Category: Contract

Halpern and others v Halpern and Another (No 2): CA 3 Apr 2007

The parties had settled by compromise a dispute about the implementation of a will before the Beth Din. It was now said that the compromise agreement had been entered into under duress and was unenforceable. The defendant said that rescission could not be granted since restitution was no longer possible.
Held: Rescision remained available as a possibility. There was no special common law rule. Practical justice did not require restitution as the primary objective. It would be surprising if a court could find undue influence or other misbehaviour, but not provide a remedy. The precise remedy could not be known until the facts were known.

Judges:

Waller LJ, Sedley LJ, Carnwath LJ

Citations:

Times 14-May-2007, [2007] EWCA Civ 291, [2007] 3 WLR 849, [2008] QB 195, [2007] 3 All ER 478, [2007] 2 Lloyd’s Rep 56

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Halpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
Cited – Erlanger v New Sombrero Phosphate Company HL 31-Jul-1878
Rescission needs Restitutio in Integrum
A syndicate, of which Erlanger (Orse Erlinger) was the head, purchased from an insolvent company an island, said to contain valuable mines of phosphates. Erlanger, who managed the purchase, prepared to get up a company to take over the island and . .
Cited – Barton v Armstrong PC 5-Dec-1973
(New South Wales) The appellant had executed a deed on behalf of a company to sell shares to the respondent in the context of a long running boardroom battle. He said that the deed had been obtained by duress and was voidable. The respondent was . .
Cited – The Western Bank of Scotland v Addie HL 1867
Rescission of a share purchase agreement was sought on the grounds of fraudulent misrepresentation.
Held: Lord Cranworth said: ‘Relief under the first head, which is what in Scotland is designated restitutio in integrum, can only be had where . .
Cited – Beximco Pharmaceuticals Ltd, Bangladesh Export Import Co Ltd, Rahman,and others v Shamil Bank of Bahrain Ec CA 28-Jan-2004
A contract provided that it was to be governed by the law of England and Wales, but ‘subject to the principles of the Glorious Sharia’a’ It was a loan agreement made under the system of Morabha. The defendant said that since the agreements charged . .
Cited – Hulton v Hulton CA 1917
A wife sought to rescind a separation deed for fraudulent misrepresentation. As part of the terms of the deed the litigation documents had been destroyed.
Held: This was not a bar to rescission, because: ‘it was the defendant who was anxious . .
Cited – Kitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Cited – Al Midani v Al Midani 1999
An arbitration agreement was entered into by the heirs of a wealthy Saudi by which they submitted a dispute as to their late father’s estate to a named arbitrator.
Held: That agreement was probably governed by either Sharia law or such law as . .
Cited – O’Sullivan v Management Agency and Music Limited CA 1985
The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the . .
See Also – Halpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .

Cited by:

Cited – Crystal Palace FC (2000) Ltd v Dowie QBD 14-Jun-2007
The parties had agreed a compromise on the leaving of the defendant as manager. The club now said that the agreement had been obtained by fraudulent misrepresentation. He had been released but had said he had not had contact with another London club . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 September 2022; Ref: scu.250691

Sandhu (T/A Isher Fashions UK) v Jet Star Retail Ltd and Others: CA 19 Apr 2011

The claimant had supplied clothing to the defendant under a contract containing a retention of title clause. The defendant fell into financial difficulties and administration. The claimant now sought damages for conversion of its goods by the defendant and the administrators. The claimant appealed against an order which found that the defendants had had authority to sell the goods.
Held: The appeal failed. Moore-Bick LJ said: ‘Having regard to the commercial considerations mentioned earlier and to the language of clause 7, I am unable to accept that Jet Star’s authority to sell and dispose of goods subject to the retention of title clause was limited to disposals in what, in the context of a floating charge, could be described as the ordinary course of business. ‘

Judges:

Maurice Kay LJ, Smith LJ, Moore-Bick LJ

Citations:

[2011] EWCA Civ 459

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Driver v Broad 1893
An agreement to create a floating charge counted as an interest in land. Kay LJ said that there was no distinction between a debenture which expressly gives the company liberty to dispose of the charged property ‘in the ordinary course of its . .
Cited – In Re Bond Worth Ltd 1980
The parties disputed the property in goods which had been sold and then gone through successive manufacturing processes. The contract included a retention of title clause. Fibres were converted into manufactured carpets and thus lost their identity . .
Cited – Ashborder Bv and others v Green Gas Power Ltd and others ChD 29-Jun-2004
. .
Cited – Four Point Garage v Carter 1985
A simple retention of title clause was argued to have the effect of preserving title, despite the sale to an ultimate customer. The plaintiff had sold a car to a garage who in turn, it thought was leasing it to the defendant. The defendant was in . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other, Insolvency

Updated: 06 September 2022; Ref: scu.432839

Countryliner Ltd v Surrey County Council: CA 8 Mar 2011

The claimant company said that the Council had failed to meet its duties under the Regulations when awarding contracts for public transport services.

Judges:

Longmore, Eterton LJJ, Sir Richard Buxton

Citations:

[2011] EWCA Civ 373

Links:

Bailii

Statutes:

Public Contract Regulations 2006

Jurisdiction:

England and Wales

Contract, Local Government

Updated: 06 September 2022; Ref: scu.431893

Trustees Corporate Trustees Ltd and Another v Capmark Bank Europe Plc: CA 1 Feb 2011

The trustees appealed against a ruling rejecting their argument that in a debenture given by them to the bank respondents, their right to be indemnified in respect of expenditure under the trust deed creating the trust, had priority over the bank’s rights as chargee under the debenture.

Judges:

Lord Neiberger MR, Richards LJ, Hughes LJ

Citations:

[2011] EWCA Civ 380

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 06 September 2022; Ref: scu.431892

Steel Company of Canada Ltd v Willand Management Ltd: 4 Oct 1966

Supreme Court of Canada – Contracts-Roofing contract-Descriptions and specifications supplied by owner-Guarantee that work will remain weather tight-Damage caused by failure of material to perform intended function-Contractor’s claim for compensation for repairs-Whether responsibility for results of using material rests upon owner who prescribed it or upon contractor who applied it.
The respondents were claiming for repair work to three defective roofs on buildings which they had constructed for the appellants. The respondents argued that the defects were not their fault, as they had constructed the buildings under a contract which required them to comply with the requirements of the appellants, and the defects resulted from defects in those requirements. Reversing the Ontario Court of Appeal, the Supreme Court of Canada rejected this argument on the ground that the contract also contained a term that the respondent guaranteed that all work would remain weather tight and that all material and workmanship would be first class and without defect. In the course of giving the judgment of the court, Ritchie J at p 751 rejected the respondents’ contention, which was supported by a decision of the courts of New York, that they ‘guaranteed only that, as to the work done by it, the roof would be weather-tight in so far as the plans and specifications with which it had to comply would allow’, and at pp 753 to 754 approved a statement in the then current (8th) edition of Hudson’s Building and Engineering Contracts . . to this effect: ‘generally the express obligation to construct a work capable of carrying out the duty in question overrides the obligation to comply with the plans and specifications, and the contractor will be liable for the failure of the work notwithstanding that it is carried out in accordance with the plans and specification. Nor will he be entitled to extra payment for amending the work so that it will perform the stipulated duty.’

Judges:

Taschereau CJ and Martland, Ritchie, Hall and Spence JJ

Citations:

[1966] SCR 746, 1966 CanLII 13 (SCC), 58 DLR (2d) 595

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – MT Hojgaard As v EON Climate and Renewables UK Robin Rigg East Ltd and Another SC 3-Aug-2017
The defendants had requested tenders for the design and construction of an offshore wind farm. The court now considered the situation arising because of inconsistencies between documents in the tender request. The successful tender was based upon an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 September 2022; Ref: scu.644058

Greater Vancouver Water District v North American Pipe and Steel Ltd: 14 Aug 2012

Canadian Supreme Court – implications of a contractual warranty that goods supplied by a supplier of materials for a construction project ‘will be fit for the purpose for which they are to be used’ and a warranty and guarantee that the goods ‘are free from all defects arising at any time from faulty design’ in circumstances where the goods are supplied in accordance with the specifications of the owner and in conformity with the owner’s design.
Held: A ‘clear and unambiguous’ provision whereby a supplier ‘warrant[ed] and guarantee[d]’ that the supplied goods were ‘free from all defects . . arising from faulty design’ was held to apply in full, notwithstanding the immediately preceding warranty by the supplier that the goods would ‘conform to all applicable specifications’, and that those specifications were unsatisfactory and led to the defect complained of.

