Mr Nelson was employed as a producer but had in fact been engaged in the Caribbean Service of the BBC in terms of the work which he had actually been doing. The contract of employment expressly provided that he should serve wherever and however he might be required. Held: The closure of the BBC service … Continue reading Nelson v British Broadcasting Corporation: CA 1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order. Held: The wide wording of the statute did not mean that the courts had, in effect, limitless powers to grant interlocutory … Continue reading Gouriet v Union of Post Office Workers: HL 26 Jul 1977
Whether unilateral changes to an employment contract amounted to a constructive dismissal. . .
The appellant said that his human rights were infringed when, as a moslem, he was refsued time off from his work as a primary school teacher to attend prayers at the mosque on Fridays. He had subsequentlly been re-instated part-time, but complained . .
The defendant had relied on a non-reliance clause in the special conditions of a tender: ‘Messrs. Lalonde Bros and Parham for themselves, for the vendors or landlord whose agents they are give notice that (a) These particulars are prepared for the . .
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Lord Donaldson MR, Balcombe, Stuart-Smith LJJ  EWCA Civ 6,  2 QB 600 Bailii Unfair Contract Terms Act 1977 England and Wales Consumer, Contract Updated: 22 January 2022; Ref: scu.262619
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for misrepresentation. The policies were novel and sophisticated contracts and included clauses modifying the duties of … Continue reading HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others: HL 20 Feb 2003
The parties had settled an earlier employment dispute on the basis that the employer would not make an statement adverse to the claimant. He said that their reporting him to the Independent Safeguarding Authority was a breach of that agreement leaving him not bound by the compromise. Bean LJ  EWCA Civ 1596 Bailii Unfair … Continue reading Zinda v Ark School: CA 28 Jul 2015
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 counterclaim to allege that the taking out of the insurance had been made … Continue reading Barnes and Another v Black Horse Ltd: QBD 31 May 2011
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, ParkingEye Ltd v Beavis, raised the issue at a consumer level, with a separate issue under the … Continue reading Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis: SC 4 Nov 2015
The parties contracted for the supply of material to be used in the manufacture of drinks. The material was to be supplied according to a recognised British Standard. Held: The use of the British Standard of itself was not sufficient to imply any warranty of satisfactory quality or fitness for purpose upon which a purchaser … Continue reading Messer UK Ltd and Another v Britvic Soft Drinks Ltd and others: CA 30 Apr 2002
Appeal against dismissal of claim with costs. The claimant was personal representative of her husband’s estate. He had been employed by the defendants to provide support and security escort to US personnel based in Iraq under a contract for services. He had died carrying out those services. The court was asked to construe the defendant’s … Continue reading Hodges v Aegis Defence Services (BVI) Ltd: CA 12 Nov 2014
The claimant bought fine art sculptures by Anish Kapoor at auction. They were stored by the defendant who when called upon to deliver them, said they had possibly been thrown away as rubbish. The defendant sought to limit its liability to the sum set by its contract. The defendant said that the claimant had been … Continue reading Scheps v Fine Art Logistic Ltd: QBD 16 Mar 2007
Standard Conract – Wide Exclusions, Apply 1977 Act The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages. Held: Even though Wang had been ready to amend one or two of its … Continue reading Pegler Ltd v Wang (UK) Ltd: TCC 25 Feb 2000
The terms ”on the other’s written standard terms of business’ in the Act was not defined in the Act after a deliberate decision by the Law Commission.  EWHC Technology 227, (1999) 66 Con LR,  BLR Bailii Unfair Contract Terms Act 1977 3(1) England and Wales Cited by: Cited – Pegler Ltd v Wang … Continue reading British Fermentation Products Limited v Compair Reavell Limited: TCC 8 Jun 1999
The claimant said that the software supplied to it was not fit for purpose. The defendant said that the company had relied on its own inspections of what was a standard package, and had not made known its desire to use it in a specific context. The claimant had originally pleaded reliance on the defendant’s … Continue reading Kingsway Hall Hotel Ltd v Red Sky IT (Hounslow) Ltd: TCC 6 May 2010
