Bailey and Another v Angove’s Pty Ltd: CA 7 Mar 2014

The parties disputed the payment out of sums held by the company’s liquidators under an undertaking given by them. Their case was that if DandD (agents for the insolvent company) acted in the relevant respects as agents, their authority to collect the price of goods which they had sold on Angove’s behalf survived the termination of the ADA because they would need it to recover their commission.
Held: The Court accepted this argument and allowed the appeal on that basis. DandD’s authority was irrevocable because the general rule that authority can be revoked ‘must yield to what the parties have agreed should be their respective legal rights and obligations on the termination of the agency’. Construing the agreement, a continuing right to collect the price from the customer was implicit in (i) DandD’s right to deduct commission from the price before remitting it to Angove’s, and (ii) DandD’s obligation to account to Angove’s for the price within 90 days of the bill, whether or not it had by then been received from the customer. This was because these features of the agreement gave rise to liabilities of Angove’s to DandD, which could be set off against sale proceeds in DandD’s hands.

Patten, Lewison, Sharp LJJ
[2014] EWCA Civ 215, [2014] 2 BCLC 129
Bailii
England and Wales
Citing:
Appeal fromBailey and Another v Angove’s PTY Limited ChD 2013
The liquidator of the company sought a declaration that sums received by the defendant sales agents on behalf of the insolvent company were to be paid out to the liquidators in full. The court was asked whether the payments by DWL and PLB made after . .

Cited by:
Appeal fromBailey 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.

Insolvency, Agency

Updated: 01 December 2021; Ref: scu.522276

J Spurling Ltd v Bradshaw: CA 26 Mar 1956

Denning LJ said: ‘ . . A bailor, by pleading and presenting his case properly, can always put on the bailee the burden of proof. In the case of non-delivery, for instance, all he need plead is the contract and a failure to deliver on demand. That puts on the bailee the burden of proving either loss without his fault (which, of course, would be a complete answer at common law) or, if it was due to his fault, it was a fault from which he is excused by the exempting clause.’

Lord Justice Denning,,
Lord Justice Morris,
And,
,
Lord Justice Parker
[1956] EWCA Civ 3, [1956] 1 WLR 461, [1956] 1 Lloyds Rep 392, [1956] 2 All ER 121
England and Wales
Cited by:
CitedVolcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 01 December 2021; Ref: scu.670139

Nugent v Smith: CA 29 May 1876

A mare carried in the hold of the ship, died as a result of a combination of more than usually bad weather and the fright of the animal herself which caused her to struggle and injure herself.
The defendant, a common carrier by sea from London to Aberdeen, received from the plaintiff a mare to be carried to Aberdeen for hire. In the course of the voyage the ship encountered rough weather, and the mare received such injuries that she died. The jury found that the injuries were caused partly by more than ordinary bad weather, and partly by the conduct of the mare herself by reason of fright and consequent struggling, without any negligence of the defendant’s servants.
Held: Reversing the decision of the Court below, that the defendant was not
liable for the death of the mare.
The carrier does not insure against the irresistible act of nature, nor against defects in the thing carried itself; and if he can shew that either the act of nature or the defect of the thing itself, or both taken together, formed the sole direct and irresistible cause of the loss, he is discharged. In order to shew that the cause of the loss was irresistible it is not necessary to prove that it was absolutely impossible for the carrier to prevent it, but it is sufficient to prove that by no reasonable precaution under the circumstances could it have been prevented.
Cockburn CJ described inherent vice as the rule that: ‘the carrier is not liable where the thing carried perishes or sustains damage, without any fault of his , by reason of some quality inherent in its nature . .’
Mellish LJ thought that: ‘ if the jury had found that the injury was caused solely by the conduct of the mare herself by reason of fright and consequent struggling, without any negligence on the part of the defendant’s servants , I am of opinion that a plea that the injury to the mare was caused by the vice of the mare herself would have been proved.’
Mellish LJ said that in order to be an ‘act of God’ an event must be irresistible.

Cockburn CJ, Mellish LJ
(1876) 1 CPD 423, 45 LJCP 19, [1876] UKLawRpCP 52, (1875-1876) 1 CPD 423
Commonlii
England and Wales
Cited by:
CitedTransco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
CitedVolcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport, Agency

Updated: 01 December 2021; Ref: scu.188035

Joseph Travers and Sons Ltd v Cooper: CA 1915

Goods were loaded onto a barge from a ship for delivery at the barge owners wharf in the Thames under a contract, which exempted the barge owner from liability ‘for any damage to goods how’s the weather caused which can be covered by insurance.’ While the barge was lying alongside the wharf with the goods on board before being unloaded, the barge owners lighterman, who was in charge of the barge, negligently left her unattended at night, and the barge, after taking the ground at low tide, became submerged as the tide rose, and the goods were damaged. in an action against the barge-owner to recover damages for the losses so caused, there was no direct evidence as to the cause of the barge being submerged, and the evidence left it in doubt whether the submerging was or was not attributable to the negligent act of the defendant’s servant in leaving the barge unattended
Held: The above term of exemption in the contract relieved the defendant from liability for damage caused by the negligence of his servant and he was entitled to judgment.

[1915] 1 KB 73, 83 LJKB 1787, 111 LT 1088, 30 TLR 703, 12 Asp MLC 561, 20 Com Cas 44
England and Wales
Citing:
AdoptedMorison, Pollexfen and Blair v Walton 10-May-1909
. .
CitedDollar v Greenfield HL 19-May-1905
The plaintiff, a job master, for several years let carriages and Horses to the defendant by the year and let to the defendant a pair of horses, which were quiet in harness and satisfactory to the defendant’s coachman and stop the horses were kept in . .

Cited by:
CitedVolcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 30 November 2021; Ref: scu.670131

British Road Services Ltd v Arthur V Crutchley and Co Ltd (No 1): CA 1968

There was a theft from a warehouse of a valuable lorry load of high value, namely, whisky. It was held on appeal that the defendants’ system of protection was not adequate in relation to the special risks involved and the value of the chattel bailed, and that even though they had contracted with competent third parties for the security of the warehouse during the hours of darkness the defendants had nevertheless failed to discharge the burden of proof that the loss was not due to any negligence on their part.
Otherwise: British Road Services Ltd v A Crutchley and Co Ltd and Factory Guards Ltd (Third Party)

Sachs LJ
[1968] 1 All ER 811
England and Wales
Cited by:
CitedVolcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport, Negligence, Agency

Updated: 30 November 2021; Ref: scu.670134

Coggs v Bernard ER 235: 1738

A pawnee of any pawn or pledge hath a property in it ; for the thing deposited is a security to him, that he shall be repaid the money lent on it. Arid if things will riot be the worse, as jewels, and co he may use them ; but then it must be at his peril, for if the pawnee is robbed, he is liable to the pawner, because it was the using of the pawn that occasioned the loss of it. In case a pawn is of such a nature, that the keeping is it charge to the pawnee.

[1738] EngR 235, (1688-1710, 1738) Holt KB 528, (1738) 90 ER 1190 (B)
Commonlii
England and Wales
Cited by:
See AlsoCoggs v Bernard ER 233 1738
A common carrier by custom or usage may lawfully claim a reward : and where a man carrying goods is of a public employment, as a carrier, hoyman, etc. he must answer for all events, excepting the acts of God, and the enemies of the King ; and this . .
See AlsoCoggs v Bernard 840 1795
Common Carrier . .
See AlsoCoggs v Bernard 1795
Pawnee robbed . .
CitedVolcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Agency

Updated: 30 November 2021; Ref: scu.385628

Coggs v Bernard: 1703

The defendant had care of the plaintiff’s cask of brandy. He broke the cask and spilt the brandy.
Held: A bailment can exist notwithstanding that it is gratuitous, i.e. without consideration passing from the bailor to the bailee. The declaration that defendant was not a common porter and had been given nothing for his pains, was good, though there was no consideration. Gould J said: ‘The reason for the action is, the particular trust reposed in the defendant, to which he has concurred by his assumption, and in the executing which he has miscarried by his neglect.’ The historical approach of the common law to the question of negligence found its inspiration in Roman law concepts, as in the case in the law of bailment. As to the setting up of a nominal contractual obligation to obviate difficulties in negligence: ‘Secondly it is objected, that there is no consideration to ground this promise upon, and therefore the undertakings is but nudum pactum. But to this I answer, that the owner’s trusting him with the goods is a sufficient consideration to oblige him to careful management. Indeed if the agreement had been executory, to carry these brandies from one place to the other such a day, the defendant had not been bound to carry them. But this is a different case, for assumpsit does not only signify a future agreement, but in such a case as this, it signifies an actual entry upon the thing, and taking the trust upon himself. And if a man will do that, and miscarries in the performance of his trust, an action will lie against him for that, though nobody would have compelled him to do the thing.’
Holt CJ said that there were six classes of bailment.

Lord Holt CJ, Powell J
(1703) 1 Sm LC (13th Ed) 175, [1703] 1 Salk 26, [1703] 1 Com 133, [1703] Holt KB 13, [1703] 2 Ld Raym 909, [1703] 3 Salk 11, [1703] 92 ER 107, [1703] 36 Digest (Rep 1) 32
Commonlii
England and Wales
Cited by:
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 . .
CitedSkelton v London and North Western Ry Co CCP 1867
The defendant’s railway lines crossed a public footpath. The lines were bounded by gates which swung to, as required by law, but were not as usual also fastened. The deceased stopped as one train passed, but then stepped out in front of another and . .
CitedHM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
CitedYearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
CitedTRM Copy Centres (UK) Ltd and Others v Lanwall Services Ltd HL 17-Jun-2009
Each party contracted hire copiers to shops and offices. The claimant said that the defendant had interfered with their contracts by substituting their equipment. The defendants said that the claimants’ contracts were controlled by the 1974 Act, but . .
See AlsoCoggs v Bernard ER 234 1738
The defendant assumpsit to take up a hogs-head of brandy in a cellar, and safely to lay it down in another cellar ; and he so negligently laid and put it down in the other cellar, that for want of care the cask was staved, and so much brandy lost. . .
See AlsoCoggs v Bernard 839 1795
hogshead of brandy . .
See AlsoCoggs v Bernard ER 837 1795
Casks of Brandy . .

Lists of cited by and citing cases may be incomplete.

Negligence, Agency

Leading Case

Updated: 29 November 2021; Ref: scu.216353

Warlow 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 succeed on a retrial after the court allowed an amendment.
Baron Martin held there to be a contract with the auctioneer that the sale was to be without reserve: ‘Upon the facts of the case, it seems to us that the plaintiff is entitled to recover. In a sale by auction there are three parties, viz. the owner of the property to be sold, the auctioneer, and the portion of the public who attend to bid, which of course includes the highest bidder. In this, as in most cases of sales by auction, the owner’s name was not disclosed: he was a concealed principal. The name of the auctioneers, of whom the defendant was one, alone was published; and the sale was announced by them to be `without reserve.’ This, according to all the cases both at law and equity, means that neither the vendor nor any person in his behalf shall bid at the auction, and that the property shall be sold to the highest bidder, whether the sum bid be equivalent to the real value or not; Thornett v. Haines (a). We cannot distinguish the case of an auctioneer putting up property for sale upon such a condition from the case of the loser of property offering a reward, or that of a railway company publishing a time table stating the times when, and the places to which, the trains run. It has been decided that the person giving the information advertised for, or a passenger taking a ticket, may sue as upon a contract with him; Denton v. Great Northern Railway Company . . Upon the same principle, it seems to us that the highest bona fide bidder at an auction may sue the auctioneer as upon a contract that the sale shall be without reserve. We think the auctioneer who puts the property up for sale upon such a condition pledges himself that the sale shall be without reserve; or, in other words, contracts that it shall be so; and that this contract is made with the highest bona fide bidder; and in case of breach of it, that he has a right of action against the auctioneer. The case is not at all affected by the l7th Section of the Statute of Frauds, which relates only to direct sales, and not to contracts relating to or connected with them’ . . And ‘We entertain no doubt that the owner may, at any time before the contract is legally complete, interfere and revoke the auctioneer’s authority: but he does so at his peril; and, if the auctioneer has contracted any liability in consequence of his employment and the subsequent revocation or conduct of the owner, he is entitled to be indemnified.’

Baron Martin, Willes, Bramwell JJ
[1859] EngR 1046, (1859) 1 El and El 309, (1859) 120 ER 925
Commonlii
England and Wales
Citing:
Appeal fromWarlow 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, . .
CitedThornett 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 . .

Cited by:
CitedJohnston v Boyes 1899
There is no custom that a purchaser at an auction can expect to have his personal cheque for a ten per cent deposit accepted. This applies even to those with a good credit standing as much as (here) for an apparent pauper.
Cozens Hardy J said . .
CitedDahlia Ltd v Four Millbank Nominees Ltd and Another CA 24-Nov-1977
Appeal against strike out of statement of claim. They had negotiated with the defendants for the purchase of several properties. Though formal contracts were never exchanged, the plaintiffs said that they had the benefit of a unilateral contract to . .
CitedDahlia Ltd v Four Millbank Nominees Ltd and Another CA 24-Nov-1977
Appeal against strike out of statement of claim. They had negotiated with the defendants for the purchase of several properties. Though formal contracts were never exchanged, the plaintiffs said that they had the benefit of a unilateral contract to . .
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 . .
CitedMainprice 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 . .
CitedHarris v Nickerson QBD 25-Apr-1873
The defendant auctioneer advertised in the London papers that certain brewing materials, plant, and office furniture would be sold by him at Bury St Edmunds on a certain day and two following days. The plaintiff, a commission broker in London, . .

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 29 November 2021; Ref: scu.288398

Abbey National Plc v Tufts: CA 16 Feb 1999

A bankrupt husband, a mortgage broker, had applied for mortgage for his wife, fraudulently claiming that she had income. She appealed against an order for possession on the basis that he was agent of the bank, and that therefore the bank was fixed with notice of the fraud. She claimed that she had operated under the undue influence of her husband, and that, again, the bank was fixed with notice. That the husband was the agent of the bank was rejected. No equitable right arose because she was herself party to the fraud. The section dealt with issues of title, not lending decision. The appeal was dismissed.

Gazette 24-Feb-1999, [1999] EWCA Civ 794
Law of Property Act 1925 199 (1) (ii) (a
England and Wales
Citing:
CitedRe Hampshire Land Company 9-Jul-1896
A company had borrowed from a building society. The borrowing was not properly authorised by resolution of the shareholders in general meeting The court was asked whether whether the knowledge of the company secretary common to both the company and . .
CitedQuennell v Maltby CA 15-Nov-1978
A house was mortgaged to a bank. The house was then let to tenants at an annual rate of andpound;1,000. The tenants were protected as against the mortgagor by the Rent Acts. The tenancy was not binding on the bank. The mortgagor’s wife took a . .

Lists of cited by and citing cases may be incomplete.

Agency, Undue Influence, Banking, Equity

Updated: 29 November 2021; Ref: scu.145709

JC Houghton and Co v Northard, Lowe and Wills: HL 1927

The court was asked whether the knowledge of the directors of the latter company should be attributed to it, with the effect that the latter company could and should be treated as estopped from denying that it had consented to a particular arrangement with a third party company. However, the arrangement was one that was against the company’s interests and for the benefit of the third party company which the directors also controlled and which was in financial difficulties.
Held: The law does not make the unreal assumption that agents will reveal to their principals the fraud which they are comitting on them.
Viscount Dunedin summarily rejected the suggestion that the company could be treated as knowing about a director’s breach of duty by virtue only of the knowledge of the defaulting director himself: ‘My Lords, there can obviously be no acquiescence without knowledge of the fact as to which acquiescence is said to have taken place. The person who is sought to be estopped is here a company, an abstract conception, not a being who has eyes and ears. The knowledge of the company can only be the knowledge of persons who are entitled to represent the company. It may be assumed that the knowledge of directors is in ordinary circumstances the knowledge of the company. The knowledge of a mere official like the secretary would only be the knowledge of the company if the thing of which knowledge is predicated was a thing within the ordinary domain of the secretary’s duties. But what if the knowledge of the director is the knowledge of a director who is himself particeps criminis, that is, if the knowledge of an infringement of the right of the company is only brought home to the man who himself was the artificer of such infringement? Common sense suggests the answer, but authority is not wanting.’

Viscount Dunedin, Lord Sumner
[1928] AC 1, [1927] All ER 97
England and Wales
Citing:
CitedRe Hampshire Land Company 9-Jul-1896
A company had borrowed from a building society. The borrowing was not properly authorised by resolution of the shareholders in general meeting The court was asked whether whether the knowledge of the company secretary common to both the company and . .

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 . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .

Lists of cited by and citing cases may be incomplete.

Agency, Company

Updated: 29 November 2021; Ref: scu.215866

Moore Stephens (A Firm) v Stone Rolls Ltd (in liquidation): HL 30 Jul 2009

The appellants had audited the books of the respondent company, but had failed to identify substantial frauds by an employee of the respondent. The auditors appealed a finding of professional negligence, relying on the maxim ex turpi causa non oritur actio.
Held: (Mance and Scott LL dissenting) The appeal succeeded. The company could not bring a claim which was based upon its own unlawful actions. The Hampshire Land principle that knowledge of an agent would not be imputed to its principal where that knowledge related to the agents own breach of duty to the principal was a general principle of the law of agency and was not limited to claims. In the case of a one man company, the sole actor test could be applied to impute to the company the knowledge of its agent – in this case as to the fraud he was undertaking.
Lord Phillips summarised his conclusions: ‘1) Under the principle of ex turpi causa the court will not assist a claimant to recover compensation for the consequences of his own illegal conduct.
2) This appeal raises the question of whether, and if so how, that principle applies to a claim by a company against those whose breach of duty has caused or permitted the company to commit fraud that has resulted in detriment to the company.
3) The answer to this question is not to be found by the application of Hampshire Land or any similar principle of attribution. The essential issue is whether, in applying ex turpi causa in such circumstances, one should look behind the company at those whose interests the relevant duty is intended to protect.
4) While in principle it would be attractive to adopt such a course, there are difficulties in the way of doing so to which no clear resolution has been demonstrated.
5) On the extreme facts of this case it is not necessary to attempt to resolve those difficulties. Those for whose benefit the claim is brought fall outside the scope of any duty owed by Moore Stephens. The sole person for whose benefit such duty was owed, being Mr Stojevic who owned and ran the company, was responsible for the fraud.
6) In these circumstances ex turpi causa provides a defence to the claim.’
Lord Walker considered whether the liquidation of the ‘one man company’ made any difference, concluding: ‘It was argued for the appellants that the public policy defence should not bar claims brought by a company in insolvent liquidation, where the creditors were innocent parties who had been defrauded by Mr Stojevic. If that were right, it would create a very large gap in the public policy defence, since most fraudsters (individual and corporate) become insolvent sooner or later and have liabilities to those whom they have defrauded. Mr Brindle conceded that if Mr Stojevic had carried out his frauds directly (and not through a one-man company) neither he nor his trustee in bankruptcy could have resisted the public policy defence. That conclusion was reached by Langley J. (para 65(2)) and is clearly correct (see Fry LJ in Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, 156). There is no good reason to apply a different rule to a company in liquidation. Apart from special statutory claims in respect of misfeasance, wrong trading and so on, it cannot assert any cause of action which it could not have asserted before the commencement of its liquidation, as Mr Brindle concedes. That is especially true in the context of the duties of an auditor, which are not owed to a company’s creditors.’

