Category: Contract

Taylor v Smetton: 1883

The defendant was accused of running an unlicensed lottery. He sold tea packets. With each tea packet he gave away a ticket allotting a prize to the purchaser. The prizes varied in value, and the purchaser would not know what he would receive until after he made the purchase.
Held: The defendant was runing a lottery.

Citations:

(1883) 11 QBD 207

Jurisdiction:

England and Wales

Cited by:

Cited – Esso Petroleum Limited v Commissioners of Customs and Excise HL 10-Dec-1975
The company set up a scheme to promote their petrol sales. They distributed coins showing the heads of members of the English football team for the 1970 World Cup. One coin was given with each for gallons of petrol. The Commissioners said that the . .
Lists of cited by and citing cases may be incomplete.

Contract, Licensing

Updated: 14 October 2022; Ref: scu.242901

Rudra v National and Provincial Building Society; Stickley and Kent (Risk Management Unit) Ltd: CA 22 Aug 1997

Before the auction, the estate agents had signed a contract to sell the house to the claimant. The Society, as mortgagees, said that the agents did not have authority to bind it, and that the contract did not sufficiently identify the property so as to constitute a memorandum of the sale under the 1989 Act, and refused to complete. He sought damages from the agent. The claimant sought to bring in other evidence to join the memorandum with the special conditions of sale.
Held: The proposed amendment to the pleadings raised an arguable point of law. Leave to appeal was given.

Citations:

[1997] EWCA Civ 2310

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act l989 2

Jurisdiction:

England and Wales

Citing:

Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Williams v Attridge Solicitors (a Firm) CA 8-Jul-1997
The solicitor-defendants were seeking to prove a negative and to show at the very outset of the proceedings that the claim should be struck out without the need for any further inquiry. The court considered the admission of new evidence on an appeal . .

Cited by:

leave to Appeal – Rudra v Abbey National Plc and Stickley and Kent (Risk Management Unit) Limited CA 26-Feb-1998
The parties disputed whether a contract had been entered into for the sale of land, and whether new evidence could be entered on an appeal against a strike out. The estate agents had signed a contract as agents for the mortgagee in possession, but . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency, Land

Updated: 14 October 2022; Ref: scu.142708

Gubisch Maschinenfabrik KG v Giulio Palumbo: ECJ 8 Dec 1987

The claimant in Germany sought to enforce a contract by claiming the price of a delivered machine; the claimant in Italy asked for a declaration that no contract had been entered into or, if it had, that it had been discharged by repudiatory conduct on the part of the seller.
Held: These claims involved the same cause of action because one claim was the negation of the other and that a stay should be granted by the Italian court which was second seised.
‘If, in circumstances such as those of this case, the questions at issue concerning a single international sales contract were not decided solely by the court before which the action to enforce the contract is pending and which was seised first, there would be a danger for the party seeking enforcement that under Article 27(3) a judgment given in his favour might not be recognized, even though any defence put forward by the defendant alleging that the contract was not binding had not been accepted. There can be no doubt that a judgment given in a contracting state requiring performance of the contract would not be recognized in the state in which recognition was sought if a court in that state had given a judgment rescinding or discharging the contract. Such a result, restricting the effects of each judgment to the territory of the state concerned, would run counter to the objectives of the convention, which is intended to strengthen legal protection throughout the territory of the community and to facilitate recognition in each contracting state of judgments given in any other contracting state.’
ECJ Brussels Convention – Concept of Lis pendens. – The terms used in article 21 of the Convention of 27 September 1968 in order to determine whether a situation of lis pendens arises must be regarded as independent. Lis pendens within the meaning of that article arises where a party brings an action before a court in a contracting state for the rescission or discharge of an international sales contract whilst an action by the other party to enforce the same contract is pending before a court in another contracting state.

Citations:

C-144/86, [1987] ECR 4861, R-144/86, [1987] EUECJ R-144/86, [1989] ECC 420

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Turner v Grovit and others CA 28-May-1999
A court has an inherent power to injunct a party not to institute or continue proceedings abroad, where they appear intended purely to harass another party in proceedings here. The two actions here were based upon the ‘same contractual relationship’ . .
Cited – Turner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
Cited – Starlight Shipping Co v Allianz Marine and Aviation Versicherungs Ag and Others CA 20-Dec-2012
The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
Cited – Wright v Granath QBD 16-Jan-2020
Defamation across borders – Jurisdiction
The claimant began an action for defamation in an online publication. The Norwegian resident defendant had begun an action there seeking a declaration negating liability. The Court was now asked by the defendant whether under Lugano, the UK action . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 14 October 2022; Ref: scu.134427

Thew v Cole; King v Daltray: CA 16 Dec 2003

Issues arose as to whether car hire agreements were exempt from regulation under the Act. They provided that payment was to be made in 12 months ‘from the start of the agreement’.
Held: The first question was whether the time by which the hirer was required to make payment coincided with the end of the period of deferment or followed it. There were not two times, but just one. As the period expired the payment became due. Was this ‘within a period not exceeding twelve months’? Yes, the period was defined as ‘not more than twelve months’ The agreement was ambiguous and was to be construed against the hire company.

Judges:

Tuckey, Jonathan Parker, LJJ, Evans Lombe J

Citations:

Times 15-Jan-2004, [2003] EWCA Civ 1828, [2004] RTR 25

Links:

Bailii

Statutes:

Consumer Credit Act 1974

Jurisdiction:

England and Wales

Citing:

Cited – Zoan v Rouamba CA 7-Mar-2000
A document could not be construed other than in its clear words even though one party had clearly intended the result sought. A hire agreement would be unenforceable under the Act, depending upon whether payments were made within a year of the . .
Cited – Michael Ketley v Claire Nicole Gilbert CA 21-Dec-2000
A car hire agreement expressed that payment would become due ‘on the expiry of twelve months’. The form of the agreement did not comply with the Consumer Credit Act regulations. To bring the agreement within the exception provided, payment had to be . .
Lists of cited by and citing cases may be incomplete.

Consumer, Contract

Updated: 13 October 2022; Ref: scu.193440

Duke of Hamilton v Buchanan: HL 8 Mar 1878

Two offers were made for a lease of a farm, neither of which was accepted or rejected in writing; and possession followed by the offerer, who ascribed his possession to both offers. The landlord ascribed it to the second alone. Both parties were in bona fide in their averments. Held (aff. judgment of Court of Session) that there was no consensus ad idem placitum, and no completed contract between the parties.

Citations:

[1878] UKHL 513, 15 SLR 513

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 13 October 2022; Ref: scu.646300

Bhatia v Toor: CA 2 May 2012

The defendant appealed against a finding that he had borrowed and failed to repay a sum from the respondent.
Held: The appeal failed: ‘I cannot accept that the consequence of there being unreliable features in both parties’ accounts was that the judge was obliged to abandon their evidence entirely and resolve the case by reference to other material. A trial judge is not infrequently faced with the delicate task of picking his or her way through a witness’s evidence in order to sift the reliable from the unreliable. It is no surprise that Judge Walden-Smith here took the view that the defendant had made ‘significant changes’ in his core account as to what the andpound;40,000 payment was for and that that materially damaged his credibility. She did not ignore the fact that the claimant had denied the interest that the draft documents showed that he in fact had in investing in the company but she accepted, as she was entitled to do having seen the claimant giving evidence, that there were other respects in which he was telling the truth.’

Judges:

Arden, Toulson, Black LJJ

Citations:

[2012] EWCA Civ 565

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 13 October 2022; Ref: scu.454063

Dhanani v Crasnianski: ComC 15 Apr 2011

The parties disputed the terms of a contract between them under which the defendant was to provide substantial sums for the claimant to invest.

Judges:

Teare J

Citations:

[2011] EWHC 926 (Comm), [2011] ArbLR 13

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – IBM v Rockware Glass Ltd CA 1980
The court considered the meaning on a promise by one party to use its best endeavours to obtain a relevant planning permission.
Held: The obligation included an obligation to appeal from an initial refusal of permission so long as the . .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 12 October 2022; Ref: scu.432789

Dhabi v SD Marine Services: ComC 11 Apr 2011

The parties disputed the right of one of then to rescind two shipbuilding contracts, the buyer saying that they had not been ready as required by the date contracted for.

Judges:

Hamblen J

Citations:

[2011] EWHC 848 (Comm), [2011] BLR 384, 136 Con LR 190

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 12 October 2022; Ref: scu.432471

Katsouris Brothers Ltd v Haitoglou Bros Sa: ChD 31 Jan 2011

Tahini had been sold which was contaminated with salmonella. The parties now disputed responsibility to the end suppliers of the houmous in which it had been incorporated, and whether it should be tried here or in Greece.

Judges:

Eder J

Citations:

[2011] EWHC 111 (QB)

Links:

Bailii

Statutes:

Civil Liability Contribution Act 1978

Jurisdiction:

England and Wales

Contract

Updated: 12 October 2022; Ref: scu.430852

Marryat v Broderick: 1837

A party subscribing to a legal horse-race cannot recover his stake from the stakeholder after the race has been run, and before the stakeholder has paid over the money.

