting parties, and therefore did not cease to satisfy the Statute of Frauds; and, accordingly that, as the agent could have sued on the contract, so could his principal, the appellant.
In a contract subject to the Statute of Frauds the required memorandum in writing must identify the parties and a person could not intervene to claim that he was the true party to the contract when this was not consistent with the terms of the memorandum. A party is nonetheless entitled to enforce the contract to the extent he can perform it.

Judges:

Lord Reid

Citations:

[1950] AC 441, [1950] 2 All ER 146

Jurisdiction:

Commonwealth

Citing:

Approved – Calder v Dobell 1871
‘an agent who contracts in his own name does not cease to be contractually bound because it is proved that the other party knew when the contract was made that he was acting as agent.’ . .

Cited by:

Cited – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 12 May 2022; Ref: scu.188462

Re Offshore Ventilation: 1989

The position of agency of receivers is a real one, even though it has some peculiar incidents.

Citations:

[1989] 5 BCC 160

Cited by:

Cited – Silven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris CA 21-Oct-2003
The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor . .
Lists of cited by and citing cases may be incomplete.

Agency, Insolvency

Updated: 12 May 2022; Ref: scu.187040

Resolute Maritime Inc v Nippon Kaiji Kyokai: 1983

On its proper construction the section is concerned only with the liability of that other party to the contract and not with the liability of an agent.

Citations:

[1983] 1 WLR 857

Statutes:

Misrepresentation Act 1967 2(1)

Cited by:

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

Contract, Agency, Torts – Other

Updated: 12 May 2022; Ref: scu.186447

National Mercantile Bank v Rymill: 1881

The plaintiff owned horses subject to a bill of sale. The grantor of the bill sold the horses privately in the defendant’s auction yard and following the sale, on the grantor’s instructions, the auctioneer delivered the horses to the buyer.
Held: There had been no conversion. Bramwell LJ: [the auctioneer:] ‘has not claimed to transfer the title and he has not purported to sell; all the dominion he exercised over the chattels was to redeliver them to the person to whom the man from whom he had received them had told him to redeliver them.’ Brett and Cotton LJJ agreed that on the evidence there had been no sale by the auctioneer. This case has been criticised, mainly for the conclusion that there had been no sale by the auctioneer.

Judges:

Bramwell LJ, Brett and Cotton LJJ

Citations:

(1881) 44 LTNS 767

Cited by:

Cited – Marcq v Christe Manson and Woods (t/a Christies) QBD 29-Oct-2002
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 . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 12 May 2022; Ref: scu.183501

Heskell v Continental Express Ltd: 1950

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.

Judges:

Devlin J

Citations:

[1950] 1 All ER 1033

Jurisdiction:

England and Wales

Citing:

Cited – Minister of Pensions v Chennell 1946
. .

Cited by:

Applied – Plant Construction Plc v Clive Adams Associates, JMH Construction Services (2) TCC 31-Mar-2000
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 and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Lists of cited by and citing cases may be incomplete.

Negligence, Agency

Updated: 12 May 2022; Ref: scu.181232

Parker v McKenna: CA 1874

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.’

Judges:

James LJ, Lord Cairns LC

Citations:

(1874) LR 10 Ch 124

Jurisdiction:

England and Wales

Cited by:

Cited – Bhullar and others v Bhullar and Another CA 31-Mar-2003
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 22-Jul-2009
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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Company

Updated: 12 May 2022; Ref: scu.180414

Smith, Stone and Knight Limited v Birmingham: 1939

Implied Agency between Parent and Subsidiary

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: The parent company was entitled to compensation in respect of a business carried on by a subsidiary on the basis that the subsidiary was in reality carrying it on on behalf of the parent company.
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?’

Judges:

Atkinson J

Citations:

[1939] 4 All ER 116

Jurisdiction:

England and Wales

Cited by:

Cited – Reed v Marriott (Solicitors Regulation Authority) Admn 13-May-2009
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 . .
Lists of cited by and citing cases may be incomplete.

Company, Agency

Updated: 11 May 2022; Ref: scu.472101

Hindmarsh and Another v Brigham and Cowan Ltd: 1943

An agent may not put himself in a position or enter into a transaction in which his personal interest, or his duty to another principal may conflict with his duty to his principal, unless his principal, with full knowledge of all the material circumstances and of the nature and extent of the agent’s interest, consents.