Citations:

[2012] BCCA 337, 327 BCAC 22

Links:

Calii

Jurisdiction:

Canada

Cited by:

Cited – MT Hojgaard As v EON Climate and Renewables UK Robin Rigg East Ltd and Another SC 3-Aug-2017
The defendants had requested tenders for the design and construction of an offshore wind farm. The court now considered the situation arising because of inconsistencies between documents in the tender request. The successful tender was based upon an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 September 2022; Ref: scu.644057

The Hydraulic Engineering Co Ltd v Spencer and Sons: CA 1886

The defendants had contracted to make and deliver to the plaintiffs 15 cast iron cylinders. The contract provided that the cylinders would be cast according to specifications and plans provided by the plaintiffs, and also that the cylinders would be able to stand a pressure of 25 cwt per square inch.
Held: The appeal from Coleridge CJ failed. The Court rejected the defendants’ contention that, because ‘the flaw was the inevitable result of the plan upon which the plaintiffs ordered them to do the work the defendants could not be held liable for a defect caused by that plan’
Lindley LJ said that ‘it was manifest that the defendants thought that they could cast the cylinders on [the] pattern [sent by the plaintiffs] without defects’. Although he accepted that ‘the defect was unavoidable’, he said that ‘there was no doubt that it was a defect’ and ‘the [defendants] were therefore liable’. Lord Esher MR and Lopes LJ agreed.

Judges:

ord Esher MR and Lopes LJ, Lindley LJ

Citations:

(1886) 2 TLR 554

Jurisdiction:

England and Wales

Cited by:

Cited – MT Hojgaard As v EON Climate and Renewables UK Robin Rigg East Ltd and Another SC 3-Aug-2017
The defendants had requested tenders for the design and construction of an offshore wind farm. The court now considered the situation arising because of inconsistencies between documents in the tender request. The successful tender was based upon an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 September 2022; Ref: scu.644059

Stewart v Reavell’s Garage: QBD 7 Apr 1952

Car repairers were held liable for damage to a car which became out of control and crashed, following faulty brake repairs even though the faulty work had been done by their subcontractor brake liner and the customer had consented to the repairers engaging the subcontractor to do that work. He had indeed suggested the firm to his repairers. The customer had relied upon the repairers to repair the vehicle’s brakes ‘in a suitable and efficient manner’ and the repairers’ promise to do so was not qualified by the repairers’ ability to use subcontractors to do the lining of the brake drums.
It was the defendant’s duty: ‘in the circumstances, to provide good workmanship, materials of good quality and a braking system reasonably fit for its purpose, and they failed to do so by reason of the faulty off-side front brake drum liner.’

Judges:

Sellers J

Citations:

[1952] 2 QB 545, [1952] The Times LR 1266

Jurisdiction:

England and Wales

Cited by:

Cited – Wong Mee Administratrix of The Estate of Ho Shui Yee, Deceased v Kwan Kin Travel Services Ltd, China Travel Services Co (Zhong Shan) And, Pak Tang Lake Travel Services Co (Doumen County) Co PC 6-Nov-1995
The appellant’s daughter died in an accident whilst on holiday in China from Hong Kong on a trip booked with the respondent.
Held: Lord Slynn said: ‘ . . the issue is thus whether . . [the package tour operator] undertook no more than that . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 06 September 2022; Ref: scu.643986

New Balance Athletics Inc v The Liverpool Football Club and Athletic Grounds Ltd: ComC 25 Oct 2019

‘A manufacturer of sportswear is keen to retain the right to sponsor a famous and successful football club and to manufacture and sell replica football shirts of the club’s players. The football club would prefer to give that right to another sportswear manufacturer.’

Judges:

Teare J

Citations:

[2019] EWHC 2837 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 06 September 2022; Ref: scu.643813

UCP Plc v Nectrus Ltd: ComC 5 Jul 2019

Judges:

Sir Michael Burton GBE

Citations:

[2019] EWHC 1732 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – UCP Plc v Nectrus Ltd ComC 21-Feb-2018
Application for stay pending proceedings in Isle of Man . .

Cited by:

See Also – UCP Plc v Nectrus Ltd ComC 29-Nov-2019
Damages assessment . .
See also – Nectrus Ltd v UCP Plc CA 21-Jan-2021
Application for reconsideration of refusal of leave to appeal. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 September 2022; Ref: scu.642083

Interlink Express Parcels Ltd v Night Trunkers Ltd and Another: ChD 23 Mar 2000

The claimant contracted to deliver parcels overnight. By a contract the defendant supplied drivers to carry out some of the work. The claimant sought a declaration that the contract was void. By virtue of the arrangement the defendant came to be operating the vehicles, and so needed a licence for carrying goods by road for hire or reward. The defendant had no such licence. It was held that the agreement was void. The first defendant remained the employer. He decided the routes, paid holiday pay and arranged stand ins.

Citations:

Gazette 23-Mar-2000

Statutes:

Goods Vehicles (Licensing of Operators) Act 1995

Jurisdiction:

England and Wales

Contract, Road Traffic

Updated: 06 September 2022; Ref: scu.82397

Bailey and Another v Graham and Others: ChD 25 Nov 2011

Citations:

[2011] EWHC 3098 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Bailey and Another v Graham (Aka ‘Levi Roots’) and Others CA 16-Nov-2012
The claimants asserted an interest under contract and confidence in respect of a Jamaican sauce which had been successfully taken to market by the defendant. They now appealed against rejection of the claim. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 September 2022; Ref: scu.449023

MT Hojgaard As v EON Climate and Renewables UK Robin Rigg East Ltd and Another: SC 3 Aug 2017

The defendants had requested tenders for the design and construction of an offshore wind farm. The court now considered the situation arising because of inconsistencies between documents in the tender request. The successful tender was based upon an international standard (approved by one part of the tender), but which came to fail, breaching a different requirement. The standard was itself in error. The defendant appealed.
Held: The appeal succeeded, and the decision at first instance restored. The part of the contract at issue specified a minimum level, and the contract expressly supported ‘departures from . . standards’, and stated that MTH ‘shall determine whether to employ shear keys within the grouted connection’; had shear keys been provided, the problems which arose would, it appears, have been averted.

Judges:

Lord Neuberger of Abbotsbury PSC, Lord Mance, Lord Clarke of Stone-cum-Ebony, Lord Sumption, Lord Hodge JJSC
Lord Mance
Lord Clarke
Lord Sumption
Lord Hodge

Citations:

[2017] UKSC 59, [2017] Bus LR 1610, [2017] WLR(D) 562, UKSC 2015/0115

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 20170620 am Video, SC 20170620 pm Video

Jurisdiction:

England and Wales

Citing:

At TCC – MT Hojgaard A/S v E.On Climate and Renewables and Others TCC 15-Apr-2014
The claimant had constructed a substantial windfarm according to an international standard later shown to be defective. The defendant argued that the contract also required that the work be to a standard guaranteed a service life of 20 years.
At CA – M T Hojgaard A/S v EOn Climate and Renewables UK, Robin Rigg East Ltd and Another CA 22-May-2014
The claimant contracted with the defendants for the supply of a barge for delivery of equipment to offshore wind farms. The barge proved inadequate. The company supplied an alternative vessel, and the parties now disputed the financial consequences. . .
Cited – Thorn v Mayor and Commonality of London HL 1876
The contractor successfully tendered for work involving the replacement of the existing Blackfriars Bridge pursuant to an employer’s invitation, which stated that the work was to be carried out pursuant to a specification. The specification included . .
Cited – Mitsui Construction Co Ltd v Attorney General of Hong Kong PC 1986
Lord Bridge said that poor drafting in a contract itself provides: ‘no reason to depart from the fundamental rule of construction of contractual documents that the intention of the parties must be ascertained from the language that they have used . .
Cited – Sigma Finance Corporation, Re; (in administrative receivership) SC 29-Oct-2009
The court considered how the losses of the insolvent company were to be distributed as between secured creditors and preferential creditors, given the terms of the applicable trust deed.
Held: The court considered the interpretations of the . .
Cited – A M Gillespie and Co v John Howden and Co, Et E Contra SCS 7-Mar-1885
A customer ordered from a shipbuilder a ship according to specification, which bore, inter alia, that the ship was ‘to Carry 1800 tons dead weight, including coals, on 14 1/2 feet draught,’ and that a model was to be submitted for purchaser’s . .
Cited – Cammell Laird and Co Ltd v Manganese Bronze and Brass Co Ltd HL 1934
Shipbuilders agreed to build two ships to carry heavy liquids. They were to have propellers of special construction and diameter according to certain specifications. One proved unsatisfactory because it caused too much noise.
Held: If the . .
Cited – Greater Vancouver Water District v North American Pipe and Steel Ltd 14-Aug-2012
Canadian Supreme Court – implications of a contractual warranty that goods supplied by a supplier of materials for a construction project ‘will be fit for the purpose for which they are to be used’ and a warranty and guarantee that the goods ‘are . .
Cited – Mt Hojgaard A/S v EOn Climate and Renewables UK Robin Rigg East Ltd and Others TCC 23-Apr-2013
Dispute as to adequacy of barge provided for support of marine wind farm. . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Cited – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
Cited – The Hydraulic Engineering Co Ltd v Spencer and Sons CA 1886
The defendants had contracted to make and deliver to the plaintiffs 15 cast iron cylinders. The contract provided that the cylinders would be cast according to specifications and plans provided by the plaintiffs, and also that the cylinders would be . .
Cited – Steel Company of Canada Ltd v Willand Management Ltd 4-Oct-1966
Supreme Court of Canada – Contracts-Roofing contract-Descriptions and specifications supplied by owner-Guarantee that work will remain weather tight-Damage caused by failure of material to perform intended function-Contractor’s claim for . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 September 2022; Ref: scu.591359

A M Gillespie and Co v John Howden and Co, Et E Contra: SCS 7 Mar 1885

A customer ordered from a shipbuilder a ship according to specification, which bore, inter alia, that the ship was ‘to Carry 1800 tons dead weight, including coals, on 14 1/2 feet draught,’ and that a model was to be submitted for purchaser’s approval. There was no stipulation as to speed. In implement of this contract the shipbuilder submitted a model which was approved of by the purchaser, and thereafter completed and delivered a ship built according to the model. This ship was found to be short of the carrying capacity stipulated for by about 200 tons. In an action of damages against the shipbuilder for breach of contract he maintained that it was impossible to build a steamer according to the model which would carry the specified weight, and further, that the customer had suffered no damage, because a ship intended to carry such a weight, and of the description according to the model, would have been less valuable than that actually delivered. Held that the shipbuilder, being in breach of contract, was liable in damages.
Observed that in such a case the true standard of damage is the difference between the earning power of the ship contracted for and that furnished.