Citations:

[1837] EngR 170, (1837) 2 M and W 369, (1837) 150 ER 799 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 12 October 2022; Ref: scu.313287

Spector v Ageda: ChD 1971

Judges:

Megarry J

Citations:

[1971] 3 WLR 498

Jurisdiction:

England and Wales

Cited by:

Cited – Mahonia Limited v JP Morgan Chase Bankwest Lb Ag QBD 3-Aug-2004
The Claimant claimed on a letter of credit issued by the Defendant on behalf of Enron Ltd, who asserted it was not liable to pay there having been unlawful behaviour by Enron Ltd. Swap agreements had been entered into, and the defendant said the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 12 October 2022; Ref: scu.200484

Union Bank of Scotland v Buttery and Others: HL 12 Mar 1878

A firm of shipbuilders by a signed contract agreed to execute certain alterations on a ship, and to repair her so that she might be classed as A1 100 at Lloyds. The contract provided-‘the plating of the hull to be carefully overhauled and repaired.’- Held (aff. judgment of the Court of Session) that the shipbuilders were bound under the contract to supply a quantity of new plates so as to enable her to be so classified.
Opinions (contra that of the Lord Justice-Clerk) that in construing such a contract it is not admissible to look at a clause that has been deleted before signature for the purpose of arriving at the intention of parties.
Held that the expense of the survey of a ship by Lloyds’ surveyor falls on the owner of the ship, who is the party that is to benefit by it.

Citations:

[1878] UKHL 462, 15 SLR 462

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 12 October 2022; Ref: scu.646302

Your Response Ltd v Datateam Business Media Ltd: CA 14 Mar 2014

The claimant employed the defendant to manage subscription lists for the claimant’s magazines. The claimant came to seek damages, and the defendant for non-payment of its invoices. The court was now asked whether it was possible to assert a common law possessory lien over the computer database now retained by the defendant.
Held: The publisher’s appeal was allowed. A common law lien was not available over a database. It was not property susceptible of possession which was capable of being subject to larceny or conversion or being taken in an execution, and the data manager was not entitled to exercise a common law lien on the database.
Moore-Bick said: ‘It may well be that a fuller understanding of the background to the contract would support the conclusion that the parties intended the publisher to have access to the database at will, but whether that is so or not, it must have been implicit in the contract that when it came to an end the data manager was under an obligation to send the publisher by electronic means a copy of the database in its latest form.’
Davis LJ said: ‘The law of unintended consequences is no part of the law of England and Wales. But it is worth paying attention to it, in an appropriate case, all the same. If a common law possessory lien can arise in a case such as the present, it would be a right in rem, not a right in personam. Probably, I would have thought, it would not be registrable as a charge. At all events, the right to such a possessory lien, if it exists, could have an impact on other creditors of the company (or individual) concerned and could confer rights in an insolvency which other creditors would not have. ‘

Judges:

Moore-Bick, Davis, Floyd LJJ

Citations:

[2014] EWCA Civ 281, [2014] CP Rep 31, [2015] 1 QB 41, [2014] 4 All ER 928, [2014] WLR(D) 131, [2014] 2 All ER (Comm) 899, [2014] 3 WLR 887

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Chase And Others, Assignees of William And Thomas Hurst (Bankrupts), v James And David Westmore 21-May-1816
A workman having bestowed his labour upon a chattel in consideration of a price fixed in amount by his agreement with the owner, may detain the chattel until the price be paid; and this, though the chattel be delivered to the workman in different . .
Cited – Colonial Bank v Whinney CA 1885
The court was asked to decide whether shares in a joint stock company were to be classified as choses in action for the purposes of the proviso to section 44(iii) of the 1883 Act by which property in the order or disposition of the bankrupt in his . .
Cited – Colonial Bank v Whinney HL 1886
The parties disputed whether shares in a joint stock company were choses in action for the purposes of the 1883 Act so as to make them available to creditors on a bankruptcy.
Held: The appeal succeeded.
Blackburn L noted that there had . .
Cited – Torkington v Magee 11-Jul-1902
Chose in Action defined
The effect of the 1873 Act was essentially procedural and it did not render choses in action that had not previously been assignable in equity capable of assignment.
Channell J defined a debt or other legal chose in action: ”Chose in Action’ . .
Cited – Tappenden v Artus CA 1964
The owner of a van allowed a customer to use it pending completion of a hire-purchase agreement. The van broke down and was delivered to the defendant for repairs. The price of the repairs remained outstanding and a question arose whether the garage . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Cited – Derby and Co Ltd And Others v Weldon And Others (No 9) ChD 25-Jul-1990
The court considered the application of rules relating to the discovery of documents to material held on computer: ‘the database of a computer, so far as it contained information capable of being retrieved and converted into readable form, and . .
Cited – Judson v Etheridge 1833
A contract for the feeding and stabling of a horse does not allow a lien for unpaid fees because it does not improve the horse. . .
Cited – Scarfe v Morgan 1838
A keeper of livery stables does not have a right to exercise a lien for his charges because he is obliged to give possession of the horse to the bailor whenever requested.
Parke B. expressed the view that particular liens ‘being consistent . .
Cited – Forth v Simpson 23-May-1849
A racehorse trainer cannot exercise a lien over a racehorse for his fees if the contract reserves to the owner (expressly or by implication) the right to decide the places at which and the jockeys by whom it is to be raced. . .
Cited – Hatton v Car Maintenance Co Ltd 1915
In order to exercise a lien over a car taken in for repair, the fact that labour had been expended in maintaining the article was not enough to give rise to a lien for charges. What was required was improvement in the condition of the article.
Cited – In re Southern Livestock Producers Ltd 1964
In the absence of special agreement the agister has no lien upon the livestock as he merely takes care of them and supplies them with food. Pennycuick J referred to the distinction between improvement and repair. An obligation to take care of pigs . .
Lists of cited by and citing cases may be incomplete.

Contract, Information

Updated: 12 October 2022; Ref: scu.522452

Aberdeen City Council v Stewart Milne Group Ltd: SCS 3 Jun 2009

Citations:

[2009] ScotCS CSOH – 80

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

See Also – Aberdeen City Council v Stewart Milne Group Ltd SC 7-Dec-2011
The parties disputed the construction of a contract for land intended for a business park development. It provided for an uplift to be later payable in certain circumstances, and the uplift was now claimed. The question was as to whether the uplift . .
See Also – Aberdeen City Council v Stewart Milne Group Ltd SCS 14-Oct-2010
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 October 2022; Ref: scu.346930

Damon Compania Naviera SA v Hapag-Lloyd International SA ‘The Blankenstein’: CA 1985

The buyers sought to rely on their own failure to pay a deposit to escape from a contract.
Held: They failed. A contract had been entered into by the ‘principals’, though the intention was that upon nomination by them there should be a novation of the contract with the nominee. A provision for payment of the deposit was not a condition precedent to formation of a sale contract but ‘was a fundamental term of a concluded contract’.

Judges:

Robert Goff LJ, Fox LJ, Stephenson LJ

Citations:

[1985] 1 Lloyd’s Reports 93

Jurisdiction:

England and Wales

Citing:

Approved – Millichamp v Jones 1982
A contract contained a clause 3 with a provision for the option to be exercisable by notice and in clause 5 the provision that ‘upon exercise of the . . option the intending purchasers shall pay to . . stakeholders by way of deposit . .’ Warner J . .

Cited by:

Cited – Haugland Tankers As v RMK Marine Gemi Yapim Sanayii Ve Deniz Tasimaciligi Isletmesi As ComC 9-Mar-2005
An option agreement was granted for the sale of a ship hull. The option was excercised but the defendant claimed the commitment fee required was not paid.
Held: The exercise of an option had to be in the precise terms set out in the contract. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 October 2022; Ref: scu.223449

John Paterson and Son Ltd v Corporation of Glasgow: HL 29 Jul 1901

A firm of contractors undertook a contract to construct a sewer for the Corporation of Glasgow at certain scheduled rates. During the progress of the work it was found impossible owing to the nature of the soil to drive a tunnel by the ordinary method. The contractors were then instructed to continue the work by means of the air pressure system, which was more costly, and the Corporation agreed to refer the question of the amount to be paid to them ‘in respect of the extra cost incurred by the necessary adoption of the said system of air-pressure’ to a certain arbiter who was a civil engineer in Glasgow. No formal submission was entered into. The parties subsequently agreed to submit to the arbiter certain items of the contractors’ account, other than those relating to the use of air-pressure, which they were unable to adjust. After hearing parties and examining the accounts and making certain measurements, the arbiter issued a note of proposed findings at which he had arrived without hearing evidence, but intimated that, although he did not consider it essential he was prepared to hear proof if desired. Thereafter he made an order for proof, and in a note appended thereto he added-‘Both parties having distinctly agreed that they were not to be represented by law-agents, the arbiter cannot now see his way to allow this arrangement to be broken unless mutually agreed upon.’ In the proceedings up to this time the parties had not been represented by law-agents. The contractors refused to accept a proof upon these conditions, and denied that they had entered into such an arrangement. The arbiter thereupon cancelled the order for proof, and issued a note of proposed findings, in which he awarded a gross sum ‘as the total amount due in respect of the work done by the claimants in connection with this contract.’ After allowing time for representations the arbiter issued a formal decree-arbitral. The findings and the decree-arbitral did not show what sums were respectively awarded in respect of the use of air-pressure and in respect of the disputed items of the account.
In an action by the contractors for reduction of the decree-arbitral upon the ground (1) that the arbiter had refused to hear evidence as to the actual cost of using air-pressure; (2) that he had proceeded ultra fines compromises by finding what was a reasonable sum to be allowed for the use of air-pressure instead of determining the actual extra cost of using it; (3) that the decree-arbitral did not distinguish between the amount allowed for the use of air-pressure and for the other disputed items; and (4) that he had acted illegally in refusing to hear proof except on condition that parties should not be represented by law-agents- held ( rev. judgment of the Second Division, and restoring judgment of the Lord Ordinary, Kyllachy) that the defenders were entitled to absolvitor, in. respect that this was an informal arbitration in which the matter in dispute was referred to the personal skill and local knowledge of the arbiter, and in which proof was not essential; that in the circumstances the arbiter was entitled to refuse to allow parties to be represented by law-agents-the understanding between parties acted on up to that time being that law-agents were not to be employed, and the question of whether law-agents should be allowed in an arbitration being one of procedure for the consideration of the arbiter; and that although he gave an opportunity of making representations against his proposed findings, no request was made to him by the contractors to divide the amount of the award into separate items.