Judges:

Atkinson J

Citations:

(1943) Ll L Rep 141

Cited by:

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

Updated: 11 May 2022; Ref: scu.444554

In Re W (Enduring Power of Attorney): CA 9 Jan 2001

A party who objected to the registration of an enduring power of attorney on the basis that the donor had not had the mental capacity to sign it, had the burden of proving that assertion.
Held: Hostility between the donee of a power and other family members was not a reason to invalidate a power. The Act placed the burden on the objectors, and that burden did not shift after they had brought sufficient evidence to raise it as an issue.

Citations:

Gazette 25-Jan-2001, Times 09-Jan-2001, [2000] Ch 343

Statutes:

Enduring Powers of Attorney Act 1985 6(5)(c) 6(6)

Jurisdiction:

England and Wales

Cited by:

Cited – In re F (Enduring power of Attorney) ChD 2-Apr-2004
Mrs F had given an enduring power to her son, but then became incapable and the power was registered. Her daughter had in the meantime applied to be appointed as her receiver. There was particular bitterness between the brother and sister. F called . .
Lists of cited by and citing cases may be incomplete.

Agency, Health, Family

Updated: 10 May 2022; Ref: scu.82274

Bartram and Sons v Lloyd: 1904

A secret commission had been agreed and paid to the agent. The court was asked whether the principal had elected to affirm the contract with the other party at a later meeting when he was given some information about what had happened.
Held: 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.

Citations:

[1904] 90 LTR 357

Cited by:

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

Agency

Updated: 10 May 2022; Ref: scu.250999

Bryant Powis and Bryant v La Banque du Peuple: PC 1893

Powers of Attorney are to be construed strictly.

Judges:

Lord Macnaghten

Citations:

[1893] AC 170

Cited by:

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

Commonwealth, Agency

Updated: 09 May 2022; Ref: scu.224089

Great Atlantic Insurance Co v Home Insurance Co: 1981

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’.

Judges:

Lloyd J

Citations:

[1981] 2 Ll R 219

Jurisdiction:

England and Wales

Cited by:

Appeal from – Great Atlantic Insurance v Home Insurance CA 1981
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 and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 09 May 2022; Ref: scu.223007

Hovenden and Sons v Millhoff: 1900

Romer LJ said: ‘The courts of law in this country have always strongly condemned and, when they could, punished the bribing of agents, and have taken a strong view as to what constitutes a bribe. I believe the mercantile community as a whole 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 ‘.

Judges:

Romer LJ

Citations:

[1900] 83 LT 41

Jurisdiction:

England and Wales

Cited by:

Explained – Industries and General Mortgage Co Ltd v Lewis 1949
When arranging with the plaintiff company to obtain a loan for the defendant V stipulated that he should be paid half the procuration fee which the defendant would be charged for the company’s services. The company knew that V was to receive from . .
Cited – Anangel Atlas Compania Naviera SA v Ishikawajima-Harima Heavy Industries Co Ltd 1990
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 Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
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
Proof of corruption not needed for bribe
In establishing that money was paid as an improper inducement or bribe, proof of corruptness or a corrupt motive was unnecessary.
When a court looks at a decision of a judge at first instance, the court stressed the need to look at the . .
Lists of cited by and citing cases may be incomplete.

Agency, Torts – Other

Updated: 09 May 2022; Ref: scu.194863

Silven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris: CA 21 Oct 2003

The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor leads to the assumption by receivers who accept such appointment of responsibilities and duties which differ from those owed by the mortgagees.
Held: By accepting office as receivers of the Claimants’ properties the Receivers assumed a fiduciary duty of care to the Bank, the Claimants and all (if any) others interested in the equity of redemption. The scope or content of the duty depends on the special nature of the relationship between the Bank, the Claimants and the Receivers arising under the terms of the mortgages and the appointments of the Receivers, and in particular the role of the Receivers in securing repayment of the secured debt and the primacy of their obligations in this regard to the Bank. That was inconsistent with a duty to take the pre-marketing steps for which the Claimants contended in this action.