Citations:

[1885] SLR 22 – 527, (1885) 22 SLR 5

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Cammell Laird and Co Ltd v Manganese Bronze and Brass Co Ltd HL 1934
Shipbuilders agreed to build two ships to carry heavy liquids. They were to have propellers of special construction and diameter according to certain specifications. One proved unsatisfactory because it caused too much noise.
Held: If the . .
Cited – MT Hojgaard As v EON Climate and Renewables UK Robin Rigg East Ltd and Another SC 3-Aug-2017
The defendants had requested tenders for the design and construction of an offshore wind farm. The court now considered the situation arising because of inconsistencies between documents in the tender request. The successful tender was based upon an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 September 2022; Ref: scu.580224

Societe Generale Sa v Saad Trading and Another: ComC 5 Oct 2011

Judges:

Teare J

Citations:

[2011] EWHC 2424 (Comm), [2011] 2 CLC 629, [2012] Bus LR D29

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Societe Generale SA v Saad Trading, Contracting and Financial Services Company and Another CA 23-May-2012
The Court was asked to determine applications by Societe Generale SA, which was the respondent to appeals which the two appellants had been permitted to bring against orders made against each of them for payment to the bank of US$49m. The first . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 September 2022; Ref: scu.444946

M T Hojgaard A/S v EOn Climate and Renewables UK, Robin Rigg East Ltd and Another: CA 22 May 2014

The claimant contracted with the defendants for the supply of a barge for delivery of equipment to offshore wind farms. The barge proved inadequate. The company supplied an alternative vessel, and the parties now disputed the financial consequences.

Judges:

Longmore, Patten, Christopher Clarke LJJ

Citations:

[2014] EWCA Civ 710

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – MT Hojgaard A/S v E.On Climate and Renewables and Others TCC 15-Apr-2014
The claimant had constructed a substantial windfarm according to an international standard later shown to be defective. The defendant argued that the contract also required that the work be to a standard guaranteed a service life of 20 years.

Cited by:

At CA – MT Hojgaard As v EON Climate and Renewables UK Robin Rigg East Ltd and Another SC 3-Aug-2017
The defendants had requested tenders for the design and construction of an offshore wind farm. The court now considered the situation arising because of inconsistencies between documents in the tender request. The successful tender was based upon an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 September 2022; Ref: scu.525634

Lehman Brothers Special Financing Inc v Carlton Communications Ltd: ChD 28 Mar 2011

Claims under interest rate swap agreements.
Held: The condition precedent in section 2(a)(iii) of the ISDA Master Agreement was valid – ‘to relieve the non-defaulting party from payment obligations for as long as the defaulting party is, by reason of the bankruptcy, incapacitated from providing the promised hedge’, whenever during the life of the transaction such incapacity arose.

Judges:

Briggs J

Citations:

[2011] EWHC 718 (Ch)

Links:

Bailii

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.

Contract, Financial Services

Updated: 04 September 2022; Ref: scu.431282

Abramova v Oxford Institute of Legal Practice: QBD 18 Mar 2011

The claimant sought damages saying that the defendant had failed to provide her with the Legal Practice Course promised. The complaints included, in particular, an attack on the practice of having students mark their own mock examination papers.
Held: In such claims expert evidence must be produced that the Bolam Standard had not been met.

Judges:

Burnett J

Citations:

[2011] EWHC 613 (QB), [2011] ELR 385

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Siddiqui v University of Oxford QBD 5-Dec-2016
The University applied to have struck out the claim by the claimant for damages alleging negligence in its teaching leading to a lower class degree than he said he should have been awarded.
Held: Strike out on the basis that the claim was . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 September 2022; Ref: scu.430858

London Borough of Southwark v IBM UK Ltd: TCC 17 Mar 2011

Southwark said that software it had purchased from the defendant had not worked as promised and sought damages.
Held: The claim failed.

Citations:

[2011] EWHC 549 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Main judgment – London Borough of Southwark v IBM UK Ltd TCC 21-Mar-2011
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 September 2022; Ref: scu.430691

Multi-Link Leisure Developments Ltd v Lanarkshire Council: SC 17 Nov 2010

The parties disputed the effect of an option clause in a lease, and particularly whether, when fixing the price, potential for development was to be included. The clause required the ‘full market value’ to be paid. The tenant appealed.
Held: The appeal failed.
Lord Hope said: ‘The court’s task is to ascertain the intention of the parties by examining the words they used and giving them their ordinary meaning in their contractual context. It must start with what it is given by the parties themselves when it is conducting this exercise. Effect is to be given to every word, so far as possible, in the order in which they appear in the clause in question. Words should not be added which are not there, and words which are there should not be changed, taken out or moved from the place in the clause where they have been put by the parties. It may be necessary to do some of these things at a later stage to make sense of the language. But this should not be done until it has become clear that the language the parties actually used creates an ambiguity which cannot be solved otherwise.’ The Lord Ordinary had departed from his task in ignoring certain parts of the clause. The insertion of a phrase descriptive of an expected use did not exclude taking account of other possible uses.

Judges:

Lord Hope, Deputy President, Lord Rodger, Lady Hale, Lord Clarke, Sir John Dyson, SCJ

Citations:

[2010] UKSC 47, [2010] 47 EG 141, [2011] 1 All ER 175, [2011] 4 EG 102, 2011 SLT 184, UKSC 2010/0028

Links:

Bailii, Bailii Summary, SC Summary, SC

Jurisdiction:

Scotland

Citing:

Outer House – Multi Link Leisure Developments Ltd v North Lanarkshire Council SCS 31-Jul-2009
The tenant exercised an option in the lease for the purchase of the land. The parties disputed the price payable.
Held: The tenant succeeded. The full market value was to be assessed by reference only to the use of the subjects as a golf . .
Appeal from – Multi-Link Leisure Developments v North Lanarkshire Council SCS 30-Dec-2009
Landlords appealed against a ruling that the ‘full market value’ of the presents to be paid by the tenants on exercising an option contained in their lease was to be set by reference to its intended use.
Held: The appeal succeeded. The words . .
Cited – Raja Vyricherla Narayana Gajapathiraju v Revenue Divisional Officer, Vizagapatam PC 23-Feb-1939
Land adjoining a harbour at Vizagapatam which at that time was malarial was to be valued for compulsory purchase. The land contained a spring of clean water. The only potential purchaser of the special adaptability of the land as a water supply was . .
Cited – Arthur Bell and Sons v Assessor for Fife 1985
Lord Avonside said, with reference to the estimation of the annual value of subjects under the 1956 Act, that it was notorious that one must take a building according to its use at the time of the valuation. . .
Cited – Mitsui Construction Co Ltd v Attorney General of Hong Kong PC 1986
Lord Bridge said that poor drafting in a contract itself provides: ‘no reason to depart from the fundamental rule of construction of contractual documents that the intention of the parties must be ascertained from the language that they have used . .
Cited – Griffiths v WE and DT Cave Ltd CA 4-Dec-1998
The parties had entered into an option agreement, but now disputed the price to be paid on its exercise. . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Ravennavi Spa v New Century Shipbuilding Company Ltd CA 7-Feb-2007
Moore Bick LJ considered the interpretation of poorly drafted contracts and said: ‘Unless the dispute concerns a detailed document of a complex nature that can properly be assumed to have been carefully drafted to ensure that its provisions dovetail . .