Judges:

Lord Chancellor (Halsbury), Lord Macnaghten, Lord James of Hereford, Lord Brampton, Lord Robertson, and Lord Lindley

Citations:

[1901] UKHL 855, 38 SLR 855

Links:

Bailii

Jurisdiction:

Scotland

Arbitration, Contract

Updated: 11 October 2022; Ref: scu.630992

Patel v Mirza: SC 20 Jul 2016

The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums advanced, saying he need not return it because the contract was for an illegal purpose. The defendant now appealed against a decision that he must return it.
Held: His appeal failed. A claimant who satisfies the ordinary requirements of a claim for unjust enrichment, should not be debarred from enforcing his claim by reason only of the fact that the money which he seeks to recover was paid for an unlawful purpose. There may be rare cases where for some particular reason the enforcement of such a claim might be regarded as undermining the integrity of the justice system, but there were no such circumstances in this case. In wanting it back he was seeking to unwind the arrangement, not to profit from it.
Lord Neuberger P said: ‘When faced with a claim based on a contract which involves illegal activity (whether or not the illegal activity has been wholly, partly or not at all undertaken), the court should, when deciding how to take into account the impact of the illegality on the claim, bear in mind the need for integrity and consistency in the justice system, and in particular (a) the policy behind the illegality, (b) any other public policy issues, and (c) the need for proportionality.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Toulson, Lord Hodge

Citations:

[2016] WLR(D) 417, [2016] UKSC 42, [2016] 3 WLR 399, [2016] 2 Lloyd’s Rep 300, [2016] Lloyd’s Rep FC 435, UKSC 2014/0218

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Video Summary, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Pearce v Brooks 1866
The contract was for the hire of an ornamental brougham to a prostitute which was supplied with knowledge that it would be used ‘as part of her display’. She returned it in a damaged condition, and refused to make any payments under the contract as . .
Cited – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
Cited – Anderson Ltd v Daniel 1924
A claim for the price of goods was held to be unenforceable because the seller had failed to give the buyer an invoice containing details which the seller was required to give him by statute. . .
Cited – Hall v Woolston Hall Leisure Limited CA 23-May-2000
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . .
Cited – J M Allan (Merchandising) Limited v Cloke CA 1963
the plaintiff rented to the defendant a roulette table, together with copies of a book of rules, for use in a club. The rules stated that a charge of sixpence was payable on any bet before the croupier spun the wheel. Using a roulette table in a . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
Cited – Ashmore, Benson, Pease and Co v A V Dawson Ltd CA 1973
By acquiescing in the unlawful overloading of the hauliers’ lorries, the consignors’ assistant transport manager and his assistant made the haulage contract unenforceable at the instance of the consignors, who were unable to recover when a lorry . .
Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – Hughes v Asset Managers Plc CA 13-May-1994
The appellants had entered into discretionary investment management agreements wth the respondent. The investments made a substantial losss which the appellants sought to recover, saying that the agreements were void under the 1958 Act.
Held: . .
Cited – Bakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
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 lender of its . .
Cited – Courage Ltd and Crehan v Crehan and Courage Ltd and Others ECJ 20-Sep-2001
The company had leased a public house to the respondent. The lease was subject to a tie, under which the respondent had to purchase supplies from the company. The company came to sue for the price of beer supplied. The respondent asserted that the . .
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 – Mohammed v Alaga and Co (A Firm) CA 30-Jun-1999
A party appealed against a finding that an agreement as to fee sharing with a solicitors’ firm, being in breach of the Solicitors Practice Rules, was unenforceable and void.
Held: The appeal failed as to illegality, but succeeded on a quantum . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others CA 3-May-2012
The court was asked as to ‘the availability of the defence of illegality to a claim on a cross-undertaking in damages where (1) the holder of a patent enforceable in this jurisdiction has obtained an interim injunction against the defendant from . .
Cited – Nelson v Nelson 9-Nov-1995
High Court of Australia McHugh J spoke of the so called ‘reliance rule’: ‘The [reliance] rule has no regard to the legal and equitable rights of the parties, the merits of the case, the effect of the transaction in undermining the policy of the . .
Cited – Mohammed v Alaga and Co (A Firm) ChD 2-Apr-1998
A party to an agreement to share in solicitors’ fees contrary to professional rules was unable to enforce it in any way. . .
Cited – Fitzgerald v F J Leonhardt Pty Ltd 13-May-1997
High Court of Australia – Contract – Illegality – Contract to drill bores – Claim by driller against landowner for money due under contract – Drilling without statutory permit – Whether obligation to obtain permit cast on landowner or driller – . .
Cited – Still v Minister of National Revenue 1997
An American citizen lawfully entered Canada and applied for permanent residence status. Pending consideration of her application, acting in good faith, she accepted employment but did so without obtaining a work permit as required by the Immigration . .
Cited – Parkingeye Ltd v Somerfield Stores Ltd CA 17-Oct-2012
The claimant company operated parking management for the defendant, charging customers for overparking. The defendant came to believe that the claimant’s behaviour was over-aggressive, and the use of falsehoods, and terminated the contract. The . .
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Cited – Maxim Nordenfelt Guns and Ammunition Co v Nordenfelt CA 1893
Bowen LJ said: ‘Rules which rest upon the foundation of public policy, not being rules which belong to the fixed or customary law, are capable, on proper occasion, of expansion or modification’ . .
Cited – Smith v Bromley 1760
Lord Mansfield granted recovery to the plaintiff of money paid by the plaintiff to procure her brother’s discharge from bankruptcy, which was an illegal consideration. As he explained, Lord Mansfield, at p 698, regarded it as in the public interest . .
Cited – Best, Regina (on The Application of) v The Secretary of State for Justice CA 21-Jan-2015
The court was asked whether an application for a person to be registered under the 2002 Act as the proprietor of a registered estate in land by reason of a period of adverse possession is valid, where part of the relevant period of possession . .
Cited – Collier v Collier CA 30-Jul-2002
Fraudulent Intent Negated Trust
The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – Walker v Chapman 1790
The defendant, who was a page to the King, offered to take a bribe of pounds 50 from the plaintiff in return for securing him a place in the Customs. The bribe was paid but the plaintiff did not obtain the appointment and so he sued for the return . .
Cited – Vallejo v Wheeler 1774
Lord Mansfield said: ‘In all mercantile transactions the great object should be certainty: and therefore, it is of more consequence that a rule should be certain, than whether the rule is established one way or the other. Because speculators in . .
Cited – Knauer v Ministry of Justice SC 24-Feb-2016
The court was asked: ‘whether the current approach to assessing the financial losses suffered by the dependant of a person who is wrongfully killed properly reflects the fundamental principle of full compensation, and if it does not whether we . .
Cited – Jogee and Ruddock (Jamaica) v The Queen SC 18-Feb-2016
Joint Enterprise Murder
(and in Privy Council) The two defendants appealed against their convictions (one in Jamaica) for murder, under the law of joint enterprise. Each had been an accessory when their accomplice killed a victim with a knife. The judge in Jogee had . .
Cited – Sharma and Another v Simposh Ltd CA 23-Nov-2011
The parties created an oral (and therefore void) contract for a development, the claimants paid a deposit, expressed to be non-refundable, and the defendant builders completed the building work. The buyers backed out. The developer now appealed . .
Cited – Vita Food Products Inc v Unus Shipping Co Ltd PC 30-Jan-1939
(Nova Scotia) Goods were shipped from Newfoundland under a bill of lading which contained an exemption for loss caused by the servants of the carrier. This exemption was void by the law of Newfoundland, whose legislature had enacted the Hague Rules, . .
Cited – Bowmakers Ltd v Barnet Instruments Ltd CA 1945
An action was brought for the wrongful conversion of machine tools delivered under hire purchase agreements which contravened wartime statutory orders. The plaintiff established its legal title to the goods at issue without relying upon the illegal . .
Cited – St John Shipping Corporation v Joseph Rank Limited 1956
The defendants held a bill of lading for part of the cargo carried on the plaintiffs’ vessel from Mobile, Alabama, to Birkenhead. The vessel was over laden and the plaintiffs were guilty of an offence under the 1932 Act. The defendants relied on the . .
Cited – Sajan Singh v Sandra Ali PC 16-Dec-1959
(Malaysia) Unless a statute provides otherwise (expressly or by necessary implication), property can pass under a transaction which is illegal as a contract. . .
Cited – Hardy v Motor Insurers’ Bureau CA 1964
The court was asked whether insurance pursuant to the Road Traffic Act 1960 would provide valid cover for the benefit of a third party injured by deliberately criminal conduct on the part of the driver.
Held: Diplock LJ said: ‘The rule of law . .
Cited – Clayton v Regina 13-Dec-2006
Kirby J said that waiting for a modern Parliament to grapple with issues of law reform is like ‘waiting for the Greek Kalends. It will not happen’ and that ‘Eventually courts must accept this and shoulder their own responsibility for the state of . .
Cited – Hall v Hebert 29-Apr-1993
(Canadian Supreme Court) After they had been drinking heavily together, Mr Hebert, who owned a muscle car, allowed Mr Hall to drive it, including initially to give it a rolling start down a road on one side of which there was a steep slope. The car . .
Cited – Neville v Wilkinson 19-Dec-1782
Lord Thurlow LC ‘declared his opinion’ that: ‘In all cases where money was paid for an unlawful purpose, the party, though particeps criminis, might recover at law; and that the reason was, that if courts of justice mean to prevent the perpetration . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – Tappenden And Others, Assignees of Bray v Randall 19-Jun-1801
This was a successful claim for the repayment of money paid for an unenforceable consideration which failed, Heath J said obiter that there might be ‘cases where the contract may be of a nature too grossly immoral for the court to enter into any . .
Cited – Cross v Kirkby CA 18-Feb-2000
The claimant was a hunt saboteur and the defendant a local farmer. The claimant shouted to the defendant ‘You’re fucking dead’ and jabbed him in the chest and throat with a broken baseball bat. In order to ward off further blows, the defendant . .
Cited – Taylor v Bowers CA 15-Feb-1876
The plaintiff, being in embarrassed circumstances, in pursuance of an agreement between him and A, made over all his stock-in-trade to A, and fictitious bills of exchange were given by A in plaintiff’s favour. Possession of the goods was given to A, . .
Cited – Burrows v Rhodes 22-Mar-1899
The plaintiff was induced to enlist in the Jameson Raid of 1895, contrary to section 11 of the Foreign Enlistment Act 1870, by the defendants’ fraudulent representation that it had the sanction of the Crown (which would have made it lawful). Kennedy . .
Cited – Parkinson v College of Ambulance Ltd and Harrison 1925
the plaintiff made a donation to a charity to secure a knighthood. When the honour failed to materialise he sued for the return of his money. The claim was rejected. Lush J said that ‘no Court could try such an action and allow such damages to be . .
Cited – Tribe v Tribe CA 26-Jul-1995
Illegal intent alone rebutted presumption
The plaintiff held 499 of the 500 issued shares of a company. In 1986 he wished to retire and transferred 30 shares to his son, one of four children, who was to take over the business. In 1988 he was worried about a bill for dilapidations, and, to . .
Cited – Palaniappa Chettiar v Arunasalam Chettiar PC 31-Jan-1962
Malaya . .
Cited – Saunders v Edwards CA 24-Mar-1986
The parties had agreed for the sale and purchase of land and chattels, but had deliberately misdescribed the apportionment so as to reduce tax liability. The purchasers then brought an action for misrepresentation. The vendor replied that the action . .

