Category: Contract

Kolmar Group Ag v Traxpo Enterprises Pvt Ltd: ComC 1 Feb 2010

The claimant sought damages in contract alleging economic duress. They said that at a late stage, when the defendant knew of the urgent needs of the caimant, he imposed an exorbitant change of price.
Held: The claim succeeded. The pressure applied to secure the price increase was illegitimate.

Judges:

Christopher Clarke J

Citations:

[2010] EWHC 113 (Comm)

Links:

Bailii

Citing:

Cited – DSND Subsea Ltd v Petroleum Geo Services Asa TCC 28-Jul-2000
Dyson J set out the principles applicable in establishing a pleading of commercial duress:
(i) Economic pressure can amount to duress, provided it may be characterised as illegitimate and has constituted a ‘but for’ cause inducing the claimant . .
Cited – Pavia and Co SPA v Thurmann-Nielsen CA 1952
In cif contracts the credit must be opened at the latest at the beginning of the shipment period. The seller is entitled, before he ships the goods to be assured that when he does so, he will get paid. . .
Cited – Ian Stach v Baker Bosley Ltd 1958
The parties contracted for the sale of ship plates fob Benelux port for shipment to Canada in August-September 1956 with payment to be by confirmed irrevocable credit. The buyers failed to open the credit either by August 1st or by August 8th when . .
Cited – Kronos Worldwide Limited v Sempra Oil Trading S A R L CA 23-Jan-2004
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 13 August 2022; Ref: scu.396473

Blue Sky One Ltd and Others v Blue Airways Llc and Others: ComC 1 Feb 2010

The court gave reasons for holding one defendant in contempt, and debarring them from taking part, having failed to comply with a grounding order for one of the aircraft at issue.

Judges:

Beatson J

Citations:

[2010] EWHC 128 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Contract, Contempt of Court

Updated: 13 August 2022; Ref: scu.396472

Huyton SA v Peter Cremer Gmbh and Co: ComC 21 Oct 1998

Mance J discussed the law of economic duress saying it was established law that economic pressure could amount to duress and referred to two basic ingredients for duress of that character. He identified those ingredients as first, ‘illegitimate pressure by one party’, and secondly the requirement that this should be ‘a significant cause inducing the other party to act as he did’.

Judges:

Mance J

Citations:

[1998] EWHC 1208 (Comm), [1999] 1 Lloyds Rep 620

Links:

Bailii

Cited by:

Cited – Progress Bulk Carriers Ltd v Tube City IMS Llc ComC 17-Feb-2012
The claimant sought to set aside an arbitration saying that the arbitrator had misapplied the test for economic duress. . .
Cited – DSND Subsea Ltd v Petroleum Geo Services Asa TCC 28-Jul-2000
Dyson J set out the principles applicable in establishing a pleading of commercial duress:
(i) Economic pressure can amount to duress, provided it may be characterised as illegitimate and has constituted a ‘but for’ cause inducing the claimant . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 13 August 2022; Ref: scu.396474

DSND Subsea Ltd v Petroleum Geo Services Asa: TCC 28 Jul 2000

Dyson J set out the principles applicable in establishing a pleading of commercial duress:
(i) Economic pressure can amount to duress, provided it may be characterised as illegitimate and has constituted a ‘but for’ cause inducing the claimant to enter into the relevant contract or to make a payment. See Mance J in S.L. Huyton S.A. v Peter Cremer GmbH and Co [1999] 1 Lloyds Rep 620;
(ii) a threat to break a contract will generally be regarded as illegitimate, particularly where the defendant must know that it would be in breach of contract if the threat were implemented;
(iii) it is relevant to consider whether the claimant had a ‘real choice’ or ‘realistic alternative’ and could, if it had wished, equally well have resisted the pressure and, for example, pursued practical and effective legal redress. If there was no reasonable alternative, that may be very strong evidence in support of a conclusion that the victim of the duress was in fact influenced by the threat.
(iv) the presence, or absence, of protest, may be of some relevance when considering whether the threat had coercive effect. But, even the total absence of protest does not mean that the payment was voluntary.
More generally: ‘there must be pressure, (a) whose practical effect is that there is compulsion on, or lack of practical choice for, the victim; (b) which is illegitimate; and (c) which is a significant cause inducing the claimant to enter into the contract: see Universal Tankships Inc of Monrovia v. International Transport Workers’ Federation [1983] 1 AC 366 at 400B-E and Dimskal Shipping Co SA v. International Transport Workers’ Federation [1992] 2 AC 152 at 165 G. In determining whether there has been illegitimate pressure, the Court takes into account a range of factors. These include whether there has been an actual or threatened breach of contract; whether the person allegedly exerting the pressure has acted in good or bad faith; whether the victim had any realistic practical alternative but to submit to the pressure; whether the victim protested at the time; and whether he affirmed and sought to rely on the contract. These are all relevant factors. Illegitimate pressure must be distinguished from the rough and tumble of the pressures of normal commercial bargaining.’
and ‘The ingredients of actionable duress are that there must be pressure, (a) whose practical effect is that there is compulsion on, or a lack of practical choice for, the victim, (b) which is illegitimate, and (c) which is a significant cause inducing the claimant to enter into the contract: see Universal Tanking of Monrovia v. ITWF [1983] AC 336, 400 B-E, and The Evia Luck [1992] 2AC 152, 165 G. In determining whether there has been illegitimate pressure, the court takes into account a range of factors. These include whether there has been an actual or threatened breach of contract; whether the person allegedly exerting the pressure has acted in good or bad faith; whether the victim had any realistic practical alternative but to submit to the pressure; whether the victim protested at the time; and whether he confirmed and sought to rely on the contract. These are all relevant factors. Illegitimate pressure must be distinguished from the rough and tumble of the pressures of normal commercial bargaining.’

Judges:

Dyson J

Citations:

[2000] EWHC 185 (TCC), [2001] BLR 23, [2000] BLR 530

Links:

Bailii

Citing:

Cited – Universe Tankships Inc of Monrovia v International Transport Workers Federation HL 1-Apr-1981
A ship belonging to the appellants had been blacked by the defendant union. Negotiations to clear the threat resulted in payment by the appellants to a welfare fund of the defendant. The company sought its refund saying that it had been paid under . .
Cited – Dimskal Shipping Co SA v International Transport Workers Federation (‘The Evia Luck’) HL 1991
The Plaintiff shipowners had been induced by industrial action against a vessel in Sweden, which actions would be lawful under Swedish law, to undertake to enter into written agreements with the ITF under which, inter alia, more generous agreements . .
Cited – Huyton SA v Peter Cremer Gmbh and Co ComC 21-Oct-1998
Mance J discussed the law of economic duress saying it was established law that economic pressure could amount to duress and referred to two basic ingredients for duress of that character. He identified those ingredients as first, ‘illegitimate . .

Cited by:

Cited – Kolmar Group Ag v Traxpo Enterprises Pvt Ltd ComC 1-Feb-2010
The claimant sought damages in contract alleging economic duress. They said that at a late stage, when the defendant knew of the urgent needs of the caimant, he imposed an exorbitant change of price.
Held: The claim succeeded. The pressure . .
Cited – Adam Opel Gmbh and Another v Mitras Automotive (UK) Ltd QBD 18-Dec-2007
The parties had agreed for the supply of automotive parts by the defendant to the claimant under a sole supply arrangement. None were in fact ordered for the first few years. The manufacturer then changed its design and made a new arrangement with a . .
Approved – Carillion Construction Ltd v Felix (UK) Ltd 2001
. .
Cited – Progress Bulk Carriers Ltd v Tube City IMS Llc ComC 17-Feb-2012
The claimant sought to set aside an arbitration saying that the arbitrator had misapplied the test for economic duress. . .
Cited – Farm Assist Ltd v Secretary of State for Environment Food and Rural Affairs TCC 12-Dec-2008
The claimant, now in liquidation, sought to have set aside for economic duress the mediated settlement of its dispute with the defendant. The defendant sought disclosure of legal and similar advice given to the claimant.
Held: Paragon Finance . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 13 August 2022; Ref: scu.396476

Nahome and Others v Last Cawthra Feather Solicitors: ChD 29 Jan 2010

The claimants said that the defendant firm of solicitors had acted negligently and in breach of contract in failing to secure the renewal of their business lease. A notice had omitted the word ‘not, and falsely indicated that possession would be granted. Liability having been entered the parties now disputed the damages to be awarded.

Judges:

David Cooke HHJ

Citations:

[2010] EWHC 76 (Ch), [2010] PNLR 19,

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Professional Negligence, Damages

Updated: 13 August 2022; Ref: scu.396452

Fitzroy Robinson Ltd v Mentmore Towers Ltd: TCC 21 Dec 2009

Claim by architects for professional fees, with cross allegations and claims of fraudulent misrepresentation. The main issues having been resolved the court now considered the quantum of damages.