Cited by:

Applied – Barts and The London NHS Trust v Verma SC 24-Apr-2013
The parties disputed the effect of the NHS terms for employment of doctors, and in particularly the provisions as to maintenance of pay grade. The doctor had become a consultant trust grade doctor in oral surgery, but was then required to retrain . .
Cited – L Batley Pet Products Ltd v North Lanarkshire Council SC 8-May-2014
The appellant was mid-landlord and the respondent the sub-tenant under a now-expired lease. The appellant had wanted repairs to be executed but told the tenant informally. The tenant argued that the lease required formal notice to create an . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 04 September 2022; Ref: scu.426025

Oxonica Energy Ltd v Neuftec Ltd: PatC 5 Sep 2008

The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal documents was best described by Nicolas Boileau, who was not only a literary critic but a qualified lawyer: ‘Ce que l’on concoit bien s’enonce clairement et les mots pour le dire arrivent aisement’. What one conceives well can be stated with clarity and the words to say it come easily. We should all have that framed and displayed on our desks.’ The parties would have required a knowhow licence in any event in order to provide a confidentiality agreement. The contract having been drafted not clearly by one side or the other, the contra preferentem rule could not be used to settle the matter.
Neuftec’s suggestion succeeded, and royalties were attracted by any product falling within at least one claim in the agreement, but not otherwise.

Judges:

Peter Prescott QC

Citations:

[2008] EWHC 2127 (Pat)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Coco v A N Clark (Engineers) Ltd ChD 1968
Requirememts to prove breach of confidence
A claim was made for breach of confidence in respect of technical information whose value was commercial.
Held: Megarry J set out three elements which will normally be required if, apart from contract, a case of breach of confidence is to . .
Cited – G, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . .
Cited – Celltech R and D Ltd v Medimmune Inc Patc 18-Jun-2004
With the consent of the parties, the court tried two questions of US patent law – file wrapper estoppel and argument estoppel, neither of which exists under our domestic law – without needing to receive expert evidence of US law. . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Kempe’s Application 1942
The court considered the meaning of the word ‘application’ in the context of the 1907 Act. Morton J said: ‘Mr Shelley . . argued that . . the words ‘the application’ mean a piece of paper . . and do not mean what he calls ‘the legal proceeding’ and . .
Cited – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
Cited – Woolard, Re A Patent Application PatC 12-Apr-2002
The question was what was meant by ‘application’ in section 2(3): the request, or the document. It was crucial, because if it meant the document it would have counted as prior art, and would have been novelty-destroying; but if it meant the request, . .
Cited – Mitsui Construction Co Ltd v Attorney General of Hong Kong PC 1986
Lord Bridge said that poor drafting in a contract itself provides: ‘no reason to depart from the fundamental rule of construction of contractual documents that the intention of the parties must be ascertained from the language that they have used . .
Cited – Co-operative Wholesale Society Ltd v National Westminster Bank plc CA 1995
The court considered the proper construction of rent review clauses in several cases. The underlying result which the landlords sought in each case was the same.
Held: It was a most improbable commercial result. Where the result, though . .
Cited – Sinochem International Oil (London) Co Ltd v Mobil Sales and Supply Corporaton and Another CA 17-Feb-2000
. .
Cited – Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd CA 3-Jul-2001
A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to . .
Cited – Badische Anilin und Soda Fabrik v Hickson HL 1906
A British patent was not infringed by a sale of goods where the property in the goods had already passed before they arrived in this country. Lord Loreburn LC said: ‘A contract to sell unascertained goods is not a complete sale, but a promise to . .
Cited – Morton-Norwich Products Inc v Intercen Ltd 1976
Graham J addressed the question of whether a Dutch defendant who consigned furazolidone by air from Holland on terms cif Gatwick but denied liability for patent infringement was liable in English patent proceedings.
Held: They were liable as . .
Cited – Badische Anilin und Soda Fabrik v Johnson HL 1898
A manufacturer in Switzerland who sold and delivered in that country to an English trader goods manufactured according to an invention the subject of English letters patent had not thereby infringed the rights of the holder of the patent by using or . .
Cited – Morton – Norwich Products v Intercen (No 2) ChD 1981
The plaintiffs had alleged patent infringement and now sought to recover the costs of the action it had had to take for discovery as against HM Customs and Excise, which they said had been necessary to discover the extent of the concealed fraud . .
Cited – Tam Wing Chuen v Bank of Credit and Commerce Hong Kong Ltd PC 1996
The Board considered a banking transaction and the application of a chargeback by the bank, under which a loan was made only after a deposit by a third party against which it was secured, and particularly in the context of the insolvency of the bank . .

Cited by:

Appeal from – Oxonica Energy Ltd v Neuftec Ltd CA 9-Jul-2009
The parties had entered into a patent and know-how licensing agreement, the interpretation of which was now disputed. . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract

Updated: 04 September 2022; Ref: scu.273174

Empresa Exportadora de Azucar v Industria Azucarera Nacional S.A, The Playa Larga: CA 1983

There had been a theft by Cuban sellers of one cargo of sugar, property in which had already passed to the buyers, and non-delivery of a second combined with trickery whereby the intended buyers were nonetheless induced to pay its price. The first cargo was on a vessel which was discharging at its Chilean discharge port, when the vessel was withdrawn by the sellers. The second cargo was on the high seas en route to Chile when withdrawn.
Held: The effect of disregarding a provision of foreign law as manifestly contrary to public policy may be to render enforceable in England a contract which is not enforceable by its proper law. The court considered the measure of damages in relation to the non-delivery of goods sold by the defendants to the plaintiffs. The plaintiffs claimed that the damages recoverable should be related to the highest price prevailing at any time between the date of the breach and the date of the arbitration award. This contention was rejected.
Ackner LJ said: ‘Mr. Rix, in his cross-appeal, argued that the damages recoverable by Iansa in contract should be related to the highest price prevailing at any time between the date of the breach and date of the award. Mr. Justice Mustill rejected this submission and has set out his reasons most fully, which we are happy to adopt. We would, however, venture to suggest that the matter can be put more simply. Iansa, as complainants, must establish what damage they have suffered. Mr. Rix had to accept: (a) That after the date when Iansa could have bought in to cover their loss there was no evidence at all that the fluctuations in the sugar market made the slightest financial difference to them. There was no evidence that they could have sold at the highest price. On the contrary, the reasonable inference was that the goods would have been resold for domestic or other consumption in Chile, (b) Although theoretically Cubazucar was capable of selling the sugar at the highest price, there is no evidence that it did so.
Accordingly, to the plaintiffs’ contention that Cubazucar should not profit from its own wrong comes the simple reply: they have not shown that Cubazucar have done so. We cannot, therefore, see any basis upon which Iansa can seek to achieve a windfall in the form of an extra $1,200 per tonne over and above the price which was prevailing when they should have bought in the market.’
The Court rejected any defence of foreign act of state, primarily because there was no such plea and no proof that the acts were acts of the Chilean government, but secondarily also because, if they were, there ‘seems no compelling reason for judicial restraint or abstention’ in a case ‘where it is clear that the acts relied on were carried out outside the sovereign’s own territory’.

Judges:

Ackner LJ, Stephenson LJ, Sir Segab Shaw

Citations:

[1983] 2 Lloyds Rep 171

Jurisdiction:

England and Wales

Citing:

Appeal from – Playa Larga (Owners of Cargo Lately Laden on Board) v I Congreso del Partido (Owners) QBD 1978
The trading or commercial activities of states are not protected by state immunity. The basic principle of international law is that all states are equal, the rule is ‘par in parem non habet imperium’. . .

Cited by:

Cited – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Followed – Aggeliki Charis Compania Maritima SA v Pagnan SpA The Angelic Grace QBD 1994
The court considered whether a claim for a collision between two ships was governed by an arbitration clause which read ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying . .
Followed – The Ermoupolis 1990
A claim for the tort of conversion fell within the phrase ‘any dispute arising in any way whatsoever out of this bill of lading’. . .
Cited – Aspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Appeal from – Playa Larga (Owners of Cargo Lately Laden on Board) v I Congresso del Partido (Owners) HL 1983
The concept of absolute immunity for a Sovereign adopts a theory of restrictive immunity in so far as it concerns the activities of a State engaging in trade: (Lord Wilberforce) ‘It was argued by the [appellants] that even if the Republic of Cuba . .
Lists of cited by and citing cases may be incomplete.

Transport, Jurisdiction, Contract, Damages

Updated: 04 September 2022; Ref: scu.248210

Cammell Laird and Co Ltd v Manganese Bronze and Brass Co Ltd: HL 1934

Shipbuilders agreed to build two ships to carry heavy liquids. They were to have propellers of special construction and diameter according to certain specifications. One proved unsatisfactory because it caused too much noise.
Held: If the defect in goods sold which renders them unfit for their purpose is due to a characteristic which it lay within the sphere of expertise of the seller to detect and avoid, the responsibility for their unfitness lies with the seller. Since the facts came within the first exception to section 14 of the Act, the seller fell into breach of the implied condition that it should be reasonably fit for that purpose.
Lord Wright said: ‘ What subsection (2) now means by ‘merchantable quality’ is that the goods in the form in which they were tendered were of no use for any purpose for which such goods would normally be used and hence were not saleable under that description.’
and ‘ . . it has been laid down that where a manufacturer or builder undertakes to produce a finished result according to a design or plan, he may be still bound by his bargain even though he can show an unanticipated difficulty or even impossibility in achieving the result desired with the plans or specification’.

