Category: Contract

Gunasinghe v Henley Management College: QBD 10 Mar 2006

The claimant had enrolled on an MBA course which required her to attend residential group courses. After difficulties, no group would work with her, and she was not allowed to complete the course.
Held: The College had done what it could to accommodate the claimant, and the prospects of her succeeding in setting aside the decision were very low. Permission to bring judicial review was refused. The case was transferred so that a court could consider her claim for breach of contract.

Citations:

[2006] EWHC 346 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Education

Updated: 20 August 2022; Ref: scu.238951

Laemthong International Lines Company Ltd v Abdullah Mohammed Fahem and Co: CA 5 May 2005

Citations:

[2005] EWCA Civ 519

Links:

Bailii

Statutes:

Contracts (Rights of Third Parties) Act 1999

Jurisdiction:

England and Wales

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, Insolvency

Updated: 20 August 2022; Ref: scu.224520

Snell v Unity Finance Company Ltd: CA 1964

The court must not permit itself to be the instrument by which an illegal contract is enforced. Points such as to illegality should be taken by the court irrespective of the wishes of the parties; and if not taken by the judge at trial, should be taken of its own initiative by an appellate court.

Citations:

[1964] 2 QB 203

Jurisdiction:

England and Wales

Cited by:

Cited – Collier v Collier CA 30-Jul-2002
Fraudulent Intent Negated Trust
The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 20 August 2022; Ref: scu.236577

Rockeagle Ltd v Alsop Wilkinson: CA 1991

The position of a stakeholder and the two potential claimants to a stake is the subject of a tripartite contract. The relationship between the stakeholder and the two potential claimants is contractual, not fiduciary. The money is not trust money. The stakeholder is not a trustee or agent; he is a principal who owes contractual obligations to the potential claimants to the stake.
At common law, before settlement, if both parties agree as to the way in which the deposit should be paid or otherwise transferred, the stakeholder is obliged to follow that requirement.
Farquharson LJ said: ‘It is clear from the authorities, and in particular Potters v Loppert [1973] Ch. 399, that the duties and authority of a stakeholder lie in contract or quasi-contract and not as trustee’.

Citations:

[1992] Ch 47, [1991] 4 All ER 659

Jurisdiction:

England and Wales

Citing:

Cited – Potters v Loppert ChD 1973
The court was asked as to the liability of an estate agent to account for interest earned upon a pre-contract deposit paid to him expressly as a stakeholder. No contract was made.
Held: A stakeholder is not a trustee or agent; he is a . .

Cited by:

Cited – Manzanilla Limited v Corton Property and Investments Limited; John MacIver (Southport) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 13-Nov-1996
Millett LJ set out the principles applicable to a deposit paid on a land transaction being held by a stakeholder: ”Where a stakeholder is involved, there are normally two separate contracts to be considered. There is first the bilateral contract . .
Cited – Get Nominees Limited v Trinity Welsh Homes Limited ChD 9-Sep-2014
Trial of an action under which the claimant seeks specific performance of an agreement made between itself and the defendant dated 22 June 2010 relating to a freehold property at Bethel Road, Caernarfon, Gwynedd for a sum of andpound;613,500. The . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 20 August 2022; Ref: scu.550153

Maskell v Horner: CA 1915

Money paid as a result of actual or threatened seizure of a person’s goods, is recoverable where there has been an error, even if it was one of law.

Citations:

[1915] 3 KB 106, (1915) 84 LJKB 1752

Jurisdiction:

England and Wales

Cited by:

Cited – Woolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 August 2022; Ref: scu.223219

Whitehorn Brothers v Davison: CA 1911

It is for the defrauded owner seeking to recover his goods to prove that the purchaser had actual or constructive knowledge of the fraud. The passing of a good title to an innocent purchaser applied when the owner had been induced by false pretences to deliver goods to the buyer on sale or return: ‘It is, I think, obtaining goods by false pretences where the owner, being induced thereto by a trick, voluntarily parts with the possession, and either intends to pass the property, or intends to confer a power to pass the property. If he gives, and intends to give, that power, and the power is exercised, the person who takes under the execution of the power obtains the property, not against, but by the authority of, the original owner, and none the less because the authority was obtained by fraud.’

Judges:

Buckley LJ

Citations:

[1911] 1 KB 463

Jurisdiction:

England and Wales

Cited by:

Cited – Barclays Bank Plc v Boulter and Another HL 26-Oct-1999
The question of whether notice of certain facts amounted to constructive notice of other facts is a question of law. Where it was claimed that a party should be exempt from liability under a document which it was claimed was signed because of . .
Cited – Director of Public Prosecutions v Gomez HL 3-Dec-1992
The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 19 August 2022; Ref: scu.197750

Shaw v James Scott Builders and Company and Another: SCS 26 May 2010

Citations:

[2010] ScotCS CSOH – 68

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Rust v Abbey Life Assurance Co ltd CA 1979
Delay in objection indicated assent to contract
The court was asked whether a binding contract had been concluded between an applicant for an investment in property bonds and the insurance company offering such bonds when, in response to an application form submitted by the applicant, accompanied . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 August 2022; Ref: scu.416152

Vaseeharan and Another v Uthayaranjan: ChD 21 May 2010

Each party sought summary judgment in the case

Judges:

Roth J

Citations:

[2010] EWHC 1083 (Ch)

Links:

Bailii

Statutes:

Civil Procedure Rules 24

Jurisdiction:

England and Wales

Cited by:

Cited – Lewis v Client Connection Ltd ChD 6-Jul-2011
The claimant alleged infringement of his registered trade marks ‘Money Saving Expert’ and associated terms. The defendant operated a service trading as ‘Money Claiming Expert’. Both services included advising those who might wish to claim refunds . .
Lists of cited by and citing cases may be incomplete.

Contract, Civil Procedure Rules

Updated: 18 August 2022; Ref: scu.415980

TMF Trustee Ltd and Others v Fire Navigation Inc and Others Re ‘Megacore Honami’: ComC 16 Oct 2018

The proceedings arose out of the financing of the first defendant’s ownership of a vessel known as ‘Megacore Honami’ and the second defendant’s ownership of the vessel ‘Megacore Philomena’. Megacore Philomena was arrested at the instance of the first claimant in Los Angeles and has been sold there, pendente lite, for US$19 million.