Judges:

Lord Justice Aldous Lord Justice Tuckey Mr Justice Lightman

Citations:

[2003] EWCA Civ 1409, Times 27-Oct-2003, Gazette 20-Nov-2003, [2004] 1 WLR 997, [2004] 4 All ER 484

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Re Charnley Davies Ltd (No 2) ChD 1990
An administrator owed a duty to the company over which he was appointed to take reasonable care to obtain the best price that the circumstances, as he reasonably perceived them to be, permitted, including a duty to take reasonable care in choosing . .
Cited – Downsview Nominees Ltd and Another v First City Corporation Ltd and Another PC 19-Nov-1992
(New Zealand) The holder of a second debenture appointed receivers to the assets. The first debenture holder then also appointed receivers not to obtain repayment of its debt, but to disrupt the work of the first appointed receivers and in order to . .
Cited – Medforth v Blake and others CA 26-May-1999
A receiver appointed to manage a business had duties over and above those of mere good faith. A receiver who failed to obtain discounts normally obtainable for supplies to the business might be liable for that failure. when considering the position . .
Cited – Nash v Eads CA 1880
Sir George Jessel MR: ‘The mortgagee was not a trustee of the power of sale for the mortgagor, and if he was entitled to exercise the power, the Court could not look into his motives for so doing. If he had a right to sell on June 1, and he then . .
Cited – Palk v Mortgage Services Funding Plc CA 1993
The mortgagees had obtained an Order for possession with the intention, not of proceeding to sell the property but of waiting in the hope that the market might improve. The mortgagor was anxious that the property should be sold so that the proceeds . .
Cited – Tse Kwong Lam v Wong Chit Sen PC 1983
For a mortgagee in possession selling a property, it does not matter that the time may be unpropitious and that by waiting a higher price could be obtained: he is not bound to postpone in the hope of obtaining a better price. . .
Cited – China and South Sea Bank Limited v Tan Soon Gin PC 1990
A mortgagee’s decision on sale is not constrained by reason of the fact that the exercise or non-exercise of the power will occasion loss or damage to the mortgagor. He can sit back and do nothing. He is not obliged to take steps to realise his . .
Cited – McHugh v Union Bank of Canada PC 1913
There was a mortgage of horses, which the mortgagee needed to drive to market if he was to sell them.
Held: If a mortgagee goes on with a sale of property which is unsaleable as it stands, a duty of care may be imposed on him, when taking the . .
Cited – Standard Chartered Bank Ltd v Walker CA 1982
The mortgagee having obtained insufficient on the sale at auction of the property charged to recover the sum secured, applied for summary judgment against the mortgagor for that sum. The mortgagor resisted the application alleging that the mortgagee . .
Cited – Knight v Lawrence 1991
If a mortgaged property is let, the receiver is duty bound to inspect the lease and, if the lease contains an upwards only rent review, to trigger that rent review in due time. . .
Cited – Kelly v Cooper and Another PC 25-Nov-1992
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 – Knight v Lawrence 1993
As part of his duty of care, a receiver may be required to take positive steps to maintain the value of the property. . .
Cited – Routestone Ltd v Minories Finance ChD 1996
A receiver’s management duties will ordinarily impose on him no general duty to exercise the power of sale, or to ‘work’ an estate by refurbishing it before sale. Speaking of the role of an expert witness ‘What really matters in most cases are the . .
Cited – Yorkshire Bank Plc v Hall and Others CA 18-Dec-1998
The Court of Appeal is not strictly bound by the terms of leave to appeal given, but where the points had been specifically considered a point could only be heard with the leave of the Court of Appeal which had full power to regulate its own . .
Cited – Ratford v Northavon District Council CA 1986
The reality of the agency of a receiver is reflected in the continuity, after the appointment of receivers, of the rateable occupation of the mortgagor through the agency of the receivers. The possession of an agent is to be attributed to that of . .
Cited – Re Offshore Ventilation 1989
The position of agency of receivers is a real one, even though it has some peculiar incidents. . .
Cited – Piacentini v Dayman QBD 5-Feb-2003
The reality of the agency of a receiver for a mortgagor is shown in the absence of personal liability of the receivers for tax in respect of receipts which come to the hands of the receivers as agents. . .
Cited – Gaskell v Gosling CA 28-Apr-1896
The agency of a receiver for the mortgagor is one where the principal, the mortgagor, has no say in the appointment or identity of the receiver and is not entitled to give any instructions to the receiver or to dismiss the receiver. ‘For valuable . .
Cited – Gaskell v Gosling CA 28-Apr-1896
The agency of a receiver for the mortgagor is one where the principal, the mortgagor, has no say in the appointment or identity of the receiver and is not entitled to give any instructions to the receiver or to dismiss the receiver. ‘For valuable . .
Cited – Gomba Holdings v Homan 1986
A receiver’s powers of management are really ancillary to the duty to manage the security, the property of the mortgagee, for the benefit of the mortgagee. In the context of the agency of a receiver which is no ordinary agency but primarily a device . .
Cited – Henderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .

Cited by:

Cited – Den Norske Bank Asa v Acemex Management Company Ltd CA 7-Nov-2003
Money had been loaned for the purchase of three ships,and mortgages over the ships had been given given. The borrowers were in default, and the lender sought to arrest the vessels. The defendant argued that the way the arrest had been undertaken . .
Cited – MacDonald and Another v Carnbroe Estates Ltd SC 4-Dec-2019
‘This appeal concerns the Scots law of gratuitous alienations on insolvency. It raises three principal questions. First, there is a question as to the interpretation of the term ‘adequate consideration’ in section 242(4)(b) of the Insolvency Act . .
Lists of cited by and citing cases may be incomplete.

Negligence, Agency, Insolvency

Leading Case

Updated: 09 May 2022; Ref: scu.187019

King v Hutton: CA 1900

‘The most compelling indicator for or against a trusteeship of an agent’s receipts is the nature of the account agreed to be kept by the agent with his principal. If, after each individual transaction or group of related transactions he effects for his principal, he is to pay over the proceeds in his hands – minus any commission payable – then he will ordinarily be a trustee. But where an agent is effecting both sales and purchases for his principal, or is discharging liabilities for his principal out of monies received, and he keeps a running account with periodic settlement dates at which he pays over the balance of account (if any), he will, ordinarily, be a debtor only – the debtor-only conclusion being reinforced if there are present in the accounts (1) set offs, other than for commission, or (2) interest charges on credits and debits’.

Citations:

[1900] 2 QB 504, [1900] 83 LT 68

Jurisdiction:

England and Wales

Cited by:

Cited – Aluminium Industrie Vaassen B V v Romalpa Aluminium Ltd ChD 11-Feb-1975
The plaintiffs sold aluminium to the defendant and by a clause in the contract retained their title in the materials sold until payment was received. The purchaser went into insolvent receivership, and the seller sought recovery of the equipment and . .
Cited – DP Mann and others v Coutts and Co ComC 16-Sep-2003
The claimants were involved in litigation, They took certain steps on the understanding that the respondents had had deposited with them substantial sums in accounts under binding authorities. The bank had written a letter upon which they claim they . .
Lists of cited by and citing cases may be incomplete.

Trusts, Agency

Updated: 08 May 2022; Ref: scu.181239

J Jarvis and Sons Ltd v Castle Wharf Developments Ltd and Others: CA 28 Feb 2001

An independent professional agent can become liable to someone entering into a contract with his principal for a negligent misstatement which induced him to tender for the contract. The issue was first whether the prospective contractor would rely upon the misstatement. Liability will vary according to the circumstances.

Citations:

Times 28-Feb-2001

Jurisdiction:

England and Wales

Agency, Professional Negligence

Updated: 08 May 2022; Ref: scu.82446

Eden v Ridsdale Railway Lamp and Lighting Co Ltd: CA 1889

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.

Judges:

Lord Esher MR and Lindley and Lopes LJJ

Citations:

(1889) 23 QBD 368

Jurisdiction:

England and Wales

Cited by:

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

Company, Agency, Equity

Updated: 08 May 2022; Ref: scu.551505

The Fore Street Warehouse Company Ltd v Durrant and Co: 1883

A writ had been served on the lunatic defendant’s business manager. The Court Rules provided: ‘When a lunatic or person of unsound mind not so found by inquisition is a defendant to the action, service on the committee of the lunatic, or on the person with whom the person of unsound mind resides or under whose care he or she is, shall unless the Court or Judge otherwise orders, be deemed good service on such defendant.’
Held: Judgment was set aside because the writ had been served at a time when the defendant was of unsound mind.
Grove J said: ‘I think the principle of this rule is that the service should be on some person qualified to act for the lunatic or most likely to know to whom the fact of service ought to be communicated. The manager of the lunatic’s business might be ignorant of these matters. Where the writ is served in such a manner that it may probably never reach the lunatic, I do not think it can be valid and proper service. The plaintiffs may reasonably be required to go through the formalities which may give the friends of the lunatic a proper opportunity of appearing.’
He also considered the actions of the defendant’s solicitors, saying: ‘As for the objection that the solicitors are not qualified to appear for the lunatic, there is no doubt that they were authorized to act when she was first taken ill, and I think that the retainer would extend to enable them to take such steps as became necessary in consequence of her lunacy.’