Judges:

Lord Wright

Citations:

[1934] AC 402, [1934] All ER 1, 103 LJKB 289

Statutes:

Sale of Goods Act 1893 14

Jurisdiction:

England and Wales

Citing:

Cited – A M Gillespie and Co v John Howden and Co, Et E Contra SCS 7-Mar-1885
A customer ordered from a shipbuilder a ship according to specification, which bore, inter alia, that the ship was ‘to Carry 1800 tons dead weight, including coals, on 14 1/2 feet draught,’ and that a model was to be submitted for purchaser’s . .

Cited by:

Cited – Jewson Limited v Boyhan as Personal Representative of the Estate of Thomas Michael Kelly CA 28-Jul-2003
The company appealed a finding that it was in breach of the 1979 Act. The deceased had bought boilers from the appellant. They were said not to be satisfactory, in that they were not as energy efficient as they had been described to be.
Held: . .
Cited – MT Hojgaard As v EON Climate and Renewables UK Robin Rigg East Ltd and Another SC 3-Aug-2017
The defendants had requested tenders for the design and construction of an offshore wind farm. The court now considered the situation arising because of inconsistencies between documents in the tender request. The successful tender was based upon an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 03 September 2022; Ref: scu.187444

Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd: CA 3 Jul 2001

A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to approve a settlement must be exercised.
Held: What was proscribed in all of them was ‘unreasonableness in the sense of conduct or a decision to which no reasonable person having the relevant discretion could have subscribed’. The authorities do not establish any automatic implication of a term as to reasonableness whenever a contractual provision exists putting one party at the mercy of another’s exercise of a discretion.
Mance LJ said: ‘I would therefore accept as a general qualification that any withholding of approval by reinsurers should take place in good faith after consideration of and on the basis of the facts giving rise to the particular claim and not with reference to considerations wholly extraneous to the subject-matter of the particular reinsurance.’ ‘If there is any further implication, it is along the lines that the reinsurer will not withhold approval arbitrarily, or (to use what I see as no more than an expanded expression of the same concept) will not do so in circumstances so extreme that no reasonable company in its position could possibly withhold approval. This will not ordinarily add materially to the requirement that the reinsurer should form a genuine view as to the appropriateness of settlement or compromise without taking into account considerations extraneous to the subject-matter of the reinsurance.’

Judges:

Mance, Latham LJJ, Sir Christopher Staughton

Citations:

[2001] EWCA Civ 1047, [2001] 1 Lloyds Rep IR 667, [2001] All ER (D) 33, [2001] 2 All ER (Comm) 299, [2001] CLC 1103

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Gan Insurance Company Limited and Another v Tai Ping Insurance Company Limited CA 28-May-1999
appeal from refusal to set aside service out of jurisdiction . .
See Also – Gan Insurance Company Ltd v The Tai Ping Insurance Company Ltd (No 3) CA 1-Mar-2002
Tai Ping had placed facultative insurance with Gan. The substantial risks were re-insured through various agencies. When a claim arose it was repudiated alleging misrepresentation. Gan asserted that Tai Ping had failed to co-operate in the . .
Cited – Mitsui Construction Co Ltd v Attorney General of Hong Kong PC 1986
Lord Bridge said that poor drafting in a contract itself provides: ‘no reason to depart from the fundamental rule of construction of contractual documents that the intention of the parties must be ascertained from the language that they have used . .

Cited by:

See Also – Gan Insurance Company Limited and Another v Tai Ping Insurance Company Limited CA 28-May-1999
appeal from refusal to set aside service out of jurisdiction . .
See Also – Gan Insurance Company Ltd v The Tai Ping Insurance Company Ltd (No 3) CA 1-Mar-2002
Tai Ping had placed facultative insurance with Gan. The substantial risks were re-insured through various agencies. When a claim arose it was repudiated alleging misrepresentation. Gan asserted that Tai Ping had failed to co-operate in the . .
Cited – Blackburn Rovers Football and Athletic Club Plc v Avon Insurance Plc, Eagle Star Insurance Company Ltd, AGF Insurance Ltd IC Insurance Ltd ComC 15-Nov-2004
The claimant football club insured its players through the defendants. A footballer injured himself in training and his career was finished. The insurers rejected the claim, and relied upon exception clauses, saying that the true cause was a . .
Cited – Paragon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .
Cited – Lymington Marina Ltd v MacNamara and others ChD 4-Apr-2006
The claimant marina had been constructed with financial assistance from debenture holders who in return were given low cost licences. The claimant sought to refuse to the defendant debenture holders the right to sub-licence their rights to berth . .
Cited – Lymington Marina Ltd v MacNamara and others CA 2-Mar-2007
A share in a marina had been inherited by one brother whose application to grant successive sub-lcences of it to the other two was rejected by the marina, who said that this was not permitted. The marina appealed a finding that it had to make its . .
Cited – Oxonica Energy Ltd v Neuftec Ltd PatC 5-Sep-2008
The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – Unique Pub Properties Ltd v Broard Green Tavern Ltd and Another ChD 26-Jul-2012
The claimant freeholder sought to install in the tenant’s pub, equipment to monitor sales. It claimed a right for this in the lease. The tenant refused access, saying that the proposed system was inaccurate. The claimant now sought summary relief. . .
Cited – Socimer International Bank Ltd v Standard Bank London Ltd CA 22-Feb-2008
Rix LJ considered the restraints operating a party to a contract in exercising any discretion gien under it, preferring the use of the term ‘irrationality’ to ‘unreasonableness’: ‘It is plain from these authorities that a decision-maker’s discretion . .
Cited – Braganza v BP Shipping Ltd SC 18-Mar-2015
The claimant’s husband had been lost from the defendant’s ship at sea. The defendant had contracted to pay compensation unless the loss was by suicide. They so determined. The court was now asked whether that was a permissible conclusion in the . .
Cited – British Telecommunications Plc v Telefonica O2 UK Ltd SC 9-Jul-2014
The parties disputed the termination charges which BT was entitled to charge to mobile network operators for putting calls from the latter’s networks through to BT fixed lines with associated 08 numbers. BT had introduced new tariff charges.
Cited – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 03 September 2022; Ref: scu.201236

Sinochem International Oil (London) Co Ltd v Mobil Sales and Supply Corporaton and Another: CA 17 Feb 2000

Citations:

[2000] EWCA Civ 47, [2000] 1 All ER (Comm) 474, [2000] 1 Lloyd’s Rep 339, [2000] CLC 878

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Sinochem International v Mobile Sales ComC 21-Sep-1999
No set-off clause – save for sums due to or from affiliates – ‘fundamental change’ in approach to question of construction. . .
Cited – Mitsui Construction Co Ltd v Attorney General of Hong Kong PC 1986
Lord Bridge said that poor drafting in a contract itself provides: ‘no reason to depart from the fundamental rule of construction of contractual documents that the intention of the parties must be ascertained from the language that they have used . .

Cited by:

Cited – Oxonica Energy Ltd v Neuftec Ltd PatC 5-Sep-2008
The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 03 September 2022; Ref: scu.147080

Thorn v Mayor and Commonality of London: HL 1876

The contractor successfully tendered for work involving the replacement of the existing Blackfriars Bridge pursuant to an employer’s invitation, which stated that the work was to be carried out pursuant to a specification. The specification included wrought iron caissons which were to form the foundations of the piers ‘as shewn on [certain] drawings’. It subsequently turned out that the caissons as designed ‘would not answer to their purpose, and the plan of the work was altered’, causing consequential expense and delay to the contractor. The contractor’s claim was based on the contention that the employer had impliedly warranted that the bridge could be built according to the specification.
Held: If there was an agreement for work to be undertaken, but no agreement as to the price to be paid, then the contractor could be paid on a quantum meruit, a sum calculated to reflect the value of the work undertaken.
Lord Cairns said that if there was additional or varied work: ‘ . . so peculiar, so unexpected, and so different from what any person reckoned or calculated upon, that it is not within the contract at all; then, it appears to me, one of two courses might have been open to him; he might have said: I entirely refuse to go on with the contract . . or he might have said, I will go on with this, but this is not the kind of extra work contemplated by the contract, and if I do it, I must be paid a quantum meruit for it.’
Lord Chelmsford thought that ‘in the exercise of common prudence’ the contractor before tender ought to have informed himself of ‘all the particulars connected with the work, and especially as to the practicability of executing every part of the work contained in the specification, according to the specified terms and conditions’.

Judges:

Cairns LC, Lord Chelmsford

Citations:

(1876) 1 App Cas 120, 79 ER 185

Jurisdiction:

England and Wales

Cited by:

Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
Cited – MT Hojgaard As v EON Climate and Renewables UK Robin Rigg East Ltd and Another SC 3-Aug-2017
The defendants had requested tenders for the design and construction of an offshore wind farm. The court now considered the situation arising because of inconsistencies between documents in the tender request. The successful tender was based upon an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 03 September 2022; Ref: scu.185453

Sports Mantra India Private Ltd and Another v Force India Formula One Team Ltd: ChD 30 Sep 2019

Application by the Defendant now in liquidation against the Claimants and another to strike out the Claimants’ claim alternatively for reverse summary judgment to be granted in Force India’s favour in relation to an agency agreement.