Judges:

Andrew Baker J

Citations:

[2018] EWHC 2790 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 18 August 2022; Ref: scu.631314

C and A Johnstone v Duthie: SCS 15 Mar 1892

Inner House First Division – A cautioner granted a letter guaranteeing to see J ‘duly paid for all goods you may supply from and after this date to the order of C.’ When the account between J and C was closed, a considerable sum remained owing to J, for which the cautioner repudiated liability. J thereafter accepted bills at three months from C for the sum due, and C having become bankrupt before the bills were met, but after a portion of the debt had been satisfied by cash payments, J sued the cautioner for the balance. Held that J, by taking the bills and thereby giving time to C, had liberated the cautioner- diss. Lord M’Laren, who held that the cautioner having repudiated liability, J was entitled to make the best terms he could with C.

Citations:

[1892] SLR 29 – 501

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 18 August 2022; Ref: scu.613472

London and Medway Ltd v Sunley Holdings Plc: ChD 24 May 2013

‘trial of a preliminary issue in an action by the claimant, London and Medway Ltd (‘LandM’), a property development consultant, against the defendant, Sunley Holdings plc (‘Sunley’) a property developer, whereby LandM claims a share of the profits in certain developments undertaken by Sunley. The most significant claim in the action is one for a 20% share of the profits generated as a result of introducing to Sunley a property which has become a successful block of student housing at 168-190 Fulham Palace Road, London. The paper profits from that development are said by LandM now to exceed andpound;8 million and it claims a 20% share of them. LandM says that its entitlement to a share in these profits arises pursuant to an informal agreement made in early 2008 (‘the 2008 Agreement’). Sunley in response says that LandM relinquished its right to that profit share by a further agreement in 2010 (‘the 2010 Agreement’). The purpose of this trial is to determine whether the 2010 Agreement had that effect.’

Judges:

Mr Daniel Alexander QC

Citations:

[2013] EWHC 1420 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 18 August 2022; Ref: scu.510170

Angara Maritime Ltd v Oceanconnect UK Ltd and Another: QBD 29 Mar 2010

The court was asked as to the application of Section 25(1) of the Sale of Goods Act 1979 when an unpaid supplier of bunkers to a time charterer claims against the owner of the vessel.
Held: The issue was whether as a matter of fact there was a voluntary act by the buyers in possession amounting to delivery. On the evidence, there was, and it was a question of fact not of contractual analysis. Angara purchased bunkers from Britannia upon redelivery in good faith and without notice of any adverse right, and what would otherwise be a good claim in conversion failed. Section 25(1) of the 1979 Act 1979 protects the Claimant.

Judges:

Mackie QC HHJ

Citations:

[2010] EWHC 619 (QB), [2011] 1 Lloyd’s Rep 61

Links:

Bailii

Statutes:

Sale of Goods Act 1979 25(1)

Jurisdiction:

England and Wales

Citing:

Cited – Feuer Leather Corporation v Frank Jonstone and Sons 1981
The court considered the requirements for notice in section 28(1). Neill J said: ‘2. the Court is concerned with actual notice and not with constructive notice.
3. In deciding whether a person . . had actual notice:
(a) the Court will . .
Cited – Forsythe International (UK) Limited v Silver Shipping Co Limited and Others 1993
Delivery under section 24 requires a voluntary act by the person in possession because by section 61(1) of the 1979 Act, unless the context or subject matter otherwise requires, `delivery’ means `voluntary transfer from one person to another’. . .
Cited – The Span Terza HL 10-Jan-1984
The parties, suppliers of goods and charterers, disputed the ownership of bunkers at the point of sale.
Held: Lord Diplock said: ‘My Lords I agree with Lord Justice Kerr that cl.3 [which set out that Owners were to pay for bunkers on . .
Cited – Owners of Cargo On K H Enterprise v Owners of Pioneer Container PC 29-Mar-1994
Owners who were claiming under a bailment must accept the terms of a sub-bailment to which it had agreed. This result is both principled and just. A sub-bailee can only be said for these purposes to have voluntarily taken into his possession the . .

Cited by:

Cited – PST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 August 2022; Ref: scu.414968

Durham Tees Valley Airport Ltd v BMIbaby Ltd and Another: CA 5 May 2010

Whilst it is correct that damages for breach of contract are assessed on the basis that the party in breach would have performed the contract in the manner least onerous to it, the court will make its counterfactual assessment on the basis that the parties would have acted in good faith albeit with their own commercial interests in mind. Patten LJ said: ‘The court, in my view, has to conduct a factual inquiry as to how the contract would have been performed had it not been repudiated. Its performance is the only counter-factual assumption in the exercise. On the basis of that premise, the court has to look at the relevant economic and other surrounding circumstances to decide on the level of performance which the defendant would have adopted. The judge conducting the assessment must assume that the defendant would not have acted outside the terms of the contract and would have performed it in his own interests having regard to the relevant factors prevailing at the time. But the court is not required to make assumptions that the defaulting party would have acted uncommercially merely in order to spite the claimant. To that extent, the parties are to be assumed to have acted in good faith although with their own commercial interests very much in mind.’

Judges:

Mummery, Toulson, Patten LLJ

Citations:

[2010] EWCA Civ 485, [2011] 1 Lloyds Rep 68

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Durham Tees Valley Airport Ltd v BMI Baby Ltd and Another ChD 30-Apr-2009
. .

Cited by:

Cited – Jet2Com Ltd v SC Compania Nationala De Transporturi Aeriene Romane Tarom Sa ComC 15-Mar-2012
The parties had contracted for the defendant to maintain certain of the claimant’s aircraft. Each now asserted breach by the other.
Held: Neither the terms of the contract nor its character made time of the essence for the payments to be made . .
Cited – Mr H TV Ltd v ITV2 Ltd ComC 8-Oct-2015
The claimant had contracted with the defendant for the production of a series of reality TV shows featuring celebrities. After severe personal clashes between the people involved on the claimants side, the contract was terminated. The claim was that . .
Lists of cited by and citing cases may be incomplete.

Contract, Company

Updated: 17 August 2022; Ref: scu.414591

Soutzos v Asombang and Others: ChD 23 Apr 2010

The claimant had lent substantial sums to the defendant. The defendant had subsequently been made bankrupt, and now said he was released from the debt.

Judges:

Newey J

Citations:

[2010] EWHC 842 (Ch), [2010] BPIR 960

Links:

Bailii

Statutes:

Insolvency Act 1986 281

Jurisdiction:

England and Wales

Cited by:

See Also – Soutzos v Asombang and Others ChD 21-Jun-2011
The claimant had obtained a freezing order against the defendants. His claim having been dismissed, the court now considered if and what damages should be paid under the cross-undertaking he had given.
Held: Setting out and applying the . .
Lists of cited by and citing cases may be incomplete.