Judges:

Coulson J

Citations:

[2009] EWHC 3365 (TCC), [2010] BLR 165, 128 Con LR 103

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Fitzroy Robinson Ltd v Mentmore Towers Ltd TCC 7-Jul-2009
. .

Cited by:

See Also – Fitzroy Robinson Ltd v Mentmore Towers Ltd TCC 26-Jan-2010
. .
Lists of cited by and citing cases may be incomplete.

Damages, Contract, Torts – Other

Updated: 13 August 2022; Ref: scu.393362

Royal Bank of Scotland Plc v Carlyle: SCS 13 Jan 2010

The bank sought repayment of a loan to the defender, who replied saying that the Bank had promised additional funding without which he suffered losses.

Judges:

Lord Glennie

Citations:

[2010] ScotCS CSOH – 3

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

See Also – Royal Bank of Scotland Plc v Carlyle SCS 6-Aug-2010
(Outer House) . .
See Also – Royal Bank of Scotland Plc v Carlyle SCS 12-Sep-2013
. .
At Outer House – Carlyle (Scotland) v Royal Bank of Scotland Plc SC 11-Mar-2015
Assessing Whether 1st Judge was Plainly Wrong
The Court was asked whether, on an objective assessment of a what a developer and the bank had said to each other, the bank intended to enter into a legally binding promise to advance sums in the future to fund not only the developers purchase of . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking

Updated: 13 August 2022; Ref: scu.393046

AON Ltd v JCT Reinsurance Brokers Ltd and Others: QBD 7 Oct 2009

The claimant said that the defendant had encouraged a team of its workers to break their contracts and to leave to work with the defendants.

Judges:

MacKay J

Citations:

[2009] EWHC 3448 (QB), [2010] IRLR 600

Links:

Bailii

Citing:

Cited – Nottingham Building Society v Eurodynamics Systems plc 1993
The court laid down tests for the granting of mandatory interim injunctions. The court should consider whether there was a high degree of confidence that the applicant would succeed in establishing his right at trial. The higher that confidence, the . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other, Employment

Updated: 13 August 2022; Ref: scu.393026

Supershield Ltd v Siemens Building Technologies Fe Ltd: CA 20 Jan 2010

A valve had failed causing a flood and damage. The defendant contractor appealed against a finding that it was responsible under the contract for the installation of the valve.

Judges:

Mummery, Richards, Toulson LJJ

Citations:

[2010] EWCA Civ 7, (2010) 129 Con LR 5, [2010] BLR 145, [2010] 1 CLC 241, [2010] NPC 5, [2010] 1 Lloyd’s Rep 349

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Negligence

Updated: 13 August 2022; Ref: scu.393018

Nottingham Patent Brick Co v Butler: 1886

A solicitor stated that he was not aware that property was subject to any restrictions, but his failure to add that he had not read the relevant deeds made his statement a misrepresentation.

Citations:

(1886) 16 QBD 778

Jurisdiction:

England and Wales

Cited by:

Cited – Spice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .
Lists of cited by and citing cases may be incomplete.

Contract, Legal Professions

Updated: 13 August 2022; Ref: scu.194207

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 ‘full market value’ were to be construed as meaning what they said. Considerations which might be relevant to market value were not to be ignored unless there were express words to that effect. Decree was pronounced in terms of the conclusion to the landlords’ counterclaim, to the effect that the contract resulting from the exercise of the option clause had been rescinded, the option was spent and it could not be exercised during the remaining term of the lease.

Judges:

Lords Carloway and Hardie and Sir David Edward QC

Citations:

[2009] ScotCS CSIH – 96, 2010 SC 302

Links:

Bailii

Citing:

Appeal From – 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 . .

Cited by:

Appeal from – 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: . .
Cited – Royal Bank of Scotland Plc v Wilson and Another SC 24-Nov-2010
(Scotland) Neighbours had each granted a standard security over their respective properties to the bank. The charge agreements contained personal covenants to repay the sums borrowed on demand. The land-owners appealed against an order for . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract

Updated: 11 August 2022; Ref: scu.392560

Cooper v National Westminster Bank Plc: QBD 7 Dec 2009

Judges:

Richard Seymour QC

Citations:

[2009] EWHC 3035 (QB), [2010] 1 Lloyd’s Rep 490

Links:

Bailii

Jurisdiction:

England and Wales

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.

Banking, Contract

Updated: 11 August 2022; Ref: scu.384159

Carmichael and Another v National Power Plc: HL 24 Jun 1999

Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence between the parties in March 1989 constituted a contract, which was to be classified as a contract of employment. The industrial tribunal rejected this case and found that, when not working as guides, the claimants were not in any contractual relationship with the respondent. The tribunal made this finding on the basis of: (a) the language of the correspondence; (b) the way in which the relationship had operated; and (c) evidence of the parties as to their understanding of it.
Held: The approach had been correct.
Staff who worked only as and when required, and who then had the right to turn down work offered were not employees and were not therefore entitled to written particulars of employment. The absence of mutuality and the discontinuity of any contractual relationship in between occasions when work was offered showed that the parties had not understood it as a relationship of continuous employment. Unless the parties to an agreement had agreed that a document or series of documents was intended to constitute an exclusive record of their agreement, any question arising as to the nature or terms of the contract was a question of fact, to be determined upon consideration of all the evidence, including written documents, oral statements and conduct.
Lord Hoffmann said: ‘The evidence of a party as to what terms he understood to have been agreed is some evidence tending to show that those terms, in an objective sense, were agreed. Of course the tribunal may reject such evidence and conclude that the party misunderstood the effect of what was being said and done.’
Lord Irvine of Lairg LC said: ‘it would only be appropriate to determine the issue in these cases solely by reference to the documents in March 1989, if it appeared from their own terms and/or from what the parties said or did then, or subsequently, that they intended them to constitute an exclusive memorial of their relationship. The industrial tribunal must be taken to have decided that they were not so intended but constituted one, albeit important, relevant source of material from which they were entitled to infer the parties’ true intention’

Judges:

Lord Chancellor Lord Goff of Chieveley Lord Jauncey of Tullichettle Lord Browne-Wilkinson Lord Hoffmann

Citations:

Times 23-Nov-1999, Gazette 01-Dec-1999, Gazette 17-Dec-1999, [1999] 4 All ER 897, [1999] UKHL 47, [1999] 1 WLR 2042, [2000] IRLR 43, [1999] ICR 1226

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Carmichael and Lesse v National Power Plc CA 29-Jan-1997
Casual workers employed under ‘nil hours’ relationship still had a contract of employment and the appropriate and associated rights. A court was fully able to determine the terms of the contract. . .
Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
Cited – Nethermere (St Neots) Ltd v Taverna and Gardiner CA 1984
The court considered what elements must be present to create a contract of employment.
Held: Stephenson LJ said: ‘There must . . be an irreducible minimum of obligation on each side to create a contract of service.’
Kerr LJ said: ‘The . .
Cited – Moore v Garwood CEC 1849
The plaintiff sued to recover a deposit which he had paid in 1845, at the height of the great Victorian railway boom, for shares in a proposed railway company. The scheme was afterwards abandoned and the company never incorporated. Whether he was . .
Cited – Moore v Garwood CEC 1849
The plaintiff sued to recover a deposit which he had paid in 1845, at the height of the great Victorian railway boom, for shares in a proposed railway company. The scheme was afterwards abandoned and the company never incorporated. Whether he was . .
Cited – Davies v Presbyterian Church of Wales HL 1986
A minister of the Presbyterian Church of Wales who had been inducted pastor of a united pastorate in Wales claimed unfair dismissal.
Held: If the existence or otherwise of the relationship of employer and employee is dependent solely upon the . .
At EAT – Carmichael and Another v National Power Plc EAT 25-Apr-1996
. .
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .

Cited by:

Cited – Raymond Franks v Reuters Limited, First Resort Employment Limited CA 10-Apr-2003
The appellant challenged the decision that he had not been an employee of the respondent. He had worked for them first through an agency, and come to be closer to them, but was still not paid sick pay. He complained that the tribunal had decided he . .
Cited – Montgomery v Johnson Underwood Ltd CA 9-Mar-2001
A worker who had strictly been employed by an agency but on a long term placement at a customer, claimed to have been unfairly dismissed by the customer when that placement ended.
Held: To see whether she was an employee the tribunal should . .
Cited – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
Cited – Esso Petroleum Company v Jarvis and others Brentvine Limited EAT 14-Nov-2001
The claimants had come to the employer through an agency. The issue now was whether they were the employees of the respondent. The employer said there was no mutuality of obligation, and therefore no contract, and no possible dismissal.
Held: . .
Cited – Dacas v Brook Street Bureau (UK) Ltd, Wandsworth London Borough Council EAT 12-Nov-2002
EAT Contract of Employment – Definition of Employee . .
Cited – Cable and Wireless Plc v Muscat CA 9-Mar-2006
The worker was employed via an employment agency. The contract the company had was with the agency, and the agency had the contract with the worker. The worker claimed an implied contract of employment with the end-user.
Held: The end-user . .
Cited – Lambden v Henley Rugby Football Club and Another EAT 29-May-2009
lambden_henlryrfcEAT2009
EAT CONTRACT OF EMPLOYMENT: Whether established
The Claimant was a part time Rugby Coach. The Employment Tribunal found that he had freely elected to be paid as an independent contractor though a limited . .
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
Cited – Thorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
Cited – Daventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .
Cited – Dresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .
Cited – Uber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 09 August 2022; Ref: scu.135112

Newlands v M’Kinlay: SCS 16 Dec 1885

In an action for payment of the balance of an account one of the entries in the account sued upon was a cash advance of pounds 300. The pursuer recovered from the defender, under a diligence against havers, a cash-book kept by him while manager of his father’s business (to which he had succeeded at the date of the action), containing this entry, ’13th July 1874. To Alexander M’Kinlay, per W. H. R., pounds 300.’ The pursuer then referred the constitution of the debt of pounds 300 to the defender’s oath. The defender deponed that the entry in the cash-book was made for the purpose of recording the receipt by him of pounds 300 from Newlands, the pursuer, on that day, and that the original entry had been ‘per W. N.’ over which he had superinduced the letters ‘W. H. R.’ The defender further deponed that the money had been repaid. Held (1) that the debt had not been proved scripto; (2) that the qualification of repayment was intrinsic of the defender’s oath. Defender assoilzied.

Judges:

Lord Trayner, Ordinary

Citations:

[1885] SLR 23 – 228

Links:

Bailii

Jurisdiction:

Scotland

Contract, Litigation Practice

Updated: 08 August 2022; Ref: scu.580403

Tex Services Ltd v Shibani Knitting Co Ltd: PC 10 Nov 2016

(Mauritius) Lord Mance approved, a submission by Counsel for Shibani, as follows, namely ‘the advantage which a trial judge enjoys in relation to matters of fact may be weakened by such a delay and that such delay calls for special care when reviewing the evidence which was before and the findings of fact which were made by the judge. But it is still for an appellant to pinpoint any particular findings of fact which may in the light of that review be open to question by reason of the delay’. In Tex, the case turned upon the construction of a contract and the case could be determined on the evidence and material before the Court without any need to consider a remission, of which neither party contended. In that sense Tex is different from the instant case where the essence of the submission of the Appellant is that the case does require remission.

Judges:

Lord Mance, Lord Wilson, Lord Carnwath, Lord Hughes, Lord Hodge

Citations:

[2016] UKPC 31

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – Nuttal and Another v Kerr and Another QBD 25-Jul-2019
The defendant sought to appeal from a judgment given only after a long delay.
Held: Permission to appeal was necessary, and given, but the appeal itself failed: ‘(1) There is no evidence of fault of the Judge at any or any material point other . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 08 August 2022; Ref: scu.571239

The Dorchester Group Ltd (T/A The Dorchester Collection) v Kier Construction Ltd: TCC 21 Oct 2015

The claimants, Dorchester, sought various declarations, accounts and determinations as to the amount of undeclared discounts which the defendants, Kier, obtained from their mechanical and electrical sub-contractors, Mitie, but which, contrary to the contract between Dorchester and Kier, they did not disclose or pass on to Dorchester.

Judges:

Coulson J

Citations:

[2015] EWHC 3051 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 08 August 2022; Ref: scu.554186

Community 1St Oldham (Chadderton) Ltd v Oldham Metropolitan Borough Council: TCC 14 May 2015

Community sought declarations as to various matters arising out of a Lease Plus Agreement under which the Chadderton Health and Well Being Centre a community centre with facilities including a swimming pool and a library, was provided to the Defendant.

Judges:

Sir Vivian Ramsey

Citations:

[2015] EWHC 1263 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Landlord and Tenant

Updated: 08 August 2022; Ref: scu.546823

Callisher v Bischoffsheim: 1870

The settlement of an ill-founded claim is nonetheless binding. However, that would not be the case where the claim was fraudulent. A forgoing of a bona fide but unfounded claim is good consideration for a payment made in settlement of it but not the forgoing of a fraudulent claim.
Cockburn CJ said: ‘It would be another matter if a person made a claim which he knew to be unfounded, and, by a compromise, derived an advantage under it: in that case his conduct would be fraudulent. If the plea had alleged that the plaintiff knew he had no real claim against the [defendant], that would have been an answer to the action.’

Judges:

Cockburn CJ, Blackburn, Mellor JJ

Citations:

(1870) LR 5 QB 449

Jurisdiction:

England and Wales

Cited by:

Cited – Hayward v Zurich Insurance Company Plc CA 31-Mar-2015
The claimant sought damages alleging his back had been injured at work. The insurers accepted liability but said that the claimant had exaggerated the extent of his injury. The claim was settled, but later a neighbour of the claimants said that the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 August 2022; Ref: scu.545144

Kucukkoylu v Ozcan: QBD 30 Jun 2014

The parties disputed entitlement to the proceeds of a winning Euromillions lottery ticket. The defendant had told the claimant that he had dreamed that the claimant would win the lottery. The defendant bought tickets for which the claimant paid in cash from the till at the restaurant he part owned. The claimant chose the numbers, but the defendant rewrote them on the tickets and took them to the shop.
Held: For the Defendant to succeed he would effectively have to prove that a contract existed with the Claimant for the purchase of a lottery ticket jointly and that the terms of the contract would give rise either expressly or impliedly to an equal share of the beneficial interest, in the form of the prize money. Though the witness evidence was generally unimpressive, there was objective evidence, and: ‘ the effect of these conversations was that the Claimant and Defendant entered into a contract to jointly play the lottery on an equal basis. I find that either it was a term of the contract that any winnings should be shared equally or alternatively that such a term should be implied. I find that this term represents the obvious, but unexpressed intention of the parties and that it is also necessary to give business efficacy to the contract. The whole point of playing the lottery jointly is to hopefully share the winnings jointly. The phrase ’50/50’ or ‘half and half’ both of which the Defendant repeated several times in his evidence were clearly intended to convey an equal right to the beneficial interest in any winnings. It follows from my findings of both fact and law that the Defendant succeeds in this case. There should be a declaration that the prize money from this winning lottery ticket should be shared equally between the Claimant and the Defendant.’

Judges:

Gosnell HHJ

Citations:

[2014] EWHC 1972 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 07 August 2022; Ref: scu.534044

Ex parte Mackay; Ex parte Brown; In re Jeavons: 1873

Mr Jeavons sold a patent regarding the manufacture of armour plates to a Brown and Co and Cammell and Co in consideration of the companies paying royalties. There was also a loan from the company to Mr Jeavons secured on the royalties. The parties agreed that (1) the companies would keep half the royalties towards satisfying the debt, and (2) in the event of Mr Jeavons’ bankruptcy, they could also keep the other half of the royalties until the debt had been fully paid.
Held: The first provision was valid, but the second was invalid.
James LJ said that provision (1) represented ‘a good charge upon one moiety of the royalties, because they are part of the property and effects of the bankrupt’, but provision (2) ‘is a clear attempt to evade the operation of the bankruptcy laws’ as it ‘provide[d] for a different distribution of his effects in the event of bankruptcy from that which the law provides’.
And
A person ‘is not allowed, by stipulation with a creditor, to provide for a different distribution of his effects in the event of bankruptcy from that which the law provides’
Mellish LJ said that the case fell within the principle that: ‘a person cannot make it a part of his contract that, in the event of bankruptcy, he is then to get some additional advantage which prevents the property being distributed under the bankruptcy laws’

Judges:

James, Mellish LJJ

Citations:

(1873) LR 8 Ch App 643

Jurisdiction:

England and Wales

Citing:

Cited – Higinbotham v Holme 6-May-1812
A settlement entered into disposing of property into a trust for himself and others when the donor was not endebted, but which provided that on his bankruptcy would pay an annuity to his wife, was void as against creditors on his later bankruptcy. . .

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 . .
Cited – British Eagle International Airlines Ltd v Compagnie National Air France HL 1975
British Eagle, which had gone into liquidation. The parties disputed a contract attempting to reset the ranking of debts. The House was asked whether there was a debt due to the insolvent company at the commencement of its winding-up, to which the . .
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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 07 August 2022; Ref: scu.442610

Celestial Aviation Trading 71 Ltd v Paramount Airways Private Ltd: ComC 4 Dec 2009

The claimant sought summary judgment for recovery of three aircraft (valued at US$36m each) leased to the defendant after non-payment of instalments. The defendant said that the default was based on a demand for supplementary rents which had not been invoiced.
Held: The agreement provided for the rents to be payable without demand. The other defences suggested by the defendant, with the exception that it might be granted relief from forfeiture, were hopeless. Subject to deciding speedily on relief, summary judgment would be granted.

