Tag Archives: Agency

Garnac Grain Co Inc -v- HMF Faure and Fairclough; 1967

The Board was asked what was necessary to establish the raltionship of principal and agent.
Held: In the essence of agency is the element of consent.
Lord Pearson said: ‘The relationship of principal and agent can only be established by the consent of the principal and agent. They will be held to have consented if they have agreed to what amounts in law to such a relationship even if they do not recognise it themselves and even if they have professed to disclaim it . . The consent however must be given by each of them either expressly or by words and conduct.’

Date: 01-Jan-1967
Judges: Lord Pearson
References: [1967] 2 All ER 353, [1968] AC 1130, [1967] 3 WLR 143
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N and Another -v- E and Others; CoP 15-Aug-2014

E had executed a Lasting Power of Attorney. There had been a dispute leading to the revocation of the appointment. The court now considered in particular the appropriate order for costs.

Court: CoP
Date: 15-Aug-2014
Judges: Lush SJ
Links: Bailii,
References: [2014] EWCOP 27,

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Filed under Agency, Costs, Health

Suffolk County Council -v- JU and Another; CoP 30-Jul-2014

Appointment of deputy – objection

Court: CoP
Date: 30-Jul-2014
Judges: Lush SJ
Links: Bailii,
References: [2014] EWCOP 21,

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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.

Court: CA
Date: 19-Feb-2003
Judges: Lord Justice Brooke Lord Justice Sedley Lord Justice Carnwath
Statutes: Enduring Powers of Attorney Act 1995, Courts and Legal Services Act 1990
Links: Bailii,
References: Times, 21-Feb-2003, [2003] EWCA Civ 183, [2003] 1 WLR 1149
Cases Cited:
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Filed under Agency, Legal Professions, Litigation Practice

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

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

Court: CA
Date: 14-Nov-1997
Judges: Lord Justice Hobhouse, Lord Justice Pill, Lord Justice Mummery
Statutes: Estate Agency Act 1979 18, Estate Agents (Provision of Information) Regulations 1991 (SI 1191 No 859) 5(1)
Links: Times, Bailii,
References: [1997] EWCA Civ 2725, [1998] 1 EGLR 5
Cases Cited:
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Filed under Agency, Consumer

Norwich Union Life & Pensions Ltd -v- Strand Street Properties Ltd; ChD 20-May-2009

The claimant sought a sum being its losts costs in connection with a proposed development scheme, being agreed to be paid by the defendants through their agents.

Court: ChD
Date: 20-May-2009
Judges: Morgan J
Links: Bailii,
References: [2009] EWHC 1109 (Ch),

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Filed under Agency, Contract

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 a nature as would be excused if done by the authority of the person in possession if he was a finder of the goods or intrusted with their custody. Thus a warehouseman with whom goods had been deposited is guilty of no conversion by keeping them or restoring them to the person who deposited them with him, though that person turns out to have had no authority from the true owner. The same principle applies to persons ‘acting in a subsidiary character, like that of a person who has the goods of a person employing him to carry them, or a caretaker, such as a wharfinger’. Blackburn J (Advising the House): ‘If, as is quite possible, the changes in the course of business since the principles of law were established make them cause great hardships or inconvenience, it is the province of the Legislature to alter the law.’

Court: HL
Date: 01-Jan-1875
Judges: Blackburn J, Brett J
References: (1875) LR 7 HL 757,
Cases Cited:
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Filed under Agency, Torts - Other

Warren -v- Drukkerij Flach BV; CA 18-Jul-2014

The claimant said that he had been an agent of the defendant within the 1993 Regulations, and entitled to compensation on termination of that contract.

Court: CA
Date: 18-Jul-2014
Judges: Longmore, Tomlinson, Fulford LJJ
Statutes: Commercial Agents (Council Directive) Regulations 1993 17 18
Links: Bailii,
References: [2014] EWCA Civ 993,

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Industries and General Mortgage Co Ltd; 1949

The court discussed difficulties in defining what is a bribe: ‘Yes, but earlier the learned judge has said that if a gift be made to a confidential agent with a view to inducing him, it is a bribe, and, therefore, in using the later language and referring to the bribes the learned judge is in effect saying: ‘I am using these later presumptions in cases where a bribe has been established and I have already defined a bribe as being only something which has been established as being paid with a certain motive.’ That, of course, would tear up the whole of the learned judge’s observation because he says lower down that the courts will not receive evidence as to what is the motive of the person making the payment. The motive will be conclusively inferred against him.’

Date: 01-Jan-1949
Judges: Slade J
References: [1949] 2 All ER 573,
Cases Cited:
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Filed under Agency, Torts - Other

Stewart Chartering Ltd -v- Owners of the ship the Peppy; Stewart Offshore Services (Jersey) Ltd -v- Silan Maritime Co & 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.’

Court: AdCt
Date: 15-Apr-1997
Judges: David Steel QC
References: [1997] 2 Lloyd's Rep 722,
Cases Cited:
  • Hippisley -v- Knee Bros, CA, Cited, ([1905] 1 KB 1, [1905] 1 LJKB 68, [1905] 92 LT 20, [1905] 21 TLR 5, [1905] 49 Sol Jo 15)

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Filed under Agency, Transport

Re DP (Revocation of Lasting Power of Attorney); CoP 11-Feb-2014

Application by the Public Guardian to revoke and direct the cancellation of the registration of a Lasting Power of Attorney.