Judges:

Lance Ashworth QC

Citations:

[2019] EWHC 2514 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 03 September 2022; Ref: scu.642632

Essentially Different Ltd v Bank of Scotland Plc: ComC 10 Mar 2011

The claimant sought damages from its bankers saying that having agreed a loan, it had sought to add new conditions before paying the second tranche. The defendant said that there had been misrepresentations.

Judges:

Burton J

Citations:

[2011] EWHC 475 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Banking, Contract

Updated: 03 September 2022; Ref: scu.430499

City Alliance Ltd v Oxford Forecasting Services Ltd: CA 16 Nov 2000

The parties disputed the construction of a clause in the contract between them.
Held: Chadwick LJ said: ‘It is not for party who relies upon the words actually used to establish that those words effect a sensible commercial purpose. It should be assumed, as a starting point, that the parties understood the purpose which was effected by the words they used; and that they used those words because, to them, that was a sensible commercial purpose. Before the Court can introduce words which the parties have not used, it is necessary to be satisfied (i) that the words actually used produce a result which is so commercially nonsensical that the parties could not have intended it, and (ii) that they did intend some other commercial purpose which can be identified with confidence. If, and only if, those two conditions are satisfied, is it open to the court to introduce words which the parties have not used in order to construe the agreement. It is then permissible to do so because, if those conditions are satisfied, the additional words give to the agreement or clause the meaning which the parties must have intended. ‘

Judges:

Sir Andrew Morritt VC, Chadwick, Latham LJJ

Citations:

[2000] EWCA Civ 510, [2001] 1 All ER Comm 233

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Hammonds (A Firm) v Danilunas and others ChD 13-Feb-2009
The claimant firm of solicitors sought repayment of sums which it said were excess drawing from the defendants, former partners. Drawings had been taken against anticipated profits, and the retiring partners left as profits declined. The defendants . .
Cited – Pink Floyd Music Ltd and Another v EMI Records Ltd CA 14-Dec-2010
The defendant appealed against an order made on the claimant’s assertion that there were due to it substantial underpayments of royalties over many years. The issues were as to the construction of licensing agreements particularly in the context of . .
Cited – Campbell v Daejan Properties Ltd CA 20-Nov-2012
The tenant appealed against an order requiring the amendment of what was found to be an obvious error in the lease as to the responsibility of the lessor to make repairs to certain walls and rooves, and the apportionment of liability for payment of . .
Approved – Lediaev v Vallen CA 5-Mar-2009
. .
Cited – Pink Floyd Music Ltd and Another v EMI Records Ltd CA 14-Dec-2010
The defendant appealed against an order made on the claimant’s assertion that there were due to it substantial underpayments of royalties over many years. The issues were as to the construction of licensing agreements particularly in the context of . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 03 September 2022; Ref: scu.430471

Elias v George Sahely and Co (Barbados) Ltd: PC 1982

(Barbados) The parties entered into an oral agreement for the sale of land to the plaintiff. The plaintiff’s solicitor then wrote to the defendant’s solicitor confirming the oral agreement and setting out its terms. He enclosed a cheque for 10 percent of the agreed price describing it as a deposit which he directed should be held by the defendant’s solicitor as stakeholder pending completion of the contract of sale. The defendant’s solicitor signed and sent a receipt which stated that he had received the money as deposit for the property ‘agreed to be sold’ by the defendant to the plaintiff. The Board was asked whether the letter enclosing the deposit together with the receipt for the deposit constituted sufficient memorandum for the purposes of the Statute of Frauds given that no written contract was signed by the parties.
Held: Signature by an agent, for example one party’s solicitor will bind that party if the agent has authority to sign.

Judges:

Scarman, Simon of Glaisdale, Bridge of Harwich, Brandon of Oakbrook LL

Citations:

[1983] 1 AC 646, [1982] 3 All ER 801, [1982] 3 WLR 956, [1983-84] ANZ Conv R 104, [1982] UKPC 31

Links:

Bailii

Citing:

Approved – Stokes v Whicher 1920
Russell J said: ‘if you can spell out of the document a reference in it to some other transaction, you are at liberty to give evidence as to what that other transaction is, and, if that other transaction contains all the terms and writing, then you . .
Approved – Timmins v Moreland Street Property Co Ltd CA 1958
The Court considered the effect of a note or memorandum evidencing the sale of a property where it was described as ‘6,8 and 41, Boundary Street, Shoreditch (freehold).’ It was sought to connect the signature on a purchaser’s deposit cheque with an . .

Cited by:

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 . .
Mentioned – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another CA 9-Mar-2012
The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 03 September 2022; Ref: scu.430061

Tai Hing Cotton Mill Limited v Kamsing Knitting Factory (A Firm): PC 27 Jul 1977

(Hong Kong) The buyer brought an action for damages for breach of a contract for the sale of goods. The measure of damages was the difference between the contract price and the market value of the goods at the relevant date. The evidence called at trial was all directed to the market value of the goods at 31 July 1973. However, it was held that the correct date for the comparison was December 1973, about which there was no specific evidence. The sellers argued that in those circumstances the buyers were entitled to no more than nominal damages.
Held: The Board rejecte dthat argument.
Lord Keith said: ‘It is apparent on any view that the buyers suffered substantial loss, though the material to enable it to be precisely quantified is lacking.
Other possible courses canvassed in the course of the argument were (a) to order a retrial of the case on the matter of damages, (b) to restore the figure of damages fixed by Briggs C.J., and (c) to fix a new figure on the basis that the market price of yarn declined steadily and constantly between September 1973 and January 1975, and that therefore the point which the decline had reached at the end of December 1973 is capable of ascertainment. Their Lordships are not disposed to order a new trial. Amendment of the pleadings would be required and the delay, trouble and expense which would be involved in further proceedings do not appear to their Lordships to be consonant with the due administration of justice. The problem about the figure of damages fixed by Briggs C.J. is that it was plainly arrived at upon a wrong basis, and that is now common ground between the parties. In the result, their Lordships have come to the conclusion that the ends of justice would best be served if they were to fix a new figure of damages as best they can upon the available evidence, such as it is.’

Judges:

Lord Keith

Citations:

[1977] UKPC 14, [1978] 1 All ER 515, [1978] 2 WLR 62, [1979] AC 91

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – Bunge Sa v Nidera Bv SC 1-Jul-2015
The court considered the effect of the default clause in a standard form of contract which is widely used in the grain trade. On 10 June 2010 the respondents, Nidera BV, whom I shall call ‘the buyers’, entered into a contract with the appellants, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 September 2022; Ref: scu.429894

Irwin v Wilson and Others: ChD 23 Feb 2011

The claimant sought a declaration that his contract for the sale of leasehold property to the defendants had been lawfully terminated by a letter from his solicitors. The defendants had moved in before completion, but the claimant found himself unable to comply with a requirement of the contract and purported to rescind and required the defendants to vacate. The defendants waived compliance and sought completion. The buyers now appealed against a finding that the clause had not solely been for their benefit, and that they could not therefore waive its compliance.
Held: The contract had been validly terminated, and the appeal failed: ‘The fact that a contract . . provides . . that completion is to take place a stated number of days after the vendor has shown that he has a particular title to the land in question does not mean that the purchaser cannot waive the vendor’s obligation to show that title merely because to do so ‘will leave the date for completion in the air’ if by that is meant either that the stipulation in question cannot be waived or, if it were otherwise to be waived, the contract will cease to be enforceable.’

Judges:

Sir William Blackburne

Citations:

[2011] EWHC 326 (Ch), [2011] 23 EG 88

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hawksley v Outram CA 1892
The parties had concluded a contract for the sale of land and a business. The court considered a purported waiver of a non-compete clause, saying: ‘if there is any doubt whether [the provisions of the contract in issue] are binding upon the vendors, . .
Cited – Heron Garage Properties Ltd v Moss 1974
A contract for the sale of land was conditional on obtaining planning permission. It was not granted. The purchaser sought to enforce the contract.
Held: He failed. Brightman J said: ‘Without seeking to define the precise limits within which a . .
Cited – Joyce Chaitlal and Ganga Persad Chaitlal (in substitution for Kanhai Mahase, deceased) Dhanierami Jaglal and Maharani Jaglal v Chanderlal Ramlal PC 5-Feb-2003
PC (Trinidad and Tobago) The purchaser sought specific performance of an open contract for the sale of land.
Held: If and in so far as a contract for the sale of land does not specify a time for completion, . .
Cited – Hawker v Vickers 1991
(New Zealand Court of Appeal) The court considered the ability of a party to waive compliance with a condition, saying: ‘there is nothing inconsistent in providing expressly or by necessary implication for unilateral waiver of a condition up to a . .
Cited – Globe Holdings Ltd v Floratos 1998
(New Zealand Court of Appeal) A block of apartments was sold with possession to be given on ‘the first Friday three months after confirmation’. Special conditions required a sub-divisional consent to be obtained within 60 days of acceptance, and . .
Cited – Spiro v Glencrown Properties Ltd and Another ChD 1991
The court considered the nature of an option to buy land. Hoffman J said: ‘The granting of the option imposes no obligation upon the purchaser and an obligation upon the vendor which is contingent upon the exercise of the option. When the option is . .
Cited – Sudbrook Trading Estate Ltd v Eggleton HL 1982
The grantors of an option, which contained a machinery for fixing the price, had refused to appoint a valuer and that made it impossible for the contractual machinery for the valuation of the option price to work. The House of Lords held that the . .
Cited – Yewbelle Ltd v London Green Developments Ltd, Knightsbridge Green Limited ChD 8-Dec-2006
The court considered what were the obligations undertaken by a party contracting to use reasonable endeavours.
Held: The question is one of substance, not form, to be determined objectively. Lewison J said: ‘the essence of the obligation . .
Cited – Akzo Nobel UK Ltd v Arista Tubes Ltd CA 29-Jan-2010
The claimant appealed against rejection of its claim for specific performance of agreements by the defendant to take underleases of factory space. The landlord’s consent was needed, both to the grant of the underleases to Arista and also to an . .
Cited – Yewbelle Ltd v London Green Developments Ltd and Another CA 23-May-2007
The parties had entered into a contract for the development of land. Two circumstances operated to make it difficult or impossible, and the court was asked whether the contract was frustrated. The vendor was obliged to use all reasonable endeavours . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 02 September 2022; Ref: scu.429734