Judges:

Teare J

Citations:

[2009] EWHC 3142 (Comm)

Links:

Bailii

Citing:

Cited – Holme And Another v Guppy And Another 1838
The plaintiffs, on the 19th April, 1836, entered into a written contract to build, for the sum of 1700l., a brewery for the defenclants, so far as regarded the carpenters’ work, within the space of four months and a half next ensuing the date (if . .
Cited – More Og Romsdal Fylkesbatar AS v The Demise Charterers of the Ship JUTUNHEIM ComC 2004
Relief against forfeiture under a lease agreement is available, ‘provided that the object of the transaction and of the insertion of the right to forfeit for non-payment of money is essentially to secure the payment of that money or is security for . .
Cited – Bank of Boston Connecticut v European Grain and Shipping Ltd (‘The Dominique’) CA 1987
. .
Cited – Shiloh Spinners Ltd v Harding HL 13-Dec-1972
A right of re-entry had been reserved in the lease on the assignment (and not on the initial grant) of a term of years in order to reinforce covenants (to support, fence and repair) which were taken for the benefit of other retained land of the . .
Cited – The Cape Hatteras 1982
. .
Cited – Bank of Boston Connecticut v European Grain and Shipping Ltd (‘The Dominique’) HL 1989
A shipping company and a shipper responsible for the freight disputed the effect of their contract. The ship was duly loaded with its cargo and set out for the voyage from India to Europe. The bills of lading were signed. When the ship called at . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 August 2022; Ref: scu.381768

Grant v Bragg and Another: CA 20 Oct 2009

The parties disputed the existence of an enforceable contract for the purchase of a shareholding in a company, and contained within a shareholder agreement.

Judges:

Lord Neuberger MR, Smih, Sullivan LJJ

Citations:

[2009] EWCA Civ 1228, [2010] 1 All ER (Comm) 1166

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Company

Updated: 07 August 2022; Ref: scu.381573

Tyrrell v Clark: 17 Jan 1854

The stat. 4 and 5 Will. 4, c. 22, requires, in order to exclude apportionment, either an express direction that there shall be none, or language so express in the terms of gift that apportionment is clearly impossible consistently with it. Inference from the whole tenor and context of the will is not sufficient to exclude the operation of the statute.
Sir R T Kindersley considered the meaning of an ‘express stipulation’ and how those words should be construed.

Judges:

Sir R T Kindersley

Citations:

[1854] EngR 116, (1854) 2 Drew 86, (1854) 61 ER 651

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Hartley and Others v King Edward VI College SC 24-May-2017
The teacher appellants challenged the quantification of deductions from their salaries after engaging in lawful strike days.
Held: The appeal as allowed. The correct approach under section 2 to a case like this, where the contract is an annual . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 August 2022; Ref: scu.292973

In re J Brown’s Estate: 1893

Chitty J considered whether a debt required a demand to have been made for it to become payable: ‘it is plain that a distinction has been taken and maintained in law, the result of which is that where there is a present debt and a promise to pay on demand, the demand is not considered to be a condition precedent to the bringing of an action. But it is otherwise on a promise to pay a collateral sum on request, for then the request ought to be made before action brought.’

Judges:

Chitty J

Citations:

[1893] 2 Ch 300

Jurisdiction:

England and Wales

Cited by:

Cited – TS and S Global Ltd v Fithian-Franks and others ChD 18-Jun-2007
Appeal against setting aside of statutory demand disputed as to amount of liability under contract.
Held: The guarantors’ liability under the guarantee was immediately payable by them, without the need for a demand, before service of the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 August 2022; Ref: scu.267646

In re A Company (No 005009 of 1987); Ex parte Copp: 1989

Knox J declined to look at evidence about an agreed overdraft limit, regarding it as a ‘collateral arrangement’. He said: ‘this is a type of transaction in respect of which judicial precedent is a particularly valuable guide to the commercial adviser. It is one of the main justifications for the doctrine of precedent that the adviser can, if he can rely on precedent, give reliable advice to his clients, and it is trite law that that is a particularly cogent consideration in regard to property transactions of one sort or another.’

Judges:

Knox J

Citations:

[1989] BCLC 13

Jurisdiction:

England and Wales

Citing:

Applied – Siebe Gorman and Co Ltd v Barclays Bank Ltd ChD 1979
It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had . .

Cited by:

Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 06 August 2022; Ref: scu.228298

Jacques v AUEW: 1987

Warner J said: ‘The effect of the authorities may I think be summarised by saying that the rules of a trade union are not to be construed literally or like a statute, but so as to give them a reasonable interpretation which accords with what in the court’s view they must have been intended to mean, bearing in mind their authorship, their purpose and the readership to which they are addressed.’

Judges:

Warner J

Citations:

[1987] 1 All ER 621

Jurisdiction:

England and Wales

Cited by:

Cited – Godrich and Serwotka v Public and Commercial Services Union and Reamsbottom ChD 31-Jul-2002
The second defendant had become General Secretary of the first defendant after the amalgamation of two unions. The defendants agreed a compromise as to his term of office. The applicants sought declarations that they were now joint secretary.
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 06 August 2022; Ref: scu.183318

CNA CGM S A v Classica Shipping Company Ltd: ComC 27 Mar 2003

Citations:

[2003] EWHC 641 (Comm)

Links:

Bailii

Statutes:

Merchant Shipping Act 1995

Jurisdiction:

England and Wales

Cited by:

Appeal from – 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 – 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, Transport, Limitation

Updated: 06 August 2022; Ref: scu.181954

Madden v UDC Finance Limited and others: PC 30 Oct 1997

(New Zealand) The company issued a debenture to secure the funds for the purchase of machinery, but the debenture was not at first dated. It was submitted that the addition of the dates changed the nature of the loan and was ineffective being insufficiently evidenced in writing.
Held: The insertion of the dates was a matter of pure form and was not a material alteration invalidating the charge. The guarantor alleged that since he had not consented to the sale of the equipment he was discharged from his guarantee. That argument failed from a proper construction of the agreement.

Judges:

Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Hoffmann, Lord Saville, Mr Justice Gault

Citations:

[1997] UKPC 52

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Applied – Foster v Foster CA 16-Apr-2003
The marriage had been short, there were no children, both parties were working, and each could support themselves providing themselves with accomodation. The wife had successfully appealed a finding of the district judge for an equal distribution. . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 06 August 2022; Ref: scu.159265

ACG Acquisition Xx Llc v Olympic Airlines: ComC 30 Apr 2012

The parties had contracted for the delivery and lease of a passenger airplane. It was delivered with defects, and the airline went into liquidation. The court was asked whether a claim for damages for defective delivery survives execution by the parties of the Certificate of Acceptance.
Held: The finance company’s claim succeeded. Though the final certificate was not conclusive proof of its condition, it did create an estoppel against the airline which was effective in this case.

Judges:

Teare J

Citations:

[2012] EWHC 1070 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Olympic Airlines Sa v ACG Acquisition XX Llc CA 17-Apr-2013
The parties disputed their mutual obligations under aircraft leasing agreements. The insolvent airline said that in signing to accept the condition of the aircraft on delivery, it had not created an estoppel against itself when the aircraft later . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 August 2022; Ref: scu.457623

Smith v Morgan: ChD 1971

The plaintiff sold property to the defendant, covenanting not to sell a piece of adjoining land without giving the defendant: ‘the first option of purchasing . . at a price to be agreed upon provided that any such offer for sale shall only remain open for a period of three months from the date on which the said offer for sale is made open by the vendor’. The plaintiff wished to sell the land to someone else. She issued an originating summons seeking to escape her obligations under this provision, suggesting that the provision was not legally binding, since it did not state a price or a method of determining a price, and that it was merely an agreement to agree.
Held: There was no uncertainty as there was agreement that there would be an offer to sell the land should the vendor decide that they wanted to sell. There was no need for the price to be agreed upon, or for a mechanism for determining the price to be agreed upon, because the agreement was simply that an offer for sale would be made.
Brightman J rejected the argument that the provision was a mere agreement to agree: ‘[the] obligation on the vendor, should she wish to sell, is an obligation to make an offer to the purchaser at the price and at no more than the price at which she is, as a matter of fact, willing to sell.’ In putting forward a price, the vendor was obliged to act in good faith: ‘The plaintiff must, of course, act bona fide in defining the price to be included in the offer. It is a matter of fact. If the plaintiff is proposing to sell by auction, the price to be specified in the offer to the defendant would be the intended auction reserve. If she is proposing to sell by private treaty the price to be specified in the offer would be the price intended to be named in the estate agent’s particulars, or the lower price, if any, to which the plaintiff is, as a matter of fact, prepared to descend on such a sale.’