Court: CoP
Date: 11-Feb-2014
Judges: Lush SJ
Statutes: Mental Capacity Act 2005 22(4)(b)
Links: Bailii,
References: [2014] EWHC B4 (COP),

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Filed under Agency, Health

FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc; SC 16-Jul-2014

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 commission.

Court: SC
Date: 16-Jul-2014
Judges: Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Hodge, Lord Collins
Links: Bailii,
References: [2014] UKSC 45,

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Filed under Agency, Equity, Totts - Other

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

Court: CoP
Date: 01-Jan-2013
Statutes: European Convention on Human Rights 8.2, Mental Capacity Act 2005
References: [2013] COPLR 69,
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Filed under Agency, Health

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

The court had made an order transferring responsibility for MRJ’s affairs from the appointed attorney to the local authority. The order had been made on the papers, and the court now heard an application for it to be reconsidered.
Held: The orders made were confirmed. The court recognised that the interference in a person’s choice of attorney was an interference in their right to private and family life under article 8 of the Convention, and must only be allowed where fully warranted. The evidence now before the court established even more clearly the mismanagement of the patient’s affairs by the agent.

Court: CoP
Date: 10-Apr-2014
Judges: Lush LJ
Statutes: Mental Capacity Act 2005, Court of Protection Rules 2007, European Convention on Human Rights 8
Links: Bailii,
References: [2014] EWHC B15 (COP),
Cases Cited:

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Filed under Agency, Health, Human Rights, Litigation Practice

Andrew -v- Ramsay & 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.

Date: 01-Jan-1903
References: [1903] 72 LJKB 865,
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LNOC Ltd -v- Watford Association Football Club Ltd; ComC 21-Nov-2013

The claimant sought repayment of sums loaned to eth football club. The defendant replied saying that the loans were ineffective since the claimant had known that they were being entered into by an officer of the club without authority and contrary to the club’s interests.

Court: ComC
Date: 21-Nov-2013
Judges: Mackie QC J
Links: Bailii,
References: [2013] EWHC 3615 (Comm),

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Filed under Agency, Torts - Other

Hughes -v- Percival; 1883

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

Date: 01-Jan-1883
Judges: Lord Blackburn
References: (1883) 8 App Cas 443, [1881-85] All ER 44, (1883) 8 AC 443
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Filed under Agency, Negligence, Vicarious Liability

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

ECJ Rome Convention on the law applicable to contractual obligations – Articles 3 and 7(2) – Freedom of choice of the parties – Limits – Mandatory rules – Directive 86/653/EEC – Self-employed commercial agents – Contracts for sale or purchase of goods – Termination of the agency contract by the principal – National implementing legislation providing for protection going beyond the minimum requirements of the directive and providing also for protection for commercial agents in the context of contracts for the supply of services

Court: ECJ
Date: 17-Oct-2013
Judges: M Ilesic P
Statutes: Directive 86/653/EEC
Links: Bailii,
References: C-184/12, [2013] EUECJ C-184/12

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Filed under Agency, Contract, European

Global Energy Horizons Corp -v- Gray; ChD 21-Dec-2012

The claimant asserted breach of fiduciary duties by the respondent.

Court: ChD
Date: 21-Dec-2012
Judges: Vos J
Links: Bailii,
References: [2012] EWHC 3703 (Ch),

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Gomba Holdings UK Ltd -v- Minories Finance Ltd; CA 1988

The court was asked as to ownership of documents coming into existence in the course of a receivership. The plaintiff companies had argued that all documents belonged to them because the receivers were their agents and the documents were created in the course of that agency.
Held: As between a principal and its agent, all documents prepared or received by agent belong to principal, and were to be delivered up on termination of agency on basis of ownership of them.
However, whilst the receivers were technically agents of the companies, the agency of a receiver is not an ordinary agency because it involves a tri-partite relationship in which the receiver owed duties to both the mortgagor company and the debenture holder. It determined the dispute over ownership by assessing the purpose for which the documents were created – whether as performance of one of the duties (in which case the companies could only claim ownership when the documents were created in the course of performing the duty to them to manage their affairs) or to enable them to carry out their professional duties as distinct from performance of a duty (in which case the documents were the property of the receivers).
Hoffmann LJ said that a receiver and manager ‘is no ordinary agent’ and continued: ‘Although nominally the agent of the company, his primary duty is to realise the assets in the interests of the debenture holder and his powers of management are really ancillary to that duty.’
Fox LJ discussed the nature of a receiver’s agency, saying: ‘The agency of a receiver is not an ordinary agency. It is primarily a device to protect the mortgagee or debenture holder. Thus, the receiver acts as agent for the mortgagor in that he has power to affect the mortgagor’s position by acts which, though done for the benefit of the debenture holder, are treated as if they were the acts of the mortgagor. The relationship set up by the debenture, and the appointment of the receiver, however, is not simply between the mortgagor and the receiver. It is tripartite and involves the mortgagor, the receiver and the debenture holder. The receiver is appointed by the debenture holder, upon the happening of specified events, and becomes the mortgagor’s agent whether the mortgagor likes it or not. And, as a matter of contract between the mortgagor and the debenture holder, the mortgagor will have to pay the receiver’s fees. Further, the mortgagor cannot dismiss the receiver since that power is reserved to the debenture holder as another of the contractual terms of the loan. It is to be noted also that the mortgagor cannot instruct the receiver how to act in the conduct of the receivership.’

Court: CA
Date: 01-Jan-1988
Judges: Hoffmann, Fox LJJ
References: [1988] 1 WLR 1231, [1989] 1 All ER 261, (1988) 5 BCC 27, [1989] BCLC 115
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Filed under Agency, Insolvency