Lord Phillips of Worth Matravers, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance
[2009] UKHL 39, Times 11-Aug-2009, [2009] 1 AC 1391, [2009] Bus LR 1356, [2009] PNLR 36, [2009] 3 WLR 455
Bailii
England and Wales
Citing:
At First InstanceStone and Rolls Ltd v Moore Stephens (A Firm) Comc 27-Jul-2007
The company claimed against its chartered accountants for negligence when acting as auditors. The sole directing mind of the company had used it as a vehicle for substantial frauds. The court was asked ‘whether and if so when can a claim by a . .
Appeal fromMoore Stephens (A Firm) v Stone and Rolls Ltd CA 18-Jun-2008
The company claimed against its accountants for negligence in not discovering the substantial dishonesty of the claimant’s employee, its directing mind and sole shareholder.
Held: Rimer LJ said that the critical question was whether it was . .
CitedRe Hampshire Land Company 9-Jul-1896
A company had borrowed from a building society. The borrowing was not properly authorised by resolution of the shareholders in general meeting The court was asked whether whether the knowledge of the company secretary common to both the company and . .
CitedHall v Hebert 29-Apr-1993
(Canadian Supreme Court) After they had been drinking heavily together, Mr Hebert, who owned a car, allowed Mr Hall to drive it, including initially to give it a rolling start down a road on one side of which there was a steep slope. The car . .
CitedGray v Barr CA 1971
A husband had accidentally shot and killed his wife’s lover after threatening him with a shotgun.
Held: The court confirmed the decision at first instance. He was not liable to be indemnified by his insurers for the losses claimed against him . .
CitedThackwell v Barclays Bank plc 1986
The plaintiff was party to a fraudulent scheme under which a cheque had been made payable to him. The plaintiff’s signature endorsing the cheque to a third party was forged and in reliance on the forgery the bank credited the third party. The . .
CitedAl Saudi Banque v Clarke Pixley 1990
An auditor does not generally owe a duty of care in tort to a company’s creditors. Millet J referred to the Court of Appeal decision in Caparo: ‘In my judgment, Caparo’s case is binding authority for the following propositions. (i) In cases of . .
CitedCaparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
CitedMeridian Global Funds Management Asia Ltd v Securities Commission PC 26-Jun-1995
(New Zealand) The New Zealand statute required a holder of specified investments to give notice of its holding to a regulator as soon as it became aware of its holding. Unbeknown to any others in the company apart from one colleague, its chief . .
CitedTinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
CitedAlexander v Rayson CA 1936
The action was for arrears of rent. The evidence at trial was that the plaintiff granted a lease to the defendant at a rent of andpound;1200 and contracted that certain services in connection with the flat would be performed. The plaintiff sent the . .
CitedHewison v Meridian Shipping Pte, Coflexip Stena Offshore Ltd, Flex Installer Offshore Ltd CA 11-Dec-2002
The claimant was awarded damages for injuries suffered in his work as a seaman. The respondents claimed that he should not receive damages, since he had made false declarations as to his health in order to obtain employment, hiding his epilepsy . .
CitedCross v Kirkby CA 18-Feb-2000
The claimant was a hunt saboteur and the defendant a local farmer. The claimant shouted to the defendant ‘You’re fucking dead’ and jabbed him in the chest and throat with a broken baseball bat. In order to ward off further blows, the defendant . .
CitedUnited Project Consultants Pte Ltd v Leong Kwok Onn 16-Aug-2005
(Supreme Court of Singapore – Court of Appeal) A taxpayer sought to recover from his accountant an administrative penalty under a statutory provision dealing with the innocent submission of an incorrect tax return.
Held: In determining whether . .

Cited by:
CitedLes Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .
CitedBilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .
Not to be followedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Company, Agency

Updated: 29 November 2021; Ref: scu.368929

Re Hampshire Land Company: 9 Jul 1896

A company had borrowed from a building society. The borrowing was not properly authorised by resolution of the shareholders in general meeting The court was asked whether whether the knowledge of the company secretary common to both the company and the society, as to the irregularity should be imputed to the society, so as to preclude the society from recovering the loan.
Held: The rule of law that information held by an agent in the course of his agency is to be imputed to his principal, has an exception where the agent is committing a fraud on his principal.
Vaughan Williams J said: ‘The case is very much more like the one which [counsel for the society] had to admit was an exception to the general rule that they sought to lay down, for they admitted that if Wills had been guilty of a fraud, the personal knowledge of Wills of the fraud that had had committed upon the company would not have been knowledge of the society of the facts constituting that fraud; because common sense at once leads one to the conclusion that it would be impossible to infer that the duty, either of giving or receiving notice, will be fulfilled where the common agent is himself guilty of fraud. It seems to me that if you assume here that Mr. Wills was guilty of irregularity – a breach of duty in respect of these transactions – the same inference is to be drawn as if he had been guilty of fraud. I do not know, I am sure, whether he was guilty of actual fraud; but whether his conduct amounted to fraud or to breach of duty, I decline to hold that his knowledge of his own fraud or of his own breach of duty is, under the circumstances, the knowledge of the company.’

Vaughan Williams J, Viscount Dunedin
[1896] 2 Ch 743, [1896] UKLawRpCh 122
Commonlii
England and Wales
Cited by:
CitedAbbey National Plc v Tufts CA 16-Feb-1999
A bankrupt husband, a mortgage broker, had applied for mortgage for his wife, fraudulently claiming that she had income. She appealed against an order for possession on the basis that he was agent of the bank, and that therefore the bank was fixed . .
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 . .
CitedMoore Stephens (A Firm) v Stone Rolls Ltd (in liquidation) HL 30-Jul-2009
The appellants had audited the books of the respondent company, but had failed to identify substantial frauds by an employee of the respondent. The auditors appealed a finding of professional negligence, relying on the maxim ex turpi causa non . .
CitedStone and Rolls Ltd v Moore Stephens (A Firm) Comc 27-Jul-2007
The company claimed against its chartered accountants for negligence when acting as auditors. The sole directing mind of the company had used it as a vehicle for substantial frauds. The court was asked ‘whether and if so when can a claim by a . .
AppliedMoore Stephens (A Firm) v Stone and Rolls Ltd CA 18-Jun-2008
The company claimed against its accountants for negligence in not discovering the substantial dishonesty of the claimant’s employee, its directing mind and sole shareholder.
Held: Rimer LJ said that the critical question was whether it was . .
CitedJC Houghton and Co v Northard, Lowe and Wills HL 1927
The court was asked whether the knowledge of the directors of the latter company should be attributed to it, with the effect that the latter company could and should be treated as estopped from denying that it had consented to a particular . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .

Lists of cited by and citing cases may be incomplete.

Agency, Company

Leading Case

Updated: 29 November 2021; Ref: scu.181279

Ellis Tylin Limited (Now Known As Dalkia Technical Services Limited v Co-Operative Retail Services Limited: TCC 8 Mar 1999

The claimant entered into a contract to provide maintenance to the defendant’s plant. Agents of the defendant did not have authority to enter in to a contract on their behalf. The contract was repudiated by the claimants in ceasing work, and that put them in breach of contract.

Judge Bowsher QC
[1999] EWHC Technology 249
Bailii
England and Wales
Citing:
CitedRama Corporation Limited v Proved Tin and General Investment Limited QBD 1952
The court considered the doctrine of ostensible authority as regards the actions of a single director of a company, identifying three essential elements. . .

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 27 November 2021; Ref: scu.136053

LNOC Ltd v Watford Association Football Club Ltd: ComC 21 Nov 2013

The claimant sought repayment of sums loaned to the football club. The defendant replied saying that the loans were ineffective since the claimant had known that they were being entered into by an officer of the club without authority and contrary to the club’s interests.

Mackie QC J
[2013] EWHC 3615 (Comm)
Bailii

Torts – Other, Agency

Updated: 26 November 2021; Ref: scu.518428

United Antwerp Maritime Agencies (Unamar) Nv v Navigation Maritime Bulgare: ECJ 17 Oct 2013

ECJ Rome Convention on the law applicable to contractual obligations – Articles 3 and 7(2) – Freedom of choice of the parties – Limits – Mandatory rules – Directive 86/653/EEC – Self-employed commercial agents – Contracts for sale or purchase of goods – Termination of the agency contract by the principal – National implementing legislation providing for protection going beyond the minimum requirements of the directive and providing also for protection for commercial agents in the context of contracts for the supply of services

M Ilesic P
C-184/12, [2013] EUECJ C-184/12
Bailii
Directive 86/653/EEC
European

European, Contract, Agency

Updated: 22 November 2021; Ref: scu.516584

Willis and Son v British Car Auctions Ltd: CA 1978

A car on hire purchase was sold and delivered by auctioneers on the instructions of the hirer. The court was asked whether the auctioneers’ liability was affected by the fact that the car had been sold under their provisional bid procedure.
Held: The auctioneers were liable. Lord Denning:’It is now, I think, well established that if an auctioneer sells goods by knocking down with his hammer at an auction and thereafter delivers them to the purchaser – then although he is only an agent – then if the vendor has no title to the goods, both the auctioneer and the purchaser are liable in conversion to the true owner, no matter how innocent the auctioneer may have been in handling the goods or the purchaser in acquiring them: see Barker v Furlong . . and Consolidated Co. v Curtis and Son . . This state of law has been considered by the Law Reform Committee . . in its 18th Report (Conversion and Detinue) (1971), Cmnd. 4774 as to innocent handlers: paragraphs 46-50. But Parliament has made no change in it: no doubt it would have done so in the Torts (Interference with Goods) Act 1977 if it had thought fit to do so.’

Lord Denning
[1978] 1 WLR 438
England and Wales
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: 16 November 2021; Ref: scu.181802

Verderame v Commercial Union Assurance Co Plc: CA 2 Apr 1992

The insurance brokers, acting to arrange insurance for a small private limited company did not owe a duty in tort to the directors of that company personally. Where an action was brought in a tort and in breach of contract, damages could not be awarded on the tort where they were not available in contract.

Balcombe LJ
[1992] BCLC 793, Times 02-Apr-1992
England and Wales
Citing:
FollowedWatts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .

Cited by:
CitedJohnson v Gore Wood and Co (a Firm) CA 12-Nov-1998
The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
CitedHamilton Jones v David and Snape (a Firm) ChD 19-Dec-2003
The claimant was represented by the respondent firm of solicitors in an action for custody of her children. Through their negligence the children had been removed from the country. She sought damages for the distress of losing her children.
Agency, Insurance, Company, Contract, Negligence, Damages

Updated: 16 November 2021; Ref: scu.181818

Avrahami and Others v Biran and Others: ChD 25 Jun 2013

Management fees were to be forfeited for breach of a fiduciary duty by an agent.

Newey J
[2013] EWHC 1776 (Ch)
Bailii
England and Wales
Citing:
CitedKeppel v Wheeler CA 1927
The plaintiff engaged the defendant estate agents to sell a property, instructing them to market it at 6,500 pounds but that he would accept 6,000 pounds. The plaintiff accepted an offer of 6,150 pounds ‘subject to contract’. Before exchange, . .
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 . .

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.

Agency

Updated: 14 November 2021; Ref: scu.511048

CRJ Services Ltd v Lanstar Ltd (T/A CSG Lanstar): TCC 19 Apr 2011

The claimant hired out recycling plant and equipment and the defendant had been a customer. A local agent of the defendant had properly entered into certain contracts with the claimant acting as the company’s agent, but then created three long term contracts which the defendant then said were beyond his capacity. The defendant ceased trading at the site and the claimant then sought to enforce the contracts. The defendant denied liability under the contracts. The claimant now sought to enforce the order in its favour at the ensuing adjudication.
Held: The adjudication should be enforced. The defendant had entered into contracts through the agent, and had conceded that he had certain authorities. It had no prosepect of succesfully denying that agency now. The adjudicator’s reference to the contents of a statement of the challenged agent but mistakenly not served was insufficient to establish a breach of natural justice.

Akenhead J
[2011] EWHC 972 (TCC)
Bailii
England and Wales
Citing:
CitedCarillion Construction Ltd v Devonport Royal Dockyard Ltd CA 16-Nov-2005
The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
Held: The dispute was complex and . .
CitedFreeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd CA 1964
The defendant company allowed one of its directors to act as the Managing Director and to give instructions to the Plaintiff to do work on its behalf.
Held: The fact that he had never been formally appointed as Managing Director was of no . .
CitedCantillon Ltd v Urvasco Ltd TCC 27-Feb-2008
After referring to the Carillion Construction case, the court held: ‘Whilst that case is, obviously, not authority for the proposition that a ‘good’ challenge to a decision on jurisdiction or natural justice grounds will be excluded on some . .
CitedPharmed Medicare Private Ltd v Univar Ltd CA 5-Nov-2002
An issue was raised that contracts entered into by the defendant by an ‘Industry Manager’ and an ‘Inside Sales Manager’ were not so entered as the two individuals had no authority and because the contracts were for substantial quantities of the . .

Lists of cited by and citing cases may be incomplete.

Agency, Natural Justice

Updated: 12 November 2021; Ref: scu.432870

Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another: ComC 21 Jan 2011

The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under the 1677 Act not being in writing and signed.
Held: There was no limit to the number of documents to which reference is made to establish the agreement. The guidance in Timmins was not strictly applicable in construing an agreement as such rather than a memorandum of agreement. There was an arguable case since the documents might be read together.
Where a document is executed by an agent which records the terms of the sale, it is not necessary, in order to satisfy the Statute, that the agent should have been authorised to execute the document as a record of the transaction; but it is necessary that the document, which is a record of the transaction, is one that he is authorised to execute by the person sought to be charged. The e-mails which constitute the contract were sufficiently signed by the electronically printed signature of the persons who sent them. It was argued the document itended to be signed by both parties had not been so signed, and ‘The question is whether the charterparty was drawn up with the authority of SMI and records the terms of the guarantee; not whether Howe Robinson was authorised to draw it up as a record of the guarantee, nor whether Howe Robinson was authorised to sign it as a contract. In fact, however, it was drawn up and signed on behalf of the Owners.’ The claimant had an arguable claim that valid contracts existed, that the charter had been repudiated, and that the agreement did not fall foul of the 1677 Act. The claim being governed by English law, the English court could exercise jurisdiction.

Christopher Clarke J
[2011] EWHC 56 (Comm), [2011] 2 All ER (Comm) 95, [2011] 1 CLC 125, [2011] CILL 3022, [2011] 1 WLR 2575
Bailii
Statute of Frauds 1677
England and Wales
Citing:
DistinguishedTimmins v Moreland Street Property Co Ltd CA 1958
The Court considered the effect of a note or memorandum evidencing the sale of a property where it was described as ‘6,8 and 41, Boundary Street, Shoreditch (freehold).’ It was sought to connect the signature on a purchaser’s deposit cheque with an . .
CitedElias v George Sahely and Co (Barbados) Ltd PC 1982
(Barbados) The parties entered into an oral agreement for the sale of land to the plaintiff. The plaintiff’s solicitor then wrote to the defendant’s solicitor confirming the oral agreement and setting out its terms. He enclosed a cheque for 10 . .
CitedIn re Hoyle CA 1893
ALSmith LJ discussed the 1677 Act: ‘The object of the Statute was to prevent fraud and perjury by taking away the right to sue on certain agreements if only established by verbal evidence . . The object of the statute being merely to exclude parol . .
Mentioned as incorrectLaw v Jones 1974
A ‘subject to contract’ document might be evidence of an antecedent or oral contract and satisfy section 40 of the Law of Property Act 1925 if the stipulation was later waived. A memorandum or note must, if it is to be effective, not only state the . .
CitedTiverton Estates Ltd v Wearwell Ltd CA 1975
“Subject to Contract” not to be diluted
‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in . .
CitedCarlton Communications Plc, Granada Media Plc v The Football League ComC 1-Aug-2002
The applicants sought a declaration that they had not provided guarantees to support a contract between a joint venture company owned by them, OnDigital, and the respondent to screen football matches. The company had become insolvent.
Held: . .
CitedActionstrength Limited v International Glass Engineering In Gl En SpA and others HL 3-Apr-2003
Actionstrength agreed with Inglen to provide construction staff to build a factory for St-Gobain. Inglen failed to pay. Actionstrength claimed against for the amount due. Inglen went into liquidation. The claim was now against St-Gobain. The claim . .
CitedWesthead And Others v Sproson And Piper 1-May-1861
. .
CitedEvans v Hoare 1892
A defendant sought to deny liability under a document relying on the 1677 Statute. the relevant document had been drawn up by a duly authorised agent of the Defendants. The document was a letter from the Plaintiff and the words ‘Messrs Hoare, Marr . .
CitedJohn Griffiths Cycle Corporation, Limited v Humber and Co, Limited 1899
Smith v Webster was not to be taken as meaning that the agent must have had authority to sign the document as a record of the contract. All that Smith v Webster decided was that, in order to satisfy the Statute, it must be shown that the agent . .
CitedElpis Maritime Company Limited v Marti Chartering Company Limited (The Maria D) HL 1991
Brokers (Marti) were to guarantee a charter on the Gencon form, which contained, as one of the additional typed clauses a provision (Clause 24) in the following terms: ‘Demurrage guaranteed and payable directly by charterers to owners. However Marti . .
CitedSmith v Webster CA 1876
P verbally agreed to buy an inn from D. On the next day D told his solicitors that he had entered into a verbal arrangement for the sale and instructed them to prepare an agreement. On the same day they forwarded a draft formal contract to P’s . .
CitedDaniels v Trefusis 1914
Mr Trefusis agreed with an agent called Mr Girdlestone to buy a house for andpound;700. Girdlestone was in fact acting for a Mr Daniels but later claimed to be a principal who had bought from Mr Daniels for andpound;600 and was sub-selling to Mr . .
CitedNorth -v Loomes 1919
N agreed to sell to L certain premises in Chinnor for andpound; 590 and gave him a receipt for a andpound; 50 deposit. The receipt, which was regarded by both parties as their contract, was in the following terms: ‘Received of [L] the sum of . .
CitedBluck v Gompertz 7-Jun-1852
The defendant had signed an undertaking to procure the acceptance of two bills for andpound;200 and andpound;146 for wine supplied to an MP and agreed to see that they were duly paid. The latter draft should have been for andpound;150. The plaintiff . .
CitedLeeman v Stocks 1951
The plaintiff’s was the highest bid for premises at an auction. The auctioneer used a borrowed form for sale by private treaty, though some clauses were inappropriate. A solicitor present edited the document and put in the date for completion. The . .
CitedCaton v Caton HL 1867
A document began by referring to ‘the under mentioned parties’ and then referred to the parties in question by name in relation to various promises. Neither party signed the document and the question was whether the document constituted a sufficient . .
CitedLindsay v O’Loughnane QBD 18-Mar-2010
lindsay_oloughnaneQBD11
The claimant had purchased Euros through a foreign exchange dealer. The dealer company became insolvent, causing losses to the claimant, who sought to recover from the company’s managing director, the defendant, saying that he was aware of the . .
CitedMehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
CitedArmagas Ltd v Mundogas SA (‘The Ocean Frost’) HL 22-May-1985
Ostensible authority creates estoppel
Apparent authority as agent can arise where an employer by words or conduct has represented that his employee, who has purported to act on behalf of the employer, is authorised to do what he is purporting to do. Ostensible authority depends on a . .
CitedFirst Energy (UK) Ltd v Hungarian International Bank Ltd CA 16-Apr-1993
A manager, though he lacked actual authority to authorise and offer a particular loan facility to the plaintiff, still did so by sending him a letter of offer which was accepted.
Held: Albeit the manager lacked actual authority to make the . .
CitedThe Suwalki 1989
Generally speaking a chartering broker has no actual authority to charter a ship: ‘A broker, or even an exclusive broker, is not in the shipping trade regarded as having authority to commit his principals without reference back to them.’ . .