Judges:

Brightman J

Citations:

[1971] 1 WLR 803, [1971] 2 All ER 1500

Jurisdiction:

England and Wales

Cited by:

Cited – Fraser v Thames Television Ltd QBD 1984
Three actresses, an all girl group called ‘Rock Bottom’ and their composer and manager developed an idea for a television series based on the group and their lives. The television company’s head of drama said she would commission a pilot script. . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 06 August 2022; Ref: scu.540360

Marlton v Tectronix UK Holdings: ChD 10 Feb 2003

The court considered what was to be discovered under Part 31.4.1 of CPR. Pumfrey J expressly approved the commentary in the White Book: ‘A computer database which forms part of the business records for company is, in so far as it contains information capable of being received and converted into readable form, a document for the purposes of CPR 31.4 and is therefore susceptible to disclosure.’

Judges:

Pumfrey J

Citations:

[2003] EWHC 383 (Ch)

Links:

Bailii

Statutes:

Civil Procedure Rules 31.4.1

Jurisdiction:

England and Wales

Cited by:

Cited – Glenn and Co (Essex) Ltd), Regina (on The Application of) v HM Revenue and Customs Admn 18-Jun-2010
The company objected to the search of its offices and removal by the defendant of its computers, the officers having entered without any warrant purporting to use powers under the 1989 Act.
Held: The request for judicial review failed. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 06 August 2022; Ref: scu.263714

Triodos Bank Nv v Dobbs and Another: ChD 8 Feb 2005

Judges:

The Hon Mr Justice Lightman

Citations:

[2005] EWHC 108 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Triodos Bank, Dobbs, Acorn Televillages Limited v Dobbs and Others ChD 19-Apr-2004
. .

Cited by:

See Also – Triodos Bank Nv v Dobbs (No 2) CA 24-May-2005
The bank sought payment under a guarantee given by the appellant. The appellant said that the original loan agreement had been varied so as to release him. The loan had been taken out to support a business venture. After the guarantee was signed a . .
Cited – Westlb Ag London Branch v Pan EAT 19-Jul-2011
EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
The Employment Judge, while rejecting a complaint of bias, ordered that a fresh panel be convened to continue the hearing of a case. . .
Appeal from – Dobbs v Triodos Bank Nv (No 1) CA 15-Apr-2005
The defendant a litigant in person sought to stay his appeal. He asked the court to stay his appeal so that he could get legal aid, and to encourage the LSC to grant legal aid.
Held: The court refused. The defendant asserted that courts would . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 August 2022; Ref: scu.222568

HSBC Bank Plc v Liberty Mutual Insurance Company (Uk) Ltd: ChD 11 Jun 2001

Where the draftsman of a contract appeared to have misused a word the court could depart from the dictionary meanings even if there was no ambiguity. This must first become apparent from the surrounding circumstances before the court could accept that it was to be driven to construe the contract in this way.

Citations:

Times 11-Jun-2001

Jurisdiction:

England and Wales

Insurance, Banking, Contract

Updated: 06 August 2022; Ref: scu.81509

Hostgill Ltd v Egahart Ltd: ChD 5 Jan 1999

Term providing ‘sums payable are . . exclusive of VAT’ meant that if the transaction was to be VATable, then VAT was payable in addition to the purchase price. Though badly drafted the clause had to be read with some meaning, it was not merely descriptive.

Citations:

Times 05-Jan-1999

Jurisdiction:

England and Wales

Contract

Updated: 06 August 2022; Ref: scu.81481

Re Great Orme Tramways Co: 1934

A claim was made in respect of personal injuries sustained by a passenger when a tram ran out of control. The Company was in insolvent liquidation. A claim for the same amount for the same injuries could be made in contract or in tort.
Held: The unliquidated claim in contract was provable, but not the unliquidated claim in tort.

Citations:

(1934) 50 TLR 450

Jurisdiction:

England and Wales

Cited by:

Cited – In re T and N Ltd and Others, Re Insolvency Act 1986 ChD 14-Dec-2005
The court considered the case of Glenister and similar and said: ‘I accept the submission that these cases are not in point to the issue as regards future asbestos claims. There is no element of discretion as regards such claims. If the ingredients . .
Cited – In Re Berkeley Securities (Property) Ltd ChD 1980
Vinelott J considered the position where tort damages became liquidated by judgment or agreement during the winding-up. He held that in those circumstances the bankruptcy rules imported by section 317 required modification to fit into the scheme of . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Personal Injury, Contract

Updated: 05 August 2022; Ref: scu.641426

Borealis Ab v Geogas Trading Sa: ComC 9 Nov 2010

The parties had contracted for sale and purchase of butane for processing. It was said to have been contaminated. The parties now disputed the effect on damages for breach including on causation, remoteness, mitigation and quantum.
Held: The recklessness of the defendant was an intervening act sufficient to affect the chain of causation.

Judges:

Gross LJ

Citations:

[2010] EWHC 2789 (Comm), [2011] 1 Lloyd’s Rep 482

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – County Ltd v Girozentrale Securities CA 1996
The plaintiff bank had agreed to underwrite a share placement. The defendant brokers made representations to potential investors outside and in breach of the terms of the engagement letter. The bank failed to check on the status of indicative . .
Cited – Monarch Steamship Co Ltd v Karlshamns Oljefabriker A/B HL 1949
Damages were sought for breach of contract.
Held: After reviewing the authorities on remoteness of damage, the court reaffirmed the broad general rule that a party injured by the other’s breach of contract is entitled to such money . .
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 . .
Cited – The Polyglory 1977
Even negligent navigation following the charterer’s order to proceed to an unsafe port will not necessarily break the chain of causation as to damages. . .
Cited – Sotiros Shipping Inc v Sameiet; The Solholt CA 1983
The seller had failed to deliver the vessel he had sold by the delivery date. The buyer cancelled and requested return of his deposit, also claiming damages because the vessel was worth $500,000 more on the delivery date than she had been when 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 – The ‘Spontaneity’ 1962
Where the negligence of vessel X caused vessel Y to run aground, vessel X was not liable for such damages as were attributable to the subsequent, clearly separate and negligent re-floating of vessel Y. The original negligence of vessel X had ceased . .
Cited – Sylvia Shipping Co Ltd v Progress Bulk Carriers Ltd (‘The Sylvia’) ComC 18-Mar-2010
. .
Cited – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Cited – Barings Plc (In Liquidation) and Another, Barings Futures (Singapore) Pte Ltd (In Liquidation) v Coopers and Lybrand (A Firm) and Others, Mattar and 36 Others ChD 17-Oct-2003
BFS was a company incorporated in Singapore which conducted its internal affairs in Singapore Dollars. It was by statute required to render its accounts in that currency. It paid its staff in Singapore Dollars. It sought damages in Singapore . .
Cited – Lambert v Lewis HL 1981
A farmer was sued when a towing hitch on his Landrover came loose, releasing the trailer which then caused a serious accident. When sued for the damage, the farmer brought proceedings against the garage proprietor who supplied the towing hitch, . .
Cited – Barings Plc and Another v Coopers and Lybrand (A Firm) and Others ChD 11-Jun-2003
Evans-Lombe J expressed an unwillingness to accept any all-embracing test for what may constitute the breaking of the chain of causation, saying: ‘It seems to me that what will constitute such conduct is so fact-sensitive to the facts of any case . .
Cited – Hart v Lancashire and Yorkshire Rly Co 1869
Bramwell B said: ‘people do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous.’ . .
Cited – The Oinoussian Friendship 1987
A claim was made for physical damage to a vessel.
Held: Where the owners take advantage of the fact that repairs are being done by having owners’ work done at the same time, and (1) the owners’ work does not extend the cost of or period of . .
Cited – Lodge Holes Colliery Company v Wednesbury Corporation HL 1908
Lord Loreburn LC said: ‘Now I think a Court of Justice ought to be very slow in countenancing any attempt by a wrong-doer to make captious objections to the methods by which those whom he has injured have sought to repair the injury. When a road is . .
Cited – Banco de Portugal v Waterlow and Sons Ltd HL 28-Apr-1932
Lord Macmillan said: ‘Where the sufferer from a breach of contract finds himself in consequence of that breach placed in position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in . .
Cited – Payzu Limited v Saunders CA 1919
The innocent plaintiff buyers had been found to have failed to mitigate their damages because they had not accepted an offer from the defendant sellers (who were in breach of contract) to supply goods on cash terms, the contract having originally . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 05 August 2022; Ref: scu.425822

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 will not lightly be treated as unreasonable.
Devlin J said: ‘There must . . be an obligation to nominate at least one loading place, and there must be implicit in that some condition about safety to prevent the making of a derisory nomination.’ and ‘There is a difference between a contractor who does not discharge his obligation at all and one who does so imperfectly. In the latter case, the contract gives the other party the right to elect to treat the imperfect performance as if it were a fulfilment of the contract (even if he knows that in fact it is not), and to claim damages if any result from the imperfection. This is a right which is, I think, common to every class of contract. The general principle is that the other party is entitled to proceed just as he would have done if the contract had been properly fulfilled, and the risk of any damage that flows from that must be borne by the wrongdoer.’