Contract, Insolvency

Updated: 17 August 2022; Ref: scu.408673

RTS Flexible Systems Ltd v Molkerei Alois Muller Gmbh and Co KG: CA 12 Feb 2009

Costs Judgment

Citations:

[2009] EWCA Civ 26

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – RTS Flexible Systems Ltd v Molkerei Alois Muller Gmbh and Co Kg (UK Productions) TCC 16-May-2008
The parties had gone ahead in performing the contract for the supply of machinery for manufacturing yoghurt pots, despite not having concluded formal agreements. . .

Cited by:

Costs Judgment – RTS Flexible Systems Ltd v Molkerei Alois Muller Gmbh and Co KG CA 12-Feb-2009
The parties went ahead with performance of a contract or the provision of a substantial production line without formally completing negotiation of the contract. . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 16 August 2022; Ref: scu.406533

Choil Trading Sa v Sahara Energy Resources Ltd: ComC 26 Feb 2010

Losses incurred from hedging undertaken in mitigation of breach of a sale contract are recoverable

Judges:

Christopher Clarke J

Citations:

[2010] EWHC 374 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – In Re BCCI and Another; Morris and Others v Mahfouz and Others (No 3) ChD 5-May-1994
An application to strike out solely on ground of non-compliance with rules of pleadings was not justified. . .

Cited by:

Cited – Fulton Shipping Inc of Panama v Globalia Business Travel SAU (Formerly Travelplan SAU) of Spain ComC 21-May-2014
The former owners of the ‘New Flameno’ appealed from an arbitration award. A charter of the vessel had been repudiated with two years left to run. The owners chose to sell. They made a substantial profit over the price they would have received after . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 16 August 2022; Ref: scu.401904

TRM Copy Centres (UK) Ltd and others v Lanwall Services Ltd: QBD 18 Jul 2007

The court considered as a preliminary issue the alleged inducement by the Defendant of breach of contract on the part of various customers of the Claimants.
Held: The Location Agreements were not consumer hire agreements within the meaning of section 15 of the 1974 Act.

Judges:

Flaux J

Citations:

[20071 EWHC 1738 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – TRM Copy Centres (UK) Ltd and others v Lanwall Services Ltd CA 17-Apr-2008
The court declined an appeal against an order that copier hire agreements were not regulated under the 1974 Act. . .
At First Instance – TRM Copy Centres (UK) Ltd and Others v Lanwall Services Ltd HL 17-Jun-2009
Each party contracted hire copiers to shops and offices. The claimant said that the defendant had interfered with their contracts by substituting their equipment. The defendants said that the claimants’ contracts were controlled by the 1974 Act, but . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Contract

Updated: 16 August 2022; Ref: scu.258420

Roscorla v Thomas: KBD 30 May 1842

The plaintiff contracted to buy a horse from the defendant which the defendant said was free of vice. Instead it was very vicious, restive, ungovernable and ferocious.
Held: Absent an express promise no warranty would be implied, but in this case there was an express promise: ‘the question is, whether that fact will warrant the extension of the promise beyond that which would be implied by law; and whether the consideration, though insufficient to raise an implied promise, will nevertheless support an express one. And we think that it will not.’

Judges:

Lord Denman CJ

Citations:

[1842] EWHC KB J74, (1842) 114 ER 496

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 16 August 2022; Ref: scu.264569

Fuji Seal Europe Ltd v Catalytic Combustion Corporation: TCC 20 Jul 2005

Claim for damages for alleged negligence and breach of contract in relation to the supply of chemical abatement plant to a printing works in Kent.

Judges:

Jaclson J

Citations:

[2005] EWHC 1659 (TCC), 102 Con LR 47

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Professional Negligence, Construction

Updated: 16 August 2022; Ref: scu.229231

Palatine Graphic Arts Co Ltd v Liverpool City Council: CA 1985

The defendant local authority agreed to pay for the plaintiff’s premises in Liverpool at the price which would have been payable if the acquisition had been by way of compulsory purchase. The major part of the price constituted compensation for disturbance, which it was common ground fell to be assessed in the same way as if the disturbance were damage suffered at common law for trespass. The issue was whether the plaintiff was required to give credit for a regional development grant which it obtained from the national government as 22% of its costs of relocating in another part of Liverpool.
Held: It did not; it would be contrary to public policy to make the deduction because it would discourage those such as Palatine from locating to the development areas which it was the purpose of regional development grants to encourage. The plaintiff relied also on a difference between disturbance on compulsory purchase and the payment of a regional development grant: ‘Secondly, the loss caused by disturbance on compulsory purchase and the payment of regional development grant are different in kind. The loss on disturbance flowed from the fact that the landowner had been forced to give up occupation of his land and premises as a result of the acquisition of his interest. The regional development grant was paid in respect of part of the expenditure incurred when moving into new premises’
Sir John Donaldson MR said: ‘On the facts of this case, there is no dispute but that Palatine incurred disturbance expenditure in the amount, I think, of pounds 147,478, although the precise figures do not matter, and that this expenditure would not have been incurred but for the compulsory purchase. There is also no dispute that some of this expenditure attracted regional development grant. The sole question in dispute is whether the disturbance loss is properly to be regarded as being the disturbance expenditure as abated pro tanto by the regional development grant. If it is, then the amount of the compulsory purchase price can only take account of the disturbance expenditure so abated, as otherwise it would amount to over-compensation and offend against the principles enunciated in Horn’s case. If it is not, the compulsory purchase price can take account of the full disturbance expenditure since that, and not the abated sum, represents the disturbance loss.
It is at this point that it is necessary to take a closer look at the nature of a regional development grant, just as the House of Lords took a closer look at the nature of a police pension in Parry v. Cleaver [1970] AC 1. A regional development grant is not paid in compensation for dispossession or disturbance. It is payable whether or not there is a change of ownership or location, so long as it relates to expenditure of a relevant kind incurred in a relevant geographical area. It is therefore different in kind from compensation for disturbance. Indeed it is not compensation at all. Regional development grants are, as one of the Department of Industry booklets rightly describes them, ‘Incentives for Industry in the Areas for Expansion.’
This analysis leads me to conclude that in the instant, and similar, cases, (i) the person whose land is compulsorily acquired incurs disturbance expenditure in re-establishing his business, (ii) other things being equal, this expenditure is the same wherever he incurs it, (iii) this expenditure is prima facie the measure of his disturbance loss, (iv) his disturbance loss is not reduced, if he chooses to incur the disturbance expenditure in a particular area and is rewarded-not compensated-for so doing by the receipt of an incentive payment in the form of a regional development grant. In principle this is no different from the mail order customer who buys goods for pounds 100 and has his name entered in a draw for a prize of pounds 100. The goods will cost him pounds 100, whether he wins or loses. If he wins, he will have paid pounds 100 for the goods and received a prize of pounds 100. He will not have received the goods for nothing. ‘