Cited by:

Cited – Henderson v Dorset Healthcare University NHS Foundation Trust CA 3-Aug-2018
Upon the allegedly negligent release of the claimant from mental health care, she had, while in the midst of a serious psychotic episode, derived from the schizophrenia, killed her mother and been convicted of manslaughter. She now sought damages in . .
Cited – Singularis Holdings Ltd v Daiwa Capital Markets Europe Ltd SC 30-Oct-2019
The Court was asked whether a claim against a bank for breach of the Quincecare duty is defeated if the customer is a company, and the fraudulent payment instructions are given by the company’s Chairman and sole shareholder who is the dominating . .
Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 11 October 2022; Ref: scu.567275

Israel Discount Bank of New York v Hadjipateras: CA 1983

An application was made to enforce a judgment in England. The respondent alleged that he had signed a guarantee under the undue influence of his father.
Held: The Court reversed the decision of the first instance judge. The substance of the decision is that the respondent had deliberately refrained from raising a defence in New York and was therefore not entitled to take the point in the English courts. However, in general, ‘The fact that an agreement was obtained by undue influence, duress or coercion was a reason for an English court to treat a foreign judgment based on that agreement as being invalid or to refuse to enforce the foreign judgment as being contrary to English public policy.’

Citations:

[1984] 1 WLR 137, [1983] 3 All ER 129, [1983] 2 Lloyds Rep 490

Jurisdiction:

England and Wales

Cited by:

Cited – Soleimany v Soleimany CA 4-Mar-1998
The parties were Iranian Jews, father and son. The son arranged to export carpets from Iran in contravention of Iranian law. The father and son fell into dispute about their contracts and arranged for the issues to be resolved by the Beth Din . .
Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.

Contract, Undue Influence

Updated: 11 October 2022; Ref: scu.219310

Badejo v Cranston: ChD 19 Nov 2019

Appeal by Mr Badejo in a claim brought by him for repayment of about pounds 120,000 that he paid to the defendant, Mr Cranston, pursuant to what Mr Badejo says was an option agreement.

Citations:

[2019] EWHC 3343 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 07 October 2022; Ref: scu.646157

Nemzeti Fogyasztovedelmi Hatosag v Invitel Tavkozlesi Zrt: ECJ 26 Apr 2012

ECJ Directive 93/13/EEC – Article 3(1) and (3) – Articles 6 and 7 – Consumer contracts – Unfair terms – Unilateral amendment of the terms of a contract by a seller or supplier – Action for an injunction brought in the public interest and on behalf of consumers by a body appointed by national legislation – Declaration of the unfair nature of a term – Legal effects

Citations:

C-472/10, [2012] EUECJ C-472/10, ECLI:EU:C:2012:242

Links:

Bailii

Statutes:

Directive 93/13/EEC

Jurisdiction:

European

Citing:

Opinion – Nemzeti Fogyasztovedelmi Hatosag v Invitel Tavkozlesi Zrt ECJ 6-Dec-2011
ECJ Opinion – Consumer protection – Directive 93/13/EEC – Article 3(1) in combination with points 1(j) and 2(d) of the annex – Articles 6 and 7 – Unfair terms in consumer contracts – Contract term that entitles . .
Lists of cited by and citing cases may be incomplete.

Consumer, Contract

Updated: 07 October 2022; Ref: scu.453047

Customer Systems Plc v Ranson: CA 29 Mar 2012

Leave to appeal granted.

Judges:

David LJ

Citations:

[2012] EWCA Civ 491

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Helmet Integrated Systems Ltd v Tunnard and others CA 15-Dec-2006
Whilst employed by the claimants as a salesman, the defendant came to want to develop his idea for a modular helmet suitable for fire-fighters and others. He took certain steps including showing the proposal confidentially to a competitor, and then . .
At QBD – Customer Systems Plc v Ranson and Others QBD 16-Dec-2011
. .

Cited by:

Leave to Appeal – Ranson v Customer Systems Plc CA 27-Jun-2012
Lewison LJ considered the contractual duty of fidelity within an employment contract:
‘It is not disputed that an employee has an obligation of fidelity towards his employer. If the obligation is not expressed, it will invariably be implied.
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 07 October 2022; Ref: scu.452962

Allied Marine Ltd v Vale do Rio Doce SA (The Leonidas D): CA 1985

One party sought to construct an agreement to abandon an ongoing, if stalled, arbitration out of mere silence.
Held: Robert Goff LJ said that silence will not normally amount to acceptance of an offer since acceptance cannot be inferred from silence alone ‘save in the most exceptional circumstances’, and ‘We should add that we see the same difficulty in invoking the principle of equitable estoppel in such circumstances. It is well settled that that principle requires that one party should have made an unequivocal representation that he does not intend to enforce his strict legal rights against the other; yet it is difficult to imagine how silence and inaction can be anything but equivocal.’
. . And ‘if one party, O, so acts that his conduct, objectively considered, constitutes an offer, and the other party, A, believing that the conduct of O represents his actual intention, accepts O’s offer, then a contract will come into existence, and on those facts it will make no difference if O did not in fact intend to make an offer, or if he misunderstood A’s acceptance, so that O’s state of mind is, in such circumstances, irrelevant.’

Judges:

Robert Goff LJ

Citations:

[1985] 1 WLR 925, [1985] 2 Lloyds Rep 18, [1985] 2 All ER 796

Jurisdiction:

England and Wales

Cited by:

Cited – In Re Selectmove Ltd CA 21-Dec-1993
Promisse to Pay Tax due is not Consideration
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
Cited – Warren and Another v Burns QBD 13-Nov-2014
The boxing manager and boxer each said that the other owed him money.
Held: The contract entitled the claimant to take some share of the boxers earnings but as part of the overall management fee, but as a part of the overall sum and at a share . .
Lists of cited by and citing cases may be incomplete.

Contract, Estoppel

Updated: 07 October 2022; Ref: scu.396763

Ebbw Vale Steel Co v Tew: CA 1935

The court considered the damages to be awarded where an employee left without the proper notice: ‘The Judge should ascertain the workman’s probable output during the time of default, find its selling value, deduct the expenses which would have been incurred had the workman performed his contract, and which were not incurred when he failed to produce it, and award that amount to the employer.’

Citations:

[1935] 79 SJ 593

Jurisdiction:

England and Wales

Cited by:

Cited – Tullett Prebon Group Ltd v El-Hajjali QBD 31-Jul-2008
The defendant signed an employment contract to join the claimants as a senior broker. He changed his mind and decided to stay in his existing job. The new employers sued for breach of contract. The defendant said that the claimants had refused to . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment, Damages

Updated: 07 October 2022; Ref: scu.282598

British Eagle International Airlines Ltd v Compagnie National Air France: CA 1974

Judges:

Russell LJ

Citations:

[1974] 1 Lloyd’s Rep 429

Jurisdiction:

England and Wales

Cited by:

Appeal from – British Eagle International Airlines Ltd v Compagnie National Air France HL 1975
British Eagle, which had gone into liquidation. The parties disputed a contract attempting to reset the ranking of debts. The House was asked whether there was a debt due to the insolvent company at the commencement of its winding-up, to which the . .
Mentioned – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 07 October 2022; Ref: scu.442608

Robertson v British Gas Corporation: CA 1983

Collective agreements ordinarily create no legally enforceable obligations between a union and the employers. Akner LJ did not accept that the statutory statement of terms and conditions equally placed a heavy burden on the employee and employer in establishing the terms of the employment.

