Tag Archives: Agency

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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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

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:
Cited By:

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Filed under Agency, Torts - Other

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 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

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,
Cited By:

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Filed under Agency, Health

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
Cited By:

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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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Filed under Agency

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
Cited By:

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Filed under Agency, Insolvency

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

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

Court: CA
Date: 19-Jul-2013
Judges: Mummery, Patten, Black LJJ
Links: Bailii,
References: [2013] EWCA Civ 886,
Cases Cited:

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Filed under Agency, Employment, Information

JD Wetherspoon Plc -v- Harris and Others; ChD 1-May-2013

The chancellor gave reasons for refusing to strike out the claim. The claimant had alleged dishonest assistance in a breach of an agent’s duty by the defendants in two land transactions.

Court: ChD
Date: 01-May-2013
Judges: Sir Terence Etherton
Links: Bailii, WLRD,
References: [2013] EWHC 1088 (Ch), [2013] WLR(D) 159, [2013] 1 WLR 3296

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Filed under Agency, Torts - Other

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

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

Date: 01-Jan-1939
Judges: Atkinson J
References: [1939] 4 All ER 116,
Cited By:

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Filed under Agency, Company

Day -v- Harris and Another; CA 20-Mar-2013

Court: CA
Date: 20-Mar-2013
Judges: Rix, Lloyd, MacFarlane LJJ
Links: Bailii, WLRD,
References: [2013] EWCA Civ 191, [2013] WLR(D) 112

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Filed under Agency, Health

Piper -v- Hales; QBD 18-Jan-2013

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

Court: QBD
Date: 18-Jan-2013
Judges: Simon Brown QC
Links: Bailii,
References: [2013] EWHC B1 (QB),
Cases Cited:

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Filed under Agency, Contract

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.

Date: 01-Jan-1894
References: [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
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Filed under Agency, Negligence

Tinsley -v- Dudley; CA 1951

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

Court: CA
Date: 01-Jan-1951
Judges: Jenkins LJ
References: [1951] 2 KB 18,

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Filed under Agency, Negligence