Judges:

Sir John Donaldson MR, Glidewell LJ, May LJ

Citations:

[1986] 1 EGLR 19, (1985) 84 LGR 527, [1986] QB 335, [1986] 1 All ER 366, (1985) 52 P and CR 308, [1986] 2 WLR 285

Jurisdiction:

England and Wales

Cited by:

Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 16 August 2022; Ref: scu.642154

Fulton Shipping Inc of Panama v Globalia Business Travel Sau: CA 21 Dec 2015

The charter of the ship ‘New Flameno’ was repudiated two years early. The owners sold it, making rather more profit than they would have if sold after the end of the term. The court was now asked how the profit should affect the loss claim on the repudiation. The arbitrator had set off the profit made against the hire losses.
Held: The appeal was allowed.
Longmore LJ said: ‘The important principle which emerges from these citations is that, if a claimant adopts by way of mitigation a measure which arises out of the consequences of the breach and is in the ordinary course of business and such measure benefits the claimant, that benefit is normally to be brought into account in assessing the claimant’s loss unless the measure is wholly independent of the relationship of the claimant and the defendant. That should be a principle sufficient to guide the decision of the fact-finder in any particular case.’ and: ‘A decision to speculate on the market rather than buying in (or selling) at the date of the breach did not ‘arise’ from the contract but from the innocent party’s decision not to avail himself of the available market.’
‘The unusual facts of this case show, however, that as well as spot chartering the vessel an owner may equally decide to mitigate its loss by selling the vessel. If so, it is not easy to see why the benefit (if any) which an owner secures by selling the vessel should not be brought into account just as much as benefits secured by spot chartering the vessel during the unexpired term of the time charterparty are, according to the decisions in The Kildare and The Wren, to be brought into account. Nor is there any reason why the value of that benefit should not be calculated by reference to the difference between the value of the vessel at the time of sale and its value at the time when (in a falling market) the charterparty was due to expire. Mr Croall [counsel for the charterers] accepted that, if the sale market had risen substantially during that time, the charterers would be liable for the owners’ inability to take advantage of that rise in the market, if the sale had arisen from the consequences of the breach of contract and been undertaken by way of mitigating the loss caused by that breach.’

Judges:

Longmore, Chrstopher Clarke, Sales LJJ

Citations:

[2015] EWCA Civ 1299, [2015] WLR(D) 547, [2016] 1 Lloyd’s Rep 383, [2016] 1 WLR 2450, [2016] 2 All ER (Comm) 366, [2016] 4 All ER 77

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal from – Fulton Shipping Inc of Panama v Globalia Business Travel SAU (Formerly Travelplan SAU) of Spain ComC 21-May-2014
The former owners of the ‘New Flameno’ appealed from an arbitration award. A charter of the vessel had been repudiated with two years left to run. The owners chose to sell. They made a substantial profit over the price they would have received after . .
Cited – Robinson v Harman 18-Jan-1848
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where . .
Cited – Koch Marine Inc v D’Amica Societa Di Navigazione ARL (The Elena d’Amico) QBD 1980
The ship owners wrongfully repudiated a charterparty in March 1973, 14 months after its inception. The charterers did not hire a substitute but claimed damages for the loss of profits they would have made between January and April 1974, during which . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Bradburn v Great Western Rail Co CEC 1874
The plaintiff had received a sum of money from a private insurer to compensate him for lost income as a result of an accident caused by the negligence of the defendant.
Held: He was entitled to full damages as well as the payment from the . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Shearman v Folland CA 1950
The injured plaintiff had lived before the accident in hotels to which she paid seven guineas a week for board and lodging. After the accident she spent just over a year in nursing homes at a cost of twelve guineas a week exclusive of medical . .
Cited – Lavarack v Woods of Colchester Ltd CA 19-Jul-1966
The plaintiff had been wrongly dismissed. He came to be employed by Martindale at a lower salary, and bought shares in Martindale and Ventilation which increased in value.
Held: The new salary and the increase in the value of the Martindale . .
Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
Cited – The Yasin 1979
Receivers claimed against shipowners under a bill of lading for loss of a cargo. The shipowners argued on a preliminary issue that the insurance proceeds paid to receivers fell to be taken into account so as to wipe out the damages claimed. They . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .

Cited by:

Appeal from – Globalia Business Travel Sau of Spain v Fulton Shipping Inc of Panama SC 28-Jun-2017
The court was asked how to assess damages arising out of the repudiation of a charterparty by charterers of a cruise ship, the ‘New Flameno’. The charter ending two years early, the owners chose to sell, and in the result got a much better price . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 16 August 2022; Ref: scu.558058

Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another: SC 10 May 2017

The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and indemnity risks. The grounding occurred during a combination of severe weather events. Each of the two elements was known, but they had not previously occurred together.
Held: The appeal was dismissed. There had been no breach of the safe port undertaking. Had there been a breach of that undertaking Daiichi (the sub-charterers) would not have been entitled to limit its liability through the Convention.
Lords Toulson and Mance, Lord Hodge concurring, upheld the Court of Appeal opinion that the joint insurance would have precluded any claim by owners against the demise charterer, or therefore by the latter down the line. Lord Clarke and Lord Sumption disagreed on this point.
An ‘abnormal occurrence’ has its ordinary meaning. It is not a term of art. On the evidence the combination of conditions were an abnormal occurrence and there was therefore no breach by Daiichi of the safe port undertaking.
A charterer does not assume responsibility for unexpected and abnormal events which occur suddenly and which create conditions of unsafety after he has given the order to proceed to the relevant port. These are the responsibility of the ship’s hull insurers (if owners have insured) or of owners themselves. Moreover the concept of ‘safety’ is necessarily not an absolute one.
‘there is nothing in clause 12 which provides that the demise charterers have no liability for breach of clause 29 and I see no basis for such a necessary implication, essentially for the reasons given by the judge and by Lord Sumption. In particular, it seems to me to be striking that, as the judge observed in para 195, clause 13, which contained an alternative insurance and repairs clause which not only provided that hull insurance would be paid for by the registered owner but also expressly stated that the registered owners and/or insurers would not have any rights of recovery or subrogation against the demise charterers in respect of insured losses, was deleted from the printed form. Thus the demise charterers chose not to be bound by clause 13.’
Had there been a breach of the safe port warranty, Gard claimed to be able to recover the insured value of the vessel from the time charterers as the demise charterer’s assignee on the basis that the demise charterer was liable to the owners for breach of its safe port undertaking, and so entitled to recover the same sum from the time charterer. Lords Toulson, Mance and Hodge concluded that the provisions of clause 12 of the demise charter, which provided for joint insurance and a distribution of insurance proceeds, precluded such a claim. Co-insureds cannot claim against each other in respect of an insured loss. Clause 12 provided a comprehensive scheme for an insurance funded result in the event of loss of the vessel by marine risks. The safe port undertaking did not alter this scheme.