The appellant entered into two aircraft leasing agreements but were unable to maintain payments. They appealed against rejection of their argument that the agreements were not exempt from the controls under the 1977 Act by being international supply agreements. Held: The appeal failed. The intention of section 26 was to exclude such agreements entirely from … Continue reading Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd: CA 2 Apr 2009
In Smith, the lender instructed a valuer who knew that the buyer and mortgagee were likely to rely on his valuation alone. The valuer said his terms excluded responsibility. The mortgagor had paid an inspection fee to the building society and received a copy of the report, and relying on it, had bought the house. … Continue reading Smith v Eric S Bush, a firm etc: HL 20 Apr 1989
The claimants had bought a painting (Odalisque) through the defendant auctioneers. They now claimed that it had been misattributed to Kustodiev, and claimed in negligence and misrepresentation. Held: Based on the connoisseurship evidence, the painting was likely not to be by Kustodiev. The claimant was entitled under the contract to cancel the contract and recover … Continue reading Avrora Fine Arts Investment Ltd v Christie, Manson and Woods Ltd: ChD 27 Jul 2012
Interpretation of Exclusion Clauses The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an unresolved issue whether the employee intended to … Continue reading Photo Production Ltd v Securicor Transport Ltd: HL 14 Feb 1980
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage. Held: A loan arrangement which allowed a lender to vary the implied rate of interest, included an implied term not to impose an unreasonable or extortionate rate, nor … Continue reading Paragon Finance plc v Nash etc: CA 15 Oct 2001
The parties had contracted for the sale of land. The purchaser secured the rescinding of the contract for innocent misrepresentation. A notice of a relevant planning application had not been passed on by the seller’s solicitors. The seller appealed saying that the judge had been wrong to find that condition 7.1.3 of the Standard Conditions … Continue reading Cleaver and Others v Schyde Investments Ltd: CA 29 Jul 2011
The buyer bought 30lbs of cabbage seed, but the seed was not correct, and the crop was worthless. The seed cost andpound;192, but the farmer lost andpound;61,000. The seed supplier appealed the award of the larger amount and interest, saying that their contract limited their liability to the cost of the seed. Held: The appeal … Continue reading George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd: CA 29 Sep 1982
The plaintiffs appealed against refusal of an interlocutory injunction restraining the Defendants, ‘Mercury’ from withdrawing from Zockoll the use of a particular telephone number, 0500 354448. Immediately upon that Order being made, Mercury . .
There was an issue whether or not the purchase by the plaintiff of a second-hand car was made ‘in the course of a business’ so as to preclude the plaintiff from relying upon the provisions of the 1977 Act.
Held: Speaking of Lord Keith’s . .
The purchaser bought a property spanning a small river. The lender’s valuer disclaimed any liabillity to the buyer, and a structural report was offered for an additional charge. The property was not sound.
Held: The valuation was negligent, . .
The question of the reasonableness of a clause must be assessed having regard to the relevant clause viewed as a whole: it is not right to take any particular part of the clause in isolation, although it must also be viewed against a breach of . .
British Telecommunications Plc provided its own directory service. BT was licenced as a public telecommunications operator requiring it to provide telephone services on request to anyone who sought them without discrimination. The claimant wanted to . .
A clause providing that the employer could dismiss an employee in the first two years of employment without implementing the disciplinary procedure was not void under the 1977 Act. Section 3 extended to contracts of employment and although the . .
The appellant had contracted to provide office accomodation to the defendant. The air conditioning did not work and there were other defects. The appellant now challenged a finding of liability and that its contract terms which were said to totally . .
The defendants had contracted to transport goods for the plaintiff. The goods had been left at empty premises and were damaged or stolen. The defendant sought to rely upon their clause excluding liability.
Held: The reasonableness of a . .
The plaintiff claimed damages from the seller of land and from their solicitors for misrepresentation in the replies to enquiries before contract. He appealed a striking out of his claim.
Held: A lawyer’s disclaimer placed on his Replies to . .
The council purchased software from the defendants to calculate council taxes. Mistakes in the software undercalculated the amounts required to be recovered causing the council substantial losses. The company sought to rely upon a clause in the . .
