Re SH: CoP 17 Sep 2018

Application for appointment of person holding a named position within a trustee organisation rather than a named individual as a guardian – effect on succession to post.

Judges:

Hilder HHJ

Citations:

[2018] EWCOP 21

Links:

Bailii

Jurisdiction:

England and Wales

Agency

Updated: 25 May 2022; Ref: scu.625404

The Public Guardian v DA and Others: CoP 5 Oct 2018

The court considered the validity of lasting powers of attorney in the authorisation of euthanasia, and the appointment of multiple attorneys.

Judges:

Baker LJ

Citations:

[2018] EWCOP 26

Links:

Bailii

Statutes:

Mental Capacity Act 2005 57

Jurisdiction:

England and Wales

Citing:

ApprovedThe Public Guardian’s Severance Applications CoP 19-Jun-2017
18 applications by the Public Guardian for the severance of clauses in instruments intended to have effect as Lasting Powers of Attorney – When severance is and is not necessary – Construction of section 12 (gifts) in relation to providing for the . .
CitedRe XZ; XZ v The Public Guardian CoP 19-May-2015
XZ executed an LPA which stipulated a number of restrictions and conditions designed to ensure that his attorneys did not act until his incapacity had been unequivocally confirmed by two psychiatrists, whose opinion was subject to review by a . .
CitedPurdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 25 May 2022; Ref: scu.625405

Stewart Chartering Ltd v Owners of the ship ‘the Peppy’; Stewart Offshore Services (Jersey) Ltd v Silan Maritime Co and Another: AdCt 15 Apr 1997

ComC Admiralty action in rem – dishonest withholding of freight paid – meaning of dishonesty – objective and subjective considerations – reimbursement of commission – Admiralty action in rem – entitlement to commission – collateral secret profit – secret profit – distinction.
David Steel QC said of the Hippisley case: ‘this decision of the Court of Appeal admirably demonstrates the difference between a collateral secret profit which preserves the right to commission and a secret profit (albeit honest) directly impacting on the moneys payable to the principal which may destroy the entitlement.’

Judges:

David Steel QC

Citations:

[1997] 2 Lloyds Rep 722

Jurisdiction:

England and Wales

Citing:

CitedHippisley v Knee Bros CA 1903
The defendant auctioneers were employed by the plaintiff to sell some goods. The payment was to be percentage commission with a minimum of andpound;20, certain fixed amounts and ‘all out of pocket’ expenses, particularly advertising. The sale . .
Lists of cited by and citing cases may be incomplete.

Transport, Agency

Updated: 25 May 2022; Ref: scu.186620

Floods of Queensferry Ltd, David Charles Flood v Shand Constructions Ltd, Morrison Shand Constructions Ltd, Morrison Construction Ltd: TCC 17 Dec 1999

The claimant alleged that it had entered into a sub-contract relying upon misrepresentations made by the defendant, SCL that it was the main contractor, and that it was still trading. The defendant company operated through associated companies for which it was an agent, but itself was treated as dormant, even though it still put its name to invitations to tender. The claimants had undertaken credit checks before the contract the results of which were adverse.
Held: To be actionable a representation needed to be as to an existing or past fact. The filed accounts were no promise as to the future activity of the company. The claimant could have stopped work at any time, and had not continued after being misled. The company would not have acted differently if the actual position had been made clear. Claim dismissed.

Judges:

His Honour Judge Humphrey Lloyd QC

Citations:

1994 ORB 826, [1999] EWHC Technology 183

Links:

Bailii

Statutes:

Misrepresentation Act 1967 2(2)

Citing:

See AlsoFloods of Queensferry Limited v Shand Construction Limited, Morrison Shand Limited, Morrison Construction Limited QBD 13-Feb-1997
. .
CitedThomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Agency, Company, Construction

Updated: 23 May 2022; Ref: scu.135998

The Public Guardian’s Severance Applications: CoP 19 Jun 2017

18 applications by the Public Guardian for the severance of clauses in instruments intended to have effect as Lasting Powers of Attorney – When severance is and is not necessary – Construction of section 12 (gifts) in relation to providing for the needs of others from the donor’s estate
District Judge Eldergill compared and contrasted the new terminology in the latest versions of the prescribed forms with the statutory language in s.9(4): ‘It is always risky to depart from the statutory language when drafting forms and the adoption of the headings ‘Preferences’ and ‘Instructions’ in the forms introduced by the Amendment Regulations is potentially misleading.
The term ‘instructions’ is not synonymous with ‘conditions or restrictions’.
Equally, the term ‘preferences’ is not synonymous with ‘best interests’ or a donee’s duty when deciding what is in the donor’s best interests to consider anything written in section 7 of the form concerning the donor’s wishes, feelings, beliefs and values, and the other factors to be considered by their donee(s): see s.4(6) of the 2005 Act.’

Judges:

District Judge Eldergill

Citations:

[2016] EWHC COP 10

Links:

Bailii

Statutes:

Mental Capacity Act 2005 57

Jurisdiction:

England and Wales

Cited by:

ApprovedThe Public Guardian v DA and Others CoP 5-Oct-2018
The court considered the validity of lasting powers of attorney in the authorisation of euthanasia, and the appointment of multiple attorneys. . .
Lists of cited by and citing cases may be incomplete.

Agency, Health

Updated: 23 May 2022; Ref: scu.588180

Re XZ; XZ v The Public Guardian: CoP 19 May 2015

XZ executed an LPA which stipulated a number of restrictions and conditions designed to ensure that his attorneys did not act until his incapacity had been unequivocally confirmed by two psychiatrists, whose opinion was subject to review by a ‘protector’, and had endured for a minimum period of 60 days. The Public Guardian refused to register the LPA because he considered that the conditions imposed an unreasonable fetter on the attorneys’ power to act and were, therefore, ineffective as part of an LPA.
Held: Lush SJ granted a declaration that the LPA did not contain any provisions which would render it ineffective and made an order that the Public Guardian register the instrument. The court held that the Public Guardian’s function under paragraph 11 of Schedule 1 to the Act was limited to considering whether the conditions and restrictions in an LPA were ineffective as part of an LPA or would prevent the instrument from operating as a valid LPA. If he concluded that they could not be given legal effect, then he was under a duty to apply to the court for determination of the point under s.23(1). Otherwise, he had a duty to register the power. Neither the court nor the Public Guardian was concerned with whether a restriction that does not contravene the terms of the 2005 Act might pose practical difficulties in its operation. In this case, the Public Guardian had failed to identify any specific provision of the Act or the 2007 Regulations or the common law of agency that had been infringed by the provisions in XZ’s LPA.

Judges:

Lush SJ

Citations:

[2015] EWCOP 35

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedThe Public Guardian v DA and Others CoP 5-Oct-2018
The court considered the validity of lasting powers of attorney in the authorisation of euthanasia, and the appointment of multiple attorneys. . .
Lists of cited by and citing cases may be incomplete.

Agency, Health

Updated: 23 May 2022; Ref: scu.546869

In re Western of Canada Oil, Lands and Works Co, Carling, Hespeler, and Walsh’s Cases: CA 1875

Shares which had been transferred by a person to individuals to induce them to become directors of a company and to agree that the company would buy land from the person, were held by the individuals on trust for the company.

Judges:

James and Mellish LJJ, Bramwell B and Brett J

Citations:

(1875) 1 Ch D 115

Jurisdiction:

England and Wales

Cited by:

CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 20 May 2022; Ref: scu.551502

Secured Residential Funding plc v Douglas Goldberg Hendeles and Co (a Firm): CA 19 Apr 2000

Two linked companies were in business from the same premises lending money on mortgage. A loan from one company was made but supported only by documentation in the name of the other. The error was noticed, but new documents not prepared until after completion. In possession proceedings, the lender had to show that the money had been advanced by its associate as its agent. The operative date was the date on which the mortgage advance was made, not on completion.

Citations:

Times 26-Apr-2000, Gazette 25-May-2000, [2000] EWCA Civ 144

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Land, Legal Professions

Updated: 20 May 2022; Ref: scu.89148

Ingmar Gb Ltd v Eaton Leonard Technologies Inc: ECJ 16 Nov 2000

When a commercial agency was terminated in circumstances which under community law would entitle the agent to compensation, that compensation was payable even though the contract expressed itself to be governed by the law of California, and the principal was resident in California. The regime was a mandatory one for the protection of such agents, and would override private contractual provisions.
ECJ Directive 86/653/EEC – Self-employed commercial agent carrying on his activity in a Member State – Principal established in a non-member country – Clause submitting the agency contract to the law of the country of establishment of the principal)

Citations:

Times 16-Nov-2000, C-381/98, [2000] ECR I-9305, [2000] EUECJ C-381/98, [2001] 1 CMLR 9, [2000] EUECJ C-381/98 – O

Links:

Bailii, Bailii

Statutes:

Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents 17

Citing:

Reference fromIngmar GB Limited v Eaton Leonard Technologies Inc CA 31-Jul-1998
Case referred to ECJ. . .

Cited by:

At ECJIngmar GB Ltd v Eaton Leonard Inc QBD 31-Jul-2001
The applicants sought damages as commercial agents following the termination of their exclusive agency for the sale of the respondents goods in the UK. The defendants claimed the contract was governed exclusively by Californian law. The European . .
CitedHonyvem Informazioni Commerciali (Freedom Of Establishment) ECJ 23-Mar-2006
Europa Independent commercial agents – Directive 86/653/EEC – Entitlement of a commercial agent to an indemnity after termination of the contract. . .
CitedLonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd HL 4-Jul-2007
The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ . .
CitedRossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
Lists of cited by and citing cases may be incomplete.

Agency, European, Commercial

Updated: 19 May 2022; Ref: scu.82330

Clarke (Executor of the Will of Francis Bacon, Deceased) v Marlborough Fine Art (London) Ltd and Another: ChD 5 Jul 2001

Francis Bacon sold his paintings through the defendant agents for many years. The original contractual arrangement grew into a fiduciary one. The claimants asserted that the defendants were in breach of that fiduciary duty, the defendants asserted that the relationship remained contractual, and that it was now time barred.
Held: There may be a true constructive trust which would not be time barred, rather than a remedial constructive trust. The test was whether the trustee was a true trustee, whether of a constructive or an express trust. Nor was it clear that a court of equity would have time barred a claim in undue influence.

Judges:

Patten J

Citations:

Times 05-Jul-2001

Statutes:

Limitation Act 1980 36(1)(f)

Cited by:

CitedMcLaughlin and Others v Newall QBD 31-Jul-2009
The claimant asked the court to strike out the defence that the claimant had compromised his claim by agreement. The defendant had written letters critical of the claimants who were governors of a school which had disciplined his daughter a teacher . .
Lists of cited by and citing cases may be incomplete.

Agency, Trusts, Limitation

Updated: 19 May 2022; Ref: scu.79197

Barret Mckenzie and Co Ltd v Escada (UK) Ltd: QBD 1 Feb 2001

The court considered the method of calculation of compensation payable to a commercial agent on termination of the agency. The directive provided that the agent should be compensated, not indemnified, and the way an English court calculated compensation need not follow other European jurisdictions. A tariff system would be unfair, and the court must make allowance for the amounts expended by the agent. Accordingly it would be unjust to base the compensation on the gross return, but it should rather be based upon the net income of the agency.

Judges:

Bowers J

Citations:

Times 15-May-2001, [2001] EWHC QB 462, [2001] EuLR 567, [2001] All ER (D) 78

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993 No 3053

Citing:

CitedKing v T Tunnock Limited IHCS 2000
The pursuer had been employed as a commercial agent by the defendant which carried on business as a baker. The pursuer sold only the defendant’s cakes and biscuits. The defendant decided to close its bakery business. The claimant sought compensation . .

Cited by:

CitedLonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd HL 4-Jul-2007
The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ . .
Lists of cited by and citing cases may be incomplete.

Agency, Commercial, European, Damages

Updated: 18 May 2022; Ref: scu.78249

Andrew v Ramsay and Co: 1903

The defendant had been employed as agent by the plaintiff to sell property belonging to the plaintiff. The defendant achieved this and was paid his commission, but had also taken a secret commission from the buyer. The plaintiff sought repayment of the commission.
Held: The action succeeded. Where an agent takes a commission secret from his principal, the principal may refuse to pay or recover any commission under the main agency contract. The action for and recovery of the secret commission had not operated as a ratification of the sale.