Judges:

Akner LJ

Citations:

[1983] ICR 351

Jurisdiction:

England and Wales

Citing:

Approved – System Floors (UK) Ltd v Daniel EAT 14-Oct-1981
Browne-Wilkinson J discussed the status of the statement of main terms of employment: ‘It provides very strong prima facie evidence of what were the terms of the contract between the parties but does not constitute a written contract between the . .

Cited by:

Cited – Parkwood Leisure Ltd v Alemo-Herron and 23 Others CA 29-Jan-2010
The employees asserted unauthorised deductions from their wages. The company appealed against an order re-instating their claims. When employed by the council, the claimants had the right to pay increases in accordance with rates set by national . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 07 October 2022; Ref: scu.396481

Re Garrud, Ex parte Newitt: CA 1881

A building contract provided for forfeiture on the tenant’s breach and not on bankruptcy. The bankrupt builder had broken the terms of his agreement with the landowner and it was provided in the agreement that the chattels would be forfeited to the landowner ‘as and for liquidated damages’.
Held: The provision was valid. Where an owner continued to make advances after the failure of a building contractor to complete on a particular day, that amounted to a waiver of his contractual right of forfeiture.
James LJ said: ‘Another point taken before us, which does not appear to have been really argued before the judge of the county court, was this – that the seizure was not made in sufficient time, that it was not made before the filing of the liquidation petition. To my mind it is immaterial at what particular moment the seizure was made. The broad general principle is that the trustee in a bankruptcy takes all the bankrupt’s property, but takes it subject to all the liabilities which affected it in the bankrupt’s hands, unless the property which he takes as the legal personal representative of the bankrupt is added to by some express provision of the bankrupt law. There is no such provision applicable to the present case. The building agreement provides, in effect, that in a certain event certain property of the builder may be taken by the landowner in full satisfaction of the agreement. It appears to me analogous to a sale of property with a power of repurchase in a certain event.’

Judges:

Brett, James LJJ

Citations:

(1881) 16 Ch D 52

Jurisdiction:

England and Wales

Cited by:

Cited – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 07 October 2022; Ref: scu.442614

Pittman v Prudential Deposit Bank Ltd: CA 1896

The parties had agreed to assign the judgment debt to the solicitor acting.
Held: The agreement was champertous as an assignment of an interest in litigation, and therefore was void, having been made before judgment and even though it had been made bona fide.
Lord Esher MR said: ‘In order to preserve the honour and honesty of the profession it was a rule of law which the court had laid down and would always insist upon that a solicitor could not make an arrangement of any kind with his client during the litigation he was conducting so as to give him any advantage in respect of the result of that litigation.’

Judges:

Lord Esher MR

Citations:

(1896) 13 TLR 110, (1896) 41 Sol Jo 129

Jurisdiction:

England and Wales

Cited by:

Cited – Wallersteiner v Moir (No 2) CA 1975
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
Cited – Sibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 07 October 2022; Ref: scu.444823

Curtis v Chemical Cleaning and Dyeing Co: CA 1951

The defendant sought to rely on an exemption clause in its garment cleaning contract. The defendant’ shop assistant had said that it extended only to damage to beads and sequins, whereas by its terms it covered all liability for damage to articles cleaned.
Held: A statement about the contents or effect of a written document is capable of amounting to a representation. The defendant was prevented from relying on a general exemption clause on the back of the cleaning ticket. Denning LJ said:’When one party puts forward a printed form for signature, failure by him to draw attention to the existence or extent of the exemption clause may in some circumstances convey the impression that there is no exemption at all, or at any rate not so wide an exemption as that which is in fact contained in the document.’

Judges:

Denning LJ

Citations:

[1951] 1 KB 805

Jurisdiction:

England and Wales

Cited by:

Cited – Abbar and Another v Saudi Economic and Development Company (Sedco) Real Estate Ltd and Others ChD 5-Aug-2010
The defendant sought a strike out of the claim in fraud, saying it was an abuse of process, saying that the facts as pleaded were consistent with honest dealing. The claimants said they had been induced to purchase shares.
Held: The request . .
Cited – AJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 07 October 2022; Ref: scu.421581

Smith v Webster: CA 1876

P verbally agreed to buy an inn from D. On the next day D told his solicitors that he had entered into a verbal arrangement for the sale and instructed them to prepare an agreement. On the same day they forwarded a draft formal contract to P’s solicitors under cover of a letter which said: ‘[D] has been with us today, and stated that he had arranged with your client [P] for sale to the latter of the Golden Lion for andpound;950. We therefore send herewith draft contract for your perusal and approval.’
Held: This was insufficient as a note or memorandum. James LJ held that the only authority given to the solicitor was to prepare a formal document. Even if the letter had said that D had ‘told us that he has sold the property to you for andpound;950’ this would merely have been the communication of a fact. The signature would not make it a binding memorandum, not being affixed eo intuitu. The draft sent was not the same contract as had been agreed and a statement of the reason why it was being sent was not a memorandum signed by someone authorised by the person interested to sign it as binding.
Bagallay LJ regarded the agreement reached as conditional upon a formal contract and said that the authority conferred on the solicitor by D was not authority to convert it into an absolute agreement.
Lush LJ held that in order to satisfy the statute a note or memorandum must be one which the principal had authorised the agent to sign as a record of the transaction and that the authority actually given to the solicitors was merely to prepare a formal draft contract to be sent to the other side for perusal and approval.

Judges:

James LJ, Bagallay LJ and Lush LJ

Citations:

[1876] 3 Ch D 49

Jurisdiction:

England and Wales

Cited by:

Limited – John Griffiths Cycle Corporation, Limited v Humber and Co, Limited 1899
Smith v Webster was not to be taken as meaning that the agent must have had authority to sign the document as a record of the contract. All that Smith v Webster decided was that, in order to satisfy the Statute, it must be shown that the agent . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 07 October 2022; Ref: scu.430066

Vanbergen v St Edmunds Properties Ltd: CA 1933

Where a variation to a contract agreed upon enables one party to alter its performance under the existing agreement, for it to amount to consideration it must be of some benefit to the other party, and if the variation is introduced entirely for the benefit of the party otherwise in breach it will not constitute good consideration.
Lord Hanworth MR said ‘It is a well established principle that a promise to pay a sum which the debtor is already bound by law to pay to the promisee does not afford any consideration to support the contract.’

Judges:

Lord Hanworth MR

Citations:

[1933] 2 KB 223

Jurisdiction:

England and Wales

Cited by:

Cited – In Re Selectmove Ltd CA 21-Dec-1993
Promisse to Pay Tax due is not Consideration
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 October 2022; Ref: scu.396766

Datec Electronic Holdings Ltd and Another v United Parcels Service Ltd and Another: ComC 22 Feb 2005

The claimant sought damages for the loss of goods in transit under the care of the defendant. Andrew Smith J held as regards the burden of proof in an allegation of wilful misconduct: ‘I should add that I was properly reminded by counsel that the principle set out in such cases and as in Re H and others (Minors) Sexual Abuse: Standard of Proof [1996] AC 563 where Lord Nichols observed that ‘built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation’ (at p 596f), however Lord Nichols explained that this simply means that the inherent probability or improbability is itself to be taken into account when weighing the probabilities in deciding whether, on balance, the event occurred. Although in this case the allegation is one of theft from an employer I do not regard this possibility as so improbable that there is a particularly heavy burden upon the claimants to prove their case. I have simply concluded that there is not proper evidence to support the claimants’ allegation.’

Judges:

Andrew Smith J

Citations:

[2005] 1 LR 470, [2005] EWHC 221 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – TNT Global Spa and Another v Denfleet International Ltd and Another CA 2-May-2007
The driver of a lorry carrying the claimant’s goods was said to have fallen asleep at the wheel, and the cargo damaged in the accident. The carrier appealed a finding of liability for wilful misconduct.
Held: ‘I am unable to accept that mere . .
Appeal from – Datec Electronic Holdings Ltd and Another v United Parcels Service Ltd CA 29-Nov-2005
The parties put forward alternative explanations for the loss of a mail packet. Richards LJ said: ‘Nor do I see any inconsistency between my approach and the observations of Lord Brandon in The Popi M. The conclusion that employee theft was the . .
At First Instance – Datec Electronics Holdings Ltd and others v United Parcels Services Ltd HL 16-May-2007
The defendants had taken on the delivery of a quantity of the claimant’s computers. The equipment reached one depot, but then was lost or stolen. The parties disputed whether the Convention rules applied. UPS said that the claimant had agreed that . .
Cited – Ide v ATB Sales Ltd and Another CA 28-Apr-2008
Each appellant challenged how the judge had decided between alternative proofs of causation of the respective loss. In Ide, the claimant asserted a fault in a cycle handlebar, and in Lexus, the claimant asserted that it caught fire whilst . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 06 October 2022; Ref: scu.223339

Du Plessis v Fontgary Leisure Parks Ltd: CA 2 Apr 2012

The claimant, who owned a holiday mobile home on the respondent’s site challenged the raising of site fees, saying that the contract was unfair. Previously all site fees were equal within the site, but the respondent had introduced a scheme which reflected the differing grades of pitches. The judge had rejected her argument that the fees selected, their method of calculation, and the contract were unfair.
Held: The appeal failed, and the contract had been validly terminated by the respondent on the claimant failing to pay the new licence fees. The term was not unfair. The claimant had not produced evidence of any excess value paid, and she had had full opportunity to read the contract before signing it. The grading itself had been carried out in a fair manner. The arbitration agreement about which complaint was made had not prevented the claimant doing as she had, and seeking the court’s decision.
Similarly the arbitration agreement, which excluded the claimant from taking such an issue to arbitration on her own was not unfair. Such an arbitration could only take place, if it was requested by 51% of caravan owners affected by the increase. There was sense and commercial purpose in the provision.