The spread betting bookmaker claimed summary judgment in respect of a consumer, Mr Cochrane, who had made certain initial personal trades with significant profitability. In his absence, without his knowledge and authorisation, his account was . .
The claimants had been persuaded to take up leases on a service area constructed by the defendants. They said that the publicity materials had wildly exaggerated the actual number of visitors, and sought damages for fraudulent misrepresentation.
The court was asked as to whether representations has been made.
Held: Aikens LJ referred to a provision stating ‘no representation or warranty, express or implied, is or will be made . . in or in relation to such documents or information’, . .
The court was asked whether certain provisions fell within section 3 of the Misrepresentation Act.
Held: Christopher Clarke J referred to dicta of Gloster J and said: ‘In Springwell Gloster J took the view that terms which simply defined the . .
The claimant had sought to conduct a competition to sell his house, the entry fees being collected by the defendant internet payment services provider. The defendant terminated the service to him, and he complained that that caused him substantial . .
Claim for rescission of contract for purchase of Ferrari car at auction after discovery of alteration to odometer.
Jonathan Hirst QC said (after discussing the Christie’s case): ‘Plainly this authority provides substantial ammunition for BandB . .
Trident entered into Aircraft Operating Lease Agreements in identical terms with First Flight in respect of two ATP model aircraft. The leases represented the culmination of negotiations between a representative of the manufacturer, BAE Systems . .
The company alleged negligence by its financial advisers.
Held: Gloster J said that the absence of a written advisory agreement is a strong pointer against the existence of a free-standing duty of care to give investment advice.
Gloster . .
The bank had sought summary dismissal of a claim for non-payment of bonuses to the claimant a former employee, and now appealed refusal of its request for summary dismissal, saying that the claim had no prospect of success. The claimant said that . .
The claimants manufactured and sold storage tanks. They sought substantial damages after chemical materials purchased from the defendants to help bond the tanks failed. . .
Application for leave to appeal. . .
Britvic purchased bulk CO2 for the carbonation of various soft and alcoholic drinks from a supplier. The CO2 was manufactured by others. As a result of a breakdown of the manufacturing process, the CO2 contained a concentration of benzene which, . .
The appellant had contracted to purchase maintenance from the defendant of aircraft it had also purchased from them. They sought damages for negligence, saying the defendants had failed to prevent a known risk of corrosion. The defendants argued . .
To decide whether a clause is an exclusion clause it is necessary to look at the effect of the clause and not its form. ‘There is no mystique about `exclusion’ or `restriction’ clauses. To decide whether a person `excludes’ liability by reference to . .
The time bar provision, now found in cl. 28(B) of BIFA, satisfied the requirements of reasonableness under UCTA. . .
The appellant challenged a finding that it was responsible for the loss of medical equipment being transported from Tehran to the UK, and of failing to insure it as required, the contractual term exempting it from responsibility being an . .
The defendant company sought to rely upon an exemption clause.
Held: Applying standard rules for contract interpretation, the exemption clause was to be construed against the one proposing it. At best the clause was ambiguous, and the . .
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
The plaintiff had contracted to purchase software from the respondent. The system failed to perform, and the defendant sought to rely upon its exclusion and limitation of liability clauses.
Held: It is for the party claiming that a contract . .
It having been conceded that contracts of service fell within section 15 of the 1977 Act, the court found that the question whether the contract was a consumer contract depended on the circumstances. Though the employee pursuer was to be regarded as . .
When looking at the reasonableness of a clause limiting rather than excluding of liability, the size of the limit compared with other limits in widely used standard terms may be relevant. . .
The plaintiff’s husband had been killed as the result of the driver’s negligence in operating an excavator which had been hired by the second defendants for work at their quarry. The contract was subject to the CPA (Contractors’ Plant Association . .
The ‘guidelines’ in Schedule 2 are usually regarded as of general application to the question of reasonableness under the 1977 Act. The effect of s13 which deals with exemption clauses, is to apply s3 inter alia to ‘no set off’ clauses. The . .