Judges:

Grove J

Citations:

(1883) 10 QBD 471

Statutes:

Supreme Court of Judicature Act 1873

Jurisdiction:

England and Wales

Cited by:

Cited – Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust CA 27-Jan-2015
This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement. The issue was whether the CFA terminated automatically by . .
Lists of cited by and citing cases may be incomplete.

Health, Agency, Litigation Practice, Legal Professions

Updated: 08 May 2022; Ref: scu.542245

Re Harcourt: CoP 2013

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

Citations:

[2013] COPLR 69

Statutes:

European Convention on Human Rights 8.2, Mental Capacity Act 2005

Jurisdiction:

England and Wales

Cited by:

Cited – Re MRJ JT and KT (Reconsideration of Order) CoP 10-Apr-2014
re_mjtCoP0414
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 . .
Lists of cited by and citing cases may be incomplete.

Health, Agency

Updated: 08 May 2022; Ref: scu.523692

Barker v Harrison: 16 Apr 1846

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.

Judges:

Sir James Knight-Bruce V-C

Citations:

[1846] EngR 533, (1846) 2 Coll 546, (1846) 63 ER 854

Links:

Commonlii

Cited by:

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

Agency, Equity

Updated: 07 May 2022; Ref: scu.302428

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

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.

Citations:

[1842] EngR 397, (1841,1842) 8 Cl and Fin 657, (1842) 8 ER 256

Links:

Commonlii

Cited by:

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

Legal Professions, Agency

Updated: 07 May 2022; Ref: scu.307352

Harington Bart v Hoggart: 29 Jul 1854

An auctioneer who is employed to sell an estate, and who receives a deposit from the purchaser, is a mere stake-holder, liable to be called upon to pay the money at any time ; and, therefore, although he place the money in the funds and make interest of it, he is not liable to pay such interest to the vendor when the purchase is completed ; though the vendor (without the concurrence of the vendee) gave him notice to invest the money in Government securities.

Citations:

[1854] EngR 785, (1854) 5 Giff 13, (1854) 66 ER 902

Links:

Commonlii

Jurisdiction:

England and Wales

AGENCY

Updated: 07 May 2022; Ref: scu.293642

Toulmin v Millar: HL 1887

The agent claimed a second commission when his principal, who had already paid a commission for the procuring of a tenant, was asked to pay a second commission on the purchase of the property by the tenant at a later date.
Held: Where there has been indubitably established a causal relationship between the introduction of the purchaser and the ultimate transaction of the sale, and that is sufficient to found the plaintiff’s legal claim for commission.
Lord Watson said: ‘It is impossible to affirm, in general terms, that A. is entitled to a commission if he can prove that he introduced to B. the person who afterwards purchased B.’s estate, and that his introduction became the cause of the sale. In order to found a legal claim for commission, there must not only be a causal, there must also be a contractual relation between the introduction and the ultimate transaction of sale. If A. had no employment to sell, express or implied, he could have no claim to be remunerated.’

Judges:

Lord Watson

Citations:

(1887) 58 LT 96

Jurisdiction:

England and Wales

Cited by:

Cited – The County Homesearch Company (Thames and Chilterns) Ltd v Cowham CA 31-Jan-2008
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 from a finding that they were obliged to pay his commission. The judge found . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 07 May 2022; Ref: scu.264095

Morris v CW Martin Ltd: CA 1966

Diplock LJ said: ‘The legal relationship of bailor and bailee of a chattel can exist independently of any contract.’ Where goods are lost or damaged, the burden is on the bailee (or sub-bailee) to ‘show – that the loss or damage caused without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty.’

Judges:

Diplock LJ, Lord Denning MR

Citations:

[1966] 1 QB 716

Jurisdiction:

England and Wales

Cited by:

Cited – Scottish and Newcastle International Limited v Othon Ghalanos Ltd HL 20-Feb-2008
The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have . .
Cited – Piper v Hales QBD 18-Jan-2013
The claimant owned a very vauable vintage Porsche racing car. It was hired to the defendant. The car suffered severe mechanical damage whilst being driven, and the insurers declined liability.
Held: The Defendant as hirer was under an . .
Cited – Woodland v Essex County Council SC 23-Oct-2013
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 . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 07 May 2022; Ref: scu.264646

Fawcett v Whitehouse: 21 Dec 1829

The defendant, intending to enter into a partnership with the plaintiffs, negotiated for the grant by a landlord of a lease to the partnership. The landlord paid the defendant andpound;12,000 for persuading the partnership to accept the lease.
Held: The defendant was accountable to the new partnership for the money. It would otherwise have been a fraud on his partners. An agent, who was negotiating on behalf of a prospective lessee and who accepted a ‘loan’ from the lessor, held the loan on trust for his principal, the lessee.