Judges:

Devlin J, Morris LJ

Citations:

[1955] 2 QB 68, [1954] 2 Lloyds Rep 397, [1955] 2 All ER 241, ; [1955] 2 WLR 998

Jurisdiction:

England and Wales

Cited by:

Cited – Borealis Ab v Geogas Trading Sa ComC 9-Nov-2010
The parties had contracted for sale and purchase of butane for processing. It was said to have been contaminated. The parties now disputed the effect on damages for breach including on causation, remoteness, mitigation and quantum.
Held: The . .
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 – 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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 05 August 2022; Ref: scu.425890

Tekdata Interconnections Ltd v Amphenol Ltd: CA 19 Nov 2009

The court considered which of two sets of contractual terms applied. The parties had dealt with each other over a long period. Under standard offer and acceptance the seller’s terms would apply. The buyer appealed, saying the court should look to the history of relations between the firms.
Held: The appeal succeeded. The traditional offer and acceptance analysis (the last set of terms applies) must be adopted unless the documents passing between the parties and their conduct show that their common intention was that some other terms were intended to prevail. The evidence here was not sufficient to displace the standard analysis.
Pill LJ said: ‘it is not possible to lay down a general rule that will apply in all cases where there is a battle of the forms. It always depends on an assessment of what the parties must objectively be taken to have intended. But where the facts are no more complicated than that A makes an offer on its conditions and B accepts that offer on its conditions and, without more, performance follows, it seems to me that the correct analysis is what Longmore LJ has described as the ‘traditional offer and acceptance analysis’, ie that there is a contract on B’s conditions.’

Judges:

Pill, Dyson, Longmore LJJ

Citations:

[2009] EWCA Civ 1209

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Butler Machine Tool Co Ltd v Ex-Cell-O Corporation CA 25-Apr-1977
The plaintiff offered to sell a machine tool to the defendant. The offer said that its terms had precedence over any terms in the buyer’s order, and contained a clause allowing a price variation. The defendant’s order form allowed no variation, and . .
Cited – Gibson v Manchester City Council CA 1978
The parties disputed which terms of a contract applied.
Held: Lord Denning MR rejected the conventional approach of looking to see whether upon the true construction of the documents relied upon there can be discerned an offer and acceptance: . .
Cited – Gibson v Manchester City Council HL 8-Mar-1979
The plaintiff sought specific performance of what he said was a contract for the sale of land.
Held: The appeal succeeded. In a case where a contract is alleged to have been made by an exchange of correspondence between the parties, in which . .
Cited – Great Northern Railways v Avon Insurance 2001
A court may rely on post-contract correspondence when it has to determine what the terms of a contract are (rather than what those terms mean). . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 August 2022; Ref: scu.380327

American Express International Banking Corporation v Hurley: ChD 1985

The property mortgaged was specialised sound and lighting equipment used at pop concerts. The mortgagee’s guarantor was dissatisfied with the way in which the receiver sold the equipment.
Held: Where a company receiver was appointed under a charge in common form, he acted as the agent of the the mortgagor until the mortgagor’s liquidation. Something more is required to constitute a relationship of principal and agent between the mortgagee and the receiver than the mere appointment under the terms of a debenture which in its normal form constitutes the receiver an agent for the mortgagor. While he was such, the mortgagee was not responsible for what the receiver did unless and until he directed or interfered with the receiver’s activities. Furthermore, the mortgagee, or receiver, had a duty of care to the guarantor of the mortgagor’s debt to obtain the true market value of the mortgaged property when either of them realised the property in the exercise of a power of sale. In the circumstances of this case the receiver had not taken reasonable care to obtain the true market value.
Mann J said: ‘In my judgment the receiver did not take reasonable care in all the circumstances of the case to obtain the true market value of the equipment. He had in his hands equipment which he knew had been valued at andpound;193,323 and which he knew was of a specialist nature. In regard to the disposal of the equipment he did nothing. Although advised by Edward Symmons Ltd that he should look to the trade the receiver did not do so but was content that the trade should look to him. In my judgment the failure to take reasonable care is manifest in these forms: (i) a failure to take specialist advice from a person in the popular music industry; (ii) a failure to advertise in publications concerning the popular music industry. The receiver is liable in negligence to the guarantor.’

Judges:

Mann J

Citations:

[1985] 3 All ER 564, [1986] BCLC 52

Jurisdiction:

England and Wales

Cited by:

Cited – Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency, Banking, Insolvency

Updated: 05 August 2022; Ref: scu.267746

Brewer Street Investment v Barclays Woollen Co: CA 1953

A prospective tenant for whom a landlord had carried out alterations on the premises was not permitted to break off negotiations for the lease solely to escape liability for the cost of such alterations. Lord Denning said: ‘What, then, is the position when negotiations go off without the default of either? On whom should the risk fall? In my opinion the prospective tenants ought to pay all the costs thrown away. The work was done to meet their special requirements and was prima facie for their benefit and not for the benefit of the landlords. If and in so far as the work is shown to have been of benefit to the landlords, credit should be given in such sum as may be just. Subject to such credit, the prospective tenants ought to pay the cost of the work, because they in the first place agreed to take responsibility for it; and when the matter goes off without the default of either side, they should pay the costs thrown away. There is no finding here that the work was of any benefit to the landlords, and in the circumstances the prospective tenants should, I think, pay the amounts claimed.’

Judges:

Lord Denning MR

Citations:

[1954] 1 QB 428, [1953] 2 All ER 1330

Jurisdiction:

England and Wales

Cited by:

Cited – Becerra v Close Brothers ComC 25-Jun-1999
ComC Claim for fee for introducing successful bidder at a controlled auction – no express contract – no implied contract based on City practice – claim for quantum meruit failed because no express or implied . .
Cited – Countrywide Communications Limited v ICL Pathway Ltd 1996
The court considered the authorities bearing on the question of whether or not a claim under a quantum meruit can successfully be made for work done in anticipation of a contract which does not materialise. Strauss J concluded: ‘I have found it . .
Mentioned – MSM Consulting Ltd v United Republic of Tanzania QBD 30-Jan-2009
The claimants sought commission or a quantum meruit for the part they had taken in finding a suitable site for the defendant’s High Commission in London.
Held: The works undertaken were consistent with the claimant seeking work from the . .
Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Updated: 05 August 2022; Ref: scu.245319

JT Developments v Quinn and Another: CA 1990

The plaintiff told the defendant it was willing to grant a lease on the same terms as those contained in a new tenancy that the plaintiff had recently granted to the tenant of a nearby shop, also owned by the plaintiff. The defendant carried out improvements in reliance on that assurance.
Held: The plaintiff was bound to grant the lease in question. It is not open to the court to impose an agreement because it would have been reasonable for the parties to agree or because, if the importance of an immediate agreement had been more clearly understood at the time, the parties might well or probably have so agreed.
Referring to the AG of Hong Kong case, Ralph Gibson LJ said: ‘In that case, there was express use of the phrase ‘subject to contract’ and its effect was fully understood by both sides. In this case there were no such words. The right, however, not to proceed with negotiations for the contract exists independently of the use of that phrase, which is required, normally, in circumstances where an express agreement in writing is apparently reached which would constitute an enforceable agreement but for the use of that phrase.’

Judges:

Ralph Gibson LJ

Citations:

[1991] 2 EGLR 257, (1990) 62 P and CR 33

Jurisdiction:

England and Wales

Citing:

Explained – Attorney General of Hong Kong v Humphreys Estate (Queen’s Gardens) Ltd PC 1987
An agreement in principle was marked ‘subject to contract’. The Government would acquire some flats owned the plaintiff Group of companies in return for the Government granting, inter alia, a lease to the Group of some Crown lands. The Government . .

Cited by:

Cited – Hussein Walji, Zulikar Walji, Mohammed Iqbal Walji, Hussain Walji v Mount Cook Land Limited CA 21-Dec-2000
The claimants sought a new lease under the Act. They were assignees and sureties of an underlease of the premises, but a new underlease had been taken by a company through which the partnership had intended to trade. The partnership had paid rent in . .
Cited – Parker v Parker ChD 24-Jul-2003
Lord Macclesfield claimed a right to occupy a castle. The owners claimed that he had only a mere tenancy at will. The exact rooms in the castle which had been occupied had varied over time.
Held: The applicant was entitled to reasonable . .
Cited – Willis v Hoare 1999
Auld LJ said of Crabb: there ‘could be no doubt as to the nature and extent of the remedy required to give effect to [the] equity’. Of JT Developments ‘the nature and terms of the equity were readily identifiable’. Auld LJ said: ‘There may be . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Cited – Thorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
Cited – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract, Land

Updated: 05 August 2022; Ref: scu.184138

Hewitt v Rowlands: CA 1924

The landlord had failed to repair the property as required by his covenant.
Held: The primary measure of loss for a breach of a contract to provide such services is the diminution in value of the services promised.