The court upheld under the 1977 Act a clause which limited a port authority’s liability to andpound;800 per ton of consignment. Other factors were relevant but ‘The way in which the port authority’s general conditions came into being seems to me to . .
The court considered the meaning of ‘standard form contract’ as it applied in Scotland under the 1977 Act: ‘The Act does not define ‘standard form contract’, but its meaning is not difficult to comprehend. In some cases there may be difficulty . .
It would not be fair or reasonable to allow seed merchants to rely on a clause limiting their liability for defective seeds. It was relevant that, in the course of dealing, the seed merchants ‘rarely, if ever, invoke the clause’.
Kerr LJ said: . .
A clause in a shipping freight contract using the standard British International Freight Association terms disallowing a set-off was not unreasonable. The clause read ‘The customer shall pay to the company in cash or as otherwise agreed all sums . .
The defendant sought leave to appeal against an order for payment of sums due under a leasing agreement. He said that the contract was governed by the 1974 and 1977 Acts. . .
The claimant had subcontracted to supply cabling on the defendant’s project. The contract provided both for the exclusive jurisdiction of the English courts but also for arbitration. The defendant applied for the action to be stayed and referred to . .
A liability limitation in a computer contract was an unfair contract term since it was a standard term, and it restricted liability when there had been no attempt to justify the amount chosen for the limit by reference, for example, to a . .
The court considered an exclusion clause in the standard terms of a specialist fire suppression contractor. The issues are whether the clause was incorporated into the contract between the parties and, if so, whether the clause was reasonable within . .
The court was asked as to the interpretation of the phrase ‘deals . . On the other’s written standard terms of business’. . .
A seedsman sought to rely upon an exclusion clause preventing any claim by a purchaser by way of set off against its sales invoices. The House was asked whether a contractual term was ‘fair and reasonable’ within the meaning of section 55 of the . .
References:  EWHC 1686 (Comm),  1 All ER (Comm) 16 Links: Bailii Coram: Aikens J Trident entered into Aircraft Operating Lease Agreements in identical terms with First Flight in respect of two ATP model aircraft. The leases represented the culmination of negotiations between a representative of the manufacturer, BAE Systems Regional Aircraft Limited (‘BAE’), … Continue reading Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd; Comc 17 Jul 2008
References:  EWHC 1186 (Comm) Links: Bailii Coram: Gloster J Gloster J said: ‘terms which simply define the basis upon which services will be rendered and confirm the basis upon which parties are transacting business are not subject to section 2 of UCTA. Otherwise, every contract which contains contractual terms defining the extent of each … Continue reading JP Morgan Chase Bank and others v Springwell Navigation Corporation; Comc 27 May 2008
Rehearing/Review – Little Difference on Appeal The appellant asked the Court to reverse a decision on the facts reached in the lower court. Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. Tanfern was limited to appeals from … Continue reading Assicurazioni Generali Spa v Arab Insurance Group (BSC): CA 13 Nov 2002
Shareholder May Sue for Additional Personal Losses A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter. Held: It need not be an abuse of the court for a shareholder to seek damages against advisers to … Continue reading Johnson v Gore Wood and Co: HL 14 Dec 2000
The court was asked whether the employment tribunal had been correct, after finding that the appellant had been unfairly dismissed, to order her reinstatement. She had worked as a fingerprint officer, but her reinstatement was to be on terms that she should not attend court in her role. The court was now asked whether an … Continue reading McBride v Scottish Police Authority (Scotland): SC 15 Jun 2016
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case had otherwise been effectively settled. Held: With considerable misgivings, the court agreed to hear the appeal. … Continue reading Rolls-Royce plc v Unite the Union: CA 14 May 2009
Same Sex Partner Entitled to tenancy Succession The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy. Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law because it is the antithesis of fairness. It brings the law … Continue reading Ghaidan v Godin-Mendoza: HL 21 Jun 2004
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an employment. However the jurisdiction in sex discrimination cases was wider, extending to those who ‘contract … Continue reading Percy v Church of Scotland Board of National Mission: HL 15 Dec 2005
EAT UNFAIR DISMISSAL Reason for dismissal including some other substantial reason The correct interpretation of section 106 of Employment Rights Act 1996 (‘the Act’) was considered. The condition set by section 106(2)(a) of the Act will not be met unless there is clear and unambiguous language used in the written information given to the employee … Continue reading Victoria and Albert Museum v Durrant: EAT 5 Jan 2011