Citations:

[1903] 72 LJKB 865

Cited by:

ApprovedRhodes v Macalister CA 1923
The plaintiff agent acted to find a seller of mineral rights for the defendant principal. He told his principal that the properties could be purchased for from andpound;8,000 to andpound;10,000. If the agent could find a seller at below . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 18 May 2022; Ref: scu.522275

Boston Deep Sea Fishing and Ice Co v Ansell: CA 1888

An employer having dismissed an employee (its managing director) later learnt of the employee’s fraud.
Held: The employer was allowed to rely upon that fraud to justify the dismissal. Where an agent is in wrongful repudiation of his contract with his principal, he loses his right to claim remuneration from his principal. It is sufficient if there was a fundamental breach of contract justifying a dismissal whether or not the employer knew of it at the time of dismissal. The managing director could not recover his salary for the part of the year which he had completed before his dismissal. His right to his salary was conditional on his fulfilling his duties for the year and that condition had not been fulfilled. The contract was indivisible, and no payment under it could be claimed.
Cotton LJ said: ‘Then when he was engaged in that contract, in respect of the matters of that very contract, he in one instance got a percentage of 1 per cent. from the Shipbuilding Company, and, in the other case, he insisted on getting – that is the evidence – and did get, a lump sum of andpound;50. It is suggested that we should be laying down new rules of morality and equity if we were to so hold. In my opinion if people have got an idea that such transactions can be properly entered into by an agent, the sooner they are disabused of that idea the better. If a servant, or a managing director, or any person who is authorized to act, and is acting, for another in the matter of any contract, receives, as regards the contract, any sum, whether by way of percentage or otherwise, from the person with whom he is dealing on behalf of his principal, he is committing a breach of duty. It is not an honest act, and, in my opinion, it is a sufficient act to shew that he cannot be trusted to perform the duties which he has undertaken as servant or agent. He puts himself in such a position that he has a temptation not faithfully to perform his duty to his employer. He has a temptation, especially where he is getting a percentage on expenditure, not to cut down the expenditure, but to let it be increased, so that his percentage may be larger. I do not, however, rely on that, but what I say is this, that where an agent entering into a contract on behalf of his principal, and without the knowledge or assent of that principal, receives money from the person with whom he is dealing, he is doing a wrongful act, he is misconducting himself as regards his agency, and, in my opinion, that gives to his employer, whether a company or an individual, and whether the agent be a servant, or a managing director, power and authority to dismiss him from his employment as a person who by that act is shewn to be incompetent of faithfully discharging his duty to his principal.’
Bowen LJ said: ‘This is an age, I may say, when a large portion of the commercial world makes its livelihood by earning, and by earning honestly, agency commission on sales or other transactions, but it is also a time when a large portion of those who move within the ambit of the commercial world, earn, I am afraid, commission dishonestly by taking commissions not merely from their masters, but from the other parties with whom their master is negotiating, and with whom they are dealing on behalf of their master, and taking such commissions without the knowledge of their master or principal. There never, therefore, was a time in the history of our law when it was more essential that Courts of Justice should draw with precision and firmness the line of demarcation which prevails between commissions which may be honestly received and kept, and commissions taken behind the master’s back, and in fraud of the master. . . Now, there can be no question that an agent employed by a principal or master to do business with another, who, unknown to that principal or master, takes from that other person a profit arising out of the business which he is employed to transact, is doing a wrongful act inconsistent with his duty towards his master, and the continuance of confidence between them. He does the wrongful act whether such profit be given to him in return for services which he actually performs for the third party, or whether it be given to him for his supposed influence, or whether it be given to him on any other ground at all; if it is a profit which arises out of the transaction, it belongs to his master, and the agent or servant has no right to take it, or keep it, or bargain for it, or to receive it without bargain, unless his master knows it.
Fry LJ said: ‘In my judgment, the conduct of Ansell in so dealing was a fraud-a fraud on his principals-a fraud, not according to any artificial or technical rules, but according to the simple dictates of conscience, and according to the broad principles of morality and law, and I think it is the duty of the Courts to uphold those broad principles in all cases of this description.
We were invited to consider the state of mind of Mr. Ansell; whether he thought it wrong; in other words we are invited to take as the standard for our decision the alleged conscience of a fraudulent servant. I decline to accept any such rule as one on which the Court is to decide such questions.’

Judges:

Bowen LJ, Cotton LJ, Fry LJ

Citations:

(1888) 39 ChD 339

Jurisdiction:

England and Wales

Cited by:

CitedFassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
CitedMiles v Wakefield Metropolitan District Council HL 1987
The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he . .
CitedRDF Media Group Plc and Another v Clements QBD 5-Dec-2007
The defendant had sold his business to the claimants and in part consideration had accepted restrictive covenants as to his not competing with them. On indicating his desire to leave the claimants and work for a competitor, made statements which the . .
CitedImageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
ApprovedRhodes v Macalister CA 1923
The plaintiff agent acted to find a seller of mineral rights for the defendant principal. He told his principal that the properties could be purchased for from andpound;8,000 to andpound;10,000. If the agent could find a seller at below . .
CitedMr H TV Ltd v ITV2 Ltd ComC 8-Oct-2015
The claimant had contracted with the defendant for the production of a series of reality TV shows featuring celebrities. After severe personal clashes between the people involved on the claimants side, the contract was terminated. The claim was that . .
CitedPhones 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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Employment

Updated: 16 May 2022; Ref: scu.215864

Harmond Properties Ltd v Gajdzis: CA 1968

The County Court decided that a notice to quit given to a tenant by a director of the landlord company in his own name was valid.
Held: The decision was correct. The director had carried out the letting and acted as if he were the landlord in every way. He was held to have been the general agent of the landlord.

Citations:

[1968] 1 WLR 1858

Jurisdiction:

England and Wales

Cited by:

CitedDun and Bradstreet Software Services (England) Ltd; Dun and Bradstreet Software Services Ltd v Provident Mutual Life Assurance Association and General Accident Linked Life Assurance CA 9-Jun-1997
Break clauses had been exercised on behalf of the plaintiffs. The defendant landlords appealed a decision upholding the notices. A penalty rent had been sought.
Held: There had been no sufficient agency established to validate the notice. The . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Agency

Updated: 16 May 2022; Ref: scu.188164

Chaudry v Prabhakar: CA 1988

The plaintiff sued a friend of hers for wrongly advising her that a car she was thinking of buying was in good condition.
Held: An agent, even a volunteer, owed a duty of care appropriate for those circumstances. The measurement was objective, not subjective. The defendant knew he was to be relied upon, and the circumstances (a crumpled bonnet) suggested that further enquiry was required. The relationship may be material. If they are friends, the court may find that the arrangement was purely social, and according to the circumstances, did not give rise to a duty of care.
Stuart Smith LJ said: ‘When considering the question of whether a duty of care arises, the relationship between the parties is material. If they are friends, the true view may be that the advice or representation is made on a purely social occasion and the circumstances show that there has not been a voluntary assumption of responsibility.’
Stocker LJ said: ‘in my view, in the absence of other factors giving rise to such a duty, the giving of advice sought in the context of family, domestic or social relationships will not in itself give rise to any duty in respect of such advice.’
May LJ said: ‘I for my part respectfully doubt whether counsel’s concession in the instant case was rightly made in law. I do not find the conclusion that one must impose on a family friend looking out for a first car for a girl of 26 a Donoghue v Stevenson duty of care in and about his quest, enforceable with all the formalities of the law of tort, entirely attractive.’

Judges:

Stuart Smith, Stocker, May LJJ

Citations:

[1989] 1 WLR 29, [1988] 3 All ER 718

Jurisdiction:

England and Wales

Citing:

Dictum appliedHoughland v R R Low (Luxury Coaches) Ltd CA 1962
A passenger’s bag had been placed in one coach that had broken down was intended to be transferred to a second coach. When the second coach arrived at the passenger’s destination the bag was not in the hold.
Held: The duty of care of a bailee . .
AppliedHedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
CitedDonoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Lists of cited by and citing cases may be incomplete.

Agency, Negligence

Updated: 16 May 2022; Ref: scu.188809

Wood (John D) and Co v Dantata; Beauchamp Estates v Dantata: CA 1987

The purchaser liked inspecting houses and the vendor had appointed ten firms to act for him as estate agents. Each of the estate agents was approached by this purchaser and each of the estate agents took the would be purchaser over the property of the vendor. An estate agency’s clients resisted payment of his fees. Two agents were saying they were entitled to commission. The result depended upon whether the agent had introduced the purchaser. The parties had accepted that ‘in order to succeed one or other of the two firms had to show that they introduced the ultimate purchaser and that such introduction was the (my emphasis) effective cause of the purchase.’
Held: The familiar meaning of the word introduction was the bringing together of two people who have not previously met, and the phrase ‘introduction of a purchaser’ could only mean the ‘introduction of the person who ultimately purchases, not to the property, but to the purchase, or, if you look at it from the vendors angle, to the sale; in either case to the transaction that takes place’. The fact that one agent introduces a person who ultimately purchases after a later introduction by another agent will not necessarily entitle the first agent to commission. In such a case the court must determine which of the two agents was the effective cause of the transaction taking place.
Nourse LJ: ‘As I have said, the learned judge recorded an acceptance by all three counsel that in order to succeed one or other of the two firms had to show that they introduced the ultimate purchaser and that such introduction was the effective cause of the purchase. That would seem to suggest that there are two questions to be answered, and it would certainly explain the importance which the learned judge attached to the chief’s retention of a lively interest in the property when he went there again on September 9. In truth I think that there is but a single question to be answered: which of the two firms introduced the chief to the sale? Both language and authority establish that that question must be answered by answering this further question: which of the two firms was the effective cause of the sale? Here I would gratefully adopt the following statement of the law in Bowstead on Agency , 15th ed, at p230, to which the learned judge referred:
… the fact that one agent introduces a person who ultimately purchases after a later introduction by another agent will not necessarily entitle the first agent to commission. In such a case the court must determine which of the two agents was the effective cause of the transaction taking place.
The difficulties in clarifying the mind on this question are, I think, caused by the familiar meaning of the word ‘introduction’ as the bringing together of two people who have not previously met. Thus it is natural, when looking at the word in its present context, to attach significance to the first bringing together of the property and the person who ultimately purchases it. But the full phrase is ‘the introduction of a purchaser’ and I think that that can only mean the introduction of the person who ultimately purchases, not to the property, but to the purchase or, if you look at it from the vendor’s angle, to the sale: in either case to the transaction which ultimately takes place. And if you then apply the primary dictionary meaning of ‘introduction’, you find that what you are looking for is the leading or bringing in of the purchaser to that transaction. That makes it clear that first acquaintance is not paramount and it explains why the test is expressed by reference to the effective cause of the transaction.
Which of the two firms was the effective cause of the sale to the chief?’

Judges:

Nourse LJ

Citations:

[1987] 2 EGLR 23

Jurisdiction:

England and Wales

Cited by:

CitedHarwood T/A RSBS Group v Smith and Smith and Bedwell Watts and Company (a Firm) CA 14-Nov-1997
An estate agent with sole selling rights was not entitled to claim commission on a sale where he had contributed no act to the sale, even though his terms were specific enough to deal with the particular circumstances which had arisen here. Such a . .
CitedNahum v Royal Holloway and Bedford New College CA 12-Nov-1998
An estate agent was entitled to his commission when he could show that it was he who had brought about the relationship of buyer and seller. Delay and actions of others intended to hide that causation did not defeat the claim. The defendant asked . .
ConsideredChasen Ryder and Co v Hedges CA 1993
The vendor first instructed the plaintiffs to sell his residential home. They introduced several people, but no offers were made. The vendor went to another firm of agents. An extended planning consent was obtained, and one of the original enquirers . .
CitedBurney v The London Mews Company Ltd CA 7-May-2003
The defendant sought to appeal judgment against him for his estate agent’s commission. They had been appointed sole agents. A second firm obtained the particulars for their own retained clients, but then copied the particulars onto their own . .
CitedStandard Life Assurance Company (Incorporated Under Laws of Scotland By Act of Parliament) v Egan Lawson Limited CA 21-Nov-2000
The defendant appealed against judgment in favour of his (buyer’s) estate agent for his commission in finding the property for it. A previous offer was rejected by the seller, but a subsequent agent of the buyer obtained the acceptance of a further . .
CitedBecerra 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 . .
CitedFoxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
CitedMSM 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 . .
CitedCharania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 16 May 2022; Ref: scu.180396

Watteau v Fenwick: QBD 1893

The defendant brewers owned a beerhouse. They appointed a manager of the business; the license was always taken out in the name of the manager, whose name also appeared over the door. By the agreement between the defendants and their manager, the latter was forbidden to purchase certain articles for the purpose of the business, which were to be supplied by the defendants; but the manager, in contravention of his instructions, ordered such articles from the plaintiff for use in the business; the plaintiff supplied the goods and gave credit for them to the manager only. Subsequently, upon discovering that the defendants were the real owners of the business, the plaintiff sued them for the value of the goods’.
Held: The plaintiff succeeded as the defendants who were the real principals, were liable for all acts of their agent which were within the authority usually conferred upon as an agent of his particular character, although he had never been held out by the defendants as their agent, and although the authority given to him by them had been exceeded.
Wills J. said: ‘once it is established that the defendant was the real principal, the ordinary doctrine as to principal and agent applies — that the principal is liable for all the acts of the agent which are within the authority usually confided to an agent of that character, notwithstanding limitations, as between the principal and the agent, put upon that authority. It is said that it is only so where there has been a holding out of authority — which cannot be said of a case where the person supplying the goods knew nothing of the existence of a principal. But I do not think so. Otherwise, in every case of undisclosed principal, or at least in every case where the fact of there being a principal was undisclosed, the secret limitation of authority would prevail and defeat the action of the person dealing with the agent and then discovering that he was an agent and had a principal.’

Judges:

Wills J

Citations:

[1893] 1 QB 346

Jurisdiction:

England and Wales

Agency

Updated: 16 May 2022; Ref: scu.616745

Ultzen v Nicols: 1894

The plaintiff went to eat in the defendant’s restaurant. He gave over his coat to the waiter, who hung it on a hook. It was stolen.
Held: The defendant was liable as a bailee for reward. He was guilty of negligence in the care of the coat.