Judges:

Lord Mance, Lord Clarke, Lord Sumption, Lord Hodge, Lord Toulson

Citations:

[2017] UKSC 35, [2018] 1 All ER (Comm) 1, [2017] 1 Lloyd’s Rep 521, 2017 AMC 1336, [2017] 1 CLC 870, [2017] WLR(D) 333, [2017] 1 WLR 1793, [2017] Lloyd’s Rep IR 291, [2018] 1 All ER 832, UKSC 2015/0036, UKSC 2015/0037

Links:

Bailii, Bailii Summary, WLRD, SC Summary Video (37), SC (36), SC Summary (36), SC Summary Video (36), SC (37), SC summary (37

Statutes:

Merchant Shipping Act 1995, Convention on Limitation of Liability for Maritime Claims 1976, Vienna Convention on the Law of Treaties 1969 31 32

Jurisdiction:

England and Wales

Citing:

Cited – Leeds Shipping Co Ltd v Societe Francaise Bunge (The Eastern City) CA 1958
Non-performance, in the context of the clause, would be the refusal or failure of the ship to enter upon the charterparty’s obligations at all or the refusal or failure of the charterers to take any step to fulfil the contract into which they had . .
Cited – Compania Naviera Maropan S/A v Bowater’s Pulp and Paper Mills Limited (The Stork) CA 1954
Where, in breach of charterparty, charterers order a vessel to proceed to an unsafe port, the conduct of the vessel’s master in obeying the order (placed as he well may be, on the horns of a dilemma) will be judged sympathetically, in context and . .
Appeal from – Gard Marine and Energy Ltd v China National Chartering Co Ltd CA 22-Jan-2015
The Ocean Victory went aground in a storm in Kashima port. The court was now asked (i) what, as a matter of law, was the correct test for an abnormal occurrence; (ii) in particular, was the judge correct to hold that the combination of two weather . .
At First Instance – Gard Marine and Energy Ltd v China National Chartering Co Ltd and Others ComC 30-Jul-2013
The vessel ‘Ocean Victory’ grounded in 2006 entering a port in a storm.
Held: In the first action, that the intermediate charterers were liable to the demise charterers for breach of the safe port warranty in the time charter, and likewise, in . .
Cited – Reardon Smith Line Limited v Australian Wheat Board (The Houston City) PC 26-Jan-1956
(Australia) . .
Cited – Kodros Shipping Corporation of Monrovia v Empresa Cubana De Fletes (The Evia (No 2)) HL 1982
Lord Diplock regarded the nature of the contractual promise by the charterer in what he called the safe port clause as having been well settled for a quarter of a century at the very least: ‘It was correctly and concisely stated by Sellers L.J. in . .
Cited – The Saga Cob CA 1992
The fact that an event (in this case a guerrilla attack) was theoretically foreseeable did not make it an ‘normal characteristic’ of the port: ‘Be that as it may, there is no evidence whatever that the system introduced after the Omo Wonz had any . .
Cited – Ogden v Graham and Another 27-Nov-1861
The defendants chartered a ship to proceed from England to a safe port in Chilli, with laave to call at Valparaiso. On her arrival at Valparaiso; the charterers’ agent named the port of Carrisal Bajo as the port of discharge, and directed the master . .
Cited – GW Grace and Co Ltd v General Steam Navigation Co Ltd (The Sussex Oak) QBD 1950
The court considered a time charter in the Baltime form. The charterers entered into a voyage sub-charter with the board of trade. Under the voyage charter the ship loaded a cargo of timber for London from Hamburg. On the voyage to and from Hamburg . .
Cited – Transoceanic Petroleum Carriers v Cook Industries Inc (The Mary Lou) QBD 1981
Mustill J considered a charterparty which provided that the vessel was to ‘proceed to one or two safe berths one safe port US Gulf (excluding Brownsville) New Orleans/Ama/Reserve/Myrtle Grove/Destrehan counting as one port . . ‘ He said: ‘The . .
Cited – Kodros Shipping Corporation of Monrovia v Empresa Cubana De Fletes (The Evia (No 2)) CA 1982
. .
Cited – Modern Engineering (Bristol) Ltd v Gilbert Ash (Northern) Ltd HL 1974
The court considered how to construe a clause in a contract which excluded a remedy provided by law. Lord Diplock said: ‘It is, of course, open to parties to a contract . . to exclude by express agreement a remedy for its breach which would . .
Cited – Stag Line v Foscolo, Mango and Company HL 1931
English statutes which give effect to international conventions need to be interpreted with the international origin of the rules well in mind. The Act only applies to contracts of carriage of goods outwards from ports in the United Kingdom, and the . .
Cited – Pearl Carriers Inc v Japan Line Ltd ‘The Chemical Venture’ QBD 1993
. .
Cited – D/S A/S Idaho v Clossus Maritime DA (The Concordia Fjord) QBD 1984
The vessel was chartered for 4 months, with a safe port requirement and a limited area of operation subject to payment of additional insurance premiums. The vessel set off to Beirut, then a safe port. The port lost that designation before the vessel . .
Mentioned – Tyco Fire and Integrated Solutions (UK) Ltd v Rolls-Royce Motor Cars Ltd CA 2-Apr-2008
. .
Overruled by Statute – Bureau Wijsmuller NV v Owners of the Tojo Maru (No 2) HL 1971
Salvors were held not to be entitled to limit in respect of the negligent action of their diver since, by definition, neither the diver nor the damaged vessel were on board the salvor’s tug and, further, the diver was not acting in the management of . .
Cited – Aegean Sea Traders Corp v Repsol Petroleo SA (‘The Aegean Sea’) AdCt 1998
The Aegean Sea was lost at sea causing very extensive damage through the escape of its cargo of crude oil. AST asserted as a preliminary issue, that RP had become liable for that damage. RP’s wholly owned subsidiary ROIL was the charterer, argued . .
Cited – CNA CGM S A v Classica Shipping Company Ltd ComC 27-Mar-2003
. .
Cited – CMA CGM Sa v Classica Shipping Co Ltd ‘The CMA Djakarta’ CA 12-Feb-2004
The charterers were held liable to the shippers for the cost of repairing the vessel when containers containing bleach exploded. The charterers had established a compensation limitation fund in France.
Held: The liability of the charterers was . .
Cited – Sir John Jackson Ltd v Owners of Steamship ‘Blanche’ and Others HL 28-Feb-1908
Charterers by demise are ‘owners’ within the meaning of section 3 of the Merchant Shipping Act 1894, and can, therefore, under that section, claim the benefit of limitation of liability, conferred by sections 503 and 504, in respect of loss or . .
Cited – James Buchanan and Co Ltd v Babco Forwarding and Shipping (UK) Ltd HL 1978
A consignment of whisky was stolen whilst on consignemt from a bonded warehouse under CMR terms for Teheran. In bond, it was worth 7,000 pounds, and on export no excise duty was to be paid. Being stolen in the course of transit, excise duty of . .
Cited – Bradburn v Great Western Rail Co CEC 1874
The plaintiff had received a sum of money from a private insurer to compensate him for lost income as a result of an accident caused by the negligence of the defendant.
Held: He was entitled to full damages as well as the payment from the . .
Cited – Co-Operative Retail Services Limited and others v Taylor Young Partnership and others HL 25-Apr-2002
Whilst a substantial new building was being constructed, it was damaged by fire caused by the negligence of several contractors. The case concerned apportionment of liability.
Held: The appeal failed. The parties could by agreement vary the . .
Cited – The Winkfield 1902
A bailee in possession has a right to recover for loss or damage to his bailor’s goods even though he would have had a good defence to an action by the bailor. . .
Cited – Dunlop v Lambert HL 16-Jun-1839
A cargo of whisky was lost in carriage by sea between Leith and Newcastle. A second shipment was made and the loss was claimed. The House was asked whether ‘in a question between a carrier and the person to whom the carrier is responsible in the . .
Cited – King v Bristow Helicopters Ltd; Morris v KLM Royal Dutch Airlines HL 28-Feb-2002
Psychiatric Injury under Warsaw Convention
The applicants were passengers who claimed damages for psychiatric injury, after accidents in aircraft.
Held: The Convention created strict liability on air carriers, but explicitly restricted damages to be payable for ‘bodily injury’. That . .
Cited – Co-operative Retail Services Ltd v Taylor Young Partnership, Hoare Lea and Partners (a Firm) and Others CA 4-Jul-2000
A building owner entered into a standard form of building contract for the construction of office premises. Under its terms the contractor was required to take out and maintain a policy in the names of the owner, the contractor and specialist . .
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
Cited – Fothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
Cited – Hopewell Project Management Ltd v Ewbank Preece Ltd 1998
Recorder Jackson QC described as nonsensical if parties who were jointly insured under a contractors’ all risks policy could make claims against one another in respect of damage to the contract works. . .
Cited – Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .
Cited – Mark Rowlands v Berni Inns Ltd CA 1985
The plaintiff owned the freehold and had let the basement to the defendant. The plaintiff insured the building. The defendant covenanted to pay to the plaintiff an insurance rent equal to the proportionate cost of insuring the part of the building . .
Cited – Petrofina (UK) Ltd v Magnaload Ltd 1983
A finding of double insurance requires the same insured to be covered in respect of the same property against the same risks.
Lloyd J held that: ‘a head contractor ought to be able to insure the entire contract works in his own name and the . .
Cited – Darlington Borough Council v Wiltshier Northern Ltd CA 28-Jun-1994
The plaintiff council complained of the work done for it by the defendant builder.
Held: Steyn LJ said: ‘in the case of a building contract, the prima facie rule is cost of cure, i.e., the cost of remedying the defect: East Ham Corporation v. . .
Cited – Tate Gallery (Board of Trustees of) v Duffy Construction Ltd and Another TCC 15-Feb-2007
. .
Cited – Liverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .
Cited – Herrmann and Another v Withers Llp Admn 30-May-2012
. .
Cited – Glory Wealth Shipping Pte Ltd v Korea Line Corporation ComC 14-Jul-2011
(‘The Wren’) Appeal against arbitrator’s award finding repudiatory breach of charterparty. . .
Cited – Koch Marine Inc v D’Amica Societa Di Navigazione ARL (The Elena d’Amico) QBD 1980
The ship owners wrongfully repudiated a charterparty in March 1973, 14 months after its inception. The charterers did not hire a substitute but claimed damages for the loss of profits they would have made between January and April 1974, during which . .
Cited – Zodiac Maritime Agencies Ltd v Fortescue Metals Group Ltd ComC 28-Apr-2010
The Kildare . .
Cited – Hussey v Eels CA 1990
Profits made on development were not deductible
The purchasers of a property for a price of 53,250 pounds had relied on a negligent misrepresentation that the property had not been the subject of subsidence. In fact it had. The cost of the required works was 17,000 pounds, which they could not . .
Cited – Palatine Graphic Arts Co Ltd v Liverpool City Council CA 1985
The defendant local authority agreed to pay for the plaintiff’s premises in Liverpool at the price which would have been payable if the acquisition had been by way of compulsory purchase. The major part of the price constituted compensation for . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 16 August 2022; Ref: scu.582171