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

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 11 November 2021; Ref: scu.428241

– v Staples: 1825

An agent made defendant to a bill for a discovery, may demur to it, is not compellable to produce deeds, and may be examined for the plaintiff

[1825] EngR 3, (1825) 3 Keny 135, (1825) 96 ER 1335 (B)
Commonlii
England and Wales

Agency

Updated: 11 November 2021; Ref: scu.326094

Smart and another v Sandars and Others: CCP 12 May 1848

A factor to whom goods have been consigned generally for sale, and who has subsequently made advances to his principal on the credit of the goods, has no right to sell them, contrary to the orders of his principal, on the latter neglecting, on request, to repay the advances, although such, sale would be a sound exercise of discretion on his part ; his authority to sell not becoming, by reason of the unpaid advances, irrevocable, as an authority coupled with an interest.
Wilde CJ said: ‘where an agreement is entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, such an authority is irrevocable. This is what is usually meant by an authority coupled with an interest, and which is commonly said to be irrevocable. But we think this doctrine applies only to cases where the authority is given for the purpose of being a security, or, as Lord Kenyon expresses it, as a part of the security; not to cases where the authority is given independently, and the interest of the donee of the authority arises afterwards, and incidentally only.’

Wilde CJ
(1848) 5 CB 895, [1848] EngR 499, (1848) 136 ER 1132
Commonlii
England and Wales
Citing:
Appeal fromSmart And Another v Sandars And Others 6-Jul-1846
The mere relation of principal and factor confers, ordinarily, an authourity to sell at such times and for such prices as the factor may, in the exercise of his discretion, think best for his employer: but, if he receive the goods subject to any . .

Cited by:
CitedMainwaring and Yeoman’s Row Management Limited v Trustees of Henry Smith’s Charity (No 2) CA 3-Oct-1996
The tenants had sought to purchase the freehold under the 1987 Act. One tenant having signed an ‘irrevocable’ agreement to participate, withdrew his involvement in the purchase, and the remaining number of tenants were no longer a sufficient . .
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.

Contract, Agency

Leading Case

Updated: 10 November 2021; Ref: scu.261586

Hosking 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 limited liability partnership.
Held: The profit share of a partner or LLP member can potentially be subject to forfeiture. A partner or LLP member is an agent the mere fact that someone is a partner or LLP member as well as an agent should not preclude the operation of a principle which affects agents more generally.

Newey J
[2016] EWHC 2418 (Ch), [2016] WLR(D) 501, [2017] Ch 157, [2017] 2 WLR 746,
Bailii, WLRD
Arbitration Act 1996, Partnership Act 1890, Limited Liability Partnerships Act 2000, Limited Liability Partnership Regulations 2001
England and Wales
Citing:
CitedAndrews v Ramsay 1903
The plaintiff asked the defendant estate agents to find a purchaser for his property at a price of pounds 2,500 and if one such was found the agents’ fee would be pounds 50. A purchaser, one Clutterbuck, at pounds 2,100 was found. He paid the agents . .
CitedKeppel v Wheeler CA 1927
The plaintiff engaged the defendant estate agents to sell a property, instructing them to market it at 6,500 pounds but that he would accept 6,000 pounds. The plaintiff accepted an offer of 6,150 pounds ‘subject to contract’. Before exchange, . .
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 . .
CitedBank of Ireland and Another v Jaffery and Another ChD 23-May-2012
Claim for breach of fiduciary duty brought by the Bank against one of its erstwhile senior executives.
Held: Vos J concluded that forfeiture of agency fees would be disproportionate and inequitable for breach of an employment or agency . .
CitedDunne 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 . .
CitedHelmore v Smith 1886
The relationship between partners is of a fiduciary nature.
Bacon V-C said: ‘If fiduciary relation means anything I cannot conceive a stronger case of fiduciary relation than that which exists between partners. Their mutual confidence is the . .
CitedHilton v Barker Booth & Eastwood (a Firm) CA 22-May-2002
The firm of solicitors acted for both parties in a conveyancing transaction, in a situation when they were permitted to do so. The firm had previously acted for one party in a case where he had been convicted of a crime. The other party said the . .
CitedAvrahami and Others v Biran and Others ChD 25-Jun-2013
Management fees were to be forfeited for breach of a fiduciary duty by an agent. . .
CitedPremium Real Estate Ltd v Stevens 6-Mar-2009
Supreme Court of New Zealand – The court was asked as to the forfeiture of remuneration by an agent for breach of fiduciary duty.
Held: In relation to remoteness of damage, it was observed that the question of foreseeability in common law . .
CitedF and C Alternative Investments (Holdings) Ltd v Barthelemy and Another (No 2) ChD 14-Jul-2011
The court was asked as to the fiduciary obligations owed by members of the board of a limited liability company.
Held: Sales J said that: ‘there is nothing in the Act to qualify the usual fiduciary obligations which an agent owes his principal . .
CitedErikson v Carr 1945
New South Wales – an individual was alleged to have disentitled himself to commission as a result of a breach of duty.
Held: Though the legal rights of the parties would depend on the jury’s conclusions as to, among other things, ‘whether it . .
CitedOlson 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 . .
CitedZahid v M Young Legal Associates Ltd and others CA 16-May-2006
Is it possible for a person to be a partner in a firm, and thus liable jointly with the other partners to creditors of the firm, even if his agreement with them is not that he should be entitled to participate in its profits but that he should be . .
CitedZahid v M Young Legal Associates Ltd and others CA 16-May-2006
Is it possible for a person to be a partner in a firm, and thus liable jointly with the other partners to creditors of the firm, even if his agreement with them is not that he should be entitled to participate in its profits but that he should be . .
CitedReinhard v Ondra Llp and Others ChD 14-Jan-2015
The parties disputed whether the claimant had become a member of the defendant limited liability partnership.
Warren J said: ‘the ‘share’ of a member [of an LLP] is the totality of the contractual or statutory rights and obligations of that . .

Lists of cited by and citing cases may be incomplete.

Agency, Equity, Company

Updated: 10 November 2021; Ref: scu.569924

Office Of Fair Trading v Foxtons Ltd: CA 2 Apr 2009

The OFT had sought and obtained an injunction regarding the use of certain standard terms in their estate agency business. Both parties appealed.
Held: The OFT’s appeal succeeded. The court had been wrong to restrict the effect of the injuncion to contracts not already in existence. It should extend to existing contracts. The Regulations were intended to implement the Directive, and the court must have power to give it proper and full effect, though it was for the court seised of the matter to decide whether such an order was correct in the circumstances.

Lord Justice Waller, Lady Justice Arden and Lord Justice Moore-Bick
[2009] EWCA Civ 288
Bailii, Times
Unfair Terms in Consumer Contracts Regulations (SI 1999 No2083), Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts (OJ April 21, 1993, L95/29)
England and Wales
Citing:
Appeal fromOffice of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
CitedDirector General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .

Lists of cited by and citing cases may be incomplete.

Consumer, Agency, Contract, European

Updated: 10 November 2021; Ref: scu.329542

Imageview 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 agent now appealed.
Held: The side deal was and act within the agency and should have been disclosed. This was not an honest breach of contract. This was a secret profit and a breach of fiduciary duty because of the conflict of interest. Not only was the secret payment to be paid across, but no further agency fees were payable.
Jacob LJ said: ‘The law imposes on agents high standards. Footballers’ agents are not exempt from these. An agent’s own personal interests come entirely second to the interest of his client. If you undertake to act for a man you must act 100%, body and soul, for him. You must act as if you were him. You must not allow your own interest to get in the way without telling him. An undisclosed but realistic possibility of a conflict of interest is a breach of your duty of good faith to your client.’ and ‘I accept [counsel for the agent’s] submission that there can be cases of harmless collaterality. And that there can be cases where there is just an honest breach of contract such as Keppel’s case [1927] 1 KB 577. But this is simply not such a case. This is a case of a secret profit obtained because Mr Berry/Imageview was Mr Jack’s agent. And there was a breach of a fiduciary duty because of a real conflict of interest. That in itself would be enough, but there is more: the profit was not only greater than the work done but was related to the very contract which was being negotiated for Mr Jack. Once a conflict of interest is shown, as Atkin LJ said in the last passage quoted, the right to remuneration goes’.
and ‘The policy reason runs as follows. We are here concerned not with merely damages such as those for a tort or breach of contract but with what the remedy should be when the agent has betrayed the trust reposed in him – notions of equity and conscience are brought into play. Necessarily such a betrayal may not come to light. If all the agent has to pay if and when he is found out are damages the temptation to betray the trust reposed in him is all the greater. So the strict rule is there as a real deterrent to betrayal. As Scrutton LJ said in Rhodes’s case 29 Com Cas 19, 28, ‘The more that principle is enforced, the better for the honesty of commercial transactions”.

Mummery LJ, Dyson LJ, Jacob LJ
[2009] EWCA Civ 63, [2009] WLR (D) 56, [2009] 1 All ER (Comm) 921, [2009] 2 All ER 666, [2009] 1 BCLC 724, [2009] 1 Lloyd’s Rep 436, [2009] Bus LR 1034
Bailii, Times, WLRD
England and Wales
Citing:
CitedSalomons v Pender 21-Apr-1865
When a person who purports to act as an agent is not in a position to say to his principal, ‘I have been acting as your agent, and I have done my duty by you,’ he is not entitled to recover any commission from that principal.
Bramwell B said: . .
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 . .
CitedBoston 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 . .
CitedAndrews v Ramsay 1903
The plaintiff asked the defendant estate agents to find a purchaser for his property at a price of pounds 2,500 and if one such was found the agents’ fee would be pounds 50. A purchaser, one Clutterbuck, at pounds 2,100 was found. He paid the agents . .
CitedNitedals Taenstikfabrik v Bruster 1906
Commission was allowed for an agent despite an alleged breach of duty. Neville J discussed Andrews v Ramsay saying its doctrine: ‘does not apply to the case of an agency where the transactions in question are separable’ . .
CitedStubbs v Slater 1910
A deposit by guarantors who had agreed ‘to assign to [the Bank] their certificates of shares in [PPL] by way of deposit’, together with endorsed transfers in blank, would create an equitable mortgage with an implied power of sale. Neville J . .
CitedRhodes 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 . .
CitedKeppel v Wheeler CA 1927
The plaintiff engaged the defendant estate agents to sell a property, instructing them to market it at 6,500 pounds but that he would accept 6,000 pounds. The plaintiff accepted an offer of 6,150 pounds ‘subject to contract’. Before exchange, . .
CitedO’Sullivan v Management Agency and Music Limited CA 1985
The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the . .
CitedDalkia Utilities Services Plc v Celtech International Ltd ComC 27-Jan-2006
The Court was asked to decide (i) which, if either, of the two parties to a 15 year agreement lawfully terminated it; (ii) whether, if one of them did so, it was by giving notice under a contractual termination clause or by way of acceptance of the . .
CitedPhipps v Boardman HL 3-Nov-1966
A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to . .
CitedRobinson Scammel v Ansell 1985
. .
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 . .
CitedWarman International Ltd v Dwyer 1995
(High Court of Australia) A fiduciary diverted a business in breach of his fiduciary duty.
Held: ‘The outcome in cases of this kind will depend upon a number of factors. They include the nature of the property, the relevant powers and . .
CitedMurad and Another v Al Saraj and Another CA 29-Jul-2005
An account of profits is available without proof of loss, and the onus is upon the defaulting party to show that profits are not ones for which he should account . .

Cited by:
CitedAvrahami and Others v Biran and Others ChD 25-Jun-2013
Management fees were to be forfeited for breach of a fiduciary duty by an agent. . .
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.

Agency, Equity

Updated: 10 November 2021; Ref: scu.282631

Robot Arenas Ltd and Another v Waterfield and Another: QBD 8 Feb 2010

robot_waterfieldQBD2010

The tenant company had defaulted under the lease, and the landlord had retaken possession. The landlord discarded the tenant’s possessions, and the tenant now sued, saying that the landlords as involuntary bailees owed duties to the proper owner.
Held: In the context of commercial goods, the purpose of which is to earn profit, the assessment of what the Claimant has lost and of the damages that would be reasonable as between the Claimant and the Defendant must take into account the commercial usefulness of the goods to the Claimant. If the reality is that what was destroyed was commercially useless to the Claimant, that cannot be ignored in the assessment of damages.
The defendants had not discharged the burden on them of proving abandonment. Liability was not strict, and it had to be shown that the defendants knew or ought to have known that the goods belonged to a third party. That could not be shown in this particular case, and the claim failed.

Edelman QC J
[2010] EWHC 115 (QB)
Bailii
Torts (Interference with Goods) Act 1977
Citing:
CitedAVX v EGM Solders Ltd QBD 1-Jul-1982
The defendants had agreed to the return of defective spheres of solder which they had manufactured for the plaintiffs. By mistake, as well as returning the defective solder in one box, the plaintiffs returned twenty-one boxes of capacitors which . .
CitedMarcq v Christie, Manson and Woods Ltd CA 23-May-2003
The claimant’s stolen painting was put up for sale by the defendant. On being withdrawn, they returned it to the person who had brought it in. The claimant sought damages.
Held: There was no reported case in which a court has had to consider . .
CitedThe Harmonides 1903
The measure of damages for the loss of a profitable ship is to include its economic value: ‘So that the real test, where there is no market is, as counsel on both sides agree, what is the value to the owners as a going concern, at the time the . .
CitedVoaden v Champion ( ‘Baltic Surveyor’ ) CA 31-Jan-2002
The ‘Baltic Surveyor’ was lost at its moorings in a storm. A neighbouring ship had been negligently secured, and freed itself and sank the Baltic Surveyor. The owner appealed findings as to the value of the boat, and securing pontoon. She asserted . .
CitedThe Harmonides 1903
The measure of damages for the loss of a profitable ship is to include its economic value: ‘So that the real test, where there is no market is, as counsel on both sides agree, what is the value to the owners as a going concern, at the time the . .
CitedSealce Shipping Company Limited v Oceanvoice Limited CA 1991
The parties contracted for the sale of a ship, including a spare propeller. When the ship was delivered there was no spare propeller. It was common ground that there was no market for second-hand propellers. So the only way of providing a spare . .
CitedDominion Mosaics Limited v Trafalgar Trucking Co Limited CA 1990
The claimant’s building was destroyed by fire as a result of the defendant’s negligence. It was impracticable to rebuild and so, to keep its business going the claimant bought a 36 year lease of another building with 20% more floor space. In the . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Agency, Torts – Other

Updated: 10 November 2021; Ref: scu.401924

Armagas Ltd v Mundogas SA (‘The Ocean Frost’): HL 22 May 1985

Ostensible authority creates estoppel

Apparent authority as agent can arise where an employer by words or conduct has represented that his employee, who has purported to act on behalf of the employer, is authorised to do what he is purporting to do. Ostensible authority depends on a holding out by the principal which creates an estoppel.
Lord Keith said: ‘Ostensible authority is general in character, arising when the principal has placed the agent in a position which in the outside world is generally regarded as carrying authority to enter into transactions of the kind in question. The acts of the purported agent are not themselves evidence and are irrelevant to establish such agency as against the principal.’
and ‘At the end of the day the question is whether the circumstance under which a servant has made the fraudulent misrepresentation which has caused loss to an innocent party contracting with him are such as to make it just for the employer to bear the loss. Such circumstances exist where the employer by words or conduct has induced the injured party to believe that the servant was acting in the lawful course of the employer’s business. They do not exist where such belief, although it is present, has been brought about through misguided reliance on the servant himself, when the servant is not authorised to do what he is purporting to do, when what he is purporting to do is not within the class of acts that an employee in his position is usually authorised to do and when the employer has done nothing to represent that he is authorised to do it.’
The court considered the vicarious liability for the acts of an employee: ‘The essential feature for creating liability in the employer is that the party contracting with the fraudulent servant should have ordered his position to his detriment in reliance on the belief that the servant’s activities were within his authority, or, to put it another way, were part of his job, this belief having been induced by the master’s representations by way of words or conduct.’

Keith, Brandon, Templeman, Griffiths, Oliver LL
[1986] AC 717, [1985] UKHL 11, [1986] 2 All ER 385, [1986] 2 WLR 1063, [1986] 2 Lloyd’s Rep 109, (1986) 2 BCC 99197
Bailii
England and Wales
Citing:
Appeal fromArmagas 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 . .

Cited by:
CitedBloggs 61, Regina (on the Application of) v Secretary of State for the Home Department CA 18-Jun-2003
The applicant sought review of a decision to remove him from a witness protection scheme within the prison. He claimed that having been promised protection, he had a legitimate expectation of protection, having been told he would receive protection . .
AppliedFarrer and Another v Messrs Copley Singletons (Formerly Known As Messrs Gowan and Singleton) (a Firm) CA 17-Jul-1997
Four clients together instructed the solicitor to act in the purchase of land. It was agreed to be urgent. One client gave instructions that the solicitor need not undertake the searches he would normally undertake. He acted upon them.
Held: . .
CitedBakhitar v Keosghgerian and Others QBD 3-Dec-2003
Employer liable for employee with criminal record
An employee of a firm of solicitors took pawned jewellery to show to a third party possible purchaser. The jewels were misappropriated.
Held: The person involved, who was known to have a criminal record for fraud was for all relevant purposes . .
CitedHenry v British Broadcasting Corporation QBD 9-Mar-2006
The claimant said that the defendant had accused her of falsifying hospital waiting statistics. The defendant pleaded justification.
Held: There were stark differences in the evidence given by different witnesses. Nevertheless the evidence . .
CitedGolden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .

Lists of cited by and citing cases may be incomplete.

Agency, Torts – Other

Leading Case

Updated: 10 November 2021; Ref: scu.183655

Glentree Estates Ltd and Others v Favermead Ltd: ChD 20 May 2010

The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original agreement. The words ‘on the basis that one of you introduces an applicant who subsequently purchases the property’ placed on the agent an obligation to demonstrate that he had been the effective cause of the purchase in question in order to qualify for commission. The agents were unable to show that on the facts, and the claim failed.

Sir edward Evans-Lombe
[2010] EWHC 1120 (Ch), [2010] 21 EG 91
Bailii
England and Wales
Citing:
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
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 . .
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 . .
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 . .
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 . .

Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 10 November 2021; Ref: scu.415978

Luxor (Eastbourne) v Cooper: HL 1941

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

Lord Wright, Viscount Simon LC, Lord Russell
[1941] AC 108
England and Wales
Citing:
DoubtedPrickett v Badger 1856
. .

Cited by:
CitedHughes and Another v Greenwich London Borough Council HL 26-Oct-1993
A headmaster’s occupation of a house in the school was not ‘for the better performance of his duties’, and so was not a tied house, and so he had the right to buy it. A term could not be implied into his contract to require him to occupy the house. . .
CitedBrodie, 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 . .
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, . .
CitedJohn D Wood and Co (Residential and Agricultural Ltd) v Craze QBD 30-Nov-2007
The claimant estate agents sought payment of its commission. The defendant appealed refusal of his request for the claim to be struck out. The agency said that the agency’s standard terms applied under which commission was payable on exchange. The . .
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 . .
CitedGlentree Estates Ltd and Others v Favermead Ltd ChD 20-May-2010
The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original . .
CitedVizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Agency, Contract

Leading Case

Updated: 09 November 2021; Ref: scu.183485

Payne v Cave: 2 May 1789

Auction Bid Withdrawn Before Hammer Fell

The defendant’s bid for a worm-tub, and a pewter worm was highest at the auction, but he withdrew his bid before the hammer fell. The auction was under standard conditions.
Held: No contract had been made. The bid was an offer which could be withdrawn at any time before acceptance by the auctioneer’s hammer. The auctioneer’s request for bids is not an offer which can be accepted by the highest bidder.

(1789) 3 TR 148, [1789] EngR 2443, (1789) 100 ER 502 (B)
Commonlii
England and Wales
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.

Contract, Agency

Leading Case

Updated: 09 November 2021; Ref: scu.252546

FHR 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 commission.
Held: The appeal failed. An agent receiving a secret commission in breach of his fiduciary duties to his principal, held that commission or bribe in trust for that principal, and a proprietary remedy was available in respect of it.
There had been conflicting decisions and much academic discussion over the years as to the availability of the remedy requested. Where an agent acquires a benefit which came to his notice as a result of his fiduciary position, or pursuant to an opportunity which results from his fiduciary position, the general equitable rule (‘the Rule’) is that he is to be treated as having acquired the benefit on behalf of his principal, so it is beneficially owned by the principal. How did the rule apply where the bribe was taken by an agent in breach of his fiduciary duty.

Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Hodge, Lord Collins
[2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P and CR DG1, UKSC 2013/0049
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video
England and Wales
Citing:
At ChDFHR 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 . .
Appeal fromFHR European Ventures Llp and Others v Mankarious and Others CA 29-Jan-2013
The defendants had taken a secret commission when acting for the claimant. They had succeeded in their action and had an order in their favour, but had been refused a proprietary remedy for the sum received.
Held: The appeal was allowed, and a . .
CitedKeech v Sandford ChD 1726
Trustee’s Renewed Lease also Within Trust
A landlord refused to renew a lease to a trustee for the benefit of a minor. The trustee then took a new lease for his own benefit. The new lease had not formed part of the original trust property; the minor could not have acquired the new lease . .
CitedCarter, 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 . .
CitedBowes v The City Of Toronto PC 15-Feb-1858
The mayor of a city who bought discounted debentures issued by the city was in the same position as an agent vis-a-vis the city, and was to be treated as holding the debentures on trust for the city. . .
CitedDunne 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 . .
CitedBagnall 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 . .
CitedCook v Deeks and Hinds PC 23-Feb-1916
Company Directors not free to prefer Own Interests
Deeks and Hinds were the directors of a construction company. They negotiated a lucrative construction contract with the Canadian Pacific Railway. During the negotiations, they decided to enter into the contract personally, on their own behalves, . .
CitedRegal (Hastings) Ltd v Gulliver HL 20-Feb-1942
Directors Liability for Actions Ouside the Company
Regal negotiated for the purchase of two cinemas in Hastings. There were five directors on the board, including Mr Gulliver, the chairman. Regal incorporated a subsidiary, Hastings Amalgamated Cinemas Ltd, with a share capital of 5,000 pounds. There . .
CitedPhipps v Boardman ChD 1964
Agents of certain trustees had purchased shares, in circumstances where they only had that opportunity because they were agents.
Held: The shares were held beneficially for the trust. . .
CitedMothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
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 . .
CitedBarker 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. . .
CitedFawcett 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.
CitedSugden v Crossland 18-Feb-1856
A sum of money paid to a trustee to persuade him to retire in favour of the payee was to be ‘treated as a part of the trust fund’. . .
CitedIn re Morvah Consols Tin Mining Co, McKay’s Case CA 1875
A company bought a mine, and shares in the vendor were promised to the company’s secretary.
Held: The shares were held by him for the company beneficially. . .
CitedIn 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. . .
CitedIn 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. . .
CitedNant-y-glo and Blaina Ironworks Co v Grave 1878
Shares in a company had been given by a promoter to the defendant to induce him to become a director.
Held: They belonged to the company. . .
CitedEden 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. . .
CitedMartin v Lowry (HM Inspector of Taxes) KBD 15-Jun-1925
The taxpayer had other business, but purchased a substantial quantity of cloth and resold it. He said this was not by way of trade. The Revenue said that he had used all the standard trade practices, and it was taxable as such.
Held: The . .
CitedMartin v Lowry (HM Inspector of Taxes) CA 1926
The appellant purchased the entire stock of government surplus aircraft linen. He had another main business and had intended to resell it immediately. When that failed to promise a profit he set out to sell and sold the material over several months . .
CitedWilliams v Barton 1927
A trustee, who recommended that his co-trustees use stockbrokers who gave him a commission, held the commission on trust for the trust. . .
CitedTyrrell v The Bank Of London And Sir J v Shelley And Others HL 27-Feb-1862
A solicitor retained to act for a company in the course of formation secretly arranged to benefit from his prospective client’s anticipated acquisition of a building called the ‘Hall of Commerce’ by obtaining from the owner a 50% beneficial interest . .
CitedMetropolitan Bank v Heiron CA 1880
A claim brought by a company against a director was time-barred: the claim was to recover a bribe paid by a third party to induce the director to influence the company to negotiate a favourable settlement with the third party. The bank failed in its . .
CitedLister and Co v Stubbs CA 1890
It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other . .
CitedIn re North Australian Territory Co, Archer’s case CA 1892
A bribe had been paid to an agent. . .
CitedDiplock And Others v Blackburn 19-Jul-1811
If the master of a ship in a foreign port, from the state of the exchange, receives a premum for a bill drawn upon England on account of the ship, this belongs to his owner, although there may have been a usage for masters of shps to apprapriate . .
CitedThe Attorney General of Hong Kong v Reid and Reid And Marc Molloy Co PC 1-Nov-1993
(New Zealand) The Board considered the power to recover property owned by a public official found to have taken bribes.
Held: The bribes received by the policeman were held on trust for his principal, and so they could be traced into . .
CitedKak Loui Chan v Zacharia 1984
(High Court of Australia) The fundamental rule that obliged fiduciaries to account for personal benefit or gain had two separate themes: ‘The variations between more precise formulations of the principle governing the liability to account are . .
CitedFyffes Group Ltd v Templeman and others ComC 22-May-2000
The claimants alleged that over a five year period from 1992 to 1996 their employee Mr Simon Templeman, the first defendant, took bribes amounting to over US $1.4 million from or with the connivance of the second to seventh defendants. The essential . .
CitedDaraydan Holdings Limited, Cairn Estates Limited and Others v Solland International Limited and Others ChD 26-Mar-2004
The court was asked whether Lister and Co v Stubbs 45 ChD 1, a decision of the Court of Appeal, was binding on him or whether he could apply the Privy Council’s decision in Attorney General for Hong Kong v Reid
Held: On the facts of the case . .
CitedSinclair Investments (UK) Ltd v Versailles Trade Finance Ltd and Others CA 29-Mar-2011
The appellant challenged a decision that it was not entitled to a proprietary interest in the proceeds of sale of some shares which had been acquired with the proceeds of a breach of trust. Specifically, the claims gave rise to (i) an issue as to . .
CitedGrimaldi v Chameleon Mining NL (No 2) 21-Feb-2012
Federal Court of Australia
CORPORATIONS – Corporations Act 2001 (Cth), s 9 – ‘director’ – ‘officer’ – de facto director – no single test for determining whether a person is such – assuming or performing the functions of a director of the . .

Cited by:
CitedAIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
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 . .
CitedCrown Prosecution Service v Aquila Advisory Ltd SC 3-Nov-2021
. .

Lists of cited by and citing cases may be incomplete.

Agency, Equity, Torts – Other

Leading Case

Updated: 09 November 2021; Ref: scu.534405

Great Northern Railway Co v Swaffield: CEchC 22 Apr 1874

Mr Swaffield sent his horse by railway to a station at Sandy. The horse arrived late at night, and the railway company lodged the horse overnight for their own account at a livery stable. Mr Swaffield failed to collect it on the following morning. The only basis on which he was prepared to give any instructions about the fate of his horse was that the railway company assumed all responsibility for storing and delivering it to him from the time of its arrival at Sandy. After four months of this, the railway company lost patience. They unilaterally delivered the horse to Mr Swaffield’s farm and then sued him for the livery charges to date.
Held: The contract of carriage had come to an end on the day after the arrival of the horse at Sandy, when the performance required of them as carriers was completed. Baron Pollock drew attention to Cargo ex Argos in the course of argument and based his judgment upon it. Having referred to previous authority to the effect that the railway company was bound to take reasonable care of the horse notwithstanding the termination of the contract of carriage, he observed that ‘if there were that duty without the correlative right, it would be a manifest injustice.’
Non-delivery for causes arising subsequent to the consignee’s mora is more easily excusable than before.
Kelly CB, concurring treated the principle as applying because it was necessary for the railway company to incur the expenditure. ‘They had no choice unless they would leave the horse at the station or in the high road to his own danger and the danger of other people.’

Baron Pollock, Kelly CB
(1874) LR 9 Ex 132, [1874] UKLawRpExch 17
England and Wales
Citing:
CitedGaudet Geipel and Others v Brown (The Ex Cargo Argos) PC 18-Feb-1873
Petrol was shipped in London on the Argos under a bill of lading to deliver at Le Havre. It arrived in the later stages of the Franco-Prussian war, when the port was full of munitions, and the landing of flammable cargoes was forbidden. The master . .

Cited by:
CitedPetroleo Brasileiro Sa v Ene Kos 1 Ltd (‘The MT Kos’) SC 2-May-2012
The MT Kos had been chartered by the appellants. The respondents failed to make payments, and notice was given to withdraw the vessel. The contract said that such a notice was without prejudice to any claim. At the time, the vessel was laden. The . .

Lists of cited by and citing cases may be incomplete.

Agency, Contract

Leading Case

Updated: 09 November 2021; Ref: scu.462939

Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another: QBD 3 Oct 2011

Rossetti_diamondQBD2011

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 meaning of the Directive or the Regulations is a straightforward matter, to be determined by reference to the terms and the context of the agreement at the date it is concluded. The Regulations envisaged two types of Agent, but ‘None of this means that the non-derogable obligations of the commercial agent under article 3.1 and regulation 3(1), to look after the interests of the principal, and to act dutifully and in good faith, are to be imported into the definition of a commercial agent so that an agent acting for multiple principals does not fall within it.’ The correspondence indicated an implied term allowing the claimants to conduct additional competing agencies. The agreement was subject to the 1993 Regulations.

Cranston J
[2011] EWHC 2482 (QB)
Bailii
Commercial Agents Regulations 1993, 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
Citing:
CitedCrane T/A Indigital Satellite Services v Sky In-Home Service Ltd and Another ChD 26-Jan-2007
The Directive’s substantive provisions were modelled primarily on the provisions of German domestic law. . .
CitedSagal (T/A Bunz UK) v Atelier Bunz Gmbh CA 3-Jul-2009
The court was asked whether the the appellant was a commercial agent of the defendant within the regulations, and so would be entitled to compensation on termination of the agency.
Longmore LJ said: ‘It does not follow that every agent acting . .
CitedTamarind International Ltd and others v Eastern Natural Gas (Retail) Ltd and Another QBD 27-Jun-2000
Where self employed agents had been taken on to market the respondent’s services, and those agencies were terminated, such activities were those of commercial agents within the Directive, and they were entitled to compensation. Whether he was a . .
CitedMarleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
CitedIngmar 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 . .
CitedDirector General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .
CitedCrane (T/A Indigital Satelite Services) v Sky In-Home Ltd and Another CA 3-Jul-2008
Arden LJ considered the principles to be applied when considering whether a party to civil litigation should be allowed to appeal a trial judge’s decision on the basis that a claim, which could have been brought before him but was not, would have . .
CitedCrane T/A Indigital Satellite Services v Sky In-Home Service Ltd and Another ChD 26-Jan-2007
The Directive’s substantive provisions were modelled primarily on the provisions of German domestic law. . .
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 . .
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 . .
CitedTolhurst v Associated Portland Cement Manufacturers (1900) Ltd HL 1903
Tolhurst had contracted to sell a quantity of chalk from his quarries to the Imperial Company for fifty years. The Imperial Company afterwards assigned the Contract and sold its land, works and business to the Associated Company, and went into . .
CitedAMB Imballaggi Plastici Srl v Pacflex Ltd CA 18-Jun-1999
A party who chose to contract as principal for the purpose of reselling the goods of the vendor on a speculative basis and for a profit, was not to be deemed to be a commercial agent of the first vendor, and so was not entitled to compensation on . .
CitedLinden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .

Lists of cited by and citing cases may be incomplete.

Agency, Commercial

Updated: 02 November 2021; Ref: scu.444873

Fairstar 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 stored on his personal computer in England, were sent or received by him on behalf of the company. The claimant asserted an enforceable proprietary claim in those rent or received on their behalf. At first instance the court had found that there existed no property in information.
Held: In effect Fairstar claimed a right which it descibed as ‘proprietary’ to the content of the emails, entitling it to inspect and make copies of the content of the emails, either directly or through an independent person instructed for that purpose. The assertion of such a right failed.
However, the claimant was able to achieve its aims through the law of agency.

Mummery, Patten, Black LJJ
[2013] EWCA Civ 886
Bailii
England and Wales
Citing:
CitedLamb v Evans CA 1893
The plaintiff printed and published a multi-lingual European trade directory, engaging the defendants as commission agents to solicit paid entries for the directory. The businessmen could, if they wished, supply wood blocks or other materials from . .
CitedUniversal Thermosensors Ltd v Hibben and Others ChD 8-Jul-1992
After complex litigation, the remaining issues were a claim for damages by the claimant in respect of the defendant’s misuse of confidential information and a counterclaim by the defendants for loss falling within the claimant’s cross-undertaking in . .
CitedPennwell Publishing (UK) Ltd v Ornstien and others QBD 18-Jun-2007
A former employee the defendant had copied contact information from the employer’s Microsoft Outlook into an Excel spreadsheet. It was not disputed that during the course of his employment the employee had himself added many names and addresses to . .
At TCCFairstar Heavy Transport Nv v Adkins and Another TCC 1-Nov-2012
The claimant had obtained a without notice order restraining the first defendant, its former senior consultant from deleting or otherwise interfering with emails from his time with the company. The defendant said that there had been no emergency . .
CitedNicrotherm Electrical Company v Percy CA 1957
Lord Evershed MR said: ‘a man who thinks of a mechanical conception and then communicates it to others for the purpose of their working out means of carrying it into effect does not, because the idea was his (assuming that was), get proprietary . .
CitedForce India Formula One Team Ltd v 1 Malaysia Racing Team Sdn Bhd and Others ChD 21-Mar-2012
The claimants alleged misuse by the defendants of confidential information.
Held: Arnold J said: ‘Confidential information is not property, however, even though businessmen often deal with confidential information as if it were property and . .
Not on PointPattihis v Jackson 2002
The employer complained of the alleged misuse of property taken during the course of his employment by the defendant. . .
Appeal fromFairstar Heavy Transport Nv v Adkins TCC 23-Nov-2012
. .
CitedHuddleston v Control Risks 1987
The plaintiffs were protesters against Apartheid. The defendant, a political risks consultancy, was to sell a report on the activities of anti-apartheid groups, their relationship with terrorist groups and their intentions. The claimants were . .
CitedWRN Ltd v Ayris QBD 21-May-2008
The claimant sought to enforce post employment contracts against the defendant. One issue was whether or not business cards that had been given to the employee in the course of his employment, as well as cards that were already in his possession and . .
CitedLady 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 . .
CitedRe Ellis and Ellis 1908
A client’s former solicitors were ordered to deliver up payment vouchers to the trustee in bankruptcy of the former client. . .
CitedChantrey Martin v Martin CA 1953
The professional working papers of a firm of accountants were held not to be the property of the client, but letters and other papers created by accountants as agent for client were the client’s property: ‘Working accounts and other papers which . .
CitedGomba Holdings UK Ltd v Minories Finance Ltd CA 1988
The court was asked as to ownership of documents coming into existence in the course of a receivership. The plaintiff companies had argued that all documents belonged to them because the receivers were their agents and the documents were created in . .
CitedEquitas Ltd and Another v Horace Holman and Company Ltd ComC 27-Apr-2007
A principal or employer is entitled to delivery up of original documents (or other property) retained or removed by an agent or employee and relating to transactions done as agent. . .
CitedPennwell Publishing (UK) Ltd v Ornstien and others QBD 18-Jun-2007
A former employee the defendant had copied contact information from the employer’s Microsoft Outlook into an Excel spreadsheet. It was not disputed that during the course of his employment the employee had himself added many names and addresses to . .
CitedYasuda Fire and Marine Insurance Company Europe Ltd v Orion Marine Insurance Underwriters Ltd ChD 27-Oct-1994
An agent’s fiduciary duty to his principal survived the determination of his contract and he had a continuing duty to provide accounts. The court recognised the right of a principal to inspect and copy the content of both computerised and hard copy . .

Lists of cited by and citing cases may be incomplete.

Information, Employment, Agency

Updated: 02 November 2021; Ref: scu.513516

Glentree Estates Ltd v Holbeton Ltd: CA 5 Jul 2011

Agent to establish effective cause of a sale

The claimant estate agent appealed against dismissal of its claim for commission on the sale of the defendant’s property.
Held: The appeal failed. Glentree failed to establish that it was either ‘the’ or ‘an’ effective cause of the sale. What courts have understandably been anxious to avoid wherever possible is the liability of a vendor with multiple agents having to pay more than one commission, although there is no legal presumption either way.

Maurice Kay LJ VP, Richards, Leveson LJJ
[2011] EWCA Civ 755
Bailii
England and Wales
Citing:
CitedBow’s Emporium v A R Brett and Co Ltd 1927
The court considered a claim for an estate agent’s commission.
Held: The claim failed. Lord Shaw of Dunfermline said: ‘the continuity between the original relation brought about by the agent and the ultimate transaction has not been merely . .
Appeal fromGlentree Estates Ltd v Holbeton Ltd QBD 25-Nov-2010
The claimant estate agency sought payment of fees on the sale of a property. The defendants denied that the claimant had been the effective cause of the sale.
Held: The claim failed. The agents had not been sufficiently causative of the sale. . .
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.

Contract, Agency

Updated: 02 November 2021; Ref: scu.441439

In re Morvah Consols Tin Mining Co, McKay’s Case: CA 1875

A company bought a mine, and shares in the vendor were promised to the company’s secretary.
Held: The shares were held by him for the company beneficially.

Mellish and James LJJ and Brett J
(1875) 2 Ch D 1
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

Leading Case

Updated: 02 November 2021; Ref: scu.551503

Henderson 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 responsibility principle enunciated in Hedley is not confined to statements but may apply to any assumption of responsibility for the provision of services. This extended Hedley Byrne principle is the rationalisation or technique adopted to provide a remedy for the recovery of damages in respect of economic loss caused by the negligent performance of services. Once a case falls within the extended Hedley Byrne principle, there is no need to embark on any further inquiry whether it is ‘fair, just and reasonable’ to impose liability for economic loss. Further ‘reliance upon [the assumption of responsibility] by the other party will be necessary to establish a cause of action (because otherwise the negligence will have no causative effect).’ The existence of a contractual duty of care between the parties does not preclude the concurrence of a tort duty in the same respect.
Professional advisers may owe to the same client a duty to exercise reasonable care and skill derived from both contract and tort law.
Lord Browne-Wilkinson said: ‘The phrase ‘fiduciary duties’ is a dangerous one, giving rise to a mistaken assumption that all fiduciaries owe the same duties in all circumstances. That is not the case. Although, so far as I am aware, every fiduciary is under a duty not to make a profit from his position (unless such profit is authorised), the fiduciary duties owed, for example, by an express trustee are not the same as those owed by an agent. Moreover, and more relevantly, the extent and nature of the fiduciary duties owed in any particular case fall to be determined by reference to any underlying contractual relationship between the parties. Thus, in the case of an agent employed under a contract, the scope of his fiduciary duties is determined by the terms of the underlying contract. Although an agent is, in the absence of contractual provision, in breach of his fiduciary duties if he acts for another who is in competition with his principal, if the contract under which he is acting authorises him so to do, the normal fiduciary duties are modified accordingly: see Kelly v. Cooper [1993] A.C. 205, and the cases there cited. The existence of a contract does not exclude the co-existence of concurrent fiduciary duties (indeed, the contract may well be their source); but the contract can and does modify the extent and nature of the general duty that would otherwise arise.’

Lord Goff of Chieveley, Lord Browne-Wilkinson
[1995] 2 AC 145, [1994] 3 All ER 506, Times 26-Jul-1994, [1994] UKHL 5, [1994] 3 WLR 761
Bailii
England and Wales
Citing:
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 . .
Appeal fromArbuthnott v Feltrim; Deeny v Gooda Walker; Henderson v Merrett CA 14-Dec-1993
Underwriters owe a professional duty of care to Lloyds names in underwriting, even though they were acting as agents. . .