Citations:

[1894] 1 QB 92, (1894) 63 LJ QB 829, (1894) 70 LT 140, (1894) 10 TLR 25, (1894) 28 Sol Jo 26, (1894) 10 R 13 DC

Cited by:

CitedGnango, Regina v SC 14-Dec-2011
The prosecutor appealed against a successful appeal by the defendant against his conviction for murder. He and an opponent had engaged in a street battle using guns. His opponent had shot an innocent passer by. The court was now asked as to whether . .
Lists of cited by and citing cases may be incomplete.

Agency, Negligence

Updated: 15 May 2022; Ref: scu.467241

Raiffeisen Zentralbank Osterreich A G v Crossseas Shipping Ltd and Others: CA 2000

The claimant creditor bank made changes to the guarantee executed by the guarantee without its approval and after it had been signed and duly executed, by inserting the details of a service agent.
Held: The insertion did not work to alter the guarantor’s liability, and had not been prejudicial to its legal rights and obligations and accordingly was not material. The guarantee remained enforceable. An alteration to the contract after signature did not invalidate it unless it was material in the sense of being ‘potentially prejudicial to the legal rights or obligations of the affected party’.

Citations:

[2000] 1 WLR 1135

Jurisdiction:

England and Wales

Citing:

Appeal FromRaiffeisen Zentralbank Osterreich A G v Crossseas Shipping Ltd and Others ComC 19-Mar-1999
ComC The rule in Pigot’s case. Whether alteration to a guarantee by the insertion of the name and address of a service agent was material so as to render the guarantee unenforceable. . .
CitedPigot’s Case 1614
A written contact may be avoided if somebody makes a material alteration to it after it has been signed and without his consent. . .

Cited by:

CitedMercury Tax Group Ltd and Another, Regina (On the Application of) v HM Revenue and Customs and Others Admn 13-Nov-2008
The claimant sought judicial review of the lawfulness of search warrants given to the Commissioners and executed at their various offices. The Revenue had suspect the dishonest implementation of a tax avoidance scheme. The claimants said that there . .
CitedPickenham Romford Ltd v Deville ChD 31-Jul-2013
The claimant company’s administrators sought an order to have vacated unilateral notices entered against land titles registered to the claimant. The court now gave its reasons for making the order as requested by way of summary relief. The notices . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 15 May 2022; Ref: scu.415070

Bexwell v Christie: 3 Feb 1776

Action does not lie against an auctioneer for selling a horse at the highest price bid for him, contrary to the owner’s express directions not to let him go under a larger sum named. Otherwise, if the owner had directed the auctioneer to set the horse up at such a particular price ; and not lower. The auctioneer might, after the bidding by the owner, have sold to the plaintiff on his first bidding : how then can the auctioneer’s authority have been countermanded?
The bidding by the owner of an item being sold at auction was, in law, fraudulent, and not a bidding at all.

Citations:

[1776] EngR 25, (1776) 1 Cowp 395, (1776) 98 ER 1150

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedWarlow v Harrison QBD 25-Nov-1858
Whether Auctioneer liable to bidder – vendor’s bid
Three following horses were advertised for sale at auction being the property of a gentleman and sold without reserve. The auctioneer had knocked one down as sold for 61 guineas, but the bid was from the owner. The plaintiff sued the auctioneer, . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 15 May 2022; Ref: scu.373292

Beckford v Beckford: PC 28 Apr 1783

A. by will devises all his estates to his eldest son in tail male, with remainders over ; part of the property consisted of an estate in Jamaica, and therefore the testator added the following clause: ‘ And E recommend to my executors, that all sugars, rum, and other plantation produce that is sent to the port of London, be consigned to the house of Collet, Evans, and Co. until such time as any of my sons shall set up in the business of a sugar factor ; then my desire is, that the consignment may pass through his or their hands.’
C. a natural son of the testator’s, set up the business of a sugar factor, during the minority of the devisee, and accordingly got the consignments upon the devisee’s coming of age, C. accounted with him, but insisted on being entitled to his commission not only upon the produce which he had actually sold, but also upon the produce which had been consigned to him, but was not then arrived in the port of London. Held, that the words of the above clause were not imperative, or amounted to words of bequest in favour of C. but were recommendatory only. Held also, that C: was entitled to a commission only upon what he had actually sold, and not upon what was only consigned, but not delivered to him.
DECRETAL ORDPR of Chancery

Citations:

[1783] EngR 64, (1783) 4 Bro PC 38, (1783) 2 ER 26

Links:

Commonlii

Jurisdiction:

Commonwealth

Wills and Probate, Agency

Updated: 15 May 2022; Ref: scu.372193

Thornett v Haines: 28 Apr 1846

Where a sale by auction is advertised or stated by the auctioneer to be ‘without reserve’, the employment by the vendor of a puffer to bid for him, without notice, renders the sale void, and entitles the purchaser to recover back his deposit from the auctioneer/

Citations:

[1846] EngR 605, (1846) 15 M and W 367, (1846) 153 ER 892

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedWarlow v Harrison CExC 26-Nov-1859
Unless public notice of this was given, a bid from the seller himself was fraudulent. He appealed against rejection of his claim against the auctioneer.
Held: The appeal failed on the existing pleadings, but said that the plaintiff might . .
CitedBarry v Davies (T/A Heathcote Ball and Co) and Others CA 27-Jul-2000
The claimant sought damages from an auctioneer who had failed to accept his bid, and withdrawn the items from the sale.
Held: In an auction without reserve the auctioneer was not entitled to withdraw an item on the basis that the highest or . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 15 May 2022; Ref: scu.302500

Mainprice v Westley: 4 Jul 1865

Liability of auctioneer. Sale without reserve. Undisclosed principal – 1. A declaration alleged that the defendant, an auctioneer, published handbills representing that at a certain day and place he would offer certain premises for peremptory sale by public auction ; that the plaintiff, confiding in those representations, attended at that time and place, whose bid was the highest except a sum bidden by an agent on the part of the vendor, but the defendant would not accept the plaintiff as a purchaser. It appeared in evidence that the handbills stated that on the day and place in question the premises would be offered by the defendant ”for peremptory sale by auction, by direction of the mortgagee with a power of sale, subject to such conditions as will be then declared. For further particulars apply to Mr. H., solicitor, or to the auctioneer.’ H. was the person who brought in the premises. Held, that no contract on which the defendant could be sued personally was proved. 2. Semble, per Cockburn C.J. and Shee J, dubitante Blackburn J., that where an auctioneer, without disclosing his principal, advertises a sale without reserve, he personally contracts that there shall be a sale without reserve.

Judges:

Cockburn CJ, Shee J

Citations:

[1865] EngR 651, (1865) 6 B and S 420, (1865) 122 ER 1250

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

CitedWarlow v Harrison CExC 26-Nov-1859
Unless public notice of this was given, a bid from the seller himself was fraudulent. He appealed against rejection of his claim against the auctioneer.
Held: The appeal failed on the existing pleadings, but said that the plaintiff might . .

Cited by:

CitedBarry v Davies (T/A Heathcote Ball and Co) and Others CA 27-Jul-2000
The claimant sought damages from an auctioneer who had failed to accept his bid, and withdrawn the items from the sale.
Held: In an auction without reserve the auctioneer was not entitled to withdraw an item on the basis that the highest or . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 15 May 2022; Ref: scu.281563

Lowenstein and Co Limited v Durable Wharfage Co Limited: 1973

Citations:

[1973] 1 Lloyds Rep 221

Cited by:

CitedKamidian v Holt (on Behalf of Certain Underwriters at Lloyd’s) and others ComC 27-Jun-2008
The claimant claimed to have bought what he believed to be a genuine Faberge Egg Clock, but which his insurers said was a copy. It was loaned to an exhibition, and insured, and damaged twice. The parties disagreed as to the disappreciation value, . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 15 May 2022; Ref: scu.270465

Commissioners of Customs and Excise v Littlewoods Organisation Plc: ChD 4 Jul 2000

The enhanced commission paid to mail order catalogue agents for supplying services to the company and which was to be set off against goods purchased by the agents themselves from the mail order company were vatable. The commission earned represented in part a discount on the goods purchased, but in reality was also a consideration for the supply of the agents’ services.

Citations:

Times 04-Jul-2000

Statutes:

Sixth Council Directive 77/388/EEC

Citing:

Appealed toCommissioners of Customs and Excise v Littlewoods Organisation plc CA 26-Oct-2001
Agents of the taxpayer received commission on sales. They could take it in cash, or at an enhanced rate on goods purchased. How was the tax to be calculated on the goods sold to the agent? The right to take goods at the enhanced rate arose from a . .

Cited by:

Appeal fromCommissioners of Customs and Excise v Littlewoods Organisation plc CA 26-Oct-2001
Agents of the taxpayer received commission on sales. They could take it in cash, or at an enhanced rate on goods purchased. How was the tax to be calculated on the goods sold to the agent? The right to take goods at the enhanced rate arose from a . .
Lists of cited by and citing cases may be incomplete.

VAT, Agency

Updated: 15 May 2022; Ref: scu.79388

Starkey v The Bank of England: HL 1903

Frederick and Edgar Oliver jointly owned Consols and bank stock. Frederick instructed Starkey a stockbroker to sell them. Frederick signed the necessary powers of attorney in his own name and forged Edgar’s signature. Starkey presented the powers of attorney to the Bank of England, who duly affected the transfer. Once the forgery was established the Bank was liable to replace the Consols and the stock, and sued Starkey for breach of warranty of authority.
Held: Starkey was liable. The Earl of Halsbury LC set out the notion that it was necessary to establish a contract between the purported principal and the plaintiff as illogical, and confusing the question whether the facts established a contractual warranty between plaintiff and defendant, with the question as to whether a contract follows in consequence of a representation. He said: ‘that which does enforce the liability is this – that under the circumstances of this document being presented to the Bank for the purpose of being acted upon, and being acted upon on the representation that the agent had the authority of the principal, which he had not, that does import an obligation – the contract being for good consideration – an undertaking on the part of the agent that the thing he represented to be genuine was genuine.’

Judges:

Earl of Halsbury LC

Citations:

[1903] AC 114

Jurisdiction:

England and Wales

Cited by:

CitedA and J Fabrications (Batley) Ltd v Grant Thornton and Others ChD 1998
The plaintiffs, the majority creditors of a company in liquidation, alleged that they had agreed with Grant Thornton, the defendants, to support the appointment of one of the firm’s partners or employees as liquidator of the company, with a view to . .
Lists of cited by and citing cases may be incomplete.

Agency, Financial Services

Updated: 14 May 2022; Ref: scu.261594

Shipway v Broadwood: 1899

Where an agent takes a secret commission, ‘the real evil is not the payment of money, but the secrecy attending it’

Judges:

Chitty LJ

Citations:

[1899] 1 QB 369

Cited by:

CitedWilson and Another v Hurstanger Ltd CA 4-Apr-2007
The company sought to enforce its loan agreement and charge over the defendants’ property. The defendants appealed saying that the agreement was unenforceable under the Act, since a commission had been paid to the introducing broker, and his fee had . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 14 May 2022; Ref: scu.250998

Australasian Steam Navigation Co v Morse: PC 1872

Sir Montague Smith: ‘when by the force of circumstances a man has the duty cast upon him of taking some action for another, and under that obligation, adopts the course which, to the judgment of a wise and prudent man, is apparently the best for the interest of the persons for whom he acts in a given emergency, it may properly be said of the course so taken, that it was, in a mercantile sense, necessary to take it.’

Judges:

Sir Montague Smith

Citations:

(1872) LR 4 PC 222

Cited by:

CitedF v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 14 May 2022; Ref: scu.250062

Camillo Tank Steamship Company Limited v Alexandria Engineering Works: 1921

Viscount Cave (dissenting on other points) said: ‘The expression ‘account stated’ . . has more than one meaning. It sometimes means a claim to payment made by one party and admitted by the other to be correct. An account stated in this sense is no more than an admission of a debt out of court; and whilst it is no doubt cogent evidence against the admitting party, and throws upon him the burden of proving that the debt is not due, it may, like any other admission, be shown to have been made in error.’

Judges:

Viscount Cave

Citations:

(1921) 38 TLR 134

Cited by:

CitedPost Office Ltd v Castleton QBD 22-Jan-2007
The defendant ran a post office. A cash shortage was found, and he challenged the calculation of the account.
Held: The defendant was liable for the deficit in law. He had shown no sufficient reason to make the court think the calculations . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 14 May 2022; Ref: scu.247972

Chesterfield v Zahid: 1989

Citations:

[1989] CLY 54

Cited by:

ConsideredChasen Ryder and Co v Hedges CA 1993
The vendor first instructed the plaintiffs to sell his residential home. They introduced several people, but no offers were made. The vendor went to another firm of agents. An extended planning consent was obtained, and one of the original enquirers . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 13 May 2022; Ref: scu.229215

Pape v Westacott: 1894

The landlord’s agent, in breach of his authority, released a licence to assign a lease taking a cheque (instead of cash) for the outstanding rent due from the existing tenant. This took place in the presence of the assignee, who did not however know of the excess of authority.
Held: The court dismissed a suggestion that the landlord could still have distrained against the assignee. The agent had as far as the assignee was concerned been held out as acting with authority, but the agent was liable to the landlord for exceeding his authority.