Judges:

Ward, Lloyd, Jackson LJJ

Citations:

[2012] EWCA Civ 409

Links:

Bailii

Statutes:

Unfair Terms in Consumer Contracts Regulations 1999, Arbitration Act 1996, Unfair Arbitration Agreements (Specified Amount) Order 1999

Jurisdiction:

England and Wales

Citing:

Cited – Stroud v Weir Associates CA 1987
The court was asked to set pitch fees on a registered mobile home site. The site owner had sought to rely upon the fact of the order which cut from 15 per cent to 10 per cent the maximum commission chargeable by a site owner on an occupier’s . .
Cited – Director General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .

Cited by:

Cited – AJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .
Lists of cited by and citing cases may be incomplete.

Contract, Consumer

Updated: 06 October 2022; Ref: scu.452410

Jet2Com Ltd v Blackpool Airport Ltd: CA 2 Apr 2012

Judges:

Longmore, Moore-Bick, Lewison LJJ

Citations:

[2012] EWCA Civ 417

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Sheffield District Railway co v Great Central Railway Co 1911
(Rail and Canal Commissioners) The Sheffield District Railway agreed (in a contract appended to a special Act of Parliament, with the Lancashire, Derbyshire and East Coast Railway for the operation of a short line with two stations by means of which . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 October 2022; Ref: scu.452411

Masri and Another v Consolidated Contractors International Co Sal and Others: ComC 3 Mar 2011

On notice hearing with regard to without notice receivership order.

Judges:

Gloster DBE J

Citations:

[2011] EWHC 409 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Masri v Consolidated Contractors International (UK) Ltd ComC 17-May-2005
. .
See Also – Masri v Consolidated Contractors International (UK) Ltd CA 24-Oct-2005
The defendants who were resident in Greece appealed a decision that the English court had jurisdiction over them, by virtue of a close connection of the matter with earlier proceedings heard here.
Held: The fact that the defendants were all . .
See Also – Masri v Consolidated Contractors International UK Ltd and Another ComC 28-Jul-2006
. .
See Also – Masri v Consolidated Contractors International UK Ltd and Another ComC 14-Mar-2007
Judgment on quantum. . .
See Also – Masri v Consolidated Contractors International (UK) Ltd and others ComC 25-May-2007
Application for an order to prevent some defendants pursuing action in other jurisdictions. . .
See Also – Masri v Consolidated Contractors International Company Sal and Another CA 11-Jul-2007
. .
See Also – Masri v Consolidated Contractors International Company Sal and Another ComC 20-Dec-2007
. .
See Also – Masri v Consolidated Contractors International Company Sal and Another CA 4-Apr-2008
The court was asked whether the Commercial Court had international jurisdiction to make an order for the appointment of a receiver by way of equitable execution, and a freezing order, in relation to the judgment debtors’ interest in the concession . .
See Also – Masri v Consolidated Contractors International Company Sal and Another ComC 23-May-2008
Application for interpretation of a receivership order. . .
See Also – Masri v Consolidated Contractors International Company Sal and Another (No 3) CA 6-Jun-2008
The court was asked whether the English court has jurisdiction following judgment to grant an anti-suit injunction against foreign judgment debtors (one of whom has a domicile in a Brussels I Regulation State) restraining them from pursuing . .
See Also – Masri v Consolidated Contractors International (UK) Ltd and Another ComC 17-Jun-2008
Application for further order of payment of costs of action on account. . .
See Also – Masri v Consolidated Contractors International Company Sal and others CA 28-Jul-2008
The judgment creditor appealed an order refusing to oblige the defendant company to attend court and provide information about its means. . .
See Also – Masri v Consolidated Contractors International Company Sal and Another ComC 21-Oct-2008
The court heard matters relating to the recovery by the claimant of $63,000,000. . .
See Also – Masri v Consolidated Contractors International Co Sal and others CA 13-Nov-2008
The creditors sought leave to appeal against orders made in the course of proceedings to recover a very substantial debt from a foreign resident company. . .
See Also – Masri v Consolidated Contractors (Oil and Gas) Company Sal CA 6-Feb-2009
Appeal from order with regard to management of receivership. . .
See Also – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
See Also – Masri v Consolidated Contractors International Company Sal and Others ComC 6-Oct-2010
The third respondent sought to strike out an application for his committal for failure to comply with orders made in support of proceedings to enforce a substantial judgment. . .
See Also – Masri v Consolidated Contractors International Company Sal ComC 21-Oct-2010
The court held a case management conference with regard to an intended application for committal for contempt of one of the defendants. . .
See Also – Consolidated Contractors International Company Sal and Another v Masri CA 21-Jan-2011
. .
See Also – Consolidated Contractors International Company Sal and Another v Masri CA 3-Feb-2011
. .
Cited – Derby and Co Ltd v Weldon (Nos 3 and 4) CA 1990
The plaintiff had obtained an asset freezing order against a defendant Panamanian Company, which now appealed saying that it was inappropriate to make such an order where the company had no assets in the jurisdiction.
Held: The appeal failed. . .

Cited by:

See Also – Masri v Consolidated Contractors International Company Sal and Others ComC 5-May-2011
The applicant, and judgment creditor sought orders for committal for contempt by the defendant companies and officers after failing to comply with court orders. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 October 2022; Ref: scu.430291

North Eastern Properties Ltd v Coleman and Another: ChD 20 Aug 2009

The parties agreed for the developer to build and the defendants to purchase several apartments. The properties were not completed after a notice to complete and the purchasers purported to rescind the contract. The claimant completed the flats and in turn served notice to complete. The defendant now said that since the agreement included a discount not shown on the contract, it did not meet the 1989 Act and was void.
Held: The purchasers had not validly rescinded the contract. It was not possible to rescind a contract in only anticipation of a breach. Also the addition discount was expressly divorced from the contract at the purchasers’ own request, and the entire agreement successfully excluded it.
The parties had contracted for the sale and purchase of 11 flats in a development. The vendors issued completion notices, and the defendant failed to complete, and the claimants now sought specific performance.

Judges:

Behrens J

Citations:

[2009] EWHC B18 (Ch), [2009] EWHC 2174 (Ch), [2010] 1 P and CR DG3, [2009] NPC 106

Links:

Bailii, Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2(1)

Jurisdiction:

England and Wales

Citing:

Cited – Inntrepreneur Pub Co v East Crown Ltd 2000
The ‘entire agreement’ clause contained in a lease not only had the effect of rendering evidence of an alleged collateral warranty inadmissible, but also deprived the warranty of all legal effect. It did not collapse the lease in on itself. Lightman . .
Cited – Business Environment Bow Lane Ltd v Deanwater Estates Ltd CA 27-Jun-2007
Enforcement of repairing obligations in lease after assignments, and the use of collateral contracts. Sir Andrew Morritt C said: ‘The law relating to collateral contracts is well-established but in connection with sales or leases of land needs to be . .

Cited by:

Appeal from – North Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 05 October 2022; Ref: scu.375956

Nathan v Smilovitch and Another: CA 1 Mar 2002

Application for leave to appeal.

Judges:

Aldous LJ

Citations:

[2002] EWCA Civ 332

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Nathan v Smilovitch and Another CA 13-May-2002
Application to set aside leave to appeal.
Held: It is a rare case in which, once permission to appeal has been granted it is appropriate to set it aside. . .
See Also – Nathan v Smilovitch CA 8-Nov-2002
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 October 2022; Ref: scu.216967

Newberry and Another v Turngiant Ltd: CA 22 Jan 1992

The vendor was not in default and was not responsible for a delay in completion of sale of land, when the delay was required to remove a registered land charge discovered only after exchange. The contract was exchanged before the Act came into effect and the Act did not apply.

Citations:

Gazette 22-Jan-1992

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989

Jurisdiction:

England and Wales

Contract

Updated: 05 October 2022; Ref: scu.84269

Merchant International Company Ltd v Natsionalna Aktsionerna Kompaniia Naftogaz: CA 29 Feb 2012

The defendant appealed against a refusal to strike out the claim which was to seek to enforce a judgment obtained in Kiev and in the Ukraine Supreme Court.
Held: It had been a proper exercise of the discretion under CPR r 13.3 to refuse to set aside the default judgment. A court in England had jurisdiction to consider whether a judgment obtained in a foreign Convention state was obtained in breach of the Human Rights Convention provided there was clear evidence. Otherwise there is a strong presumption that the procedures of a Convention state complied with it. Here, the judgment was obtained in default had been obtained on a debt established in a foreign final judgment of a Convention state, A later judgment setting aside the original judgment had been made in open breach of article 6. The appeal failed.