Rennie v Westbury Homes (Holdings) Ltd: ChD 7 Feb 2007

The parties had entered into an option agreement for development of land. The developer purported to exercise an option extendng the applicable period, but having accepted the funds, the land owner denied that it had been validly exercised.
Held: The notice was valid. Anyone reading it would understand it as the exercise of the option agreement. No specific form of words was required by the agreement. Though the deposit payable was paid late, this was only by a few hours, and time was not of the essence for this purpose.

Judges:

Henderson J

Citations:

[2007] EWHC 164 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Nunes v Davies Laing and Dick Limited 1985
The court set out the test for a valid counter-notice: ‘namely that the counternotice should be in terms which are sufficiently clear to bring home to the ordinary landlord that the tenant is purporting to exercise his right . . ‘ . .
Cited – Lancecrest Limited v Dr Ganiyu Asiwaju CA 11-Feb-2005
Rent review clause – whether a notice served by a landlord (a ‘trigger notice’) purportedly implementing a rent review was valid, notwithstanding the fact that it was served late; and if the landlord’s trigger notice was valid, whether the tenant . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .

Cited by:

Cited – The Prudential Assurance Company Ltd v Ayres and Grew ChD 3-Apr-2007
The defendants argued that they were not liable as guarantors under an Authorised Guarantee Agreement for a lease when the assignee tenant had become insolvent.
Held: The guarantors were liable provided that the extent of the claim did not . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 02 September 2022; Ref: scu.248388

Courtney v Corp Ltd: CA 1 Mar 2006

The claimants sought to enforce an offer of finance to support a land purchase. The defendants argued that the offer failed to meet the characteristics required under section 2 of the 1989 Act.
Held: The judge had been correct to say that the appellant had not effectively incorporated the full agreement.

Judges:

Arden LJ

Citations:

[2006] EWCA Civ 518

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Citing:

Cited – Firstpost Homes Ltd v Johnson and Others CA 14-Aug-1995
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the . .
Cited – McCausland and Another v Duncan Lawrie Ltd and Another CA 18-Jun-1996
The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 02 September 2022; Ref: scu.241566

Petromec Inc Petro-Deep Inc and others v Petroleo Brasileiro Sa and others: CA 15 Jul 2005

Judges:

Lord Justice Longmore Lord Justice Pill Lord Justice Mance

Citations:

[2005] EWCA Civ 891, [2006] 1 Lloyds Rep 121

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Petromec Inc v Petroleo Brasileiro S A Petrobras and others ComC 18-Feb-2003
. .
See Also – Petromec Inc and Petroleo Brasileiro S A Petrobras, Braspetro Oil Services Company v Petromec Inc, Petro-Deep Inc, Maritima Petroleo E Engenharia Ltda QBD 2-Feb-2004
The parties entered into a complex group of inter-related contracts for the purpose of purchasing and upgrading an oil production platform for use by Petrobras in the South Marlim oilfield. At a very early stage it was agreed that the upgrade . .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras, Braspetro Oil Services Company, Societa Armamento Navi Appoggio Spa, Den Norske Bank Asa CA 17-Feb-2004
. .
See Also – Petromec Inc v Petroleo Brasileiro SA Petrobrasbraspetro Oil Services etc ComC 20-May-2004
. .

Cited by:

See Also – Petroleo Brasileiro SA and Another v Petromec Inc and others ComC 3-Nov-2005
. .
See Also – Petromec Inc v Petroleo Brasiliero Sa Petrobras and Another ComC 16-Jun-2006
. .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras CA 19-Jul-2006
A Mr Efremovich, a third party to the action was ordered to pay the costs of Petrobras and Brasoil which on the failure of its claim against them had been ordered to be paid by Petromec. The judge found that Mr Efromovich controlled the proceedings . .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras and others ComC 7-Dec-2006
. .
See Also – Petromec Inc v Petrobras ComC 11-May-2007
Defendant’s application for security for costs. . .
See Also – Petromec Inc v Etroleo Brasileiro Sa Petrobras and others ComC 6-Jul-2007
. .
See Also – Petromec Inc v Petroleo Brasileiro SA Petrobras and others CA 21-Dec-2007
. .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras and others CA 23-Jan-2008
Short order. . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 02 September 2022; Ref: scu.228589

M V Yorke Motors v Edwards: HL 1982

A sale of a second hand Rolls Royce had gone wrong. The plaintiff was claiming damages of 23,250 pounds. The plaintiff sought Order 14 summary judgment. That was refused, and the Master gave leave to defend without any conditions. The plaintiff appealed to the High Court which again refused summary judgment, only gave leave to defend conditional on the defendant paying pounds 12,000 into court. The defendant was receiving legal aid with a nil contribution, he was unemployed, and he was receiving supplementary benefit, and he could not meet the condition. The Court of Appeal allowed the appeal on the basis of a concession that a condition with which the defendant could not comply was equivalent to judgment for the plaintiff, and such a condition ought not to be imposed and substituted a condition that the defendant should pay pounds 3,000 into court. The evidence suggested that the defendant himself did not have pounds 3,000, but the court made the common sense assumption that he was likely to have relatives and friends who, if he was putting forward his defence in good faith, would be willing to help him to that more modest extent.
Held: Their Lordships dismissed his appeal. As to an order for security for costs, ‘If the sum ordered to be paid as a condition of granting leave to defend is one which the defendant would never be able to pay, then that would be a wrongful exercise of discretion, because it would be tantamount to giving judgment for the plaintiff notwithstanding the court’s opinion that there was an issue or question in dispute which ought to be tried.’ The court should take into account the fact that a litigant pleading impecuniosity ‘may have funds, he may have business associates, he may have relatives, all of whom can help him in his hour of need’.
Lord Diplock set out a proposition in the respondent’s case: ”(i) Where a defendant seeks to avoid or limit a financial condition by reason of his own impecuniosity the onus is upon the defendant to put sufficient and proper evidence before the court. He should make full and frank disclosure.
(ii) It is not sufficient for a legally aided defendant to rely on there being a legal aid certificate. A legally aided defendant with a nil contribution may be able to pay or raise substantial sums.
(iii) A defendant cannot complain because a financial condition is difficult for him to fulfil. He can complain only when a financial condition is imposed which it is impossible for him to fulfil and that impossibility was known or should have been known to the court by reason of the evidence placed before it.’ and continued ‘I see no reason to dissent from those submissions. They summarise conveniently the reasons why the judge and the Court of Appeal made leave to defend conditional upon the provision by Mr. Edwards of security in the sums that they respectively ordered.’

Judges:

Lord Diplock

Citations:

[1982] 1 WLR 444, [1982] 1 All ER 1024

Statutes:

RSC Ord 14

Jurisdiction:

England and Wales

Cited by:

Cited – North East Lincolnshire Borough Council v Millenium Park (Grimsby) Ltd CA 23-Oct-2002
An agreement was made for a redevelopment of land. The council sought an order requiring specific performance by the respondent of its obligations. The council sought summary judgment, which the respondent resisted claiming that it was presently . .
Cited – Prince Radu of Hohenzollern v Houston and Another QBD 7-Mar-2006
The claimant resided in Romania, and sought damages for libel. The magazine had obtained an order for security for costs. An offer had been made to cover the sum ordered, and no stifling could now happen.
Held: Any order for security costs in . .
Cited – Goldtrail Travel Ltd v Onur Air Tasimacilik As SC 2-Aug-2017
At first instance the appellant had dishonestly assisted another party to defraud the respondent, and ordered payment of substantial damages. The defendant, non-resident, sought to appeal, and the respondent asked the court to order payment into . .
Lists of cited by and citing cases may be incomplete.