Citations:

[1894] 1 QB 272

Cited by:

CitedOBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 13 May 2022; Ref: scu.223008

The National Insurance and Guarantee Corporation Plc v Imperio Reinsurance Company (UK) and Another: ComC 30 Sep 1997

ComC Reinsurance broker, whether in breach of duty to effect cover, whether waiver, estoppel or ratification a good defence; relationship between ratification and waiver; nature of principal’s representation as to satisfaction with cover; availability of estoppel where Law Reform (Contributory Negligence) Act applicable, extent of discount for contributory negligence of a principal reassured

Judges:

Colman J

Citations:

Unreported, 30 September 1997

Jurisdiction:

England and Wales

Agency, Insurance

Updated: 13 May 2022; Ref: scu.220798

Banbury v Bank of Montreal: PC 1918

A bank manager employed by the respondents had advised one customer to invest in a project of another. The bank could not advise on investments.
Held: The fact that the second customer owed money to the ban under an overdraft did not make the bank his agent so as to make it responsible to the first as the second’s agent,

Citations:

[1918-19] All ER Rep 1, [1918] AC 626, 87 LJKB 1158, 119 LT 446, 36 Digest (Rep 1) 14

Jurisdiction:

Canada

Banking, Agency

Updated: 13 May 2022; Ref: scu.216352

Said v Butt: 1920

The plaintiff wanted to go to a play’s first night. He had fallen out with the management of the theatre, and knew that he would not get a ticket in his own name. He got a friend to go to the theatre and buy a ticket for him without disclosing the fact. When he turned up for the performance he was refused admission. He brought a claim against Sir Alfred Butt the managing director of the theatre.
Held: His claim was dismissed. Said had not established that a contract existed between himself and the company, and that he had consequently failed to prove that Sir Alfred had caused any breach of the alleged contract in refusing Mr Said admission to the theatre.
A first night is a special event with characteristics of its own, and tickets are only given or sold to persons whom the management selects and wishes to favour. The purchaser’s identity was a material element in the formation of the contract and that the failure to disclose the fact that the ticket was bought on his behalf prevented the plaintiff from asserting that he was the undisclosed principal.
Where a company breaches a contract the company employee whose conduct within the scope of employment is ascribed to the company is not usually personally liable for inducing breach of that contract.
McCardie J said: ‘But the servant who causes a breach of his master’s contract with a third person seems to stand in a wholly different position. He is not a stranger. He is the alter ego of his employer. In such a case it is the master himself, by his agent, breaking the contract he has made, and in my view an action against the agent under the Lumley v Gye principle must therefore fail, just as it would fail if brought against the master himself for wrongly procuring a breach of his own contract.

Judges:

McCardie J

Citations:

[1920] 3 KB 497, [1920] All ER 232, 11 BRC 317

Jurisdiction:

England and Wales

Cited by:

CitedShogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
CitedJohn Louis Carter Fourie v Allan Le Roux and others CA 7-Mar-2005
The defendant’s company in South Africa had become insolvent and the claimant had recovered judgment for arrears of rent. They obtained a freezing order against the defendant. The defendant appealed saying the court did not have jurisdiction, and . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 12 May 2022; Ref: scu.188452

Basma v Weekes: PC 1950

The appellant requested specific performance of an agreement by which the first three respondents had agreed to sell to him two houses, of which they were tenants in common. The respondents pleaded, inter alia, that the agreement alleged was not a sufficient memorandum to comply with the requirements of the Statute of Frauds in that the purchaser named therein was acting, to the knowledge of the respondents, as agent for the appellant who was the principal and that the agreement did not identify the appellant as purchaser.
Held: An agent who contracted in his own name did not cease to be contractually bound because it was proved that the other party knew when the contract was made that he was acting as agent. Also the agreement which was made in his name did not cease in that event to contain the names of the contracting parties, and therefore did not cease to satisfy the Statute of Frauds; and, accordingly that, as the agent could have sued on the contract, so could his principal, the appellant.
In a contract subject to the Statute of Frauds the required memorandum in writing must identify the parties and a person could not intervene to claim that he was the true party to the contract when this was not consistent with the terms of the memorandum. A party is nonetheless entitled to enforce the contract to the extent he can perform it.

Judges:

Lord Reid

Citations:

[1950] AC 441, [1950] 2 All ER 146

Jurisdiction:

Commonwealth

Citing:

ApprovedCalder v Dobell 1871
‘an agent who contracts in his own name does not cease to be contractually bound because it is proved that the other party knew when the contract was made that he was acting as agent.’ . .

Cited by:

CitedShogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 12 May 2022; Ref: scu.188462

Re Offshore Ventilation: 1989

The position of agency of receivers is a real one, even though it has some peculiar incidents.

Citations:

[1989] 5 BCC 160

Cited by:

CitedSilven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris CA 21-Oct-2003
The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor . .
Lists of cited by and citing cases may be incomplete.

Agency, Insolvency

Updated: 12 May 2022; Ref: scu.187040

Resolute Maritime Inc v Nippon Kaiji Kyokai: 1983

On its proper construction the section is concerned only with the liability of that other party to the contract and not with the liability of an agent.

Citations:

[1983] 1 WLR 857

Statutes:

Misrepresentation Act 1967 2(1)

Cited by:

CitedMCI Worldcom International Inc v Primus Telecommunications Inc ComC 25-Sep-2003
The claimant sought judgment, and the defendant leave to amend its defence. The question was whether the proposed defence had any reasonable prospect of success.
Held: The misrepresentation alleged was made by the claimant’s in-house . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency, Torts – Other

Updated: 12 May 2022; Ref: scu.186447

National Mercantile Bank v Rymill: 1881

The plaintiff owned horses subject to a bill of sale. The grantor of the bill sold the horses privately in the defendant’s auction yard and following the sale, on the grantor’s instructions, the auctioneer delivered the horses to the buyer.
Held: There had been no conversion. Bramwell LJ: [the auctioneer:] ‘has not claimed to transfer the title and he has not purported to sell; all the dominion he exercised over the chattels was to redeliver them to the person to whom the man from whom he had received them had told him to redeliver them.’ Brett and Cotton LJJ agreed that on the evidence there had been no sale by the auctioneer. This case has been criticised, mainly for the conclusion that there had been no sale by the auctioneer.

Judges:

Bramwell LJ, Brett and Cotton LJJ

Citations:

(1881) 44 LTNS 767

Cited by:

CitedMarcq v Christe Manson and Woods (t/a Christies) QBD 29-Oct-2002
The claimant sought damages for conversion from the respondent auctioneers as bailees. The painting had been registered as stolen. It failed to achieve its reserve and had been returned.
Held: It was for a bailee to prove that he had acted in . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 12 May 2022; Ref: scu.183501

Heskell v Continental Express Ltd: 1950

The court discussed how a warranty of authority could arise in an agent: ‘An agent who warrants that he has authority need warrant no more than the bare fact. In the absence of special circumstances, he makes no warranty or representation about how he got his authority, whether it is express or implied, specific or general. Still less does he warrant that an event, on which the proper exercise of a general authority may depend, has in fact taken place.’ Two causes of the damage at issue were equally operative ‘in that if either had ceased the damage would have ceased’: Where the wrong is a tort, it is clearly settled that the wrongdoer cannot excuse himself by pointing to another cause. It is enough that the tort should be a cause and it is unnecessary to evaluate competing causes and ascertain which of them is dominant . . In the case of breach of contract the position is not so clear . . . Whatever the true rule of causation may be I am satisfied that if a breach of contract is one of two causes, both co-operating and both of equal efficacy, as I find in this case, it is sufficient to carry judgment for damages. Reischer v Borwick [1894] 2 QB 548 establishes that for the purposes of a contract of insurance it is sufficient if an insured event is, in this sense, a co-operating cause of the loss. I do not think that Yorkshire Dale SS Co Ltd v Minister of War Transport [1942] AC 691, with its insistence on the ascertainment of ‘the cause’, disapproved this principle. The case decided that the cause of a loss has to be ascertained by the standard of common sense of the ordinary man. Common sense is a blunt instrument not suited for probing into minute points, and I cannot believe that if the ordinary man thinks that two causes are of approximately equal efficacy, he cannot say so without being interrogated on fine distinctions.

Judges:

Devlin J

Citations:

[1950] 1 All ER 1033

Jurisdiction:

England and Wales

Citing:

CitedMinister of Pensions v Chennell 1946
. .

Cited by:

AppliedPlant Construction Plc v Clive Adams Associates, JMH Construction Services (2) TCC 31-Mar-2000
The case had been remitted to the court to settle the apportionment of damages in a case of breach of contract, rather than in tort. When assessing levels of contribution causation alone is important but not the entire criteria. In cases where both . .
CitedHedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Lists of cited by and citing cases may be incomplete.

Negligence, Agency

Updated: 12 May 2022; Ref: scu.181232

Parker v McKenna: CA 1874

The directors of a bank acquired for themselves, and made a profit on, certain shares the subject of a new issue that were not taken up by the bank’s shareholders.
Held: James LJ said: ‘I do not think it is necessary, but it appears to me very important, that we should concur in laying down again and again the general principle that in this court no agent in the course of his agency, in the matter of his agency, can be allowed to make any profit without the knowledge and consent of his principal; that that rule is an inflexible rule, and must be applied inexorably by this court, which is not entitled, in my judgment, to receive evidence, or suggestion, or argument as to whether the principal did or did not suffer any injury in fact by reason of the dealing of the agent; for the safety of mankind requires that no agent shall be able to put his principal in the danger of such an inquiry as that.’
Lord Cairns LC said: ‘The Court will not inquire, and is not in a position to ascertain, whether the bank has or has not lost by the acts of the directors. All that the Court has to do is to examine whether a profit has been made by an agent, without the knowledge of his principal, in the course and execution of his agency, and the Court finds, in my opinion, that these agents in the course of their agency have made a profit, and for that profit they must, in my opinion, account to their principal.’

Judges:

James LJ, Lord Cairns LC

Citations:

(1874) LR 10 Ch 124

Jurisdiction:

England and Wales

Cited by:

CitedBhullar and others v Bhullar and Another CA 31-Mar-2003
The claimants were 50% shareholders in a property investment company and sought relief alleging prejudicial conduct of the company’s affairs. After a falling out, two directors purchased property adjacent to a company property but in their own . .
CitedO’Donnell v Shanahan and Another CA 22-Jul-2009
The claimant appealed against dismissal of her petition for an order for the defendants to purchase her shares at a fair value, saying that they had acted unfairly toward her. Her co-directors had acquired, for another company of which they were . .
Lists of cited by and citing cases may be incomplete.

Agency, Company

Updated: 12 May 2022; Ref: scu.180414

Smith, Stone and Knight Limited v Birmingham: 1939

Implied Agency between Parent and Subsidiary

An application was made to set aside a preliminary determination by an arbitrator. The parties disputed the compensation payable by the respondent for the acquisition of land owned by Smith Stone and held by Birmingham Waste as its tenant on a yearly tenancy. Birmingham Waste was a wholly owned subsidiary of Smith Stone and was said in the Smith Stone claim to carry on business as a separate department and agent for Smith Stone. As a yearly tenant, Birmingham Waste, however, had no status to claim compensation. The question was whether, as a matter of law, the parent company could claim compensation for disturbance to the business carried on at the acquired premises. The arbitrator’s award answered this in the negative. Smith Stone applied to set the award aside on the ground of technical misconduct.
Held: The parent company was entitled to compensation in respect of a business carried on by a subsidiary on the basis that the subsidiary was in reality carrying it on on behalf of the parent company.
An implied agency existed between the parent and subsidiary companies so that the parent was considered to own the business carried on by the subsidiary and could claim compensation for disturbance caused to the subsidiary’s business by the local council. In determining whether a subsidiary was an implied agent of the parent, Atkinson J examined whether, on the facts as found by the arbitrator and after rejecting certain conclusions of fact which were unsupported by evidence, Smith Stone was in fact the real owner of the business and was therefore entitled to compensation for its disturbance.
The rule to protect the fact of separate corporate identities was circumvented because the subsidiary was the agent, employee or tool of the parent. The subsidiary company was operating a business on behalf of its parent company because its profits were treated entirely as those of the parent company’s; it had no staff and the persons conducting the business were appointed by the parent company, and it did not govern the business or decide how much capital should be embarked on it. In those circumstances, the court was able to infer that the company was merely the agent or nominee of the parent company.
Atkinson J formulated six relevant criteria, namely:
‘(a) Were the profits treated as profits of the parent?
(b) Were the persons conducting the business appointed by the parent?
(c) Was the parent the head and brain of the trading venture?
(d) Did the parent govern the venture, decide what should be done and what capital should be embarked on the venture?
(e) Did the parent make the profits by its skill and direction?
(f) Was the parent in effectual and constant control?’