Judges:

Lord Neuberger MR, Hooper, Toulson LJJ

Citations:

[2012] EWCA Civ 196, [2012] CP Rep 25, [2012] 1 WLR 3036, [2012] 1 CLC 396, [2012] WLR(D) 51, [2012] 2 All ER (Comm) 1

Links:

Bailii, WLRD

Statutes:

European Convention on Human Rights 6, Civil Procedure Rules 13.3

Jurisdiction:

England and Wales

Contract, Litigation Practice, Human Rights, International

Updated: 05 October 2022; Ref: scu.451704

Liberty Insurance Pte Ltd and Another v Argo Systems Fze: CA 21 Dec 2011

Aikens LJ said that the waiver of a contractual right by election or by estoppel requires ‘that the person who is alleged to have ‘waived’ the relevant contractual right has made an unequivocal representation, by words or conduct, that he does not, in future, intend to enforce that legal right which he has as against the other party to the contract . . in the absence of special circumstances, silence and inaction are, when objectively considered, equivocal and cannot, of themselves, constitute an unequivocal representation as to whether a person will or will not rely on a particular legal right in the future’

Judges:

Laws, Aikens, Tomlinson LJJ

Citations:

[2011] EWCA Civ 1615, [2012] 1 CLC 81

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Warren and Another v Burns QBD 13-Nov-2014
The boxing manager and boxer each said that the other owed him money.
Held: The contract entitled the claimant to take some share of the boxers earnings but as part of the overall management fee, but as a part of the overall sum and at a share . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 October 2022; Ref: scu.451344

Shirlaw v Southern Foundries (1926) Ltd: HL 1940

Where a party enters into an arrangement which can only take effect by the continuance of an existing state of circumstances, there is an implied engagement on his part that he will do nothing of his own motion to put an end to that state of circumstances.
Lord Atkin said: ‘The arrangement between the parties appears to me to be exactly described by the words of Cockburn C.J. in Stirling v. Maitland (1864) 5 B and S 840, 852: ‘If a party enters into an arrangement which can only take effect by the continuance of an existing state of circumstances’; and in such a state of things the Lord Chief Justice said: ‘I look on the law to be that there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances, under which alone the arrangement can be operative’. That proposition in my opinion is well established law. Personally I should not so much base the law on an implied term, as on a positive rule of the law of contract that conduct of either the promisor or promisee which can be said to amount to himself ‘of his own motion’ bringing about the impossibility of performance is in itself a breach. If A promises to marry B and before performance of that contract marries C, A is not sued for breach of an implied contract not to marry anyone else, but for breach of his contract to marry B.’

Judges:

Lord Atkin

Citations:

[1940] AC 701, [1940] 2 All ER 445

Jurisdiction:

England and Wales

Citing:

Appeal from – Shirlaw v Southern Foundries (1926) Ltd CA 1939
The court warned against the over-ready application of any principle to justify the implication of terms into a contract. McKinnon LJ set out his ‘officious bystander’ test: ‘If I may quote from an essay which I wrote some years ago, I then said: . .
Cited – William Stirling The Younger v Maitland And Boyd 1864
Cockburn CJ stated: ‘I look on the law to be that, if a party enters into an agreement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of . .

Cited by:

Cited – Mainwaring and Yeoman’s Row Management Limited v Trustees of Henry Smith’s Charity (No 2) CA 3-Oct-1996
The tenants had sought to purchase the freehold under the 1987 Act. One tenant having signed an ‘irrevocable’ agreement to participate, withdrew his involvement in the purchase, and the remaining number of tenants were no longer a sufficient . .
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 . .
Cited – Bournemouth and Boscombe FC Limited v Manchester United FC Limited CA 21-May-1980
Donaldson LJ said: ‘I have on occasion found it a useful test notionally to write into the contract under consideration a declaratory clause expressing the fact that the parties are not subject to the obligations which would flow from the clause . .
Cited – Duval v 11-13 Randolph Crescent Ltd SC 6-May-2020
The Court was asked whether the landlord of a block of flats is entitled, without breach of covenant, to grant a licence to a lessee to carry out work which, but for the licence, would breach a covenant in the lease of his or her flat, where the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 October 2022; Ref: scu.248231

Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another: SC 2 Dec 2015

The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause might be implied in a contract is: ‘that it is necessary for business efficacy or that it is so obvious that it went without saying.’
Lord Neuberger reviewed the authorities in the incorporation of implied terms. The policy of the common law is not to imply such terms lightly, and that is why the principles have been formulated in terms of necessity or business efficacy or ‘it goes without saying.’ and ‘I would add six comments on the summary given by Lord Simon in BP Refinery as extended by Sir Thomas Bingham in Philips and exemplified in The APJ Priti. First, in Equitable Life Assurance Society v Hyman [2002] 1 AC 408, 459, Lord Steyn rightly observed that the implication of a term was ‘not critically dependent on proof of an actual intention of the parties’ when negotiating the contract. If one approaches the question by reference to what the parties would have agreed, one is not strictly concerned with the hypothetical answer of the actual parties, but with that of notional reasonable people in the position of the parties at the time at which they were contracting. Secondly, a term should not be implied into a detailed commercial contract merely because it appears fair or merely because one considers that the parties would have agreed it if it had been suggested to them. Those are necessary but not sufficient grounds for including a term. However, and thirdly, it is questionable whether Lord Simon’s first requirement, reasonableness and equitableness, will usually, if ever, add anything: if a term satisfies the other requirements, it is hard to think that it would not be reasonable and equitable. Fourthly, as Lord Hoffmann I think suggested in Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988, para 27, although Lord Simon’s requirements are otherwise cumulative, I would accept that business necessity and obviousness, his second and third requirements, can be alternatives in the sense that only one of them needs to be satisfied, although I suspect that in practice it would be a rare case where only one of those two requirements would be satisfied. Fifthly, if one approaches the issue by reference to the officious bystander, it is ‘vital to formulate the question to be posed by [him] with the utmost care’, to quote from Lewison, The Interpretation of Contracts 5th ed (2011), para 6.09. Sixthly, necessity for business efficacy involves a value judgment. It is rightly common ground on this appeal that the test is not one of ‘absolute necessity’, not least because the necessity is judged by reference to business efficacy. It may well be that a more helpful way of putting Lord Simon’s second requirement is, as suggested by Lord Sumption in argument, that a term can only be implied if, without the term, the contract would lack commercial or practical coherence.’
Neither the common law nor statute apportions rent in advance on a time basis.

Judges:

Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge

Citations:

[2015] UKSC 72, [2015] 3 WLR 1843, [2015] WLR(D) 501, [2016] AC 742, 163 Con LR 1, UKSC 2014/0158

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary

Jurisdiction:

England and Wales

Citing:

At ChD – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another ChD 16-May-2013
The lease contains a tenant’s break clause which allows the tenant, subject to its compliance with certain conditions, to terminate the lease on a specified date. Rent is payable by instalments quarterly in advance on the usual quarter days. The . .
At CA – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another CA 14-May-2014
The court considered the operation of a break clause within a lease, and in particular ‘ Can the court imply a term which enables the lessee to get back that part of the advance payment of rent which relates to a period (‘the broken period’) after . .
Cited – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Cited – The Moorcock CA 1889
Unless restricted by something else, an employer ought to find work to enable a workman to perform his part of the bargain, namely, to do his work. A term will be implied into a contract only to the extent required to give the contract efficacy: ‘if . .
Cited – Reigate v Union Manufacturing Co (Ramsbottom) Ltd CA 1918
Scrutton LJ said that ‘[a] term can only be implied if it is necessary in the business sense to give efficacy to the contract’. He added that a term would only be implied if ‘it is such a term that it can confidently be said that if at the time the . .
Cited – Shirlaw v Southern Foundries (1926) Ltd CA 1939
The court warned against the over-ready application of any principle to justify the implication of terms into a contract. McKinnon LJ set out his ‘officious bystander’ test: ‘If I may quote from an essay which I wrote some years ago, I then said: . .
Cited – Trollope and Colls Limited v North West Metropolitan Regional Hospital Board HL 1973
The court was requested to imply a term into a building contract.
Held: The term could not be implied, since at least four alternatives might also be implied.
Lord Pearson said: ‘[T]he court does not make a contract for the parties. The . .
Cited – Liverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .
Cited – BP Refinery (Westernport) Pty Ltd v The Shire of Hastings PC 1977
(Victoria) The Board set out the necessary conditions for a clause to be implied into a contract.
Held: Lord Simon of Glaisdale said: ‘Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a . .
Cited – Arnold v Britton and Others SC 10-Jun-2015
Absurdity did not defeat a clear clause
A standard lease of plots on a caravan park, contained a provision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: The tenants’ appeal failed . .
Cited – Atkins International HA v Islamic Republic of Iran Shipping Lines (The APJ Priti) CA 1987
The APJ Priti was chartered but on the voyage, was struck by a missile, towed to port, and discharged. The ships owners argued for a breach of warranty, saying that the nominated port was unsafe. The arbitrator had found that there was no warranty . .
Cited – Philips Electronique v British Sky Broadcasting Ltd CA 1995
There is a presumption against adding terms to a contract. The presumption is stronger where the contract is in writing and represents an apparently complete bargain between the parties. Sir Thomas Bingham MR set out Lord Simon’s formulation, and . .
Cited – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Cited – Equitable Life Assurance Society v Hyman HL 20-Jul-2000
The directors of the Society had calculated the final bonuses to be allocated to policyholders in a manner which was found to be contrary to the terms of the policy. The language of the article conferring the power to declare such bonuses contained . .
Rephrased – Attorney General of Belize and others v Belize Telecom Ltd and Another PC 18-Mar-2009
(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was . .
Cited – William Clun’s Case 1613
If a lease under which the rent is payable in arrear was forfeited or came to an end prematurely for some other reason, the landlord loses the right to recover the rent due on the rent day following that determination . .
Cited – Capron v Capron 1874
By a will made before the 1870 Act, but amended by a codicil after the Act commenced to the use of his wife with remainders over. After her death having inherited the property, the parties disputed the apportionment of the rents.
Held: The . .
Cited – Ellis v Rowbotham CA 1900
The plaintiff had let and the defendant had taken a tenancy of premises at a rent payable quarterly in advance. The tenancy agreement had provided that if rent should be in arrears for 14 days the plaintiff could regain possession by re-entry. A . .
Cited – Hildebrand v Lewis CA 1941
B had granted to L a sublease of premises where the rent was payable quarterly in advance. He fell into arrears with his rent and the landlord served on L a notice under the Law of Distress Amendment Act 1908 section 6 with the result that L became . .
Cited – Foo Jong Peng and others v Phua Kiah Mai and another 8-Oct-2012
Supreme Court of Singapore – Court of Appeal) The court refused to follow the reasoning in Belize at least in so far as ‘it suggest[ed] that the traditional ‘business efficacy’ and ‘officious bystander’ tests are not central to the implication of . .
Cited – Canas Property Co v K L Television Services CA 1970
The rent under the lease was payable in advance on the usual quarter days and the landlord forfeited the lease by serving a writ ‘for instance on 25 April’.
Held: At common law on the breach of a covenant by a lessee, a lessor is entitled to . .
Cited – William Hill (Football) Limited v Willen Key and Hardware Limited 1964
The tenant surrendered the lease, but the date of surrender fell between two rent days. He sought credit for the rent due for the remainder of that rent period, arguing that there was an implied term enabling him to recover the rent for the broken . .
Cited – Canas Property Co v K L Television Services CA 1970
The rent under the lease was payable in advance on the usual quarter days and the landlord forfeited the lease by serving a writ ‘for instance on 25 April’.
Held: At common law on the breach of a covenant by a lessee, a lessor is entitled to . .
Cited – Capital and City Holdings Ltd v Dean Warburg Ltd CA 1988
There was no right of reimbursement under the 1870 Act of rent paid in advance even where the reddendum also included the words ‘proportionately for any part of a year’. . .
Cited – Re a Company 2007
There was no difference between forfeiture and termination under the break clause for the purpose of considering apportionment or otherwise of rent paid in advance. . .
Cited – Mediterranean Salvage and Towage Ltd v Seamar Trading and Commerce Inc (‘The Reborn’) CA 10-Jun-2009
The court confirmed that the necessity to give business efficacy to a contract was still required for the implication of a term into a contract. . .
Mentioned – Stena Line Ltd v Merchant Navy Ratings Pension Fund Trustees Ltd and Another ChD 27-Jul-2010
. .
Cited – Crema v Cenkos Securities Plc CA 16-Dec-2010
C sought payment of broker fees after assisting in raising funds for a venture capital company. The parties disputed the terms as to when payment was to be made.
Held: The appeal was allowed. The evidence did not allow the inference of the . .
Cited – Stena Line Ltd v Merchant Navy Ratings Pension Fund Trustees Ltd and Another CA 12-May-2011
The court heard a proposed arrangement for the remedying of a deficit in the pension scheme. . .
Cited – Dear and Another v Jackson CA 22-Feb-2013
The parties disputed the effect of agreements between them, and the management of companies in which they were involved. . .