Costs, Contract, Litigation Practice

Updated: 02 September 2022; Ref: scu.183133

Sir Elton Hercules John, Happenstance Ltd, William A Bong Ltd, J Bondi Ltd, Eversheds (A Firm) v Express Newspapers, Rosie Boycott, Rachel Baird: QBD 3 Mar 2000

The Claimants sought an order for the Defendants to disclose the identity of their source of the confidential information contained in a draft advice the property of the Claimants and of the precise circumstances in which it came to the attention of the Defendants or any of them.

Judges:

Morland Media

Citations:

[2000] EWHC QB 130

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – John and Others v Express Newspapers and Others CA 26-Apr-2000
Where a party sought from a newspaper disclosure of the source of a journalists story, and an order for contempt in default he was under a duty first to attempt to find that source through other means. A failure even to try can be persuasive to the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media

Updated: 02 September 2022; Ref: scu.135962

Healthcare At Home Ltd v The Common Services Agency: SCS 1 Feb 2011

Outer House – The pursuer sought an order in terms of the Regulation, setting aside the decision of the defender to award the ‘NP 341/10 Trastuzumab Homecare and Near Patient Treatment Services’ Framework Agreement to BUPA Home Healthcare Ltd.

Judges:

Lord Menzies

Citations:

[2011] ScotCS CSOH – 22

Links:

Bailii

Statutes:

Public Contracts (Scotland) Regulations 2006 47A91)(b)(I), Directive 2004/18/EC

Jurisdiction:

Scotland

Cited by:

Outer House – Healthcare At Home Ltd v The Common Services Agency SCS 1-May-2012
Outer House – Healthcare challenged the award of a framework agreement contract to a competitor contractor. . .
Outer House – Healthcare At Home Ltd v The Common Services Agency SCS 21-Mar-2013
Inner House – Healthcare challenged the loss of a contract for provision of cancer treatments for their patients to a competitor. . .
Outer House – Healthcare at Home Ltd v The Common Services Agency SC 30-Jul-2014
The court asked how to apply the concept in European law of ‘The reasonably well-informed and diligent tenderer’. The pursuer had had a contract for the delivery of healthcare services, but had lost it when it was retendered.
Held: When an . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Contract, European

Updated: 01 September 2022; Ref: scu.428685

Nicholas Prestige Homes v Neal: CA 1 Dec 2010

The estate agent had sought their commission on the sale of property, but phrased it now as a claim for damages for the property owners having breached their sole agency contract by appointing other agents who had been the effective cause of the sale.

Judges:

Ward, Patten, Black LJJ

Citations:

[2010] EWCA Civ 1552

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Foxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 September 2022; Ref: scu.428239

Consolidated Contractors International Company Sal and Another v Masri: CA 21 Jan 2011

Judges:

Aikens LJ, Smith LJ, Sir Kenneth May P

Citations:

[2011] EWCA Civ 21

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. . .
Appeal from – 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. . .

Cited by:

Cited – Consolidated Contractors International Company Sal and Another v Masri CA 3-Feb-2011
. .
See Also – 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. . .
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, Utilities

Updated: 01 September 2022; Ref: scu.428143

Chubb Insurance Company of Europe SA, Davies v Black, American Iron and Metal Company Incorporated, Lito Trade Incorporated: QBD 23 Sep 2004

Enforcement of contract of indemnity under guarantee of company given by director. Insurance claim.

Judges:

The Honourable Mr Justice Langley

Citations:

[2004] EWHC 2138 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Contract, Insurance

Updated: 01 September 2022; Ref: scu.214300

In Re New Eberhardt Company, Ex parte Menzies: CA 20 Nov 1889

The 1677 Statute is complied with if, per Fry LJ: ‘First, there must be at or before the date of the issue of these shares, a contract; secondly, that contract must be duly made in writing; and thirdly, that contract must be filed with the Registrar. Now, all these things must be done or must be in existence at or before the date of the issue. You cannot have a contract filed before the issue of the shares if it is not a contract till after the issue of the shares.’ However, the use of a written offer as a note or memorandum of the contract entered into upon its oral acceptance ‘pushed the literal construction of the Statue of Frauds to a limit beyond which it would perhaps be not easy to go’

Judges:

Bowen, Fry LJJ

Citations:

(1890) 43 ChD 118, [1889] UKLawRpCh 172

Links:

Commonlii

Statutes:

Statute of Frauds 1677 4, Companies Act 1867

Jurisdiction:

England and Wales

Cited by:

Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another CA 9-Mar-2012
The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial . .
Lists of cited by and citing cases may be incomplete.

Contract, Company

Updated: 31 August 2022; Ref: scu.451865

Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another: CA 9 Mar 2012

The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial transactions for a contract of guarantee to be contained in a single document, and it is no doubt convenient that a guarantee should be evidenced in this way. The question however which arises in this appeal is whether it must.’
Held: ‘The question whether the guarantee may be enforced is, as it seems to me, a separate question, distinct from the guarantor’s intention. It is again the distinction between identifying an obligation which is binding, not void, and the separate question whether the agreement so identified is recorded with sufficient formality to be enforceable. The latter is simply a question of objective fact which, as the learning on signature to which I next turn demonstrates, is independent of intention. It is sufficient to conclude, as I do, that neither the formality required by the Statute nor the expectation that there would be drawn up, in the ordinary course, a further and formal document, nor yet the combination of the two, demonstrates an intention not to be bound until such document is issued.’

Judges:

Rix, Tomlinson LJJ, Sir Mark Waller

Citations:

[2012] EWCA Civ 265

Links:

Bailii

Statutes:

Statute of Frauds 1677 4, Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Citing:

Cited – Reuss v Picksley 1866
A written proposal was purportedly accepted orally. The requirements of the 1677 Statute were satisfied where a signed written offer containing the requisite terms was accepted orally by the other party.
Willes J said: ‘The only question is, . .
Cited – In Re New Eberhardt Company, Ex parte Menzies CA 20-Nov-1889
The 1677 Statute is complied with if, per Fry LJ: ‘First, there must be at or before the date of the issue of these shares, a contract; secondly, that contract must be duly made in writing; and thirdly, that contract must be filed with the . .
Cited – Timmins v Moreland Street Property Co Ltd CA 1958
The Court considered the effect of a note or memorandum evidencing the sale of a property where it was described as ‘6,8 and 41, Boundary Street, Shoreditch (freehold).’ It was sought to connect the signature on a purchaser’s deposit cheque with an . .
Has been overruled – Law v Jones 1974
A ‘subject to contract’ document might be evidence of an antecedent or oral contract and satisfy section 40 of the Law of Property Act 1925 if the stipulation was later waived. A memorandum or note must, if it is to be effective, not only state the . .
Cited – Tiverton Estates Ltd v Wearwell Ltd CA 1975
“Subject to Contract” not to be diluted
‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in . .
Cited – The Anemone 1987
Owners wished to let their vessel on time charter to Afram Line Limited but were unwilling to do so without a guarantee. The negotiations were conducted by Centre Shipping on behalf of owners and Dipgrove Holdings on behalf of charterers. It was . .
Appeal from – 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 . .
Cited – Actionstrength Limited v International Glass Engineering In Gl En SpA and others HL 3-Apr-2003
Actionstrength agreed with Inglen to provide construction staff to build a factory for St-Gobain. Inglen failed to pay. Actionstrength claimed against for the amount due. Inglen went into liquidation. The claim was now against St-Gobain. The claim . .
Cited – Eccles v Bryant and Pollock CA 1947
The Plaintiff contended that a letter written by the purchaser’s solicitor which effectively set out the terms of the agreement, enclosed the part of the contract signed by the purchaser, and asked in exchange for the counter-part signed by the . .
Mentioned – Elias v George Sahely and Co (Barbados) Ltd PC 1982
(Barbados) The parties entered into an oral agreement for the sale of land to the plaintiff. The plaintiff’s solicitor then wrote to the defendant’s solicitor confirming the oral agreement and setting out its terms. He enclosed a cheque for 10 . .
Cited – Von Hatzfeldt-Wildensburg v Alexander ChD 26-Jul-1911
A purchaser wrote offering to purchase a house, saying acceptance was subject to her solicitor approving title, covenants, lease and form of contract.
Held: It was not a complete contract capable of enforcement: ‘It appears to be well settled . .
Cited – Caton v Caton HL 1867
A document began by referring to ‘the under mentioned parties’ and then referred to the parties in question by name in relation to various promises. Neither party signed the document and the question was whether the document constituted a sufficient . .
Cited – The Anemone 1987
Owners wished to let their vessel on time charter to Afram Line Limited but were unwilling to do so without a guarantee. The negotiations were conducted by Centre Shipping on behalf of owners and Dipgrove Holdings on behalf of charterers. It was . .
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 . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 31 August 2022; Ref: scu.451839

John Grimes Partnership Ltd v Gubbins: CA 5 Feb 2013

Issue of some importance about the law on the remoteness of damage in cases of breach of contract. Can a developer of land, whose development scheme is delayed in its implementation by the failure of a consulting engineer to perform tasks which he has contracted to perform by an agreed date, recover damages for the loss he suffers thereby from a diminution in the market value of the development which occurs during the period for which its completion is delayed?

Citations:

[2013] EWCA Civ 37

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Damages

Updated: 31 August 2022; Ref: scu.470735