Judges:

Atkinson J

Citations:

[1939] 4 All ER 116

Jurisdiction:

England and Wales

Cited by:

CitedReed v Marriott (Solicitors Regulation Authority) Admn 13-May-2009
The appellant solicitor had entered into an arrangement with a company to receive referrals of personal injury cases. She said that the agreements were deliberately devised to hide the fact that unlawful referral fees were to be paid, by requiring . .
Lists of cited by and citing cases may be incomplete.

Company, Agency

Updated: 11 May 2022; Ref: scu.472101

Hindmarsh and Another v Brigham and Cowan Ltd: 1943

An agent may not put himself in a position or enter into a transaction in which his personal interest, or his duty to another principal may conflict with his duty to his principal, unless his principal, with full knowledge of all the material circumstances and of the nature and extent of the agent’s interest, consents.

Judges:

Atkinson J

Citations:

(1943) Ll L Rep 141

Cited by:

CitedFHR European Ventures Llp and Others v Mankarious and Others ChD 5-Sep-2011
The claimants sought return of what it said were secret commissions earned by the defendants when working as their agents, and the defendants counterclaimed saying that the commissions had been known to the claimants and that additional sums were . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 11 May 2022; Ref: scu.444554

In Re W (Enduring Power of Attorney): CA 9 Jan 2001

A party who objected to the registration of an enduring power of attorney on the basis that the donor had not had the mental capacity to sign it, had the burden of proving that assertion.
Held: Hostility between the donee of a power and other family members was not a reason to invalidate a power. The Act placed the burden on the objectors, and that burden did not shift after they had brought sufficient evidence to raise it as an issue.

Citations:

Gazette 25-Jan-2001, Times 09-Jan-2001, [2000] Ch 343

Statutes:

Enduring Powers of Attorney Act 1985 6(5)(c) 6(6)

Jurisdiction:

England and Wales

Cited by:

CitedIn re F (Enduring power of Attorney) ChD 2-Apr-2004
Mrs F had given an enduring power to her son, but then became incapable and the power was registered. Her daughter had in the meantime applied to be appointed as her receiver. There was particular bitterness between the brother and sister. F called . .
Lists of cited by and citing cases may be incomplete.

Agency, Health, Family

Updated: 10 May 2022; Ref: scu.82274

Bartram and Sons v Lloyd: 1904

A secret commission had been agreed and paid to the agent. The court was asked whether the principal had elected to affirm the contract with the other party at a later meeting when he was given some information about what had happened.
Held: He had not. The principal had still not made his election with full knowledge of the material facts. There had been an inadequate initial disclosure.

Citations:

[1904] 90 LTR 357

Cited by:

CitedWilson and Another v Hurstanger Ltd CA 4-Apr-2007
The company sought to enforce its loan agreement and charge over the defendants’ property. The defendants appealed saying that the agreement was unenforceable under the Act, since a commission had been paid to the introducing broker, and his fee had . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 10 May 2022; Ref: scu.250999

Bryant Powis and Bryant v La Banque du Peuple: PC 1893

Powers of Attorney are to be construed strictly.

Judges:

Lord Macnaghten

Citations:

[1893] AC 170

Cited by:

CitedMcDowall v Inland Revenue SCIT 26-Jun-2003
Gifts had been made from an estate, purportedly under a power of attorney. During his lifetime, the deceased had made various gifts to his children. As he begand to suffer Alzheimers, he gave a power of attorney. He had substantial assets, well . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Agency

Updated: 09 May 2022; Ref: scu.224089

Great Atlantic Insurance Co v Home Insurance Co: 1981

Lloyd J said: ‘if the principal has held out his agent as having a certain authority, it hardly lies in his mouth to blame the agent for acting in breach of a secret limitation placed on that authority’.

Judges:

Lloyd J

Citations:

[1981] 2 Ll R 219

Jurisdiction:

England and Wales

Cited by:

Appeal fromGreat Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .
Dictum doubtedOBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 09 May 2022; Ref: scu.223007

Hovenden and Sons v Millhoff: 1900

Romer LJ said: ‘The courts of law in this country have always strongly condemned and, when they could, punished the bribing of agents, and have taken a strong view as to what constitutes a bribe. I believe the mercantile community as a whole appreciate and approve of the court’s views on the subject. But some persons undoubtedly hold laxer views. Not that these persons like the ugly word ‘bribe’ or would excuse the giving of a bribe if that word be used, but they differ from the courts in their view as to what constitutes a bribe. It may, therefore, be well to point out what is a bribe in the eyes of the law. Without attempting an exhaustive definition I may say that the following is one statement of what constitutes a bribe. If a gift be made to a confidential agent with a view of inducing the agent to act in favour of the donor in relation to transactions between the donor and the agent’s principal and that gift is secret as between the donor and the agent – that is to say , without the knowledge and consent of the principal – then the gift is a bribe in the view of the law. If a bribe be once established to the court’s satisfaction then certain rules apply. Amongst them the following are now established, and, in my opinion, rightly established in the interests of morality with the view of discouraging the practice of bribery. First, the court will not enquire into the donor’s motive in giving the bribe, nor allow evidence to be gone into as to the motive. Secondly, the court will presume in favour of the principal and as against the briber and the agent bribed, that the agent was influenced by the bribe; and this presumption is irrebuttable. Thirdly, if the agent be a confidential buyer of goods for his principal from the briber, the court will assume as against the briber that the true price of the goods as between him and the purchaser must be taken to be less than the price paid to, or charged by the vendor by, at any rate, the amount or value of the bribe. If the purchaser alleges loss or damage beyond this, he must prove it ‘.

Judges:

Romer LJ

Citations:

[1900] 83 LT 41

Jurisdiction:

England and Wales

Cited by:

ExplainedIndustries and General Mortgage Co Ltd v Lewis 1949
When arranging with the plaintiff company to obtain a loan for the defendant V stipulated that he should be paid half the procuration fee which the defendant would be charged for the company’s services. The company knew that V was to receive from . .
CitedAnangel Atlas Compania Naviera SA v Ishikawajima-Harima Heavy Industries Co Ltd 1990
The plaintiffs sought recovery of moneys paid by the defendants to one George Thomas Richardson Campbell, a distinguished naval architect on the ground that such payments has been made secretly while Mr Campbell has been acting for the plaintiffs in . .
CitedTesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
CitedArmagas Ltd v Mundogas SA (‘The Ocean Frost’) CA 1985
Proof of corruption not needed for bribe
In establishing that money was paid as an improper inducement or bribe, proof of corruptness or a corrupt motive was unnecessary.
When a court looks at a decision of a judge at first instance, the court stressed the need to look at the . .
Lists of cited by and citing cases may be incomplete.

Agency, Torts – Other

Updated: 09 May 2022; Ref: scu.194863

Silven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris: CA 21 Oct 2003

The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor leads to the assumption by receivers who accept such appointment of responsibilities and duties which differ from those owed by the mortgagees.
Held: By accepting office as receivers of the Claimants’ properties the Receivers assumed a fiduciary duty of care to the Bank, the Claimants and all (if any) others interested in the equity of redemption. The scope or content of the duty depends on the special nature of the relationship between the Bank, the Claimants and the Receivers arising under the terms of the mortgages and the appointments of the Receivers, and in particular the role of the Receivers in securing repayment of the secured debt and the primacy of their obligations in this regard to the Bank. That was inconsistent with a duty to take the pre-marketing steps for which the Claimants contended in this action.

Judges:

Lord Justice Aldous Lord Justice Tuckey Mr Justice Lightman

Citations:

[2003] EWCA Civ 1409, Times 27-Oct-2003, Gazette 20-Nov-2003, [2004] 1 WLR 997, [2004] 4 All ER 484

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedRe Charnley Davies Ltd (No 2) ChD 1990
An administrator owed a duty to the company over which he was appointed to take reasonable care to obtain the best price that the circumstances, as he reasonably perceived them to be, permitted, including a duty to take reasonable care in choosing . .
CitedDownsview Nominees Ltd and Another v First City Corporation Ltd and Another PC 19-Nov-1992
(New Zealand) The holder of a second debenture appointed receivers to the assets. The first debenture holder then also appointed receivers not to obtain repayment of its debt, but to disrupt the work of the first appointed receivers and in order to . .
CitedMedforth v Blake and others CA 26-May-1999
A receiver appointed to manage a business had duties over and above those of mere good faith. A receiver who failed to obtain discounts normally obtainable for supplies to the business might be liable for that failure. when considering the position . .
CitedNash v Eads CA 1880
Sir George Jessel MR: ‘The mortgagee was not a trustee of the power of sale for the mortgagor, and if he was entitled to exercise the power, the Court could not look into his motives for so doing. If he had a right to sell on June 1, and he then . .
CitedPalk v Mortgage Services Funding Plc CA 1993
The mortgagees had obtained an Order for possession with the intention, not of proceeding to sell the property but of waiting in the hope that the market might improve. The mortgagor was anxious that the property should be sold so that the proceeds . .
CitedTse Kwong Lam v Wong Chit Sen PC 1983
For a mortgagee in possession selling a property, it does not matter that the time may be unpropitious and that by waiting a higher price could be obtained: he is not bound to postpone in the hope of obtaining a better price. . .
CitedChina and South Sea Bank Limited v Tan Soon Gin PC 1990
A mortgagee’s decision on sale is not constrained by reason of the fact that the exercise or non-exercise of the power will occasion loss or damage to the mortgagor. He can sit back and do nothing. He is not obliged to take steps to realise his . .
CitedMcHugh v Union Bank of Canada PC 1913
There was a mortgage of horses, which the mortgagee needed to drive to market if he was to sell them.
Held: If a mortgagee goes on with a sale of property which is unsaleable as it stands, a duty of care may be imposed on him, when taking the . .
CitedStandard Chartered Bank Ltd v Walker CA 1982
The mortgagee having obtained insufficient on the sale at auction of the property charged to recover the sum secured, applied for summary judgment against the mortgagor for that sum. The mortgagor resisted the application alleging that the mortgagee . .
CitedKnight v Lawrence 1991
If a mortgaged property is let, the receiver is duty bound to inspect the lease and, if the lease contains an upwards only rent review, to trigger that rent review in due time. . .
CitedKelly v Cooper and Another PC 25-Nov-1992
There was a dispute between a client and an estate agent in Bermuda. The client sued the estate agent for damages for breach of duty in failing to disclose material information to him and for putting himself in a position where his duty and his . .
CitedKnight v Lawrence 1993
As part of his duty of care, a receiver may be required to take positive steps to maintain the value of the property. . .
CitedRoutestone Ltd v Minories Finance ChD 1996
A receiver’s management duties will ordinarily impose on him no general duty to exercise the power of sale, or to ‘work’ an estate by refurbishing it before sale. Speaking of the role of an expert witness ‘What really matters in most cases are the . .
CitedYorkshire Bank Plc v Hall and Others CA 18-Dec-1998
The Court of Appeal is not strictly bound by the terms of leave to appeal given, but where the points had been specifically considered a point could only be heard with the leave of the Court of Appeal which had full power to regulate its own . .
CitedRatford v Northavon District Council CA 1986
The reality of the agency of a receiver is reflected in the continuity, after the appointment of receivers, of the rateable occupation of the mortgagor through the agency of the receivers. The possession of an agent is to be attributed to that of . .
CitedRe Offshore Ventilation 1989
The position of agency of receivers is a real one, even though it has some peculiar incidents. . .
CitedPiacentini v Dayman QBD 5-Feb-2003
The reality of the agency of a receiver for a mortgagor is shown in the absence of personal liability of the receivers for tax in respect of receipts which come to the hands of the receivers as agents. . .
CitedGaskell v Gosling CA 28-Apr-1896
The agency of a receiver for the mortgagor is one where the principal, the mortgagor, has no say in the appointment or identity of the receiver and is not entitled to give any instructions to the receiver or to dismiss the receiver. ‘For valuable . .
CitedGaskell v Gosling CA 28-Apr-1896
The agency of a receiver for the mortgagor is one where the principal, the mortgagor, has no say in the appointment or identity of the receiver and is not entitled to give any instructions to the receiver or to dismiss the receiver. ‘For valuable . .
CitedGomba Holdings v Homan 1986
A receiver’s powers of management are really ancillary to the duty to manage the security, the property of the mortgagee, for the benefit of the mortgagee. In the context of the agency of a receiver which is no ordinary agency but primarily a device . .
CitedHenderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .

Cited by:

CitedDen Norske Bank Asa v Acemex Management Company Ltd CA 7-Nov-2003
Money had been loaned for the purchase of three ships,and mortgages over the ships had been given given. The borrowers were in default, and the lender sought to arrest the vessels. The defendant argued that the way the arrest had been undertaken . .
CitedMacDonald and Another v Carnbroe Estates Ltd SC 4-Dec-2019
‘This appeal concerns the Scots law of gratuitous alienations on insolvency. It raises three principal questions. First, there is a question as to the interpretation of the term ‘adequate consideration’ in section 242(4)(b) of the Insolvency Act . .
Lists of cited by and citing cases may be incomplete.

Negligence, Agency, Insolvency

Leading Case

Updated: 09 May 2022; Ref: scu.187019

King v Hutton: CA 1900

‘The most compelling indicator for or against a trusteeship of an agent’s receipts is the nature of the account agreed to be kept by the agent with his principal. If, after each individual transaction or group of related transactions he effects for his principal, he is to pay over the proceeds in his hands – minus any commission payable – then he will ordinarily be a trustee. But where an agent is effecting both sales and purchases for his principal, or is discharging liabilities for his principal out of monies received, and he keeps a running account with periodic settlement dates at which he pays over the balance of account (if any), he will, ordinarily, be a debtor only – the debtor-only conclusion being reinforced if there are present in the accounts (1) set offs, other than for commission, or (2) interest charges on credits and debits’.