Cited by:
CitedBellefield Computer Services and others v E Turner and Sons Limited and others CA 18-Dec-2002
The defendants had carried out works of construction on the premises. They subcontracted the design, but not the supervision, of the works to architects. Years later there was a fire, which spread rapidly because of negligence in the design of a . .
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 . .
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 . .
CitedNiru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
CitedOldham and others v Georgina Kyrris and Another CA 4-Nov-2003
The claimant sought to bring a claim against the administrators of a partnership alleging a duty of care to creditors.
Held: Such an administrator owed no greater duty to creditors than would a director. That duty was no different whether the . .
CitedCommissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
CitedCommissioner of Police of the Metropolis v Lennon CA 20-Feb-2004
The claimant police officer considered being transferred to Northern Ireland. He asked and was incorrectly told that his housing allowance would not be affected by taking time off work.
Held: The break between employments had affected his . .
CitedMcLoughlin v Jones; McLoughlin v Grovers (a Firm) CA 2002
In deciding whether a duty of care is established the court must go to the ‘battery of tests which the House of Lords has taught us to use’, namely: ‘. . the ‘purpose’ test (Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd); the ‘assumption . .
CitedPhelps v Mayor and Burgesses London Borough of Hillingdon CA 4-Nov-1998
The plaintiff claimed damages for the negligent failure of an educational psychologist employed by a local authority to identify that the plaintiff was dyslexic.
Held: An educational psychologist has no duty of care to a child, as opposed to . .
CitedJane Marianne Sandhar, John Stuart Murray v Department of Transport, Environment and the Regions CA 5-Nov-2004
The claimant’s husband died when his car skidded on hoar frost. She claimed the respondent was liable under the Act and at common law for failing to keep it safe.
Held: The respondent had not assumed a general responsibility to all road users . .
CitedCustoms and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
CitedFirst National Commercial Bank Plc v Loxleys (a Firm) CA 6-Nov-1996
The plaintiff claimed damages from the seller of land and from their solicitors for misrepresentation in the replies to enquiries before contract. He appealed a striking out of his claim.
Held: A lawyer’s disclaimer placed on his Replies to . .
CitedPrecis (521) Plc v William M Mercer Ltd CA 15-Feb-2005
Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
CitedRegina v Lam and Others (T/a ‘Namesakes of Torbay’) and Borough of Torbay CA 30-Jul-1997
The claimant sought damages after the planning authority allowed the first defendant to conduct a manufacturing business in the course of which spraying activities took place which caused them personal injuries and loss of business.
Held: The . .
CitedWest Bromwich Albion Football Club Ltd v El-Safty QBD 14-Dec-2005
The claimant sought damages from the defendant surgeon alleging negligent care of a footballer. The defendant argued that he had no duty to the club as employer of his patient who was being treated through his BUPA membership. It would have created . .
CitedHM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
CitedB and B v A County Council CA 21-Nov-2006
The claimants sought damages from the defendant local authority after their identities had been wrongfully revealed to the natural parents of the adoptees leading to a claimed campaign of harassment. The adopters has specifically requested that . .
CitedDeutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
CitedWhite and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
CitedGrosvenor Casinos Ltd v National Bank of Abu Dhabi ComC 17-Mar-2008
Banker’s reference no guarantee
An Arab businessman lost pounds 18m at the claimant casino, and wrote scrip cheques against his account with the defendant. The claimant obtained judgment, but being unable to enforce that judgment pursued his bank. The club had used a system where . .
CitedTotal Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
CitedWelton, Welton v North Cornwall District Council CA 17-Jul-1996
The defendant authority appealed a finding that it was liable in negligence from the conduct of one of its environmental health officers. The plaintiff had set out to refurbish and open a restaurant. He said the officer gave him a list of things he . .
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 . .
CitedRossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
Rossetti_diamondQBD2011
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 . .
CitedGlaister and Others v Appelby-In-Westmorland Town Council CA 9-Dec-2009
The claimant was injured when at a horse fair. A loose horse kicked him causing injury. They claimed in negligence against the council for licensing the fair without ensuring that public liability insurance. The Council now appealed agaiinst a . .
CitedAspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .
CitedHalton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .
CitedSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .
CitedBanca Nazionale Del Lavoro Spa v Playboy Club London Ltd and Others SC 26-Jul-2018
The Playboy casino required a reference for a customer, but asked for this through a third party. The bank was not aware of the agency but gave a good reference for a customer who had never deposited any money with them and nor to whom it had issued . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages, Agency

Leading Case

Updated: 01 November 2021; Ref: scu.180462

In re J (Enduring Power of Attorney): ChD 12 Mar 2009

(Court of Protection) The donor executed a document purporting to appoint his wife to be his attorney, with an alternative. The document was based on a published precedent. The Public Guardian (PG) thought this provision of an alternative invalid.
Held: The Act required the use of the form set out, but then allowed variations to it which did not contradict any provision of the Act, and did allow successive attorneyships. The PG said that paragraph 20 required any multiple appointment to be either joint or joint and several. Such appointments were not in fact prohibited, and would give rise to no greater complexity than might arise through the use of multiple and successive deeds which were clearly allowed. The Act should be construed so as to allow people to make the arrangements they felt suitable and without creating technical traps for them. The power was valid.

Lewison J
[2009] EWHC 436 (Ch)
Bailii
Enduring Powers of Attorney Act 1985, Enduring Powers of Attorney (Prescribed Form) Regulations 1990
England and Wales
Citing:
CitedScottish and Newcastle Plc v Raguz HL 29-Oct-2008
The lease had been assigned by the claimant to the defendant and on again to a tenant who became insolvent. The landlord had recovered sums said to be due from the claimant who now sought an indemnity from the defendant. The defendant said that the . .
CitedX v Y, Z sub nom In re E (Enduring power of attorney) ChD 18-Feb-2000
The application was an appeal against an order registering an enduring power of attorney. The appeal from Master Lush was by way of rehearing. The donor had executed two powers. The second was invalid, and the donees of the first power sought to . .

Lists of cited by and citing cases may be incomplete.

Agency, Health

Updated: 01 November 2021; Ref: scu.317986

Millar Son and Co v Radford: CA 1903

For an estate agent to recover his commission, it was ‘necessary’ to show that the agent’s introduction was an ‘efficient’ (namely effective) cause in bringing about the transaction.

Sir Richard Henn Collins MR
(1903) 19 TLR 575
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 . .
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 . .
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.
Agency, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.264092

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.

Lord Justice Aldous Lord Justice Tuckey Mr Justice Lightman
[2003] EWCA Civ 1409, Times 27-Oct-2003, Gazette 20-Nov-2003, [2004] 1 WLR 997, [2004] 4 All ER 484
Bailii
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 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 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 . .

Lists of cited by and citing cases may be incomplete.

Negligence, Agency, Insolvency

Leading Case

Updated: 01 November 2021; Ref: scu.187019

The County Homesearch Company (Thames and Chilterns) Ltd v Cowham: CA 31 Jan 2008

The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed from a finding that they were obliged to pay his commission. The judge found that it was not implied into the contract that the commission would be payable only if the agent was an effective contributor to the transaction.
Held: The appeal was dismissed. The main reason for implying the term would be to avoid the client having to pay two commissions, but that was already precluded, and express terms were inconsistent with the term sought to be implied, and ‘The fact that it may be arguable whether a term should be implied . . does not mean that there is a doubt about the meaning of a written term’.

Longmore LJ
[2008] EWCA Civ 26, [2008] 1 EGLR 24, [2008] 1 WLR 909, [2008] NPC 10, [2008] 15 EG 178
Bailii
Estate Agents Act 1979, Unfair Terms in Consumer Contracts Regulations 1999 (1999 SI No. 2083) 7(2)
England and Wales
Citing:
CitedThe Moorcock CA 1889
Unless restricted by something else, an employer ought to find work to enable a workman to perform his part of the bargain, namely, to do his work. A term will be implied into a contract only to the extent required to give the contract efficacy: ‘if . .
CitedShirlaw v Southern Foundries (1926) Ltd CA 1939
The court warned against the over-ready application of any principle to justify the implication of terms into a contract. McKinnon LJ set out his ‘officious bystander’ test: ‘If I may quote from an essay which I wrote some years ago, I then said: . .
CitedBrian Cooper and Co v Fairview Estates (Investments) Ltd CA 13-Mar-1987
A substantial property developer sought a tenant for its office block and agreed with his selling agent to pay ‘a full scale letting fee . . should you introduce a tenant by whom you are unable to be retained and with whom we have not been in . .
CitedToulmin 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 . .
CitedDoyle 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 . .
CitedShirlaw v Southern Foundries (1926) Ltd HL 1940
Where a party enters into an arrangement which can only take effect by the continuance of an existing state of circumstances, there is an implied engagement on his part that he will do nothing of his own motion to put an end to that state of . .
CitedMillar Son and Co v Radford CA 1903
For an estate agent to recover his commission, it was ‘necessary’ to show that the agent’s introduction was an ‘efficient’ (namely effective) cause in bringing about the transaction. . .

Cited by:
CitedOffice of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
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 . .
CitedGlentree Estates Ltd and Others v Favermead Ltd ChD 20-May-2010
The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original . .

Lists of cited by and citing cases may be incomplete.

Contract, Agency, Consumer

Updated: 01 November 2021; Ref: scu.264035

MSM Consulting Ltd v United Republic of Tanzania: QBD 30 Jan 2009

The claimants sought commission or a quantum meruit for the part they had taken in finding a suitable site for the defendant’s High Commission in London.
Held: The works undertaken were consistent with the claimant seeking work from the defendant. No contract had been signed, and the defendant had indicated a reluctance to agree to the terms proposed. The company had not been the effective cause of the purchase. The company had been acting as an estate agent within the 1989 Act and was under a duty to provide the information required by the regulations. No contract had been formed. The company itself had only been formed part way through the work for which it claimed payment. For assorted reasons, the claims in quantum meruit failed also.

Christophe Clarke J
[2009] EWHC 121 (QB)
Bailii
Estate Agents Act 1989 18, Estate Agents (Provision of Information) Regulations 1991 (1991/859). 18(4)
England and Wales
Citing:
MentionedJenning and Chapman Ltd v Woodman Matthews and Co 1952
. .
MentionedBrewer Street Investment v Barclays Woollen Co CA 1953
A prospective tenant for whom a landlord had carried out alterations on the premises was not permitted to break off negotiations for the lease solely to escape liability for the cost of such alterations. Lord Denning said: ‘What, then, is the . .
MentionedWilliam Lacey (Hounslow) Ltd v Davis 1957
The builder tendered for work, apparently not on the basis that the tender might or might not be accepted but so that the owner could use the tender for what was described as ‘some extraneous or collateral purpose’, for negotiating a claim for . .
MentionedBritish Steel Corporation v Cleveland Bridge and Engineering Co Ltd 1983
An ‘if contract’ is where one party makes an offer capable of acceptance on the basis that ‘if you do this for us, we will do that for you’. Often used in the construction industry.
Goff J said: ‘the question whether . . any contract has come . .
CitedWood (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 . .
MentionedMarston Construction C Ltd v Kigass Ltd 1989
. .
CitedRegalian Properties Plc and Another v London Docklands Development Corporation ChD 25-Jan-1995
Negotiations intended to result in a contract were expressly on the basis that each party was free to withdraw from the negotiations at any time, the costs of a party in preparing for the intended contract were incurred at its own risk and it was . .
CitedCountrywide Communications Limited v ICL Pathway Ltd 1996
The court considered the authorities bearing on the question of whether or not a claim under a quantum meruit can successfully be made for work done in anticipation of a contract which does not materialise. Strauss J concluded: ‘I have found it . .
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 . .
CitedBaird Textiles Ltd v Marks and Spencer plc CA 28-Feb-2001
The more embryonic is an oral ‘agreement’, the less likely it is that the parties intended to create legal relations at that stage. For there to be an agreement formed by conduct, there must be a course of dealing from which a contract is . .

Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 01 November 2021; Ref: scu.280257

Foxtons Ltd v Pelkey Bicknell and Another: CA 23 Apr 2008

The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the buyers were re-introduced by a subsequent agent. The claimants claimed entitlement because the sale was to ‘a purchaser introduced by’ them.
Held: The appeal succeeded. Lord Neuberger of Abbotsbury said: ”A purchaser introduced by us’ meant a person who becomes a purchaser as a result of our introduction’. This was consistent with the intent of the 1991 Regulations, and the claimants interpretation would leave the sellers open to a claim at whatever future point the buyer was persuaded.
Lord Neuberger examined the case law and said: ‘More generally the judgments in those cases establish the following propositions. First, the term identified in Article 57 of Bowstead is ‘very readily’ implied, especially in a residential consumer context, unless the provisions of the particular contract or the facts of the particular case negative it . . Secondly, the main reason for implying the term is to minimise the risk of a seller having to pay two commissions . . Thirdly, it is not entirely clear whether the test is ‘an effective cause’ or ‘the effective cause’ . . Fourthly, whether an agent was the effective cause is a question whose resolution turns very much on the facts of the particular case . . Fifthly, while two commissions are to be avoided, there will be cases where the terms of the relevant contracts and the facts compel such a result . . Sixthly, where the term is implied, the burden is on the agent seeking the commission to establish that he was the effective cause.’

Lord Neuberger of Abbotsbury
[2008] EWCA Civ 419, Times 01-May-2008, [2008] All ER (D) 328 (Apr), [2008] 2 EGLR 23
Bailii
Estate Agents (Provision of Information) Regulations 1991
England and Wales
Citing:
CitedMillar Son and Co v Radford CA 1903
For an estate agent to recover his commission, it was ‘necessary’ to show that the agent’s introduction was an ‘efficient’ (namely effective) cause in bringing about the transaction. . .
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 . .
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 . .
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 . .
CitedBrian Cooper and Co v Fairview Estates (Investments) Ltd CA 13-Mar-1987
A substantial property developer sought a tenant for its office block and agreed with his selling agent to pay ‘a full scale letting fee . . should you introduce a tenant by whom you are unable to be retained and with whom we have not been in . .
CitedChasen 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 . .
CitedPeter Yates v Bullock 1992
Whether an introduction of a purchaser by an estate agent to the vendor was the ‘effective cause’ of the transaction which ultimately takes place must be resolved by an examination of the facts as a whole. . .
CitedWood (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 . .

Cited by:
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.
CitedGlentree Estates Ltd and Others v Favermead Ltd ChD 20-May-2010
The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original . .
CitedNicholas Prestige Homes v Neal CA 1-Dec-2010
The estate agent had sought their commission on the sale of property, but phrased it now as a claim for damages for the property owners having breached their sole agency contract by appointing other agents who had been the effective cause of the . .
CitedGlentree Estates Ltd v Holbeton Ltd CA 5-Jul-2011
Agent to establish effective cause of a sale
The claimant estate agent appealed against dismissal of its claim for commission on the sale of the defendant’s property.
Held: The appeal failed. Glentree failed to establish that it was either ‘the’ or ‘an’ effective cause of the sale. What . .

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 01 November 2021; Ref: scu.267045

Frith v Frith: PC 21 Mar 1906

Turks and Caicos Islands – A manager sought to claim that the power of attorney, which authorised him to enter into possession of and manage an estate in the Turks and Caicos Islands, and to receive rents and profits and pay debts due by the owners, was irrevocable because he had separately undertaken at their request to guarantee the payment of a debt secured by mortgage over the estate. He argued that if he was called upon as surety, the power would enable him to recover any amount paid.
Held: His appeal failed because the authority when conferred was not ‘expressed or intended to be used for the purpose of subserving [the manager’s] interest as guarantor and had no connection with it’
Lord Atkinson observed that to allow an agent to exercise his authority after it has been revoked would amount to the specific enforcement of a relationship which is by its nature not specifically enforceable.
Lord Atkinson contiued: ‘ . . the essential distinction between this case and those cited is this, that in each of the latter power and authority were given to a particular individual to do a particular thing, the doing of which conferred a benefit upon him, the authority ceasing when the benefit was reaped, while in this case, as already pointed out, nothing of that kind was ever provided for or contemplated.’

[1906] UKPC 18, [1906] AC 254, (1906) 94 LT 383
Bailii
Commonwealth
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

Leading Case

Updated: 01 November 2021; Ref: scu.419741

Holland 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 letter from the captain, informing him that the ship had received injury, which fact he, without fraudulent intention to deceive, omitted to disclose to the underwriters. The ship waa lost, and B, one of the underwriters paid to A, his amount of the insurance ; but, having subsequently become acquainted with the above circumstance, brought an action for money had and received against him to recover it back. A., before he was aware of B.’s intention to dispute the policy, and acting bona fide throughout, transmitted to his principal the money he had received from the various underwriters; with the exception of a certain amount for which he had allowed the principal credit iri a settled account, and of another which, with the autbority of the principal, he had expended in a suit brought by him on behalf of the principal against C, another underwriter, on the policy :
Held: (In accordance with the decision in Russell v. Thornton, 4 H. and N. 788, affirmed on error, 6 Id. 140), that, in consequence of the concealment from the underwriters of the fact stated in the captain’s letter, the policy was voidable at the election of the underwriters. 2. That A. being only an agent, of which B. was aware, and having, without notice of B’s intention to repudiate the contract, paid over to his principal the amount received from the underwriters, B. was not entitled to recover back from A. his amount of the insurance. 3. That there was no difference in this respect between the money actually paid over by A. to his principal, and the moneys which had either been allowed in account between them or expended in the suit agaitist C, 4. Quaere, whether B. would have been entitled to recover, if he had not known that A. was acting merely as agent?

[1861] EngR 728, (1861) 1 B and S 424, (1861) 121 ER 773
Commonlii
Cited by:
CitedPortman Building Society v Hamlyn Taylor Neck (a Firm) CA 22-Apr-1998
The mortgage advance had been against an express requirement that the client use the property as his private residence. After the client defaulted, the appellant lender discovered that the solicitors acting for themselves and the lay client had . .
See AlsoHolland v Russell 9-May-1863
. .

Lists of cited by and citing cases may be incomplete.

Equity, Agency

Leading Case

Updated: 01 November 2021; Ref: scu.284489

Aluminium Industrie Vaassen B V v Romalpa Aluminium Ltd: CA 16 Jan 1976

The seller sold aluminium to the defendant, but included a clause under which they retained title in the materials sold, even if mixed in with manufactured goods, until they had been paid for the metal. The defendants appealed a finding that the receivers held the proceeds of sale of the manufactured goods on trust for the plaintiffs.
Held: The appeal failed. The intention of the clause was to secure for as long as possible payment of the purchase price of the aluminium. There had to be read into the contract a duty on the defendant to act under the fiduciary relationship of principal and agent, bailor and bailee, as was contemplated in the clause. The plaintiffs could trace the proceeds of the sub-sales, and recover them.

Megaw, Roskill and Goff L.JJ
[1976] 1 WLR 676
lip
England and Wales
Citing:
CitedIn re Hallett’s Estate; Knatchbull v Hallett CA 1880
Where a trustee of a policy used money received from others to make payment of premiums on an insurance policy, they would be entitled to a lien on the policy. Where an asset was acquired exclusively with trust money, the beneficiary could either . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Company, Equity, Agency

Leading Case

Updated: 01 November 2021; Ref: scu.174733

JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry: HL 1989

An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between ourselves and yourselves as principals, we alone being liable to you for its performance’ is effective to preclude any contention that the parties named in the contract are contracting as agents for others. Municipal courts could not adjudicate on or enforce rights arising out of international treaties, unless they had been incorporated into domestic law. ‘As a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties are not self-executing. A treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights an obligations, it is irrelevant.’

Lord Oliver
[1990] 2 AC 418, [1989] 3 WLR 969, [1989] Ch 72, [1989] 3 All ER 523
England and Wales
Citing:
CitedMaclaine Watson and Co Ltd v International Tin Council HL 2-Jan-1989
The International Tin Council was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order.
Held: As a legal person in . .
Appeal fromJH Rayner (Mincing Lane) Ltd v Department of Trade and Industry 1989
. .