Citations:

[1924] All ER 344

Jurisdiction:

England and Wales

Cited by:

Cited – Regus (UK) Ltd v Epcot Solutions Ltd CA 15-Apr-2008
The appellant had contracted to provide office accomodation to the defendant. The air conditioning did not work and there were other defects. The appellant now challenged a finding of liability and that its contract terms which were said to totally . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 05 August 2022; Ref: scu.266860

St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2): CA 1973

When looking at a contract ‘one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances.’
The contra preferetem rule can only come into play ‘if the court finds itself unable on the material before it to reach a sure conclusion on the construction’ of the contract and that the rule ‘is not itself a factor to be taken into account in reaching the conclusion’ as to whether or not an ambiguity exists.
Here, the words ‘without any regrant’ in the context of a lease back arrangement mean only ‘without any words of regrant’.
Considering the presence of a gate and its effect on the use of a right of way, Sir John Pennycuick said: ‘But the gate remains, to our mind, a factor of the first importance. Mr. Vinelott referred to cases in which it was held that the owner of a dominant tenement, having once established his right of way, is entitled to remove an obstacle which obstructs it: See Bulstrode v Lambert [1953] 1 WLR 1064 and Keefe v Amor [1965] 1 QB 334 in the Court of Appeal. But that does not mean that the existence of the obstruction at the time of the reservation is any the less an important factor in determining whether the right of way has been established at all.’

Judges:

Sir John Pennycuick, Russell and Orr LJJ

Citations:

[1975] 1 WLR 468, [1973] 3 All ER 902

Jurisdiction:

England and Wales

Citing:

Cited – Bulstrode v Lambert ChD 1953
The parties disputed the effective extent of an easement which gave an express right to pass and repass providing access across a yard to a side door at premises on which a business was conducted at the time of the grant.
Held: The court . .
Appeal from – St Edmundsbury v Clark (No 2) ChD 1973
Megarry J described the presumption that a conveyance of land abutting a highway or river passes with it the the adjoining half of that road or river: ‘Various reasons had been given for the presumption. It has been based on convenience and the . .

Cited by:

Cited – Partridge and others v Lawrence and others CA 8-Jul-2003
The appellants challenged a finding as to the width of a right of way over their land as exercised by the respondents.
Held: The appeal was allowed in part. Peter Gibson LJ said: ‘The claimants now have the security that this court is . .
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
Cited – Minor v Groves CA 20-Nov-1997
The parties were neighbours, with houses adjacent to a right of way. Slabs had been laid next to the houses forming a raised pavement. The respondents had sought to enclose their area of this raised pavement, building a porch. They now appealed an . .
Cited – Pole and Another v Peake and Another CA 17-Jul-1998
The defendants owned land over which the plaintiffs owned shooting and other sporting rights. When the plaintiffs licenced those rights to others the defendants objected and prevented access. They appealed a finding that they had infringed the . .
Cited – Thompson v Bee and Another CA 20-Nov-2009
The parties disputed the extent and nature of the use allowed for an unregistered but express right of way. The track had been obtained by use for agriculture. The dominant owner appealed against a finding that it was limited to agricultural use, . .
Cited – Wilkinson and The Estate of Brian Wilkinson v Farmer CA 22-Oct-2010
The court considered whether there was a compelling reason to allow a second application for leave to appeal against an order settling the width of a right of way.
Held: The appeal was allowed. Very limited facts could be established from the . .
Cited – AJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 05 August 2022; Ref: scu.197724

Tuck v Baker: CA 1992

A party sought to enforce a notice exercising a right of pre-emption. The defendant purported to withdraw it.
Held: An offer (once made) can be withdrawn at any time before it has been converted by acceptance into a binding contract.
Mustill LJ said: ‘. . the test for an implied term is not whether it might have been sensible to include such a provision in the contract, but whether the contract will work properly without it. To my mind, the contract will work perfectly well without any provision that the mechanism once started can never be stopped without the vendors’ consent. I would not imply any such term.’ and ‘. . I am not sure that the offer referred to in the Fifth Schedule [of the conveyance in which the right of pre-emption was reserved] really is an offer in the ordinary sense, which to my mind connotes a voluntary invitation by the offeror to the offeree to enter into a contractual relationship. Here the offer is not voluntary in the true sense, for the existing contractual arrangements already required the purchasers to make what is called ‘the offer’, if they were to have the opportunity to sell their land to a third party. I see the ‘offer’ as simply being part of the contractual procedure which must be gone through if the purchasers are to carry out a sale. As such, it is a signal to the vendors that their right of pre-emption has become available, and for the reasons already stated there is nothing in the conveyance to prevent the purchasers from recalling this signal and stopping the procedure in its tracks if the vendors have not already availed themselves of it.’

Judges:

Lord Justice Mustill, Lord Justice Beldam and Lord Justice Leggatt

Citations:

[1992] EGLR 195

Jurisdiction:

England and Wales

Cited by:

Cited – Tiffany Investments Ltd and Another v Bircham and Co Nominees (No 2) Limited and others CA 4-Dec-2003
The tenancy was a long lease at a low rent under the 1954 Act, and so had continuing protection under the 1977 Act whilst occupied by the original tenant. The lease was assigned and registered. It had been conditional upon an application to purchase . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 05 August 2022; Ref: scu.192029

Harmer v Armstrong: CA 1934

The court considered the position where the assignor of a contract was required to attend court as a party when the assignee sought to enforce the debt.
Held: A beneficiary under a bare trust could bring proceedings in his own name and, where the trustees refused to sue, joining the other beneficiaries and the trustees as defendants. Lawrence LJ said: ‘The right of a beneficiary in such a case as the present, however, is to enforce the agreement according to its tenor, that is to say in favour of the defendant Armstrong, and not in favour of the plaintiff beneficiaries.’

Judges:

Lawrence LJ

Citations:

[1934] Ch 65

Jurisdiction:

England and Wales

Cited by:

Cited – Barbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
Cited – In re Field 1971
The plaintiff had an order for maintenance against the deceased’s estate. She brought proceedings in her own name against an insurance company which had wrongly paid a claim to the widow and not to the estate. The insurer sought a strike out. The . .
Cited – Roberts v Gill and Co and Another CA 15-Jul-2008
The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid . .
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 05 August 2022; Ref: scu.249319

Dimbleby and Sons v National Union of Journalists: CA 1983

Citations:

[1984] 1 WLR 67 and 427

Jurisdiction:

England and Wales

Cited by:

Appeal from – Dimbleby and Sons v National Union of Journalists HL 1984
The Trades Union caused its members to withdraw their labour from the plaintiff, so preventing the plaintiff from performing a contract with a firm of printers. The conduct was aimed, primarily, not at the plaintiff but at the printers, with whom . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 August 2022; Ref: scu.251745

Nolan v Wright: CA 15 Oct 2009

Action for the recovery of a very large sum of money from the defendant borrower pursuant to an unregulated credit agreement and a legal charge. The defendant seeks to set aside the loan documentation as a sham or procured by undue influence or misrepresentation.

Judges:

Lloyd LJ

Citations:

[2009] EWCA Civ 1131

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Costs, Limitation

Updated: 04 August 2022; Ref: scu.377533

Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another: CA 22 Oct 2009

The defendant company had contracted to carry out works for the claimant. In fact the claimant did not ask the defendant to do the work but carried it out itself. When sued for damages the defendant claimed that the claimant’s conduct amounted to a representation that the claimant had waived the requirement that the defendant do the work.
Held: On the facts of the case, the unexplained and unquestioned actions of the claimant did not amount to an unequivocal representation that they were waiving their obligations to the defendant to perform their obligation.

Judges:

Rix, Wall, Aikens LJJ

Citations:

[2009] EWCA Civ 1108, [2009] NPC 118

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Martin v David Wilson Homes Ltd CA 28-Jun-2004
The court considered the construction of a restrictive covenant, and was asked whether an indefinite article ‘a private dwellinghouse’ was to be construed as a limitation of number or whether it was to be construed as being as to the manner of use. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 August 2022; Ref: scu.376233

Tyco Fire and Integrated Solutions (UK) Ltd v Rolls-Royce Motor Cars Ltd: TCC 29 Jun 2007

Allegation of faults in sprinkler system.

Citations:

[2007] EWHC 3159 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Tyco Fire and Integrated Solutions (UK) Ltd v Rolls-Royce Motor Cars Ltd CA 2-Apr-2008
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 August 2022; Ref: scu.266688

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 otherwise arise by operation of law . . But in construing such a contract one starts with the presumption that neither party intends to abandon any remedies for its breach arising by operation of law, and clear express words must be used in order to rebut this presumption. Lord Diplock said: ‘in relation to the presumption that each party to a contract is entitled to all remedies which arise by operation of law: ‘To rebut that presumption one must be able to find in the contract clear unequivocal words in which the parties have expressed their agreement that this remedy shall not be available in respect of breaches of that particular contract.’
An equitable set-off for defective work is not easily excluded even in building contracts where sums are payable under an architect’s certificate.