Citations:

[1900] 2 QB 504, [1900] 83 LT 68

Jurisdiction:

England and Wales

Cited by:

CitedAluminium Industrie Vaassen B V v Romalpa Aluminium Ltd ChD 11-Feb-1975
The plaintiffs sold aluminium to the defendant and by a clause in the contract retained their title in the materials sold until payment was received. The purchaser went into insolvent receivership, and the seller sought recovery of the equipment and . .
CitedDP Mann and others v Coutts and Co ComC 16-Sep-2003
The claimants were involved in litigation, They took certain steps on the understanding that the respondents had had deposited with them substantial sums in accounts under binding authorities. The bank had written a letter upon which they claim they . .
Lists of cited by and citing cases may be incomplete.

Trusts, Agency

Updated: 08 May 2022; Ref: scu.181239

J Jarvis and Sons Ltd v Castle Wharf Developments Ltd and Others: CA 28 Feb 2001

An independent professional agent can become liable to someone entering into a contract with his principal for a negligent misstatement which induced him to tender for the contract. The issue was first whether the prospective contractor would rely upon the misstatement. Liability will vary according to the circumstances.

Citations:

Times 28-Feb-2001

Jurisdiction:

England and Wales

Agency, Professional Negligence

Updated: 08 May 2022; Ref: scu.82446

Eden v Ridsdale Railway Lamp and Lighting Co Ltd: CA 1889

The company was held to be entitled as against a director to shares which he had secretly received from a person with whom the company was negotiating.

Judges:

Lord Esher MR and Lindley and Lopes LJJ

Citations:

(1889) 23 QBD 368

Jurisdiction:

England and Wales

Cited by:

CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Company, Agency, Equity

Updated: 08 May 2022; Ref: scu.551505

The Fore Street Warehouse Company Ltd v Durrant and Co: 1883

A writ had been served on the lunatic defendant’s business manager. The Court Rules provided: ‘When a lunatic or person of unsound mind not so found by inquisition is a defendant to the action, service on the committee of the lunatic, or on the person with whom the person of unsound mind resides or under whose care he or she is, shall unless the Court or Judge otherwise orders, be deemed good service on such defendant.’
Held: Judgment was set aside because the writ had been served at a time when the defendant was of unsound mind.
Grove J said: ‘I think the principle of this rule is that the service should be on some person qualified to act for the lunatic or most likely to know to whom the fact of service ought to be communicated. The manager of the lunatic’s business might be ignorant of these matters. Where the writ is served in such a manner that it may probably never reach the lunatic, I do not think it can be valid and proper service. The plaintiffs may reasonably be required to go through the formalities which may give the friends of the lunatic a proper opportunity of appearing.’
He also considered the actions of the defendant’s solicitors, saying: ‘As for the objection that the solicitors are not qualified to appear for the lunatic, there is no doubt that they were authorized to act when she was first taken ill, and I think that the retainer would extend to enable them to take such steps as became necessary in consequence of her lunacy.’

Judges:

Grove J

Citations:

(1883) 10 QBD 471

Statutes:

Supreme Court of Judicature Act 1873

Jurisdiction:

England and Wales

Cited by:

CitedBlankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust CA 27-Jan-2015
This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement. The issue was whether the CFA terminated automatically by . .
Lists of cited by and citing cases may be incomplete.

Health, Agency, Litigation Practice, Legal Professions

Updated: 08 May 2022; Ref: scu.542245

Re Harcourt: CoP 2013

Unless warranted under Article 8.2, the revocation by the Court of Protection an LPA, which a donor executed when they had capacity and in which they chose a family member to be their attorney, would be a violation of their Article 8.1 right to respect for their private and family life

Citations:

[2013] COPLR 69

Statutes:

European Convention on Human Rights 8.2, Mental Capacity Act 2005

Jurisdiction:

England and Wales

Cited by:

CitedRe MRJ JT and KT (Reconsideration of Order) CoP 10-Apr-2014
re_mjtCoP0414
The court had made an order transferring responsibility for MRJ’s affairs from the appointed attorney to the local authority. The order had been made on the papers, and the court now heard an application for it to be reconsidered.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Health, Agency

Updated: 08 May 2022; Ref: scu.523692

Carter, Esq v Sir William Henry Palmer, Bart: 17 Mar 1842

The employment of counsel as confidential legal adviser disables him from purchasing for his own benefit charges on his client’s etates, without his permission ; and although the confidential employment ceases, the disability continues as long as the reasons on which it is founded continue to operate.
C, a barrister, who had been for several years confidential and advising couunsel to P, and had, by reason of that relation, acquired an intimate knowledge of his property and liabilities, and was particularly consulted as to a compromise of securities given by P for a debt which C considered not to be recoverable for the full amount, purchased these securities for less than their nominal amount, without notice to P after ceasing to be his counsel.
Held: that C’s purchase, while the compromise proposed by P was feasible, was in trust for P ; and that C was entitled only to the sum he had paid, with interest according to the course of the Court.

Citations:

[1842] EngR 397, (1841,1842) 8 Cl and Fin 657, (1842) 8 ER 256

Links:

Commonlii

Cited by:

CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Agency

Updated: 07 May 2022; Ref: scu.307352

Barker v Harrison: 16 Apr 1846

A vendor’s agent had secretly negotiated a sub-sale of part of the property from the purchaser at an advantageous price.
Held: that asset was held on trust for the vendor.

Judges:

Sir James Knight-Bruce V-C

Citations:

[1846] EngR 533, (1846) 2 Coll 546, (1846) 63 ER 854

Links:

Commonlii

Cited by:

CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Agency, Equity

Updated: 07 May 2022; Ref: scu.302428

Harington Bart v Hoggart: 29 Jul 1854

An auctioneer who is employed to sell an estate, and who receives a deposit from the purchaser, is a mere stake-holder, liable to be called upon to pay the money at any time ; and, therefore, although he place the money in the funds and make interest of it, he is not liable to pay such interest to the vendor when the purchase is completed ; though the vendor (without the concurrence of the vendee) gave him notice to invest the money in Government securities.

Citations:

[1854] EngR 785, (1854) 5 Giff 13, (1854) 66 ER 902

Links:

Commonlii

Jurisdiction:

England and Wales

AGENCY

Updated: 07 May 2022; Ref: scu.293642

Toulmin v Millar: HL 1887

The agent claimed a second commission when his principal, who had already paid a commission for the procuring of a tenant, was asked to pay a second commission on the purchase of the property by the tenant at a later date.
Held: Where there has been indubitably established a causal relationship between the introduction of the purchaser and the ultimate transaction of the sale, and that is sufficient to found the plaintiff’s legal claim for commission.
Lord Watson said: ‘It is impossible to affirm, in general terms, that A. is entitled to a commission if he can prove that he introduced to B. the person who afterwards purchased B.’s estate, and that his introduction became the cause of the sale. In order to found a legal claim for commission, there must not only be a causal, there must also be a contractual relation between the introduction and the ultimate transaction of sale. If A. had no employment to sell, express or implied, he could have no claim to be remunerated.’

Judges:

Lord Watson

Citations:

(1887) 58 LT 96

Jurisdiction:

England and Wales

Cited by:

CitedThe County Homesearch Company (Thames and Chilterns) Ltd v Cowham CA 31-Jan-2008
The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed from a finding that they were obliged to pay his commission. The judge found . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 07 May 2022; Ref: scu.264095

Morris v CW Martin Ltd: CA 1966

Diplock LJ said: ‘The legal relationship of bailor and bailee of a chattel can exist independently of any contract.’ Where goods are lost or damaged, the burden is on the bailee (or sub-bailee) to ‘show – that the loss or damage caused without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty.’

Judges:

Diplock LJ, Lord Denning MR

Citations:

[1966] 1 QB 716

Jurisdiction:

England and Wales

Cited by:

CitedScottish and Newcastle International Limited v Othon Ghalanos Ltd HL 20-Feb-2008
The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have . .
CitedPiper v Hales QBD 18-Jan-2013
The claimant owned a very vauable vintage Porsche racing car. It was hired to the defendant. The car suffered severe mechanical damage whilst being driven, and the insurers declined liability.
Held: The Defendant as hirer was under an . .
CitedWoodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 07 May 2022; Ref: scu.264646

Fawcett v Whitehouse: 21 Dec 1829

The defendant, intending to enter into a partnership with the plaintiffs, negotiated for the grant by a landlord of a lease to the partnership. The landlord paid the defendant andpound;12,000 for persuading the partnership to accept the lease.
Held: The defendant was accountable to the new partnership for the money. It would otherwise have been a fraud on his partners. An agent, who was negotiating on behalf of a prospective lessee and who accepted a ‘loan’ from the lessor, held the loan on trust for his principal, the lessee.

Citations:

(1829) 1 Russ and M 132, [1829] EngR 859, (1829) 1 Russ and My 132, (1829) 39 ER 51

Links:

Commonlii

Cited by:

CitedSimms v Conlon and Another CA 20-Dec-2006
Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .
CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Company, Agency

Updated: 07 May 2022; Ref: scu.248008

Brodie, Marshall and Co (Hotel Division) Ltd v Sharer: 1988

The defendant resisted payment of his estate agent’s charges. The agency contract gave the agent sole selling rights, but the purchaser was found on the vendor’s own initiative. The terms made commission was payable if ‘we introduce directly of indirectly a person who agrees to purchase the property.’ Further ‘if during the period of our sole selling agreement the owner deals with a person not introduced by us or by any other agent, we shall be entitled to the same commission as if we had introduced such person.’ The defendant had not withdrawn the plaintiff’s instructions, but the introduction was not by any person within the terms defined.
Held: The agent could recover his commission. The clauses were clear and unambiguous, and had properly been brought to the attention of the defendant. The terms were neither onerous, nor unusual.

Judges:

White J

Citations:

[1988] 1 EGLR 21, [1988] 19 EG 129

Jurisdiction:

England and Wales

Citing:

CitedLuxor (Eastbourne) v Cooper HL 1941
The vendor company had instructed agents to sell properties on its behalf and had agreed to pay commission on completion of the sale. The sale was agreed with a prospective purchaser introduced by the agents. Before the sale was completed, the . .
CitedJaques v Lloyd D George and Partners 1968
. .
CitedInterfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
CitedThornton v Shoe Lane Parking Ltd CA 18-Dec-1970
The claimant had suffered damage at the defendant’s car park. The defendant relied upon an exemption clause printed on the ticket, and now appealed against rejection of its defence under the clause.
Held: The appeal failed. The more extreme an . .

Cited by:

CitedG and S Properties v Donald Francis and Another SCS 13-Jun-2001
The pursuers were contracted to sell a property with sole selling rights. The contract was terminable on two weeks notice. Notice was given, and another company engaged. A buyer confused the two agents and obtained details from the pursuer’s office, . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 07 May 2022; Ref: scu.231524

Sorrell v Finch: HL 1976

A purchaser had paid a deposit to the estate agent, but sought its return before contracts had been exchanged.
Held: In the absence of any express extension of authority to a estate agent or auctioneer to receive a pre-contract deposit, the potential purchaser is, at all times until the contract is entered into, the only person with any claim or right to the deposit. If the agent chooses to forward such deposit, then he must bear the loss. The vendor at that stage has no liability to repay the deposit. After completion, the agent holds any deposit for the vendor subject only to his right to deduct his commission and expenses. In a dispute between the vendor and purchaser, the agent should interplead.

Citations:

[1976] 2 All ER 371, [1977] AC 728, [1976] 2 WLR 833, 120 Sol Jo 353

Jurisdiction:

England and Wales

Agency

Updated: 06 May 2022; Ref: scu.219191

Chasen Ryder and Co v Hedges: CA 1993

The vendor first instructed the plaintiffs to sell his residential home. They introduced several people, but no offers were made. The vendor went to another firm of agents. An extended planning consent was obtained, and one of the original enquirers returned and evetually bought the property. The vendor paid the second agent only. The first agent sued, and the defendant now appealed.
Held: The test of whether an estate agent can sue for having introduced a purchaser is whether he has introduced the purchaser to the purchase transaction, not merely to the property. The burden lay first on the agent to show that his introduction had been the effective cause of the purchase. The court might infer that causation from the introduction, but the defendant might show another effective casue of the sale. Here the first introduction had not produced a result, but the second did. The first agent was not the effective cause of the sale and was not to be paid.

Judges:

Sir Donal Nicholls V-C, Staughton LJ

Citations:

[1993] 1 EGLR 47, [1993] 39 EG 123

Jurisdiction:

England and Wales

Citing:

ConsideredWood (John D) and Co v Dantata; Beauchamp Estates v Dantata CA 1987
The purchaser liked inspecting houses and the vendor had appointed ten firms to act for him as estate agents. Each of the estate agents was approached by this purchaser and each of the estate agents took the would be purchaser over the property of . .
ConsideredChesterfield v Zahid 1989
. .