Cited by:
CitedHiggs and Mitchell v The Minister of National Security and others PC 14-Dec-1999
(Bahamas) The applicants appealed against sentences of death, saying that the executions would be unlawful while there was a pending appeal to the OAS.
Held: The appeals failed. The Bahamas was a member of the Organisation of American States, . .
CitedEuropean Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
CitedChagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
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 . .
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
CitedRegina (on the Application of Gjovalin Pepushi) v Crown Prosecution Service Admn 11-May-2004
The claimant was stopped when boarding a flight to Canada, having previously stopped in France and Italy. He bore a false Swedish passport, and intended to claim asylum in Canada. He now claimed the benefit of the article 31 (per Adimi), to defend a . .
CitedA, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
CitedOccidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
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 . .
CitedRegina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
CitedGentle and Clarke, Regina (on the Application Of) v Prime Minister and others CA 12-Dec-2006
The claimants appealed refusal of a judicial review of the defendant’s decision to enter into the war in Iraq. The claimants were parents of troops who had died in the war. They said that the legal advice given to the government was incorrect.
CitedGentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
See AlsoJ H Rayner (Mincing Lane) Limited and others v Federative Republic of Brazil CA 29-Jul-1999
. .
CitedMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
CitedSG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
CitedMiller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
CitedReferences (Bills) By The Attorney General and The Advocate General for Scotland – United Nations Convention On The Rights of The Child and European Charter of Local Self-Government SC 6-Oct-2021
Scots Bills were Outwith Parliament’s Competence
The AG questioned the constitutionaliity of Bills designed to give effect to two treaties to which the UK is a signatory, and passed by the Scottish Parliament as to the care of children.
Held: The laws had effect also outside Scotland . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Agency, Company, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.182469

Barker v Furlong: 1891

The executor plaintiffs were entitled to furniture which was sent to auction without their knowledge or consent. Some of the furniture was returned unsold to the would-be seller and no claim was made against the defendant auctioneer in respect of that furniture. But he was held liable for the furniture he sold.
Held: Where, as here, the auctioneer receives the goods into his custody, and, on selling them, hands over the goods to the purchasers with a view to passing the property in them, then I think the auctioneer has converted the goods and is liable accordingly. The general rule is that where an agent takes part in transferring the property in a chattel and it turns out that his principal has no title, his ignorance of this fact affords him no protection. Cases of a carrier and packing agent might support the case of the auctioneers. But carrier and packing agents are generally held not to have converted, because by their acts they merely purport to change the position of the goods and not the property in them.

Romer J
[1891] 2 CH 172
England and Wales
Cited by:
CitedMarcq v Christie, Manson and Woods Ltd CA 23-May-2003
The claimant’s stolen painting was put up for sale by the defendant. On being withdrawn, they returned it to the person who had brought it in. The claimant sought damages.
Held: There was no reported case in which a court has had to consider . .
CitedWillis v British Car Auctions CA 1978
A car on hire purchase was sold and delivered by auctioneers on the instructions of the hirer. The main issue was whether the auctioneers’ liability was affected by the fact that the car had been sold under their provisional bid procedure.
Torts – Other, Agency

Leading Case

Updated: 31 October 2021; Ref: scu.182755

C v V: CoP 25 Nov 2008

The court heard an appeal objecting to the appointment of a sibling as Deputy for the parents now lacking capacity. Both daughters had at one time been appointed under Enduring Powers of Attorney, acting jointly, but the daughters became estranged. V who had charge of the bookkeeping came to want to register the power, but C objected. After conflicting expert reports, the Court considered that something needed to be done and appointed V deputy (on her application), rather than an independent person, using his powers under the 2005 Act.
Held: The appeal succeeded. The decision had failed to take proper account of the parents’ expressed wishes: ‘the learned judge was wrong to dismiss as non-existent the implications from the EPAs’ having been joint appointments of the two daughters and not joint and several appointments. The difference between those two regimes is clearly spelled out in the notes on the form itself, and it must be assumed was appreciated and intended by Mr and Mrs S. On that basis, it was an almost inescapable inference that they, as donors of the powers, wanted relevant decisions either to be joint, or to be made by neither appointee, and did not want their affairs to be dealt with by the sole decision of one appointee alone.’
Both experts had recommended an independent professional as deputy, and ‘the possible disadvantages of having an impersonal Deputy managing their affairs at a formal level rather than V have been sufficiently conveyed to Mr and Mrs S as to mean that even the later expressions of their preferences are not invalidated, and should not be downgraded in weight on that account.’ As occasion allowed in due course the parents should be consulted as to whether this was working.
Marshall QC described the situation under the new Act: ‘there has been a whole sea change in the attitude of the law to persons whose mental capacity is impaired’ and ‘Two major changes are therefore embodied in the statute. The first is official recognition that capacity is not a blunt ‘all or nothing’ condition, but is more complex, and is to be treated as being issue specific. A person may not have sufficient capacity to be able to make complex, refined or major decisions but may still have the capacity to make simpler or less momentous ones, or to hold genuine views as to what he wants to be the outcome of more complex decisions or situations.
The second change is the emphasis throughout the Act on the ascertainment of the actual or likely wishes, views and preferences of the person lacking full capacity, and on involving him in the decision making process. This approach underlies s.1(2) (presumption of capacity), s 1(3) (duty to help P to make his own decision if he can), 1(4) (recognition that a person’s capacity, and therefore right, to make decisions does not depend on how objectively ‘wise’ those decisions are), s1(6) (P’s rights and freedom of action should be restricted as little as practicable), and s 4(4) (duty on decision maker to involve P in decisions), and it is the only conceivable reason for imposing the duty to consider P’s wishes or likely wishes (s 4.(6)) and to take trouble to ascertain them s (4 (7)).’

Marshall QC J
[2008] EWHC B16 (COP), [2008] EWHC B16 (Fam), [2009] LS Law Medical 97, [2009] WTLR 315
Bailii, Bailii
Mental Capacity Act 2005 1
England and Wales
Citing:
CitedG v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
CitedTanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .
CitedAsiansky Television Plc and Another v Bayer-Rosin CA 19-Nov-2001
The court considered the circumstancs allowing a striking out.
Held: Consideration should be given to the question whether striking out the claim or defence would be disproportionate and, except perhaps where striking it out would be plainly . .

Lists of cited by and citing cases may be incomplete.

Health, Agency

Updated: 31 October 2021; Ref: scu.431218

Gomba Holdings UK Ltd v Minories Finance Ltd: CA 1988

The court was asked as to ownership of documents coming into existence in the course of a receivership. The plaintiff companies had argued that all documents belonged to them because the receivers were their agents and the documents were created in the course of that agency.
Held: As between a principal and its agent, all documents prepared or received by agent belong to principal, and were to be delivered up on termination of agency on basis of ownership of them.
However, whilst the receivers were technically agents of the companies, the agency of a receiver is not an ordinary agency because it involves a tri-partite relationship in which the receiver owed duties to both the mortgagor company and the debenture holder. It determined the dispute over ownership by assessing the purpose for which the documents were created – whether as performance of one of the duties (in which case the companies could only claim ownership when the documents were created in the course of performing the duty to them to manage their affairs) or to enable them to carry out their professional duties as distinct from performance of a duty (in which case the documents were the property of the receivers).
Hoffmann LJ said that a receiver and manager ‘is no ordinary agent’ and continued: ‘Although nominally the agent of the company, his primary duty is to realise the assets in the interests of the debenture holder and his powers of management are really ancillary to that duty.’
Fox LJ discussed the nature of a receiver’s agency, saying: ‘The agency of a receiver is not an ordinary agency. It is primarily a device to protect the mortgagee or debenture holder. Thus, the receiver acts as agent for the mortgagor in that he has power to affect the mortgagor’s position by acts which, though done for the benefit of the debenture holder, are treated as if they were the acts of the mortgagor. The relationship set up by the debenture, and the appointment of the receiver, however, is not simply between the mortgagor and the receiver. It is tripartite and involves the mortgagor, the receiver and the debenture holder. The receiver is appointed by the debenture holder, upon the happening of specified events, and becomes the mortgagor’s agent whether the mortgagor likes it or not. And, as a matter of contract between the mortgagor and the debenture holder, the mortgagor will have to pay the receiver’s fees. Further, the mortgagor cannot dismiss the receiver since that power is reserved to the debenture holder as another of the contractual terms of the loan. It is to be noted also that the mortgagor cannot instruct the receiver how to act in the conduct of the receivership.’
Hoffmann, Fox LJJ
[1988] 1 WLR 1231, [1989] 1 All ER 261, (1988) 5 BCC 27, [1989] BCLC 115
England and Wales
Cited by:
See AlsoGomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) CA 1993
A clause entitling a mortgagee to recover legal costs from the mortgagor did not extend to costs that were unreasonably incurred or which were unreasonable in amount. Whether costs were unreasonably incurred or were unreasonable in amount was to be . .
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.
Updated: 23 October 2021; Ref: scu.515262

Gomba 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 to protect the mortgagee, the general agency principles are of limited assistance in identifying the duties owed by the receiver to the mortgagor.
Hoffmann J
[1986] 1 WLR 1301
England and Wales
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 . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.187043

A Local Authority v AW: CoP 20 May 2020

Reasoning in reaching conclusions in a case which has the characteristics of many which come before the Court of Protection: namely, where the subject of the application is believed to have capacity in making decisions in relation to certain aspects of their life, but not in others; where there are, in such cases, inevitably ‘grey areas’ in between. It recognises the importance of treating each capacity issue as decision-specific and time-specific
[2020] EWCOP 24
Bailii
England and Wales

Updated: 14 October 2021; Ref: scu.650858

Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd: CA 1964

The defendant company allowed one of its directors to act as the Managing Director and to give instructions to the Plaintiff to do work on its behalf.
Held: The fact that he had never been formally appointed as Managing Director was of no consequence. The other directors knew the facts, the Company had effectively held out that individual as having the powers of the Managing Director, and the fact that he may have gone outside his actual authority did not affect the fact that he had apparent (or ostensible) authority to do what he did, and the Company was bound.
Diplock LJ stated: ‘An ‘apparent’ or ‘ostensible’ authority . . is a legal relationship between the principal and the contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted upon by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the ‘apparent’ authority, so as to render the principal liable to perform any obligations imposed upon him by such contract . . The representation which creates ‘apparent’ authority may take a variety of forms of which the commonest is representation by conduct,, that is by permitting the agent to act in some way in the conduct of the principal’s business with other persons. By so doing the principal represents to anyone who becomes aware that the agent is so acting that the agent has authority to enter on behalf of the principal into contracts with other persons of the kind which an agent so acting in the conduct of his principal business has usually ‘actual’ authority to enter into.’
Diplock LJ
[1964] 2 QB 480, [1964] 1 All ER 630, [1964] 2 WLR 618
England and Wales
Cited by:
CitedEvans v James (Administratrix of the Estate of Thomas Hopkin Deceased) CA 5-Jul-1999
Before the parties called evidence, and having read the papers, the court considered that there was no real defence shown, and invited submissions. Negotiations for the grant of a tenancy had been terminated by the sudden illness of the proposed . .
CitedComputer 2000 Distribution Ltd and others v ICM Computer Solutions Plc CA 17-Nov-2004
The claimant delivered computer equipment against a fraudulent invoice issued in the name of the defendant.
Held: The loss here had to fall on an innocent party. Having delivered the equipment to the site requested, the claimant had done all . .
CitedCRJ Services Ltd v Lanstar Ltd (T/A CSG Lanstar) TCC 19-Apr-2011
The claimant hired out recycling plant and equipment and the defendant had been a customer. A local agent of the defendant had properly entered into certain contracts with the claimant acting as the company’s agent, but then created three long term . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.188878

Ratford 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 his principal for rating purposes. The facts that the receivers had had representatives on the company’s premises from time to time during the receivership and that the receivers had managed the company’s business and controlled its assets were ‘quite consistent with the company remaining in legal possession and rateable occupation of the premises’. As to the authorities: ‘they all clearly show that the mere fact that a receiver has entered upon the company’s premises for the purpose of managing and carrying on its business does not necessarily mean that the company has been dispossessed or has ceased to occupy the premises for rating purposes. If it is to be shown that a change of rateable occupation has occurred, this conclusion must be derived from the terms of the receiver’s appointment or from what he has actually done, or from both together.’ The receivers having demonstrated that their appointment did not oblige them to take possession, and that in carrying out their duties they were deemed to be the agents of the company: ‘the onus . . shifted to the council to show that the receivers had dispossessed the company, or, to put it another way, to show that the quality of any possession of the premises which the receivers might have enjoyed was not that of mere agents. For possession held by a person in his capacity as agent is in law the possession of his principal.’ ‘It is a general principle of rating law that where an agent is required to occupy a hereditament in order to secure the better performance of his duties as agent, his occupation is for rating purposes ordinarily treated as that of his principal. If, on the other hand, an agent occupies his principal’s property otherwise than in his capacity as agent, the occupation will be treated as his own for rating purposes.’
Slade LJ, Ralph Gibson LJ and Sir John Megaw
[1987] QB 357
England and Wales
Citing:
CitedRe Marriage Neave and Co CA 1896
The court considered the liability for rates of a company’s receiver: ‘The argument that, because a receiver and manager is appointed, then ipso facto the company or persons carrying on business are turned out, is neither reasonable nor plausible. . .
CitedNational Provincial Bank of England v United Electric Theatres 1916
. .
CitedGyton v Palmour 1944
. .

Cited by:
CitedIn re Beck Foods Ltd: Boston Borough Council v Rees and Bennett CA 20-Dec-2001
The council appealed a decision that the administrative receivers of a company were not liable personally for the non-domestic rates otherwise incurred by a company during the receivership.
Held: The activities of the receiver or manager were . .
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 . .
MentionedRhodes v Allied Dunbar Pension Services Ltd CA 1989
The intermediate tenant had charged the lease to the bank, which appointed receivers. Both the sub rent and the head rent fell into arrears. The head landlord then served a notice direct on the subtenant requiring him to pay the rent direct to the . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2021; Ref: scu.183442

Director of Legal Aid Casework and Others v Briggs: CA 31 Jul 2017

Orse In re Briggs (Incapacitated Person)
Sir Brian Leveson P, King , Burnett LJJ
[2017] EWCA Civ 1169, [2017] WLR(D) 535, (2017) 158 BMLR 88, [2018] 2 All ER 990, [2018] 2 WLR 152, [2017] COPLR 370, [2017] CP Rep 45, , [2018] Fam 63
Bailii, WLRD
Mental Capacity Act 2005
England and Wales
Citing:
Appeal fromBriggs v Briggs and Others (EWCOP 48) CoP 24-Nov-2016
The Court considered whether the disagreement about whether it was in the best interests of Mr B for him to be given clinically assisted nutrition and hydration, was one which could be determined . .

Cited by:
CitedAn NHS Trust and Others v Y and Another SC 30-Jul-2018
The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2021; Ref: scu.591676

Tongue v Royal Society for The Prevention of Cruelty To Animals and Another: ChD 12 Oct 2017

The respondent society had removed cattle from the claimant’s farm after findings against the farmer under the 1911 Act. The parties now disputed liability for the costs incurred.
Newey J
[2017] EWHC 2508 (Ch), [2017] WLR(D) 668
Bailii, WLRD
Protection of Animals Act 1911
England and Wales

Updated: 29 August 2021; Ref: scu.597474

Wilkinson And Another v Martin: CCP 16 Feb 1837

To enable a broker to recover a commission on the sale of a ship, the mere fact of his having introduced the purchaser to the seller will not be sufficient, but lf it appears that such introduction was the foundation on which the negotiation proceeded, the parties cannot afterwards, by agreement between themselves, withdraw the matter from the broker’s hands, and deprive him of his commission. The broker will be entitled to his commission, if he was, up to a certain time, the agent or middle-man between the parties, although the contract be afterwards />completed without his instrumentality or interference.
[1837] EngR 520, (1837) 8 Car and P 1, (1837) 173 ER 373
Commonlii
England and Wales

Updated: 25 August 2021; Ref: scu.313637

China Pacific SA v Food Corpn of India (The Winson): HL 1982

A cargo of wheat was loaded in the US for delivery to Bombay. The ship was stranded on a reef in the South China Sea. Salvors entered into a salvage agreement with the shipowners and cargo owners on Lloyds open form. In performance of that contract the salvors lightened the vessel by offloading part of the cargo into barges and carrying it to Manila as a place of safety. There the salvors arranged for it to be stored under cover, in part on a vessel in the harbour and in part in a bonded warehouse ashore. The salvors sought to recover the costs of such storage from the cargo owners, being the stevedoring and charter costs of arranging storage on the vessel in the harbour, and the warehouse charges they had to pay for the warehousing ashore. The storage was both reasonable and necessary for the preservation of the cargo and to prevent its deterioration. The claim had succeeded before Lloyd J, but overturned at the Court of Appeal.
Held: The decision was re-instated. The case turned on the application of ‘well known and basic principles of the common law of salvage, of bailment and of lien.’ The bailee was left in possession of the goods after the termination of the contract under which the bailment had originally been made, and in the absence of any contrary instructions from the cargo-owner, the warehousing of the goods was necessary for their preservation.
Lord Diplock noted that the case had been argued throughout on the basis that the salvage contract had come to an end at the time the cargo arrived in Manila, whilst leaving open whether that assumption was correct. The salvors were entitled to recover the storage costs from cargo owners because as bailees they: ‘the bailment which up to the conclusion of the salvage services had been a bailment for valuable consideration became a gratuitous bailment; and so long as that relationship of bailor and bailee continued to subsist the salvors, under the ordinary principles of the law of bailment too well known and too well-established to call for any citation of authority, ‘owed a duty of care to the cargo owner to take such measures to preserve the salved wheat from deterioration by exposure to the elements as a man of ordinary prudence would take for the preservation of his own property . . and if he fulfils that duty he has, in my view, a correlative right to charge the owner of the goods with the expenses reasonably incurred in doing so.’
and ‘It is, of course, true that in English law a mere stranger cannot compel an owner of goods to pay for a benefit bestowed upon him against his will; but this latter principle does not apply where there is a pre-existing legal relationship between the owner of the goods and the bestower of the benefit, such as that of bailor and bailee, which imposes upon the bestower of the benefit a legal duty of care in respect of the preservation of the goods that is owed by him to their owner.’
Lord Simon of Glaisdale, concurring, thought that to confine agency of necessity to cases where the issue was the bailee’s authority to bind the bailor to contracts with third parties was ‘justified by the fact that the law of bailment will often resolve any issue between alleged principal and agent of necessity, as it has done here.’
Diplock, Keith, Roskill and Brandon LL
[1982] AC 939
England and Wales
Cited by:
CitedPetroleo Brasileiro Sa v Ene Kos 1 Ltd (‘The MT Kos’) SC 2-May-2012
The MT Kos had been chartered by the appellants. The respondents failed to make payments, and notice was given to withdraw the vessel. The contract said that such a notice was without prejudice to any claim. At the time, the vessel was laden. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.462940