Cited by:

Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
Cited – Trump International Golf Club Scotland Ltd and Another v The Scottish Ministers (Scotland) SC 16-Dec-2015
The appellant challenged the grant of permission to the erection of wind turbines within sight of its golf course.
Held: The appeal failed. The challenge under section 36 was supported neither by the language or structure of the 1989 Act, and . .
Cited – Paymaster (Jamaica) Ltd and Another v Grace Kennedy Remittance Services Ltd PC 11-Dec-2017
(Court of Appeal of Jamaica) The parties disputed the ownership of copyight in certain computer software, and also an allegation of the misuse of confidential information. . .
Cited – Airtours Holidays Transport Ltd v Revenue and Customs SC 11-May-2016
The court was asked whether the appellant, Airtours Holidays Transport Ltd (formerly MyTravel Group plc), was entitled to recover, by way of input tax VAT charged by PricewaterhouseCoopers LLP in respect of services provided by PwC and paid for by . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Cited – Wells v Devani SC 13-Feb-2019
Mr W was selling apartments in a block of flats. Mr D, an estate agent, sought commission. W argued that D had not had signed his terms, and that therefore no contract existed. The court considered whether a contract had come into being when a major . .
Cited – Duval v 11-13 Randolph Crescent Ltd SC 6-May-2020
The Court was asked whether the landlord of a block of flats is entitled, without breach of covenant, to grant a licence to a lessee to carry out work which, but for the licence, would breach a covenant in the lease of his or her flat, where the . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract

Updated: 05 October 2022; Ref: scu.556259

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 vendor company withdrew from the sale because of an objection by one of its directors. The vendor company later sold to someone who had not been introduced by the agents. The agents claimed their commission.
Held: A property owner was under no implied obligation not to deal with his property in such a way that the estate agent was deprived of the opportunity of earning the agreed commission. The House considered the use of implied terms.
Lord Wright said: ‘The expression ‘implied term’ is used in different senses. Sometimes it denotes some term which does not depend on the actual intention of the parties but on a rule of law, such as the terms, warranties or conditions which, if not expressly excluded, the law imports, as for instance under the Sale of Goods Act and the Marine Insurance Act. . But a case like the present is different because what it is sought to imply is based on an intention imputed to the parties from their actual circumstances.’
Viscount Simon LC said: ‘in contracts made with commission agents there is no justification for introducing an implied term unless it is necessary to do so for the purpose of giving to the contract the business effect which both parties to it intended it should have’.
Lord Russell said: ‘As to the claim for damages, this rests upon the implication of some provision in the commission contract, the exact terms of which were variously stated in the course of argument, the object always being to bind the principal not to refuse to complete the sale to the client whom the agent has introduced.
I can find no safe ground on which to base the introduction of any such implied term. Implied terms, as we all know, can only be justified under the compulsion of some necessity. No such compulsion or necessity exists in the case under consideration. The agent is promised a commission if he introduces a purchaser at a specified or minimum price. The owner is desirous of selling. The chances are largely in favour of the deal going through, if a purchaser introduced. The agent takes the risk in the hope of a substantial remuneration for comparatively small exertion . . There is no lack of business efficacy in such a contract, even though the principal is free to refuse to sell to the agent’s client.’ and
‘in my opinion there is no necessity in these contracts for any implication; and the legal position can be stated thus:- If according to the true construction of the contract the event has happened upon the happening of which the agent has acquired a vested right to the commission . . then no act or omission by the principal or anyone else can deprive the agent of that right; but until that event has happened, the agent cannot complain if the principal refuses to proceed with, or carry to completion, the transaction with the agent’s client’.

Judges:

Lord Wright, Viscount Simon LC, Lord Russell

Citations:

[1941] AC 108

Jurisdiction:

England and Wales

Citing:

Doubted – Prickett v Badger 1856
. .

Cited by:

Cited – Hughes and Another v Greenwich London Borough Council HL 26-Oct-1993
A headmaster’s occupation of a house in the school was not ‘for the better performance of his duties’, and so was not a tied house, and so he had the right to buy it. A term could not be implied into his contract to require him to occupy the house. . .
Cited – 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 . .
Cited – G and S Properties v Francis and Another SCS 13-Jun-2001
The pursuers were contracted to sell a property with sole selling rights. The contract was terminable on two weeks notice. Notice was given, and another company engaged. A buyer confused the two agents and obtained details from the pursuer’s office, . .
Cited – John D Wood and Co (Residential and Agricultural Ltd) v Craze QBD 30-Nov-2007
The claimant estate agents sought payment of its commission. The defendant appealed refusal of his request for the claim to be struck out. The agency said that the agency’s standard terms applied under which commission was payable on exchange. The . .
Cited – Foxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
Cited – Glentree Estates Ltd and Others v Favermead Ltd ChD 20-May-2010
The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original . .
Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Cited – Wells v Devani SC 13-Feb-2019
Mr W was selling apartments in a block of flats. Mr D, an estate agent, sought commission. W argued that D had not had signed his terms, and that therefore no contract existed. The court considered whether a contract had come into being when a major . .
Cited – Duval v 11-13 Randolph Crescent Ltd SC 6-May-2020
The Court was asked whether the landlord of a block of flats is entitled, without breach of covenant, to grant a licence to a lessee to carry out work which, but for the licence, would breach a covenant in the lease of his or her flat, where the . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Leading Case

Updated: 05 October 2022; Ref: scu.183485

William Stirling The Younger v Maitland And Boyd: 1864

Cockburn CJ stated: ‘I look on the law to be that, if a party enters into an agreement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances, under which alone the arrangement can be operative.’

Judges:

Cockburn CJ

Citations:

(1864) 5 B and S 840, [1864] EngR 752, (1864) 122 ER 1043

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Inntrepreneur Pub Company (CPC) and others v Crehan HL 19-Jul-2006
The tenant had taken on pub leases with ties requiring him to buy beer from companies associated with the landlords. The European Commission had issued a decision and the House was asked whether this was binding on the parties.
Held: . .
Cited – Bournemouth and Boscombe FC Limited v Manchester United FC Limited CA 21-May-1980
Donaldson LJ said: ‘I have on occasion found it a useful test notionally to write into the contract under consideration a declaratory clause expressing the fact that the parties are not subject to the obligations which would flow from the clause . .
Cited – Shirlaw v Southern Foundries (1926) Ltd HL 1940
Where a party enters into an arrangement which can only take effect by the continuance of an existing state of circumstances, there is an implied engagement on his part that he will do nothing of his own motion to put an end to that state of . .
Cited – Bournemouth and Boscombe Athletic Football Club Ltd v Lloyds TSB Bank Plc CA 10-Dec-2003
Appeal from refusal of extension of time to serve particulars of claim and strike out. . .
Cited – Duval v 11-13 Randolph Crescent Ltd SC 6-May-2020
The Court was asked whether the landlord of a block of flats is entitled, without breach of covenant, to grant a licence to a lessee to carry out work which, but for the licence, would breach a covenant in the lease of his or her flat, where the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 October 2022; Ref: scu.243370