Cited by:

CitedChristie Owen and Davies v Lampitt CA 28-Jul-1999
An estate agent sued for his commission. The eventual purchaser had previously shown interest in the property, and approached the defendant, who only then approached the claimants and instructed them.
Held: The defendants case was not . .
CitedStandard Life Assurance Company (Incorporated Under Laws of Scotland By Act of Parliament) v Egan Lawson Limited CA 21-Nov-2000
The defendant appealed against judgment in favour of his (buyer’s) estate agent for his commission in finding the property for it. A previous offer was rejected by the seller, but a subsequent agent of the buyer obtained the acceptance of a further . .
CitedFoxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 06 May 2022; Ref: scu.182507

Van Praagh v Everidge: ChD 1902

A power of attorney conferred by a bidder on an auctioneer of land to execute the memorandum of sale if it is knocked down to him was held to be irrevocable

Citations:

[1902] 2 Ch 266

Cited by:

Appealed fromVan Praagh v Everidge CA 1904
. .
CitedBailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 06 May 2022; Ref: scu.568648

(In re Hannan’s Empress Gold Mining and Development Co (Carmichael’s Case): 1896

A power of attorney was held to be irrevocable when conferred on the promoter of a public share offering to subscribe for shares

Citations:

[1896] 2 Ch 643

Cited by:

CitedBailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
Lists of cited by and citing cases may be incomplete.

Agency, Company

Updated: 06 May 2022; Ref: scu.568647

In re Caerphilly Colliery Co, Pearson’s Case: CA 1877

A company director, had received shares from the promoters and then acted for the company in its purchase of a colliery from the promoters.
Held: The shares were held on trust for the company.

Judges:

Sir George Jessel MR and James and Baggallay LJJ

Citations:

(1877) 5 Ch D 336

Jurisdiction:

England and Wales

Cited by:

CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 06 May 2022; Ref: scu.551504

Bagnall v Carlton: CA 1877

Agents for a prospective company who made secret profits out of a contract made by the company were held to be ‘trustees for the company’ of those profits

Judges:

James, Baggallay and Cotton LJJ

Citations:

(1877) 6 Ch D 371

Jurisdiction:

England and Wales

Cited by:

CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Company, Equity, Agency

Updated: 06 May 2022; Ref: scu.551500

Tinsley v Dudley: CA 1951

The plaintiff sought damages after the motorcycle he had parked in the defendant hotelier’s closed car park was stolen.
Held: An occupier is under no duty to protect goods from the risk of theft by third parties. The publican was not a bailee of the motorcycle in that there had been no transfer of possession to the publican.
Jenkins LJ remarked on the complete absence of any authority suggesting liability for the loss of a vistor’s property. He said that such a principle would produce: ‘a liability of a most comprehensive and sweeping character, and would have entered into a very great number of cases if it existed.’

Judges:

Jenkins LJ

Citations:

[1951] 2 KB 18

Agency, Negligence

Updated: 06 May 2022; Ref: scu.467242

Hersom v Bernett: 1954

The defendant had sold stolen goods to the plaintiff, saying that he acted as agent only for an undisclosed principal. The plaintiff had had to return the goods to the true owner. The court rejected the defendant’s assertion as to who was the true principal.
Held: The defendant should not be heard to name his principal. He was liable himself.

Judges:

Roxburgh J

Citations:

[1955] 1QB 98, [1954] 3 All ER 370, [1954] 3 WLR 737, (1954) 98 Sol Jo 805

Cited by:

CitedKnight Frank Llp v Du Haney CA 12-Apr-2011
The court was asked whether an agent, who in the course of making a contract with a third party misrepresents the name of his principal, attracts either liability for breach of warranty of authority or personal liability on the contract in . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 06 May 2022; Ref: scu.433618

Grove And Another, Assignees of Liotard, A Bankrupt, v Dubois: 31 Jan 1786

A commission del credere is an absolute engagement to the principal from the broker, and makes him liable in the first instance. A broker with such a commission may set-off, under the general issue, a loss upon a policy happening before a bankruptcy, to an action by the assignees of the bankrupt, for premiums upon various policies under-written by him, and for which he had debited the broker : but such a loss carinot be proved under a riotice of set-off.

Citations:

[1786] EngR 42, (1786) 1 TR 112, (1786) 99 ER 1002

Links:

Commonlii

Agency, Insurance

Updated: 05 May 2022; Ref: scu.371405

Corlett v Gordon And Another: 16 Dec 1813

Merchants in London receive from a mere stranger residing abroad a bill of lading of certain goods, in a letter requesting them to effeet insurance, they declining to do business for the consignor, but acting bona fide with a view to his interest, indorse the bilil of lading to a friend of his, who receives the goods, and afterwards fails with the proceeds iri his hands Held, that the merchants, by indorsing the bill of ladiug were liable to the consignor for the amount

Citations:

[1813] EngR 700, (1813) 3 Camp 472, (1813) 170 ER 1450 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Commercial, Contract, Agency

Updated: 05 May 2022; Ref: scu.338465

Railton v Mathews and Leonard and Another: 14 Jun 1844

A party became surety in a bond for the fidelity of a commission agent to his employers. After some time the employers discovered irregularities in the agent’s accounts, and put the bond in suit. The surety then instituted a suit to avoid the ‘bond, on the ground of concealment by the employers of material circumstances affecting the agent’s credit prior to the date of the bond, and which, if communicated to the surety, would have prevented him from undertaking the obligation. On the trial of an issue whether the surety was induced to sign the bond by undue Concealment or deception on the part of the employers, the presiding Judge directed the jury, that the concealment, to be undue, must be wilful and intentional, with a view to the advantages the employers were thereby to gain : Held by the Lords (reversing the judgment of the Court of Session) that the direction was wrong in point of law. Mere non-communication of circumstances affecting the situation of the parties, material for the surety to be acquainted with, and within the knowledge of the person obtaining a surety bond, is undue concealment, though not wilful or intentional, or with a view to any advantage tor himself.

Citations:

[1844] EngR 683, (1844) 10 Cl and Fin 934, (1844) 8 ER 993

Links:

Commonlii

Agency, Torts – Other

Updated: 05 May 2022; Ref: scu.305275

Clarke v Tipping: 18 Apr 1846

The Defendant had bribed the Plaintiff’s agent to make extracts of false entries from the books of the Plaintiff. The Plaintiff did not move for an injunction on the Defendant’s answer; but, on the cause coming on for hearing, it appeared that Clarke had filed another bill in the Rolls Court, and had obtained in that suit an inspection of those books; and therefore the bill was dismissed. But the principle that an agent could not be allowed to communicate the contents of his employer’s books to another person, and that that person could not publish the information so improperly obtained, was directly admitted by the Vice-Chancellor. A person guilty of bribery takes the knowledge he obtains with no better right to use it than the party communicating it; but here there is neither bribery nor fraud.

Judges:

Wigram VC

Citations:

[1846] EngR 548, (1846) 9 Beav 284, (1846) 50 ER 352

Links:

Commonlii

Citing:

See AlsoClarke v Tipping 18-Jan-1842
. .
See AlsoTipping v Clarke 13-Feb-1843
. .

Cited by:

CitedPrince Albert v Strange ChD 8-Feb-1849
The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
Held: . .
See AlsoClarke v Tipping 15-Apr-1852
. .
Lists of cited by and citing cases may be incomplete.

Agency, Intellectual Property

Updated: 05 May 2022; Ref: scu.302443

Holland v Russell: 9 May 1863

Citations:

[1863] EngR 546, (1863) 4 B and S 14, (1863) 122 ER 365

Links:

Commonlii

Citing:

See AlsoHolland v Russell 13-Jun-1861
holland_russell1861
Insurance. Suppression of material fact. Principal and agent. Money had and received. A, as agent for a foreign owner, entered into a policy of insurance on a ship in the usual form. At the time of effecting the insurance, A was in possession of a . .
Lists of cited by and citing cases may be incomplete.

Agency, Equity

Updated: 05 May 2022; Ref: scu.283201

Robinson Scammel v Ansell: 1985

Citations:

[1985] 2 EGLR 41

Jurisdiction:

England and Wales

Cited by:

CitedImageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 05 May 2022; Ref: scu.282640

Levison v Patent Steam Carpet Cleaning Co Ltd: CA 1977

A valuable Chinese carpet had been taken for cleaning but was lost by the bailee. The bailee said that his liability was limited under the terms of the contract to a particular sum. A fundamental breach is ‘a breach going to the root of the contract’. The claimant pleaded by way of reply that the carpet had been lost by reason of a fundamental breach. The question arose whether the burden lay upon the bailor to establish a fundamental breach of contract or upon the bailee to establish that there had been no fundamental breach of contract.
Held: Whilst recognising that there had been conflicting decisions, the burden lay upon the bailee to establish that there been no fundamental breach.
Lord Denning MR said: ‘Upon principle, I should have thought that the burden was on the cleaners to prove that they were not guilty of a fundamental breach. After all, Mrs. Levison does not know what happened to it. The cleaners are the ones who know, or should know, what happened to the carpet, and the burden should be on them to say what it was . . It is, therefore, a moot point for decision. On it I am clearly of opinion that, in a contract of bailment, when a bailee seeks to escape liability on the ground that he was not negligent or that he was excused by an exception or limitation clause, then he must show what happened to the goods. He must prove all the circumstances known to him in which the loss or damage occurred. If it appears that the goods were lost or damaged by a slight breach – not going to the root of the contract- he may be protected by the exemption or limitation clause. But, if he leaves the cause of loss or damage undiscovered and unexplained – then I think he is liable: because it is then quite likely that the goods were stolen by one of his servants; or delivered by a servant to the wrong address; or damaged by reckless or wilful misconduct; all of which the offending servant will conceal and not make known to his employer. Such conduct would be a fundamental breach against which the exemption or limitation clause will not protect him.’
Orr LJ said: ‘as a matter both of justice and of common sense the burden ought to rest on the bailee who, if the goods have been lost whilst in his possession, is both more likely to know the facts and in a better position to ascertain then than the bailor.’
Sir David Cairns said: ‘however difficult it may sometimes be for a bailee to prove a negative, he is at least in a better position than the bailor to know what happened to the goods while in his possession.’

Judges:

Lord Denning MR, Orr LJ, Sir David Cairns

Citations:

[1978] 1 QB 69, [1977] 3 All ER 498

Jurisdiction:

England and Wales

Cited by:

MentionedGeorge Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd CA 29-Sep-1982
The buyer bought 30lbs of cabbage seed, but the seed was not correct, and the crop was worthless. The seed cost pounds 192, but the farmer lost pounds 61,000. The seed supplier appealed the award of the larger amount and interest, saying that their . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 05 May 2022; Ref: scu.266867

Doyle v Mount Kidston Mining and Exploration Property Ltd: 1984

(Queensland) McPherson J considered an estate agent’s contract: ‘it would have been quite artificial to suppose that the parties intended that the agent should earn his commission simply by finding an individual who, independently of any further action by the agent, later agreed to buy the subject property.’

Judges:

McPherson J

Citations:

[1984] 2 Qd R 386

Cited by:

CitedThe County Homesearch Company (Thames and Chilterns) Ltd v Cowham CA 31-Jan-2008
The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed from a finding that they were obliged to pay his commission. The judge found . .
Lists of cited by and citing cases may be incomplete.

Agency, Commonwealth

Updated: 05 May 2022; Ref: scu.264093

MHC Consulting Services Ltd v Tansell: CA 19 Apr 2000

A company took on employees through an employment agency. The contract of employment was between the agency and the worker who was supplied to the company by the agency. It was the company which had relationship of principal to the worker, and so was responsible for compliance with the Disability Discrimination Act. The absence of a direct contractual relationship was not enough to make that disapply.

Citations:

Times 19-Apr-2000, Gazette 11-May-2000

Statutes:

Disability Discrimination Act 1995 12

Jurisdiction:

England and Wales

Employment, Agency, Discrimination

Updated: 05 May 2022; Ref: scu.83682

Olson v Gullo: 1994

(Court of Appeal for Ontario) A Mr Olson and a Mr Gullo had formed a partnership to develop a tract of land. Mr Gullo nevertheless bought and sold part of the land for his own account at a substantial profit which he planned to pocket. The trial judge held that Mr Olson was entitled to recover the whole of the profit.
Held: The appeal was allowed.
Morden ACJO said that he had ‘concluded . . that it was contrary to principle and authority . . to deprive the defendants of their one-half share in the transaction in question’. He explained: ‘We must, however, begin our consideration with the basic premise that the profit in question is the property of the partnership, not of all the partners except the defaulting partner. To exclude the wrongdoer would be to effect a forfeiture of his or her interest in this partnership property. The point may be understood by considering a starker form of wrongdoing – a case where a partner misappropriates partnership funds for his own benefit. In such a case I am not aware of any principle or decision to the effect that not only must the partner account to the partnership for the money but must also suffer a forfeiture of his or her interest in it. In fact, the case law of which I am aware is to the contrary.’

Judges:

Morden ACJO

Citations:

(1994) 17 OR (3d) 790

Jurisdiction:

Canada

Cited by:

CitedHosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Company, Agency

Updated: 04 May 2022; Ref: scu.569930

Doward, Dickson and Co v Williams and Co: 1890

Where an agent’s only interest is a commercial interest in being able to earn his commission, his power of attorney is not secured and is revocable, because the authority is not properly speaking a security at all.