Lavarack v Woods of Colchester Ltd: CA 19 Jul 1966

The plaintiff had been wrongly dismissed. He came to be employed by Martindale at a lower salary, and bought shares in Martindale and Ventilation which increased in value.
Held: The new salary and the increase in the value of the Martindale shares were brought to account when assessing damages, but not the increase in the value of the Ventilation shares, on the ground that that benefit was not a direct result of the dismissal but was an ‘entirely collateral benefit’.
When looking at the damages to be awarded on a breach of contract by an employer, ‘the first task is to estimate . . what the Plaintiff would have gained . . if the defendant had fulfilled his legal obligation and had done no more.’
‘Martindale stands on a little different footing. His salary of pounds 1,500 was very low for a man of his ability: and it looks as if he was getting, in addition, a concealed remuneration by a profit on his shares in the company. In the course of the argument Russell LJ worked out the estimated improvement in his equity over the period from August, 1964, to March, 1967, in so far as it was due to his work. It comes to pounds 2,066. I think that the plaintiff should give credit for that figure in addition to the actual earnings of pounds 3,717 9s. 2d.’
The employment relationship does not give rise to any promise that an employee will receive any salary increases or even be considered for salary increases.
Diplock LJ qualified the principle that where the defendant in breach has the option of performing a contract in alternative ways, damages for breach by him must be assessed on the assumption that he will perform in the way most beneficial to himself and not in that most beneficial to the plaintiff, by stating that one ‘must not assume that [the defendant] will cut off his nose to spite his face and to control events so as to reduce his legal obligations to the plaintiff by incurring greater loss in other respects’.
Russell LJ said: ‘Finally, there is the question whether any and what deduction should be made from the damage suffered on account not only of his salary earned and expected in the period from Martindale, but also on account of the undoubted fact that the expenditure of the time released to him by the wrongful dismissal has enabled him by his work and management during that time to enhance the value of the half interest in Martindale that he bought for pounds 1,500 shortly after his dismissal. I agree that account should be taken of this, though of necessity a fairly high degree of estimation is involved. The master held that in all the circumstances it was reasonable that the plaintiff should go into Martindale on the terms on which he did, rather than hawk his services around. One of the reasons for saying that it was reasonable is that avowedly the plaintiff was hoping to gain in part by improving by his own efforts the value of his holding as well as, in other part, by a relatively low salary. To the extent that this hope has been fulfilled in the relevant 2? years, it seems right to set it against his loss of salary from the defendants. As to the method of assessment of the extent to which his released time has contributed to the increase in value of his interest, the following calculation leads to the figure of pounds 7,768 mentioned by the Master of the Rolls’
Russell LJ continued: ‘I turn to the question of Ventilation and the plaintiff’s investment therein. I can see no justification for considering this investment as of any relevance to the damage occasioned by the wrongful dismissal. It was an investment of money and nothing more. Its profitability or otherwise cannot be attributed to his release from his obligation to devote his time to the service of the defendants; because such minimal time as he devoted to the affairs of Ventilation cannot seriously be regarded as having been made available to him by his dismissal. It is of course true that during his employment he was barred from such investment in a company carrying on this particular type of business, which is in France in competition with the defendants. But that does not suffice to entitle the defendants to set off any improvement in the value of the plaintiff’s shareholding against his loss of salary and bonus. It is simply a question of turning his private money or credit to account and not his time and work. It is no different from an investment which he could have made during his continued service.’