Re K (Enduring Powers of Attorney), In re F: ChD 1988

The court allowed an appeal against the decision of the Master of the Court of Protection refusing registration to an enduring power of attorney on the ground that the donor, although capable of understanding the nature of the power, was herself incapable by reason of mental disorder of managing her property and affairs at the time that she executed the power. For a juristic act to be valid, the person performing it should have the mental capacity (with the assistance of such explanation as he may have been given) to understand the nature and effect of that particular act. In the context of litigation, the test to be applied is: ‘whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings.’ There is no logical reason why a person who understands that something needs to be done, but who does not have the requisite understanding to do it for himself, should not confer on another the power to do what needs to be done.
Hoffmann J said: ‘there is no logical reason why, though unable to exercise her powers, [the donor] could not confer them upon someone else by an appropriate juristic act. The validity of that act depends on whether she understood its nature and effect and not on whether she would hypothetically have been able to perform all the acts which it authorised.’ and
‘I do not think that it would be sufficient if he realised only that it gave Cousin William power to look after his property. Mr Rawson [counsel instructed by the Official Solicitor] helpfully summarised the matters which the donor should have understood in order that he can be said to have understood the nature and effect of the power. First (if such be the terms of the power) that the attorney will be able to assume complete authority over the donor’s affairs. Secondly (if such be the terms of the power) that the attorney will in general be able to do anything with the donor’s property which he himself could have done. Thirdly, that the authority will continue if the donor should be or become mentally incapable. Fourthly, that if he should be or become mentally incapable, the power will be irrevocable without confirmation by the court. I do not wish to prescribe another form of words in competition with the explanatory notes prescribed by the Lord Chancellor, but I accept Mr Rawson’s summary as a statement of the matters which should ordinarily be explained to the donor (whatever the precise language which may be used) and which the evidence should show he has understood.’
Hoffmann J
[1988] Ch 310
England and Wales
Cited by:
CitedHoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
CitedBailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
CitedMasterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.219623

Siu Yin Kwan and Another v Eastern Insurance Co Ltd: PC 16 Dec 1993

Insurers are liable to undisclosed principals on an indemnity policy, provided it was made with the range of their authority. The claim arose out of the death of two seamen on their employers’ vessel but the employers were not named in the relevant policy.
Lord Lloyd said: ‘There are two reasons why their Lordships prefer the decision in Mark Rowlands . . In the first place the words ‘event or events’ in section 2, while apt to describe the loss of the vessel are hardly apt to describe . . liability arising under the common law, as a consequence of the loss of the vessel. Secondly, section 2 must take colour from the short title and preamble to Section 1. By no stretch of the imagination could indemnity insurance be described as a ‘mischievous kind of gaming’. Their Lordships are entitled to give section 2 a meaning which corresponds with the obvious legislative intent.’
Lord Lloyd of Berwick said: ‘For present purposes the law can be summarised shortly. (1) An undisclosed principal may sue and be sued on a contract made by an agent on his behalf, acting within the scope of his actual authority. (2) In entering into the contract, the agent must intend to act on the principal’s behalf. (3) The agent of an undisclosed principal may also sue and be sued on the contract. (4) Any defence which the third party may have against the agent is available against his principal. (5) The terms of the contract may, expressly or by implication, exclude the principal’s right to sue, and his liability to be sued. The contact itself, or the circumstances surrounding the contract, may show that the agent is the true and only principal.’
Lord Lloyd
Gazette 02-Feb-1994, Times 16-Dec-1993, [1994] 2 AC 199, [1994] 1 All ER 213, [1994] 2 WLR 370
Insurance Act 1774 2
Commonwealth
Citing:
AppliedMark Rowlands v Berni Inns Ltd CA 1985
The plaintiff owned the freehold and had let the basement to the defendant. The plaintiff insured the building. The defendant covenanted to pay to the plaintiff an insurance rent equal to the proportionate cost of insuring the part of the building . .

Cited by:
CitedFeasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey ComC 17-May-2002
The fact that there was more than one insurance policy in place for the same interest would not preclude a claim under one of them. A mutual underwriting group insured members against personal injury and so forth through ‘lineslip’ policies. The . .
CitedBanca Nazionale Del Lavoro Spa v Playboy Club London Ltd and Others SC 26-Jul-2018
The Playboy casino required a reference for a customer, but asked for this through a third party. The bank was not aware of the agency but gave a good reference for a customer who had never deposited any money with them and nor to whom it had issued . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.89287

Temple Legal Protection Ltd v QBE Insurance (Europe) Ltd: ComC 23 Apr 2008

Beatson J
[2008] EWHC 843 (Comm), [2008] Lloyd’s Rep IR 643
Bailii
England and Wales
Cited by:
Appeal fromTemple Legal Protection Ltd v QBE Insurance (Europe) Ltd CA 6-Apr-2009
‘In the present case the binder gives Temple certain valuable rights, including a right in Section 27.1 to ‘retain’ commission out of premiums, but they do not include any rights of a security or proprietary nature to which the authority can be . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.267064

Weiner v Harris: CA 18 Nov 1909

The plaintiff, a manufacturing jeweller, was accustomed to send articles of jewellery to F, a retail jeweller, for sale on the terms of a letter written by F to the plaintiff, in which F, after acknowledging that he had had from the plaintiff ‘on sale or return’ the goods entered up to date in a book in the possession of the plaintiff, and that he was liable to account to the plaintiff for such goods, continued: ‘The goods referred to in that book mentioned are your property, and to remain so until sold or paid for, they being only left with me for the purpose of sale or return, and not be kept as my own stock. The goods I receive from you are to be entered at cost price, and my remuneration for selling them is agreed at one half the profit ‘.
Held: That upon the construction of the letter as a whole F. was employed as agent for sale ; that he was a mercantile agent within the Factors Act, 1889, and as such had implied authority to pledge the goods entrusted to him; consequently that the plaintiff could not recover goods pledged by F with the defendant without express authority from the plaintiff.
Cozens-Hardy MR said: ‘It is quite plain that by the mere use of a well known legal phrase you cannot constitute a transaction that which you attempt to describe by that phrase. Perhaps the commonest instance of all, which has come before the courts in many phrases is this: two partners enter into a transaction and say ‘it is hereby declared that there is no partnership between us’. The court pays no regard to that. The Court looks at the transaction and says ‘is this, in point of law, really a partnership?’ It is not in the least conclusive that the parties have used a term or language intended to indicate the transaction is not that which in law it is.’
Cozens-Hardy MR, Fletcher Moulton LJ
[1910] 1 KB 285, [1908-10] All ER 405, [1909] UKLawRpKQB 189
Commonlii
Factors Act 1889 1 2
England and Wales
Cited by:
CitedThames Cruises Limited v George Wheeler Launches Limited, Kingwood Launches Limited ChD 16-Dec-2003
The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.195994

Edmunds v Bushell And Jones: 4 Nov 1865

The manager of a business, being allowed to appear to the world as a partner in a supposed firm, and having authority, as admitted, to draw cheques, and having also, in one or two instances, accepted bills.
Held: that his employer was liable on a bill thus accepted by the manager, in the name of the apparent and supposed firm.
[1865] EngR 12 (B), (1865) 4 F and F 1044, [1865] UKLawRpKQB 5
Commonlii, Commolii
England and Wales

Updated: 06 August 2021; Ref: scu.280924

London Joint Stock Bank Ltd v MacMillan and Arthur: HL 21 Jun 1919

The duty which a customer owes to a bank is to draw cheques with reasonable care to prevent forgery, and if, owing to neglect of this duty, forgery takes place, the customer is liable for the loss. If a customer signs a cheque in blank and leaves it to an agent to fill up, he is bound by the instrument as filled up by the agent.
Lord Chancellor (Finlay), Viscount Haldane, Lords Shaw and Parmoor
[1919] UKHL 367, 56 SLR 367
Bailii
England and Wales

Updated: 06 August 2021; Ref: scu.632777

Milne v Ritchie and Others: SCS 13 Dec 1882

(Court of Session Inner House Second Division) Agent and Principal – Title of Agent to Sue – -Reduction of Contract by One who is not Himself a Party to it.
Held (rev. judgment of Lord Kinnear) that title to sue for reduction of a contract on the ground that it had been induced by fraud was not limited to the parties thereto, but extended to the agent of one of them who had been found liable, on the ground that he had acted in excess of the authority given him, to relieve his principal of an action at the instance of the other party to the contract, and founded upon it.
Lord Rutherfurd Clark dissented and held that not being a party to the contract the agent had no title to sue for reduction of it.
Lord Young Lord Rutherfurd Clark
[1882] SLR 20 – 249
Bailii
Scotland

Updated: 31 July 2021; Ref: scu.579374

Keighley, Maxsted and Co v Durant: HL 20 May 1901

Lord Lindley said: ‘The explanation of the doctrine that an undisclosed principal can sue and be sued on a contract made in the name of another person with his authority is, that the contract is in truth, although not in form, that of the undisclosed principal himself.’
Lord Shand said; ‘There is a wide difference between an agency existing at the date of the contract which is susceptible of proof . . and an intention locked up in the mind of the contractor, which he may either abandon or act on at his own pleasure, and the ascertainment of which involves an inquiry into the state of his mind at the date of the contract.’
Earl of Halsbury LC, McNaughten L, Lord Shand, Lord Lindley
[1901] UKLawRpAC 21, (1901) AC 240
Commonlii
England and Wales
Cited by:
CitedRevenue and Customs v Taylor Clark Leisure Plc SC 11-Jul-2018
Several companies within a group paid VAT. Later the basis of charge to output VAT was revised, and a reclaim became due, but the VAT group had been dissolved. Could the appellant, former lead within the group now make the reclaim.
Held: . .

Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2021; Ref: scu.666308

Keppel v Wheeler: CA 1927

The plaintiff engaged the defendant estate agents to sell a property, instructing them to market it at 6,500 pounds but that he would accept 6,000 pounds. The plaintiff accepted an offer of 6,150 pounds ‘subject to contract’. Before exchange, another potential buyer offered 6,750 pounds. Instead of communicating that offer to their principal, the agents went to the original offeror, suggesting he could sell on and make a profit. They did so in good faith, believing that they had already fulfilled their duty to their principal, not understanding that only formal exchange of contract brings their duty to an end.
Held: The plaintiff was awarded damages for breach of the agents’ duty. These were the difference between the two prices, namely 600 pounds less the extra commission which that 600 pounds would have earned. But the plaintiff had to pay commission on the sale itself.
Bankes LJ said: ‘The appellant contended that the agents have disentitled themselves to recover the commission, but I do not take that view at all. It seems to me that an agent might quite properly claim his commission, and yet have to pay damages for committing a bona fide mistake which amounts to a breach of duty. In these circumstances, I think the respondents are entitled to the claim which they make for commission.’
Atkin LJ said: ‘The other question is whether the respondents should succeed on their counterclaim. Now I am quite clear that if an agent in the course of his employment has been proved to be guilty of some breach of fiduciary duty, in practically every case he would forfeit any right to remuneration at all. That seems to me to be well established. On the other hand, there may well be breaches of duty which do not go to the whole contract, and which would not prevent the agent from recovering his remuneration; and as in this case it is found that the agents acted in good faith, and as the transaction was completed and the appellant has had the benefit of it, he must pay the commission. Therefore, I think, the defendants are entitled to recover on their counterclaim.’
Bankes LJ, Atkin LJ
[1927] 1 KB 577
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 . .
CitedAvrahami and Others v Biran and Others ChD 25-Jun-2013
Management fees were to be forfeited for breach of a fiduciary duty by an agent. . .
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.
Updated: 30 July 2021; Ref: scu.282639

Moran Yacht and Ship Inc v Pisarev and Another: CA 11 Feb 2016

[2016] EWCA Civ 317, [2017] 1 All ER (Comm) 62, [2016] 1 Lloyds Rep 625
Bailii
England and Wales
Cited by:
CitedRock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.616602

Re JW: CoP 2 Dec 2015

Application by a family member to be appointed as a joint deputy for property and affairs with the existing deputy, East Sussex County Council. When it became apparent that the Council was unwilling to act jointly with him, the applicant revised his application and asked the court to remove the Council as deputy and to appoint him in its place.
[2015] EWCOP 82
Bailii
Mental Capacity Act 2006
England and Wales

Updated: 18 July 2021; Ref: scu.558195

Hughes v Percival: 1883

The parties were neighbouring householders with a party wall. A builder working in the defendant’s house negligently cut into the party wall, causing the partial collapse of both the defendant’s house and the Plaintiff’s house next-door.
Held: Lord Blackburn said: ‘The first point to be considered is what was the relation in which the defendant stood to the plaintiff. It was admitted that they were owners of adjoining houses between which was a party-wall the property of both. The defendant pulled down his house and had it rebuilt on a plan which involved in it the tying together of the new building and the party-wall which was between the plaintiff’s house and the defendant’s, so that if one fell the other would be damaged. The defendant had a right so to utilize the party-wall, for it was his property as well as the plaintiff’s; a stranger would not have had such a right. But I think the law cast upon the defendant, when exercising this right, a duty towards the plaintiff. I do not think that duty went so far as to require him absolutely to provide that no damage should come to the plaintiff’s wall from the use he thus made of it, but I think that the duty went as far as to require him to see that reasonable skill and care were exercised in those operations which involved a use of the party-wall, exposing it to this risk. If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself, and, if they so agreed together, to take an indemnity to himself in case mischief came from that person not fulfilling the duty which the law cast upon the defendant; but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled. This is the law I think clearly laid down in Pickard v Smith 10 CB (NS) 470, and finally in (1881) Dalton v Angus 6 App Cas 740. But in all the cases on the subject there was a duty cast by law on the party who was held liable.’
Lord Blackburn
(1883) 8 App Cas 443, [1881-85] All ER 44, (1883) 8 AC 443
England and Wales
Cited by:
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 . .

These lists may be incomplete.
Updated: 16 July 2021; Ref: scu.516945

Corporation of Sheffield v Barclay and Others: HL 3 Jul 1905

Lord Davey said: ‘I think that the appellants [Sheffield Corporation] have a statutory duty to register all valid transfers, and on the demand of the transferee to issue to him a fresh certificate of title to the stock comprised therein. But, of course, it is a breach of their duty and a wrong to the existing holders of stock for the appellants to remove their names and register the stock in the name of the proposed transferee if the latter has, in fact, no title to require the appellants to do so. I am further of opinion that where a person invested with a statutory or common law duty of a ministerial character is called upon to exercise that duty on the request, direction, or demand of another (it does not seem to me to matter which word you use), and without any default on his own part acts in a manner which is apparently legal but is, in fact, illegal and a breach of the duty, and thereby incurs liability to third parties, there is implied by law a contract by the person making the request to keep indemnified the person having the duty against any liability which may result from such exercise of the supposed duty. And it makes no difference that the person making the request is not aware of the invalidity in his title to make the request, or could not with reasonable diligence have discovered it.’ and as to Dugdale v Lovering: ‘I am also of opinion that the authority keeping a stock register has no duty of keeping the register correct which they owe to those who come with transfers. Their only duty (if that be the proper expression) is one which they owe to the stockholders who are on the register. This point was decided by all the learned Judges who took part in the decision of the first case of Simm -v- Anglo-American Telegraph [5 QBD 188]. I will content myself with quoting the language of Cotton L.J. [at 214] ‘The duty of the company is not to accept a forged transfer, and no duty to make inquiries exists towards the person bringing the transfer. It is merely an obligation upon the company to take care that they do not get into difficulties in consequence of their accepting a forged transfer, and it may be said to be an obligation towards the stockholder not to take the stock out of his name unless he has executed a transfer; but it is only a duty in this sense, that unless the company act upon a genuine transfer they may be liable to the real stockholder.’.’
Authorised irredeemable stock in Sheffield Corporation was registered in the joint names of Timbrell and Honnywill. Timbrell executed an appropriate form of transfer of the stock in his own name but forged the signature of Honnywill. The forged transfer was in favour of a bank, Barclay’s, as a lender. The bank sent the forged transfer to the Corporation for registration and the Corporation acted upon that request. The bank was thus given a stock certificate and, before or after that, the bank’s stock was sold on to holders for value to whom, the Bank having returned its certificate to the Corporation, the Corporation gave fresh stock certificates. Timbrell died and Honnywill then discovered the fraud and successfully insisted in proceedings that the stock of which he had been defrauded should be restored to him, as it was, at the Corporation’s expense. The Corporation then sued the bank for an indemnity. Had the Corporation any remedy against the bank which had asked it to act upon the forged transfer?
Held: The corporation was entitled to an indemnity from the bank. Adopting Dugdale -v- Lovering: ‘The principle insisted upon by Mr Cave in his argument quoted above has been undoubtedly sanctioned as part of the law by several old decisions, and I think the principle as enunciated is well-established.’
Where a person invested with a statutory or common law duty of a ministerial character is called upon to exercise that duty on the request, direction, or demand of another, and without any default on his own part acts in a manner which is apparently legal, but is in fact illegal and a breach of the duty, and thereby incurs liability to third parties, there is implied by law a contract by the person making the request to keep indemnified the person having the duty against any liability which may result from suet exercise of the supposed duty. And it makes no difference that the person making the request is not aware of the invalidity in his title to make the request. In an action by the corporation against C and Co, the latter were bound to indemnify the former. Judgment of the Court of Appeal reversed.
Lord Chancellor (Halsbury), Lords Davey and Robertson
[1905] AC 392, [1905] UKHL 556, 43 SLR 556
Bailii
England and Wales
Citing:
ApprovedDugdale v Lovering 1875
The court adopted the position proposed by Mr Cave, for the Plaintiff: ‘It is a general principle of law when an act is done by one person at the request of another which act is not in itself manifestly tortious to the knowledge of the person doing . .

Cited by:
CitedCadbury Schweppes Plc and Another v Halifax Share Dealing Ltd and Another ChD 23-May-2006
Fraudsters had successfully contrived to sell shares of others, by re-registering the shares to new addresses and requesting new certificates. The question was which of the company, the company registrars and the stockbrokers should bear the loss. . .
AdoptedStanley Yeung Kai Yung and another v Hong Kong and Shanghai Banking Corporation PC 1980
The shareholder had had his share certificates stolen. The thief lodged forged transfers with stockbrokers, who in good faith sent the share certificates and transfer deeds to the bank for registration and transfer, which was done. The transferee . .
CitedDowns and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .

These lists may be incomplete.
Updated: 11 July 2021; Ref: scu.621182

Stanley Yeung Kai Yung and another v Hong Kong and Shanghai Banking Corporation: PC 1980

The shareholder had had his share certificates stolen. The thief lodged forged transfers with stockbrokers, who in good faith sent the share certificates and transfer deeds to the bank for registration and transfer, which was done. The transferee thus came to be registered and he then sold the shares. The innocent shareholder asked for his name to be restored to the register and for related relief. The bank brought third party proceedings against the stockbrokers. The original shareholder succeeded against the bank. As between the bank and the stockbrokers, at first instance and in the Hong Kong Court of Appeal the Judges relied on the Barclay implied indemnity and found the stockbrokers liable to indemnify the bank. The stockbrokers appealed to the Privy Council.
Held: The decision in Barclay was upheld.
Lord Scarman dealt with an argument advanced by the stockbrokers that it was truly the transferee rather than the stockbrokers who had requested the bank to act upon the transfer deeds and to issue new certificates and hence, as it was sought to argue, that, rather than the stockbrokers, it was only the transferee who was responsible for indemnifying the bank. As to that argument he said: ‘It is not the case that, if a principal is liable, his agent cannot be. The true principle of the law is that a person is liable for his engagements (as for his torts) even though he is acting for another, unless he can show that by the law of agency he is to be held to have expressly or impliedly negatived his personal liability. But, upon the view of the letters, which the Courts below accepted and this Board believes to be correct, the brokers cannot avoid personal responsibility for whatever consequences the law attaches to the making of the request and the bank’s compliance with it. It was their request – even though made on Mr Wong’s [the transferee’s] behalf.’
As to an indemnity, after quoting Dugdale v Lovering: ‘This ‘broad principle’, as Lord Davey called it, has been consistently followed, and Mr Leggatt for the brokers disclaimed any intention to invite their Lordships’ Board to review it. Their Lordships are satisfied that it is now firmly embedded in the law: see Bank of England -v- Cutler [1908] 2 KB 208; Secretary of State for India -v- Bank of India Ltd [1938] 65 Ind. App. 286 and Welch -v- Bank of England [1955] Ch 508 (per Harman J at pp. 548-549). ‘ and ‘For these reasons their Lordships find themselves in agreement with the Court of Appeal in holding that there was in the circumstances of this request a promise by the stockbroker to indemnify the bank if, by acting on the request, it caused actionable injury or damage to a third party. The promise was accepted by the bank acting on the request and became a contractual indemnity.’
Lord Scarman
[1981] AC 787, [1980] 2 All ER 599
England and Wales
Citing:
AdoptedCorporation of Sheffield v Barclay and Others HL 3-Jul-1905
Lord Davey said: ‘I think that the appellants [Sheffield Corporation] have a statutory duty to register all valid transfers, and on the demand of the transferee to issue to him a fresh certificate of title to the stock comprised therein. But, of . .
CitedDugdale v Lovering 1875
The court adopted the position proposed by Mr Cave, for the Plaintiff: ‘It is a general principle of law when an act is done by one person at the request of another which act is not in itself manifestly tortious to the knowledge of the person doing . .