Citations:

(1890) 6 TLR 316

Jurisdiction:

England and Wales

Cited by:

CitedBailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 04 May 2022; Ref: scu.568646

Dunne v English: CA 1874

A partner had made a secret profit from the sale of partnership property.
Held: The other partner sought and obtained relief ‘substantially in accordance with the first and second paragraphs of the prayer of the bill’, which had sought ‘a declaration . . that the Plaintiff was entitled to share equally with the Defendant in the profits . . and that the Defendant was bound to make over to the Plaintiff one half of the profits . .’ Because of the importance which equity attaches to fiduciary duties, ‘informed consent’ to a fiduciary acting for two parties is only effective if it is given after ‘full disclosure’.
Sir George Jessel MR said of a partner: ‘The Defendant was not only in law the agent of the partnership to sell (being himself a partner, and every partner being an agent of the partnership), but he was in fact the agent who had been engaged in negotiating the sale.’

Judges:

Sir George Jessel MR

Citations:

(1874) LR 18 Eq 524

Jurisdiction:

England and Wales

Cited by:

CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
CitedHosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
Lists of cited by and citing cases may be incomplete.

Equity, Agency, Company

Updated: 04 May 2022; Ref: scu.551499

Drew v Nunn: CA 1879

The supervening mental incapacity of a principal has the effect of terminating the actual authority of his agent: ‘The actual authority of an agent whether conferred by deed or not and whether expressed to be irrevocable or not, is determined by the death or supervening mental incapacity of either the principal or the agent’. However, he may have continuing ostensible authority to bind the principal
Bramwell LJ expressed the view that only insanity amounting to dementia would suffice to annul the authority of an agent.

Judges:

Brett, Bramwell LJJ

Citations:

(1879) 4 QBD 661, (1879 40 LT 671, (1879 48 LJQB 59

Jurisdiction:

England and Wales

Cited by:

CitedBlankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust CA 27-Jan-2015
This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement. The issue was whether the CFA terminated automatically by . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency, Health

Updated: 04 May 2022; Ref: scu.542244

Blackpool Corporation v Locker: CA 1948

The effect of the delegation of a power is that the power in question is exercisable by the delegate and no longer by the pricipal delegator.
Scott LJ discussed the rule that ignorance of the law is no excuse: The maxim that ignorance of the law does not excuse any subject represents the working hypothesis on which the rule of law rests in British democracy. That maxim applies in legal theory just as much to written as to unwritten law, i.e., to statute law as much as to common law or equity. But the very justification for that basic maxim is that the whole of our law, written or unwritten, is accessible to the public – in the sense, of course, that, at any rate, its legal advisers have access to it, at any moment, as of right’ . . ‘John Citizen’ should not be ‘in complete ignorance of what rights over him and his property have been secretly conferred by the minister’ as otherwise ‘For practical purposes, the rule of law . . breaks down because the aggrieved subject’s remedy is gravely impaired’.’

Judges:

Scott LJ

Citations:

[1948] 1 KB 349, [1948] 1 All ER 85

Jurisdiction:

England and Wales

Cited by:

CitedReilly and Another, Regina (on The Application of) v Secretary of State for Work and Pensions SC 30-Oct-2013
The Secretary of State appealed against the decision in favour of Ms Reilly and Mr Wilson, that the 2011 Regulations, made under section 17A of the 1995 Act, did not comply with the requirements of that section, and (ii) a cross-appeal brought by . .
Lists of cited by and citing cases may be incomplete.

Administrative, Agency

Updated: 04 May 2022; Ref: scu.540479

Gaspet Ltd v Ellis (Inspector of Taxes): CA 1987

S Ltd. a member of an oil and gas exploration syndicate, agreeing that the exploration work was to be carried out by one member of the syndicate on behalf of the other members. The costs, expenses, rewards and benefits accruing from the exploration operations were to be shared by the syndicate members in proportion to their participating interests. Gaspet Ltd as a member of the group entered into an ‘illustrative agreement’ with S Ltd agreeing to bear the share of the costs of the expenditure incurred by the operator for which S Ltd was responsible in return for taking the benefit of all S Ltd’s share of any petroleum won from the exploration. The court was asked whether the taxpayer company was entitled to capital allowances in respect of the part of the expenses which it paid pursuant to the illustrative agreement which represented research costs.
Held: The appeal failed. Kerr LJ said: ‘In the present case it is clear that the research was not directly undertaken by the taxpayer company. Was it, then, directly undertaken by someone else on behalf of the taxpayer company? As the judge said, the phrase ‘on behalf of,’ in particular in the context of the phrase ‘by or on behalf of,’ denotes the concept of agency. This is a perfectly straightforward concept, even if in a context such as the present it may require a wider interpretation than agency resulting from a direct contractual relationship. Where, as here, the taxpayer company did not directly undertake the work itself, I therefore ask myself whether the work was undertaken by anyone as its agent, allowing for this wider sense in favour of the taxpayer company.’
and ‘It is true, as Mr. Park reminded us, that the words ‘on behalf of’ can have a more extended meaning than agency, in the sense of ‘for the benefit of’ or ‘in the interests of.’ But I do not think that this is the sense in the present context. It would introduce a great deal of uncertainty into the effect of the section. A close relationship between the claimant and the undertaking of the research is inherent in the language. The concept is that the research is being undertaken directly, either personally or through an agent.’
Nicholls LJ said: ‘I agree with the judge that to be within the phrase ‘on behalf of’ the relationship must be one of agency, or akin thereto, although I think that there need not necessarily be a direct contractual link between the claimant and the person by whom the research is directly undertaken.’

Judges:

Kerr, Nicholls LJJ

Citations:

[1987] 1 WLR 769

Statutes:

Capital Allowances Act 1968 9(1)

Citing:

Appeal fromGaspet Ltd v Ellis (Inspector of Taxes) 1985
S Ltd was a member of an oil and gas exploration syndicate, the agreement relating to which provided that the exploration work was to be carried out by one member of the syndicate (the operator) on behalf of the other members. The costs, expenses, . .

Cited by:

CitedPlevin v Paragon Personal Finance Ltd SC 12-Nov-2014
PPI Sale – No Recovery from Remote Parties
The claimant sought repayment of payment protection insurance premiums paid by her under a policy with Norwich Union. The immediate broker arranging the loan was now insolvent, and she sought repayment from the second and other level intermediaties. . .
Lists of cited by and citing cases may be incomplete.

Agency, Income Tax

Updated: 04 May 2022; Ref: scu.538717

Gaspet Ltd v Ellis (Inspector of Taxes): 1985

S Ltd was a member of an oil and gas exploration syndicate, the agreement relating to which provided that the exploration work was to be carried out by one member of the syndicate (the operator) on behalf of the other members. The costs, expenses, rewards and benefits accruing from the exploration operations were to be shared by the syndicate members in proportion to their participating interests. The taxpayer company was a member of the same group as S Ltd and entered into an ‘illustrative agreement’ with S Ltd. whereby it was to bear the share of the costs of the expenditure incurred by the operator for which S Ltd was responsible in return for taking the benefit of all S Ltd’s share of any petroleum won from the exploration. The issue in the case was whether the taxpayer company was entitled to capital allowances in respect of the part of the expenses which it paid pursuant to the illustrative agreement which represented research costs.
Held: Peter Gibson J said: ‘A capital allowance authorised under the Capital Allowances Act 1968 is treated as a trading expense deductible from profits for corporation tax purposes: section 73 of the Act of 1968. Section 91(1) of that Act governs the right to a capital allowance in respect of expenditure on scientific research and the material part of that subsection is as follows: ‘where a person – (a) while carrying on a trade, incurs expenditure of a capital nature on scientific research related to that trade and directly undertaken by him or on his behalf’ ‘ and ‘The phrase, ‘by him or on his behalf’ is to my mind one very familiar in ordinary language . . I would venture to say that its ordinary and natural connotation is that the act must be done by the claimant or his agent . . I am satisfied that [counsel for the Revenue] is correct in his submission that there must be a contractual link between the claimant and the person by whom the research is directly undertaken and the contractual link is one of agency or something akin thereto . .’

Judges:

Peter Gibson J

Citations:

[1985] 1 WLR 1214

Statutes:

Capital Allowances Act 1968 91(1)

Cited by:

Appeal fromGaspet Ltd v Ellis (Inspector of Taxes) CA 1987
S Ltd. a member of an oil and gas exploration syndicate, agreeing that the exploration work was to be carried out by one member of the syndicate on behalf of the other members. The costs, expenses, rewards and benefits accruing from the exploration . .
CitedPlevin v Paragon Personal Finance Ltd SC 12-Nov-2014
PPI Sale – No Recovery from Remote Parties
The claimant sought repayment of payment protection insurance premiums paid by her under a policy with Norwich Union. The immediate broker arranging the loan was now insolvent, and she sought repayment from the second and other level intermediaties. . .
Lists of cited by and citing cases may be incomplete.

Agency, Income Tax

Updated: 04 May 2022; Ref: scu.538716

United Dominions Trust Ltd v Western: 1976

A party signing a document containing blanks must envisage that they will be completed, and he will be bound so long as the words inserted fell within the scope of what he could reasonably have expected.

Citations:

[1976] QB 513

Cited by:

CitedMercury Tax Group Ltd and Another, Regina (On the Application of) v HM Revenue and Customs and Others Admn 13-Nov-2008
The claimant sought judicial review of the lawfulness of search warrants given to the Commissioners and executed at their various offices. The Revenue had suspect the dishonest implementation of a tax avoidance scheme. The claimants said that there . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 02 May 2022; Ref: scu.415069

Calder v Dobell: 1871

‘an agent who contracts in his own name does not cease to be contractually bound because it is proved that the other party knew when the contract was made that he was acting as agent.’

Citations:

(1871) LR 6 CP 486

Jurisdiction:

England and Wales

Cited by:

ApprovedBasma v Weekes PC 1950
The appellant requested specific performance of an agreement by which the first three respondents had agreed to sell to him two houses, of which they were tenants in common. The respondents pleaded, inter alia, that the agreement alleged was not a . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 02 May 2022; Ref: scu.416021

Bramhall v Hall: 1764

Defective execution of a power refused to be supplied in favour of a natural son against persons claiming under a subsequent valid execution of it.

Citations:

[1764] EngR 3, (1764) 2 Eden 220, (1764) 28 ER 882 (C)

Links:

Commonlii

Jurisdiction:

England and Wales

Agency

Updated: 02 May 2022; Ref: scu.375212

Callander v Oelrichs And Another: 12 Nov 1838

The court considered the extent of a duty of care which might be owed by an agent.
Bosanquet J. said: ‘The jury were warranted in concluding, that if the Defendants were to effect an insurance upon the terms in question, they undertook to give notice in case of failure: that undertaking arises out of the nature of the case, and the relation in which the parties stood to each other: and according to the principle laid down in Smith v. Lascelles if a merchant is led, from previous transactions, to expect that his correspondent will effect an insurance, he has a right to rely on his discharging that duty, unless he receives a letter to the contrary.
Whether that expectation arises from previous dealings, or from an undertaking to insure in the particular instance, can make no difference; and Buller J. says, ‘Where the merchant abroad has no effects in the hands of his correspondent, yet, if the course of dealing between them be such that the one has been used to send orders for insurance, and the other to comply with them, the former has a right to expect that his orders for insurance will be obeyed, unless the latter give him notice to discontinue that course of dealing.”

Citations:

[1838] EngR 915, (1838) 5 Bing NC 58, (1838) 132 ER 1026

Links:

Commonlii

Agency, Insurance

Updated: 02 May 2022; Ref: scu.312921

Lady Beresford v Driver: 31 Jul 1851

The defendant, the plaintiff’s ex-land agent was ordered to deliver up documents to former principal relating to her estate and its management

Citations:

[1851] EngR 754, (1851) 14 Beav 387, (1851) 51 ER 335

Links:

Commonlii

Cited by:

CitedFairstar Heavy Transport Nv v Adkins and Another CA 19-Jul-2013
The court was asked whether the appellant company was entitled to an order requiring its former Chief Executive Officer, after the termination of his appointment, to give it access to the content of emails relating to its business affairs, and . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 02 May 2022; Ref: scu.297070

Hilton v Thomas Burton (Rhodes) Ltd: 1961

Judges:

Diplock J

Citations:

[1961] 1 WLR 705

Jurisdiction:

England and Wales

Cited by:

CitedRose v Plenty CA 7-Jul-1975
Contrary to his employers orders, a milkman allowed children to assist him in his milkround. One was injured, and sued the milkman’s employer.
Held: The milkman had not gone so far outside the activities for which he was employed for the . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Agency

Updated: 02 May 2022; Ref: scu.278322

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

Cited by:

CitedBlackpool 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: 01 May 2022; Ref: scu.267746

Prager v Blatspiel, Stamp and Heacock Ltd: 1924

McCardie J spoke of the demand of an expanding society for an expanding common law. An agent must act bona fide in the interests of his principal.

Judges:

McCardie J

Citations:

[1924] 1 KB 566

Cited by:

CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
CitedF v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Agency

Updated: 30 April 2022; Ref: scu.235925