Judges:

Lord Denning MR, Diplock LJ, Russell LJ

Citations:

[1966] 3 All ER 683, [1967] 1 QB 278, 1 KIR 312, [1966] 3 WLR 706, [1966] EWCA Civ 4

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust QBD 31-Jul-2009
The claimant, a consultant surgeon had been subject to disciplinary proceedings by his employer. They were however conducted in a manner which breached his contract. The GMC had summarily dismissed the same allegations. The claimant now appealed . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel SAU (Formerly Travelplan SAU) of Spain ComC 21-May-2014
The former owners of the ‘New Flameno’ appealed from an arbitration award. A charter of the vessel had been repudiated with two years left to run. The owners chose to sell. They made a substantial profit over the price they would have received after . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel Sau CA 21-Dec-2015
The charter of the ship ‘New Flameno’ was repudiated two years early. The owners sold it, making rather more profit than they would have if sold after the end of the term. The court was now asked how the profit should affect the loss claim on the . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract, Damages

Updated: 16 August 2022; Ref: scu.416163

Glory Wealth Shipping Pte Ltd v Korea Line Corporation: ComC 14 Jul 2011

(‘The Wren’) Appeal against arbitrator’s award finding repudiatory breach of charterparty.

Judges:

Blair J

Citations:

[2011] EWHC 1819 (Comm), [2011] 2 Lloyd’s Rep 370

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 16 August 2022; Ref: scu.441825

Horwood and Others v Land of Leather Ltd and Others: ComC 18 Mar 2010

The claimants sought to claim for personal injuries against the defendant company, now in administration, and their insurers using the 1930 Act. The insurers said they were not liable to indemnify the company. The parties disputed the standing of an agreement with the third party manufacturers to settle the claim.
Held: Despite any unwelcome result, the settlement agreement was clear and enforceable. Where a promisee has in fact conferred a benefit (factual or practical) on the promisor by performing the original contract, then the requirement of consideration is satisfied and there is no reason not to enforce the promise, if the other requirements for its enforceability are met.

Judges:

Teare J

Citations:

[2010] EWHC 546 (Comm), [2010] Lloyd’s Rep IR 453, [2010] 1 CLC 423

Links:

Bailii

Statutes:

Third Parties (Rights Against Insurers) Act 1930

Citing:

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 – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Williams v Roffey Brothers and Nicholls (Contractors) Ltd CA 23-Nov-1989
The defendant subcontracted some of its work under a building contract to the plaintiff at a price which left him in financial difficulty and there was a risk that the work would not be completed by the plaintiff. The defendant agreed to make . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
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 – Pratt v Aigaion Insurance Company SA (‘the Resolute’) CA 27-Nov-2008
The court considered the interpretation of a term in a contract of insurance to the effect that ‘Warranted Owner and/or Owner’s experienced skipper on board and in charge at all times and one experienced crew member.’, asking whether ‘at all times’ . .
Cited – Commercial Union Assurance v Lister CA 1874
The insured had taken out insurance with the plaintiff, but had undervalued it. It burned down due to the negligence of a third party.
Held: The insured was entitled to sue for the entire sum in his own name and as he thought fit, but would . .

Cited by:

Cited – Parties Named In Schedule A v Dresdner Kleinwort Ltd and Another QBD 28-May-2010
The defendant merchant banks resisted two group claims for annual bonuses for 2008 made by the employee claimants. They now sought summary judgment against the claims. The employer had declared a guaranteed minimum bonus pool available to make the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Personal Injury, Contract

Updated: 15 August 2022; Ref: scu.403360

Ostfriesische Volksbank Eg v Fortis Bank: ComC 29 Jan 2010

Claim for 1 million Euros pursuant to an Advance Payment Guarantee given by the defendant bank in respect of the liability of Madenci Gemi Sanayi Ltd Sti, a Turkish company, to repay monies paid in advance to the builder for the construction of a vessel under a Shipbuilding Contract.

Judges:

Burton J

Citations:

[2010] EWHC 361 (Comm), [2010] 2 All ER (Comm) 921

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 15 August 2022; Ref: scu.402963

Cleveland Bridge UK Ltd and Another v Multiplex Constructions (UK) Ltd: CA 19 Feb 2010

Citations:

[2010] EWCA Civ 139

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Cleveland Bridge UK Ltd v Multiplex Constructions (UK) Ltd TCC 31-Aug-2005
A third party television company sought access to the particulars of claim and other pleadings.
Held: HH Judge Wilcox said: ‘There can be no legitimate distinction drawn between decisions made in interlocutory proceedings and those at final . .
See Also – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd TCC 5-Jun-2006
. .
See Also – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another CA 20-Dec-2006
. .
See Also – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd (No. 2) TCC 31-Jan-2007
. .
See Also – Multiplex Construction (Uk) Ltd v Honeywell Control Systems Ltd TCC 8-Feb-2007
Application for permission to appeal. Jackson J considered whether permission to appeal should have been requested at the hearing: ‘It seems to me that I have got to interpret the provisions of Rule 52.3 and the provisions of the Practice Direction . .
See Also – Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No. 2) TCC 6-Mar-2007
. .
See Also – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd (No 3) TCC 12-Mar-2007
. .
See Also – Cleveland Bridge UK Ltd and Another v Multiplex Constructions (UK) Ltd CA 27-Apr-2007
The court construed an agreement supplemental to a construction contract. . .
See Also – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another CA 21-Dec-2007
. .
See Also – Multiplex Construction Ltd v Cleveland Bridge Ltd and Another CA 6-Feb-2008
. .
See Also – Multiplex Construction (Uk) Ltd v Cleveland Bridge UK Ltd and Another TCC 7-Feb-2008
. .
See Also – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another TCC 19-Mar-2008
. .
See Also – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another TCC 29-Sep-2008
. .
See Also – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another (No 7) TCC 29-Sep-2008
Last stage of the Wembley stadium construction dispute. Jackson J, interpreting Carver said that it set out: ‘how the court ought to approach the matter in circumstances where: (a) one party has made an offer which was nearly but not quite . .