Citations:

(1829) 1 Russ and M 132, [1829] EngR 859, (1829) 1 Russ and My 132, (1829) 39 ER 51

Links:

Commonlii

Cited by:

Cited – Simms v Conlon and Another CA 20-Dec-2006
Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .
Cited – FHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Company, Agency

Updated: 07 May 2022; Ref: scu.248008

Brodie, Marshall and Co (Hotel Division) Ltd v Sharer: 1988

The defendant resisted payment of his estate agent’s charges. The agency contract gave the agent sole selling rights, but the purchaser was found on the vendor’s own initiative. The terms made commission was payable if ‘we introduce directly of indirectly a person who agrees to purchase the property.’ Further ‘if during the period of our sole selling agreement the owner deals with a person not introduced by us or by any other agent, we shall be entitled to the same commission as if we had introduced such person.’ The defendant had not withdrawn the plaintiff’s instructions, but the introduction was not by any person within the terms defined.
Held: The agent could recover his commission. The clauses were clear and unambiguous, and had properly been brought to the attention of the defendant. The terms were neither onerous, nor unusual.

Judges:

White J

Citations:

[1988] 1 EGLR 21, [1988] 19 EG 129

Jurisdiction:

England and Wales

Citing:

Cited – Luxor (Eastbourne) v Cooper HL 1941
The vendor company had instructed agents to sell properties on its behalf and had agreed to pay commission on completion of the sale. The sale was agreed with a prospective purchaser introduced by the agents. Before the sale was completed, the . .
Cited – Jaques v Lloyd D George and Partners 1968
. .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – Thornton v Shoe Lane Parking Ltd CA 18-Dec-1970
The claimant had suffered damage at the defendant’s car park. The defendant relied upon an exemption clause printed on the ticket, and now appealed against rejection of its defence under the clause.
Held: The appeal failed. The more extreme an . .

Cited by:

Cited – G and S Properties v Donald 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: 07 May 2022; Ref: scu.231524

Sorrell v Finch: HL 1976

A purchaser had paid a deposit to the estate agent, but sought its return before contracts had been exchanged.
Held: In the absence of any express extension of authority to a estate agent or auctioneer to receive a pre-contract deposit, the potential purchaser is, at all times until the contract is entered into, the only person with any claim or right to the deposit. If the agent chooses to forward such deposit, then he must bear the loss. The vendor at that stage has no liability to repay the deposit. After completion, the agent holds any deposit for the vendor subject only to his right to deduct his commission and expenses. In a dispute between the vendor and purchaser, the agent should interplead.

Citations:

[1976] 2 All ER 371, [1977] AC 728, [1976] 2 WLR 833, 120 Sol Jo 353

Jurisdiction:

England and Wales

Agency

Updated: 06 May 2022; Ref: scu.219191

Chasen Ryder and Co v Hedges: CA 1993

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.

Judges:

Sir Donal Nicholls V-C, Staughton LJ

Citations:

[1993] 1 EGLR 47, [1993] 39 EG 123

Jurisdiction:

England and Wales

Citing:

Considered – 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 . .
Considered – Chesterfield v Zahid 1989
. .

Cited by:

Cited – Christie Owen and Davies v Lampitt CA 28-Jul-1999
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 21-Nov-2000
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 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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 06 May 2022; Ref: scu.182507

(In re Hannan’s Empress Gold Mining and Development Co (Carmichael’s Case): 1896

A power of attorney was held to be irrevocable when conferred on the promoter of a public share offering to subscribe for shares

Citations:

[1896] 2 Ch 643

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.

Agency, Company

Updated: 06 May 2022; Ref: scu.568647

Bagnall v Carlton: CA 1877

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

Judges:

James, Baggallay and Cotton LJJ

Citations:

(1877) 6 Ch D 371

Jurisdiction:

England and Wales

Cited by:

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

Company, Equity, Agency

Updated: 06 May 2022; Ref: scu.551500

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

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.

Judges:

Sir George Jessel MR and James and Baggallay LJJ

Citations:

(1877) 5 Ch D 336

Jurisdiction:

England and Wales

Cited by:

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

Agency

Updated: 06 May 2022; Ref: scu.551504