Judges:

Lord Diplock, Lord Reid, Lord Morris of Borth-y-Gest, Lord Salmon

Citations:

[1974] AC 689, [1973] 3 All ER 195

Jurisdiction:

England and Wales

Citing:

Approved – Hanak v Green CA 1958
A builder was sued for his failure to complete the works he had contracted for. The buider sought a set-off against that claim of three of his one claims. One, under the contract, was for losses from the defendant’s refusal to allow his workmen . .

Cited by:

Cited – Astea (UK) Ltd v Time Group Ltd TCC 9-Apr-2003
The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
Cited – Stocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
Cited – British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
Cited – Melville Dundas Ltd and others v George Wimpey UK Ltd and others HL 25-Apr-2007
The appellant sought an interim payment for works of construction undertaken for the respondents under a JCT contract. The respondents contended that, having terminated the contract on their receivership, the contract and Act meant that the interim . .
Cited – Stocznia Gdynia Sa v Gearbulk Holdings Ltd CA 13-Feb-2009
Orders were placed for the construction of ships. They were not delivered. The buyer, the defendant, cancelled the orders. The defendants sought the loss of profit. The claimants said they were entitled only to the repayment of instalments. The . .
Cited – Geldof Metaalconstructie Nv v Simon Carves Ltd CA 11-Jun-2010
The parties contracted for the supply and installation of pressure vessels by Geldof (G) for a building constructed by Simon Carves (SC). The contract contained a clause denying the remedy of set-off. G sued for the sale price, and SC now sought an . .
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 – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Cited – Phones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .
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

Updated: 04 August 2022; Ref: scu.223522

Abdulrida and Others v Al-Najar and Others: ChD 24 Feb 2021

Judges:

Morgan J

Citations:

[2021] EWHC 398 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – MBR Acres Ltd and Others v McGivern QBD 2-Aug-2022
Contempt Procedures Not to be abused
Reasons for dismissal of contempt application.
Held: The contempt application against Ms McGivern was dismissed and certified as being totally without merit.
The court does not grant injunctions to parties to litigation to be used as a . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 August 2022; Ref: scu.658911

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 that it was entitled to the limitation on claims provided by the 1992 Act. AST said that this was unavailable, the voyage being undertaken in breach of an implied safe port term.
Held: The claim was dismissed. The Convention did not entitle the charterers to limit claims against the owners rather than those having interests in the cargoes, and particularly so when express clause to that effect might have been used.
RP had not ever been a lawful holder of bills of lading, and section 3 of the 1992 Act could not be used. Neither a safe port term nor an indemnity could be created by an implication by necessity.

Judges:

Thomas J

Citations:

[1998] 2 Lloyd’s Rep 39

Statutes:

Carriage of Goods by Sea Act 1992

Jurisdiction:

England and Wales

Cited by:

Cited – Borealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
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: 03 August 2022; Ref: scu.194566

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 defined by the type of claim brought, not by the capacity in which he acted. The charterers appeal failed save that they could limit their liability to claims from the shipowners for damage to their own cargoes.

Judges:

Waller, Longmore, Neuberger LJJ

Citations:

[2004] EWCA Civ 114, Times 27-Feb-2004, Gazette 18-Mar-2004, [2004] 1 Lloyd’s Rep 460, [2004] 1 All ER (Comm) 865

Links:

Bailii

Statutes:

Merchant Shipping Act 1995 185, Convention on Limitation of Liability for Maritime Claims of 1976

Jurisdiction:

England and Wales

Citing:

Appeal from – CNA CGM S A v Classica Shipping Company Ltd ComC 27-Mar-2003
. .

Cited by:

Binding – 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 . .
Binding – 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 . .
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, Transport, Limitation

Updated: 03 August 2022; Ref: scu.193492

Beaufort Developments (NI) Limited v Gilbert-Ash NI Limited and Others: HL 26 Feb 1998

The contractual ability given to an arbitrator under standard JCT terms did not oust the court from assessing and prejudging the acts of the architect under a building contract. As to the means for interpreting documents, Lord Hoffmann said: ‘I think, my Lords, that the argument from redundancy is seldom an entirely secure one. The fact is that even in legal documents (or, some might say, especially in legal documents) people often use superfluous words. Sometimes the draftsmanship is clumsy; more often the cause is a lawyer’s desire to be certain that every conceivable point has been covered. One has only to read the covenants in a traditional lease to realise that draftsmen lack inhibition about using too many words. I have no wish to add to the anthology of adverse comments on the drafting of the JCT Standard Form Contract.’ The architect is the agent of the employer. He is a professional man, but can scarcely be called independent.

Judges:

Lord Goff of Chieveley, Lord Lloyd of Berwick, Lord Nolan, Lord Hoffmann, Lord Hope of Craighead

Citations:

Gazette 17-Jun-1998, Times 08-Jun-1998, [1998] 2 WLR 860, [1998] UKHL 19, [1999] 1 AC 266, [1998] 2 All ER 778

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – GLN (Copenhagen) Southern Ltd v Tunbridge Wells Borough Council CA 27-Aug-2004
Neighbouring plots included covenants to use and not to use the land as cinemas. A proposed development would have used the land which had to be so used as an access for the new cinema proposed. The claimant sought to rely upon the Act to enforce a . .
Cited – Amec Civil Engineering Ltd v Secretary of State for Transport CA 17-Mar-2005
The contractors appealed a decision that an arbitrator had jurisdiction to hear a claim against them in respect of works carried out on the Thelwall viaduct. The contractors denied that there had been a dispute which could found a reference, and no . .
Cited – BOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA 29-Apr-1999
The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
Held: The appeal . .
Cited – Kennedy v The Information Commissioner and Another CA 12-May-2011
The claimant, a journalist, sought further information from the Charity Commission after the release of three investigations into the ‘Mariam Appeal’ and questions about the source and use of its funds. The Commission replied that it was exempt . .
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 . .
Lists of cited by and citing cases may be incomplete.

Construction, Contract

Updated: 03 August 2022; Ref: scu.135154

Concordia Trading B V v Richco International Ltd: 1991

Under a FOB contract the sellers sold to the buyers a quantity of Argentine soya beans. The contract incorporated the provisions of GAFTA 64 (General Contract FOB Terms for Grain in Bulk) which included clause 24 default (set out in part at page 480 of the judgment). The contract was part of a string. The sellers failed to present documents. In the event the documents were tendered to the end buyer and receiver of the cargo and were accepted and paid for. Later, the vessel carried the goods to Odessa and discharge began. The buyers claimed damages in respect of the sellers’ default in not tendering documents, contending that the date of default was 29.9.87. The sellers argued (i) that the date of their (undisputed) default in failing to tender the documents to the buyers took place later again when the documents would normally have become available to the buyers and (ii) the market price of the goods (or the documents representing the goods) was ubstantially lower than the contract price and the buyers were only entitled to nominal damages. The dispute was referred to arbitration. The Board of Appeal accepted the buyers’ contention that the sellers’ default took place on 29 September. In their award they stated that the sellers were not in default until the day it was no longer possible for them to purchase the documents for the goods in order to fulfil the contract, which was 28 September. The basis for the award was that as the contract was silent as to the time for performance of the sellers’ obligation to tender the documents to the buyers, this was by legal implication a reasonable time, and such time continued until it became impossible for the sellers to obtain the documents. The sellers appealed, the question of law for decision being whether the Board were wrong in law in holding that the date of default was 29 September, and if so by reference to what criteria should the date of default be established? Evans J held that there was on the FOB seller who was obliged by his contract to obtain and tender the shipping documents, a duty to perform that obligation forthwith i.e. with all reasonable despatch, subject to there being no express provision or time limit to the contrary in the contract. The sellers’ duty to send forward the documents forthwith remained the same as in the general case even though a string, circle or insolvency was involved. Since the sellers’ obligation was to tender the shipping documents forthwith and they were in breach of contract if they failed to do so, it seemed likely that that duty should have been performed on or shortly after 5 August, but that was for the Board of Appeal to decide. The question raised is the ‘date of default’ for the purposes of the present contract. In Toprak Mansulleri Ofisi v Finagrain Compagnie Commerciale Agricole et Financiere S.A., [1979] 2 Lloyd’s Rep. 98 Mr Justice Robert Goff (as he then was) held at p. 109 that the same words ‘in default of fulfilment of contract’ in cl. 28 of GAFTA 27 -…meant, quite simply, the day on which [the buyers] failed to perform the obligation which entitled the sellers to determine the contract

Judges:

Evans J

Citations:

[1991] 1 Lloyd’s Rep 475

Jurisdiction:

England and Wales

Contract

Updated: 03 August 2022; Ref: scu.180032