Contracts of service or for services In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’ Held: The court asked what was the test of … Continue reading Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance: QBD 8 Dec 1967
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim failed. Held: The claim was not disbarred in this … Continue reading Pickstone v Freemans Plc: HL 30 Jun 1988
The House was asked whether a failure by a lessor to keep strictly to the timetable laid down in a rent review clause in a lease necessarily deprived the lessor of the benefit of the rent review. Held: A stipulation as to time in an option clause will normally be of the essence. The grantor … Continue reading United Scientific Holdings v Burnley Borough Council: HL 1978
Account taken of circumstances wihout ambiguity The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside. Held: Investors having once assigned their causes of action to the ICS, could not later … Continue reading Investors Compensation Scheme Ltd v West Bromwich Building Society: HL 19 Jun 1997
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. Held: The company’s appeal was allowed. The store had reasonable grounds for … Continue reading British Home Stores Ltd v Burchell: EAT 1978
The company decided to make redundancies. The applicants, all selected, had worked in more than one section of the plant. All employees worked under the same contract, but employees were chosen only from the one section. The complainants said that the entire workforce should have been considered. Held: Under the Order it was for the … Continue reading Murray and Another v Foyle Meats Ltd (Northern Ireland): HL 8 Jul 1999
The employer appealed a finding that he had been unreasonable in seeking to vary the employment contracts of his staff by adding post employment restrictive covenants, and that the consequent dismissals were unfair. Copies of the new contracts had been handed to employees without prior notice and with an instruction to sign the within thirty … Continue reading Willow Oak Developments Ltd. (T/A Windsor Recruitment) v Silverwood and others: CA 25 May 2006
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property rights. It was also argued that it was not possible to make a declaration of … Continue reading Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2): HL 10 Jul 2003
To succeed in a claim for constructive dismissal the plaintiff must establish a breach of contract by the defendant, that the breach was sufficiently serious to have justified the claimant resigning, or at least be the last in a series of events which justified his leaving, and that he left his employment with the defendant … Continue reading Western Excavating (ECC) Ltd v Sharp: CA 1978
The claimants had been employed by a local authority and then transferred to the respondents. They had had the benefit that their terms of employment were subject to collective agreement. The respondent was not part of the negotiation of later . .
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
The defendant, who carried on the business of a fisherman, sold his vessel Jelle to the plaintiff with a view to having a new boat built to his requirements. In the event he bought a replacement vessel which he continued to use for his business. The . .
The company appealed against a finding that they were in breach of their contract of employment in not including the claimant in those considered for an enhanced redundancy package.
Held: The appeal failed. Tribunals should be cautious before . .
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by . .
PC (Bermuda) The courts should be reluctant to accept a fetter on the employer’s right to dismiss on notice where there is an express term in the contract empowering the employer to do so.
Lord Millet . .
Jonathan Parker LJ discussed the granting of declarations: ‘things have indeed moved on since the Meadows case was decided; and the courts should not nowadays apply such a restrictive meaning to the passage in Lord Diplock’s speech in Gouriet’s . .
A claim was made for declaratory relief.
Held: The Claimant, a re-insurer, did not have locus to claim a declaration that the main insurer could avoid the main contract of insurance, to which the Claimant was not a party. The court considered . .
240 employees had attended a mass meeting. The employers wrote to them saying that they had broken their contract by attending an unauthorised meeting during working hours and they had automatically terminated their employment. They claimed unfair . .
The employees were sewing machinists employed in the employers’ upholstery factory. Because of a downturn in work, the employers decided to transfer them to their bedding factory, which was very nearby. The work at the bedding factory would be less . .
There is implied into a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust . .
Mr Nelson was employed as a producer but had in fact been engaged in the Caribbean Service of the BBC in terms of the work which he had actually been doing. The contract of employment expressly provided that he should serve wherever and however he . .