Cited by:

See Also – Cleveland Bridge Uk Ltd and Another v Multiplex Constructions (UK) Ltd CA 31-Mar-2010
. .
Lists of cited by and citing cases may be incomplete.

Construction, Contract

Updated: 15 August 2022; Ref: scu.402941

J Jarvis and Sons Plc v Galliard Homes Ltd: CA 12 Nov 1999

Citations:

[1999] EWHC 277 (TCC), (1999) 71 Con LR 219

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – RTS Flexible Systems Ltd v Molkerei Alois Muller Gmbh and Company Kg (UK Production) SC 10-Mar-2010
The parties had reached agreement in outline and sought to have the contract formalised, but went ahead anyway. They now disputed whether an agreement had been created and as to its terms if so.
Held: It was unrealistic to suggest that no . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 15 August 2022; Ref: scu.402974

Debt Collection London Ltd and Another v SK Slavia Praha-Fotbal AS: QBD 3 Nov 2009

The claimants sought repayment of sums said to have been advanced to the defendant as loans. The defendant requested a declaration that the court had no jurisdiction, the Czech court being first seized of a dispute between the parties.

Judges:

Tugendhat J

Citations:

[2009] EWHC 2726 (QB), [2010] 1 All ER (Comm) 902, [2009] 2 CLC 688, [2010] ILPr 7

Links:

Bailii

Statutes:

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Regulation No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters

Jurisdiction:

England and Wales

Contract, Jurisdiction

Updated: 15 August 2022; Ref: scu.377360

Koch Marine Inc v D’Amica Societa Di Navigazione ARL (The Elena d’Amico): QBD 1980

The ship owners wrongfully repudiated a charterparty in March 1973, 14 months after its inception. The charterers did not hire a substitute but claimed damages for the loss of profits they would have made between January and April 1974, during which period there was a substantial rise in market rates.
Held: The standard measure in an available market, was for damages to be assessed on the difference between the contract and market rates for the remaining charter period; but a plaintiff could recover damages beyond the normal measure if those damages fell within ‘the principle in Hadley v Baxendale’. In this case there was no causative link between the owners’ breach of contract and the charterers’ decision not to take advantage of the available market. The owners’ decision was independent of the wrongdoing that had taken place, and, for that reason, there was no warrant for departing from the prima facie measure. The court set out three heads of mitigation of damages, namely non-recovery for avoidable loss; recovery for loss incurred in reasonable attempts to avoid loss; and non-recovery for avoided loss.
Goff said: ‘these three aspects of mitigation are all really aspects of a wider principle which is that, subject to the rules of remoteness, the plaintiff can recover, but can only recover, in respect of damage suffered by him which has been caused by the defendant’s legal wrong. In other words, they are aspects of the principle of causation’.

Judges:

Robert Goff J

Citations:

[1980] 1 Lloyd’s Rep 75

Jurisdiction:

England and Wales

Cited by:

Cited – Lagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
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, . .
Cited – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel Sau CA 21-Dec-2015
The charter of the ship ‘New Flameno’ was repudiated two years early. The owners sold it, making rather more profit than they would have if sold after the end of the term. The court was now asked how the profit should affect the loss claim on the . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 15 August 2022; Ref: scu.188658

Montrod Ltd v Grundkotter Fleischvertriebs GmbH: CA 20 Dec 2001

A beneficiary under a letter of credit does not owe a duty of care to the applicant (not the buyer) in presenting documents under the letter of credit.

Citations:

[2002] 1 WLR 1975, [2001] EWCA Civ 1954, [2002] 3 All ER 697, [2002] 1 All ER (Comm) 257, [2002] CLC 499

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
Cited – OBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Lists of cited by and citing cases may be incomplete.

Contract, Commercial

Updated: 15 August 2022; Ref: scu.187083

AL Dawood Shipping Lines Ltd v Dynastic Maritime Inc: CA 19 Feb 2010

By a charterparty on the BPTime 3 form with additions, the respondent time chartered the vessel to the appellant for a period of one year. In the action, the respondent claimed unpaid hire and damages of over US$3 million for wrongful repudiation of the charter by the appellant. The appellant counterclaimed damages for breach of an express warranty by the respondents concerning the vessel’s International Oil Pollution Prevention Certificate.

Judges:

Pill, Etherton, Aikens LJJ

Citations:

[2010] EWCA Civ 104

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Transport

Updated: 14 August 2022; Ref: scu.401675

Markerstudy Insurance Company Ltd and Others v Endsleigh Insurance Services Ltd: ComC 18 Feb 2010

The claimant insurers alleged the mishandling of insurance claims by the defendant of many claims leading to substantial losses. The parties asked the court to determine a basis for calculation of damages under the contract.
Held: A similar clause had been discussed in BHP, and the claims were not excluded.

Judges:

David Steel J

Citations:

[2010] EWHC 281 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
Discussed – BHP Petroleum Ltd and Others v British Steel Plc and Another ComC 5-Jul-1999
There was a contract for the supply of steel for a pipeline. It excluded liability for ‘loss of production, loss of profits, loss of business or any other indirect losses or consequential damages’
Held: Rix J referred to as a conundrum by the . .
Cited – Ferryways Nv v Associated British Ports ComC 14-Feb-2008
The court considered the effect of an exclusion from liability reading: ‘Exclusion and Limitations of Liability . . (c) Where the Company is in breach of its obligations in respect of the Services or under any Contract or any duties it may have as . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 14 August 2022; Ref: scu.401648

Venture North Sea Gas Ltd v Nuon Exploration and Production UK Ltd: Comc 10 Feb 2010

Application for specific performance of contract.

Judges:

Gross J

Citations:

[2010] EWHC 204 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 14 August 2022; Ref: scu.396727