Cited by:
CitedCadbury Schweppes Plc and Another v Halifax Share Dealing Ltd and Another ChD 23-May-2006
Fraudsters had successfully contrived to sell shares of others, by re-registering the shares to new addresses and requesting new certificates. The question was which of the company, the company registrars and the stockbrokers should bear the loss. . .

These lists may be incomplete.
Updated: 09 July 2021; Ref: scu.242170

Metropolitan Properties v Cordery: CA 1979

The tenant sought to impose knowledge by the landlord of the condition of the property. The landlord employed porters in the building.
Held: The presence of the porters was sufficient to fix the landlord with knowledge of the breach of his covenant. The Court applied the principle of deemed knowledge in the law of agency: ‘ When any fact or circumstance, material to any transaction, business or matter in respect of which an agent is employed, comes to his knowledge in the course of such employment, and is of such a nature that it is his duty to communicate it to his principal, the principal is deemed to have notice thereof as from the time when he would have received such notice if the agent had performed his duty, and taken such steps to communicate the fact or circumstance as he ought reasonably to have taken . .’
(1980) 39 P and CR 10, (1979) 251 EG 567
England and Wales
Cited by:
AppliedArundel Corporation v Khokher CA 9-Dec-2003
The tenant had served a notice to review the rent. The tenent delivered a counter notice personally be posting it through the letter box. The lease provided that the notice was to be served at the last known business address of the landlord. The . .

These lists may be incomplete.
Updated: 08 July 2021; Ref: scu.216583

King 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 under regulation 17(6) to be assessed by reference to the value of the agency at the date of termination rather than on the basis of any future economic loss. He argued that compensation should be assessed without regard to events occurring after the date of termination and that when assessing the amount of compensation to which he was entitled the court should follow the established practice of the French courts in awarding two years’ gross commission.
Held: The agent was entitled to receive compensation for the loss of his business. Even in France the two years’ commission rule is only a benchmark and the court had to examine the particular circumstances of the case. Earning potential was an important factor in valuing an agency and there might be cases in which it would be necessary to adduce evidence of the valuation of agencies in the particular local market. There was no such evidence here and the court commented on the limited evidence before it as to the value of the business. Having regard to the duration and previous profitability of the agency the claimant would have expected to receive a capital sum equal to at least two years’ earnings in order to give it up and held that an award of that amount would not be unreasonable.
Lord Caplan
[2000] Eur LR 531, [2000] SLT 744, [2000] ScotCS 70, 2000 SC 424
Bailii
Commercial Agents (Council Directive) Regulations 1993, Council Directive 86/653 17
Scotland
Cited by:
CitedTigana Ltd v Decoro Ltd QBD 3-Feb-2003
The claimant sought compensation after its sales agency agreement with the defendant was terminated. He had opened up several substantial sales channels for the respondent’s products within the UK. There were difficulties in the products (leather . .
CitedLonsdale v Howard and Hallam Ltd CA 8-Feb-2006
The claimant sought damages after his agency with the defendants was terminated. The central issue was whether compensation was to be calculated at two years commission as derived from French practice or otherwise.
Held: ‘there is no clear . .
DisapprovedLonsdale (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’ . .
CitedBarret 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 . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.179835

Duffen v Fra Bo Spa: CA 30 Apr 1998

The plaintiff had been appointed as an exclusive sales agent for the defendant for a minimum period of four years. The defendants terminated it eighteen months early claiming fraudulent misrepresentation.
Held: The clause setting the damages claim was a penalty clause and was unenforceable. The termination of the agency gave rise to a claim additional to the statutory claim. A commercial agent whose contract had been terminated within the regulations was entitled to augment the common law damages due to him with the sums due to him by virtue of the Commercial Agents Regulations. The right approach was to look at net earnings which might have made during the remainder of the period for which his agency would have run had it not been terminated prematurely, but without taking into account common law concepts such as avoided loss and mitigation. An award based on gross earnings would give the agent an undeserved windfall. The judge awarded compensation for loss of future earnings, ignoring the ordinary rules of mitigation.
Otton LJ
Times 15-Jun-1998, [1998] EWCA Civ 748, [2000] EuLR 167, [1999] ECC 58
Bailii
Commercial Agents (Council Directive) Regulations 1993 No 3053
England and Wales
Citing:
AppliedDunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
CitedPhilips (Hong Kong) Ltd v The Attorney General of Hong Kong PC 9-Feb-1993
After referring to two Australian cases on penalty clauses in contracts: ‘These statements assist by making it clear that the court should not adopt an approach to provisions as to liquidated damages which could, as indicated earlier, defeat their . .
CitedExport Credits Guarantee Department v Universal Oil Products HL 1983
A contract provided for the payment of a stated sum by one party to the contract (A) to the other party (B) in the event of the non-performance by A of one of more contractual obligations owed by A not to B himself but to C, who was not a party to . .

Cited by:
CitedLonsdale v Howard and Hallam Ltd CA 8-Feb-2006
The claimant sought damages after his agency with the defendants was terminated. The central issue was whether compensation was to be calculated at two years commission as derived from French practice or otherwise.
Held: ‘there is no clear . .

These lists may be incomplete.
Updated: 11 June 2021; Ref: scu.144226

Schmaltz v Avery: 1851

An agent who signed a charterparty containing a cesser clause purportedly as agent for an unidentified principal could show that he was himself the principal and could sue on the contract, on the grounds that it was irrelevant to the third party who contracted on such terms to whom he was liable, and that the agent could say that he was his own principal.
[1851] EngR 68, (1851) 16 QB 655, (1851) 117 ER 1031
Commonlii
England and Wales
Cited by:
Well establishedNewborne v Sensolid (Great Britain) Ltd 1954
A written contract purported to sell goods by a company described as Leopold Newborne (London) Ltd. The document was subscribed by the name of the company with Mr Leopold Newborne’s signature under it. At that time it had not yet been incorporated. . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.296384

AMB Imballaggi Plastici Srl v Pacflex Ltd: CA 18 Jun 1999

A party who chose to contract as principal for the purpose of reselling the goods of the vendor on a speculative basis and for a profit, was not to be deemed to be a commercial agent of the first vendor, and so was not entitled to compensation on the breakdown of the relationship.
Peter Gibson, Judge, Waller LJJ
Gazette 07-Jul-1999, Times 08-Jul-1999, [1999] EWCA Civ 1618, [1999] CLC 1391, [1999] 2 All ER (Comm) 249, [1999] Eu LR 930, (1999) 18 Tr LR 153, [2000] ECC 381
Bailii
Commercial Agents (Council Directive) Regulations 1993 (1993 No 3053) Reg 2
England and Wales
Cited by:
CitedRossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
Rossetti_diamondQBD2011
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 . .

These lists may be incomplete.
Updated: 07 June 2021; Ref: scu.77776

Armagas 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 objective facts and the overall probabilities.
Held: Mundogas was not vicariously liable for Mr. Magelssen’s deceit.
Goff LJ said: ‘Speaking from my own experience I have found it essential in cases of fraud when considering the credibility of witnesses always to test their veracity by reference to objective facts proved independently of their testimony, in particular by reference to the documents in the case and also to pay a particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence . . Furthermore it is implicit in the statement of Lord MacMillan in Powell v. Streatham Manor Nursing Home at p. 256 that the probabilities and possibilities of the case may be such as to impel an appellate Court to depart from the opinion of the trial Judge formed upon his assessment of witnesses whom he has seen and heard in the witness box. Speaking from my own experience, I have found it essential in cases of fraud when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents, to the witnesses’ motives and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth. I have been driven to the conclusion that the Judge did not pay sufficient regard to these matters in making his findings of fact in the present case.’
On the facts as found and ‘the effect of the judge’s conclusion was that, although Mr. Magelssen did not have ostensible authority to enter into the contract, he did have ostensible authority to tell Mr. Jensen and Mr. Dannesboe that he had obtained actual authority to do so. This is, on its face, a most surprising conclusion. It results in an extraordinary distinction between (1) a case where an agent, having no ostensible authority to enter into a relevant contract, wrongly asserts that he is invested with actual authority to do so, in which event the principal is not bound; and (2) a case where an agent, having no ostensible authority, wrongly asserts after negotiations that he has gone back to his principal and obtained actual authority, in which event the principal is bound. As a matter of common sense, this is most unlikely to be the law.’
Goff LJ, Staughton J, Dunn J
[1985] 1 Lloyd’s Rep 1, [1985] 1 WLR 640
England and Wales
Citing:
CitedHovenden 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 . .
CitedIndustries 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 . .
AdoptedWatt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .

Cited by:
CitedDr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
AdoptedGrace Shipping v CF Sharp and Co (Malaya) Pte Ltd PC 10-Dec-1986
(Singapore) When a court has to weigh the various and varying recollections of witnesses about what was said at meetings which occurred in the distant past, the surest guides are the contemporaneous documents and the overall probabilities.
Lord . .
AppliedNina Naicker Gow v Dr Rosemary Harker CA 31-Jul-2003
The defendant had taken a blood sample. The claimant asserted that because the needle had been inserted incorrectly she had suffered damage to her wrist.
Held: Guidance from cases involving allegations of fraud could be relevant when assessing . .
CitedNiru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
CitedDEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Appeal fromArmagas Ltd v Mundogas SA (‘The Ocean Frost’) HL 22-May-1985
Ostensible authority creates estoppel
Apparent authority as agent can arise where an employer by words or conduct has represented that his employee, who has purported to act on behalf of the employer, is authorised to do what he is purporting to do. Ostensible authority depends on a . .
CitedFlannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
CitedFen and others v D’Cruz and others CA 13-Mar-2007
The parties disputed whether the first defendant had been held out to be a partner in the second defendant’s firm of solicitors. The first defendant had later absonded. Appeal dismissed. . .
CitedIn Re Selectmove Ltd CA 21-Dec-1993
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
CitedThornton v Telegraph Media Group Ltd QBD 26-Jul-2011
The claimant alleged defamation and malicious falsehood in an article published and written by the defendants. She complained that she was said to have fabricated an interview with the second defendant for her book. An interview of sorts had now . .
AppliedGoodman v Faber Prest Steel CA 5-Mar-2013
The defendant appealed against the award of damages after being found liable for injuries caused in a road traffic accident. They disputed whether the injuries now complained of were the result of the accident.
Held: the appeal succeed and the . .
CitedNuttal and Another v Kerr and Another QBD 25-Jul-2019
The defendant sought to appeal from a judgment given only after a long delay.
Held: Permission to appeal was necessary, and given, but the appeal itself failed: ‘(1) There is no evidence of fault of the Judge at any or any material point other . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.183409

McCullagh v Lane Fox and Partners Ltd: CA 19 Dec 1995

There was no duty in negligent mis-statement from a vendor’s estate agent to a purchaser for that purchaser’s financial loss after proceeding without first obtaining a survey relying upon the agent.
Hobhouse LJ said: ‘On the Sunday, Mr. Scott knew, or ought to have known, that his representation was likely to be relied on by Mr. McCullagh. However, he also knew that Mr. McCullagh had the Lane Fox particulars which included both the relevant statement and the disclaimer. In my judgment, the result of this is that the element of proximity was negatived. A reasonable person, appreciating that the statement which he was proposing to rely upon was a statement contained in the particulars and the fact that those particulars also stated that ‘all statements contained in these particulars as to this property are made without responsibility on the part of Lane Fox . . ‘ would understand that there was no assumption of responsibility by Lane Fox. This understanding would be reinforced by paras 3, 4 and 5 of the disclaimer. In my judgment, the disclaimer puts the present case on all fours with the actual decision in Hedley Byrne as explained earlier.’
Hobhouse LJ
Times 22-Dec-1995, [1996] 1 EGLR 35, [1995] EWCA Civ 8, [1996] PNLR 205
Bailii
England and Wales
Citing:
Appeal fromMcCullagh v Lane Fox and Partners Ltd QBD 25-Jan-1994
A vendor’s estate agent was liable for a negligent misrepresentation to a party proceeding with a purchase relying upon what had been said, and without his own survey. . .
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 . .

Cited by:
Appealed toMcCullagh v Lane Fox and Partners Ltd QBD 25-Jan-1994
A vendor’s estate agent was liable for a negligent misrepresentation to a party proceeding with a purchase relying upon what had been said, and without his own survey. . .
CitedFirst National Commercial Bank Plc v Loxleys (a Firm) CA 6-Nov-1996
The plaintiff claimed damages from the seller of land and from their solicitors for misrepresentation in the replies to enquiries before contract. He appealed a striking out of his claim.
Held: A lawyer’s disclaimer placed on his Replies to . .
CitedAvrora Fine Arts Investment Ltd v Christie, Manson and Woods Ltd ChD 27-Jul-2012
The claimants had bought a painting (Odalisque) through the defendant auctioneers. They now claimed that it had been misattributed to Kustodiev, and claimed in negligence and misrepresentation.
Held: Based on the connoisseurship evidence, the . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.83515

Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another: CA 1 Dec 1995

The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s agent.
Morritt LJ discussed section 199: ‘Counsel for the wife submitted that it did not apply as the knowledge came to the knowledge of the solicitors for the lender as such when they were instructed to act on behalf of the lender on 19 June 1990. In the case of the wife it was submitted that the solicitors were not instructed by her as ‘agents to know.’
I do not accept either of these submissions. In my view the section has to be applied in accordance with its terms to the facts of this case. There is no doubt that the information as to the true purpose of the remortgage loan imparted by the husband came to the knowledge of the solicitors on 12 June 1990 as the solicitors for the husband and wife alone for they were not instructed to act for the lenders until 19 June at the earliest. That knowledge once acquired remained with the solicitors and cannot be treated as coming to them again when they were instructed on behalf of the lenders. As counsel for the wife accepted, their knowledge cannot be treated as divided or disposed of and reacquired in that way. The conclusion seems to me to be inescapable, namely that knowledge of the relevant matters facts or things did not come to the solicitors as the solicitors for the lenders. Accordingly it did not come to them ‘as such.’ It was not disputed that the lender is a purchaser within the definition contained in section 205(1)(xxi) of the Law of Property Act 1925. Consequently section 199(1)(ii)…b) precludes the solicitors’ knowledge of the relevant matters or facts being imputed to the lender.’
Morritt LJ
Times 01-Dec-1995, Gazette 11-Jan-1996, [1996] Ch 207
Law of Property Act 1925 199
England and Wales
Citing:
Appeal fromHalifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another ChD 27-Jun-1995
The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s . .

Cited by:
CitedScotlife Home Loans (No 2) Limited v Melinek and Melinek CA 9-Sep-1997
The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .
CitedHardy and others v Fowle and Another ChD 26-Oct-2007
Mortgagees claimed possession of the land. The occupiers claimed a right of occupation under a lease. The mortgagees argued that the lease had been surrendered.
Held: The lease had been surrendered by a deed. The defects in notice alleged did . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.81151

Andrews v Ramsay: 1903

The plaintiff asked the defendant estate agents to find a purchaser for his property at a price of pounds 2,500 and if one such was found the agents’ fee would be pounds 50. A purchaser, one Clutterbuck, at pounds 2,100 was found. He paid the agents pounds 100 by way of deposit. The agents paid the principal pounds 50 and, with the principal’s consent, retained pounds 50 as their commission. But it then transpired that the agents had had a side deal with Clutterbuck whereby he paid them pounds 20. In the first action the principal claimed and recovered the pounds 20 as a secret profit made by the agent in breach his duty of good faith. In the second action the principal claimed the return of the pounds 50.
Held: He succeeded – even though he had had the benefit of the agent’s services.
Lord Alverstone CJ said: ‘It is said that the defendants ought not to be called upon to hand over the andpound;50 to the plaintiff because the plaintiff has had the benefit of their services. The principle of Salomons v. Pender (1865) 3 HandC 639 seems to me to govern the case, and it is, in my opinion, amply sufficient to do so. In that case it was held that an agent who was himself interested in a contract to purchase property of his principal was not entitled to any commission from the principal. The principle there laid down is that, when a person who purports to act as an agent is not in a position to say to his principal, ‘I have been acting as your agent, and I have done my duty by you,’ he is not entitled to recover any commission from that principal . . It seems to me that this case is only an instance of an agent who has acted improperly being unable to recover his commission from his principal. It is impossible to say what the result might have been if the agent in this case had acted honestly. It is clear that the purchaser was willing to give andpound;20 more than the price which the plaintiff received, and it may well be that he would have given more than that. It is impossible to gauge in any way what the plaintiff has lost by the improper conduct of the defendants. I think, therefore, that the interest of the agents here was adverse to that of the principal. A principal is entitled to have an honest agent, and it is only the honest agent who is entitled to any commission. In my opinion, if an agent directly or indirectly colludes with the other side, and so acts in opposition to the interest of his principal, he is not entitled to any commission. That is, I think, supported both by authority and on principle; but if, as is suggested, there is no authority directly bearing on the question, I think that the sooner such an authority is made the better.’
Wills J said: ‘The andpound;50 in question was paid by the purchaser to the defendants as agents for the plaintiff as part of the andpound;100 deposit on the purchase, and the defendants were allowed by the plaintiff to retain andpound;50 in the belief that they had earned that sum as commission. If the money had all been paid over, and the defendants had had to sue the plaintiff for commission, it seems to me perfectly clear that they could not recover it. They would have no chance whatever of succeeding in such an action, and I think that they ought not to stand in any better position because the plaintiff, believing that they had acted properly, had allowed them to retain the andpound;50. The case ought to be the same whether the commission has already been paid or whether the agent has to sue for it.’
Lord Alverstone CJ, Wills J
[1903] 2 KB 635
England and Wales
Citing:
AppliedSalomons v Pender 21-Apr-1865
When a person who purports to act as an agent is not in a position to say to his principal, ‘I have been acting as your agent, and I have done my duty by you,’ he is not entitled to recover any commission from that principal.
Bramwell B said: . .

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 . .
CitedNitedals Taenstikfabrik v Bruster 1906
Commission was allowed for an agent despite an alleged breach of duty. Neville J discussed Andrews v Ramsay saying its doctrine: ‘does not apply to the case of an agency where the transactions in question are separable’ . .
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 . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.282635

Society of Lloyd’s v D Leighs and Others; Society of Lloyd’s v D Wilkinson and Others: ComC 20 Feb 1997

ComC Lloyd’s Litigation – issues relating to recovery from names.
Held: A name at Lloyd’s grants a power of attorney to the underwriting agent to execute that power which is irrevocable.
Colman J
[1997] CLC 759, [1997] 6 Re LR 214
England and Wales
Cited by:
Appeal fromSociety of Lloyd’s v Leighs; Lyon and Wilkinson and Canadian Names Intervenors CA 31-Jul-1997
. .
See AlsoSociety of Lloyd’s v D Leighs and Others; Society of Lloyd’s v D Wilkinson and Others (No. 2) ComC 23-Apr-1997
ComC Lloyd’s Litigation – Misrepresentation, fraudulent – Rescission, restitutio in integrum – Rescission, effect on third parties’ rights – Anti-set-off clauses, counterclaim for fraud – Pay now, sue later . .
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 . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.186614