Category: Agency

Tinsley v Dudley: CA 1951

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

Judges:

Jenkins LJ

Citations:

[1951] 2 KB 18

Agency, Negligence

Updated: 06 May 2022; Ref: scu.467242

Hersom v Bernett: 1954

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

Judges:

Roxburgh J

Citations:

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

Cited by:

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

Agency

Updated: 06 May 2022; Ref: scu.433618

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

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

Citations:

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

Links:

Commonlii

Agency, Insurance

Updated: 05 May 2022; Ref: scu.371405

Corlett v Gordon And Another: 16 Dec 1813

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

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Commercial, Contract, Agency

Updated: 05 May 2022; Ref: scu.338465

Railton v Mathews and Leonard and Another: 14 Jun 1844

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

Citations:

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

Links:

Commonlii

Agency, Torts – Other

Updated: 05 May 2022; Ref: scu.305275

Clarke v Tipping: 18 Apr 1846

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

Judges:

Wigram VC

Citations:

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

Links:

Commonlii

Citing:

See Also – Clarke v Tipping 18-Jan-1842
. .
See Also – Tipping v Clarke 13-Feb-1843
. .

Cited by:

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

Agency, Intellectual Property

Updated: 05 May 2022; Ref: scu.302443

Holland v Russell: 9 May 1863

Citations:

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

Links:

Commonlii

Citing:

See Also – 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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Equity

Updated: 05 May 2022; Ref: scu.283201

Robinson Scammel v Ansell: 1985

Citations:

[1985] 2 EGLR 41

Jurisdiction:

England and Wales

Cited by:

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

Agency

Updated: 05 May 2022; Ref: scu.282640

Levison v Patent Steam Carpet Cleaning Co Ltd: CA 1977

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

Judges:

Lord Denning MR, Orr LJ, Sir David Cairns

Citations:

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

Jurisdiction:

England and Wales

Cited by:

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

Contract, Agency

Updated: 05 May 2022; Ref: scu.266867

Doyle v Mount Kidston Mining and Exploration Property Ltd: 1984

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

Judges:

McPherson J

Citations:

[1984] 2 Qd R 386

Cited by:

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

Agency, Commonwealth

Updated: 05 May 2022; Ref: scu.264093

MHC Consulting Services Ltd v Tansell: CA 19 Apr 2000

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

Citations:

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

Statutes:

Disability Discrimination Act 1995 12

Jurisdiction:

England and Wales

Employment, Agency, Discrimination

Updated: 05 May 2022; Ref: scu.83682

Olson v Gullo: 1994

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

Judges:

Morden ACJO

Citations:

(1994) 17 OR (3d) 790

Jurisdiction:

Canada

Cited by:

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

Commonwealth, Company, Agency

Updated: 04 May 2022; Ref: scu.569930

Doward, Dickson and Co v Williams and Co: 1890

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

Citations:

(1890) 6 TLR 316

Jurisdiction:

England and Wales

Cited by:

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

Agency

Updated: 04 May 2022; Ref: scu.568646

Dunne v English: CA 1874

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

Judges:

Sir George Jessel MR

Citations:

(1874) LR 18 Eq 524

Jurisdiction:

England and Wales

Cited by:

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

Equity, Agency, Company

Updated: 04 May 2022; Ref: scu.551499

Drew v Nunn: CA 1879

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

Judges:

Brett, Bramwell LJJ

Citations:

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

Jurisdiction:

England and Wales

Cited by:

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

Contract, Agency, Health

Updated: 04 May 2022; Ref: scu.542244

Blackpool Corporation v Locker: CA 1948

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

Judges:

Scott LJ

Citations:

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

Jurisdiction:

England and Wales

Cited by:

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

Administrative, Agency

Updated: 04 May 2022; Ref: scu.540479

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

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

Judges:

Kerr, Nicholls LJJ

Citations:

[1987] 1 WLR 769

Statutes:

Capital Allowances Act 1968 9(1)

Citing:

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

Cited by:

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

Agency, Income Tax

Updated: 04 May 2022; Ref: scu.538717

Gaspet Ltd v Ellis (Inspector of Taxes): 1985

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

Judges:

Peter Gibson J

Citations:

[1985] 1 WLR 1214

Statutes:

Capital Allowances Act 1968 91(1)

Cited by:

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

Agency, Income Tax

Updated: 04 May 2022; Ref: scu.538716

Calder v Dobell: 1871

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

Citations:

(1871) LR 6 CP 486

Jurisdiction:

England and Wales

Cited by:

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

Agency

Updated: 02 May 2022; Ref: scu.416021

United Dominions Trust Ltd v Western: 1976

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

Citations:

[1976] QB 513

Cited by:

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

Agency

Updated: 02 May 2022; Ref: scu.415069

Bramhall v Hall: 1764

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

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Agency

Updated: 02 May 2022; Ref: scu.375212

Callander v Oelrichs And Another: 12 Nov 1838

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

Citations:

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

Links:

Commonlii

Agency, Insurance

Updated: 02 May 2022; Ref: scu.312921

Lady Beresford v Driver: 31 Jul 1851

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

Citations:

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

Links:

Commonlii

Cited by:

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

Agency

Updated: 02 May 2022; Ref: scu.297070

Hilton v Thomas Burton (Rhodes) Ltd: 1961

Judges:

Diplock J

Citations:

[1961] 1 WLR 705

Jurisdiction:

England and Wales

Cited by:

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

Vicarious Liability, Agency

Updated: 02 May 2022; Ref: scu.278322

Prager v Blatspiel, Stamp and Heacock Ltd: 1924

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

Judges:

McCardie J

Citations:

[1924] 1 KB 566

Cited by:

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

Constitutional, Agency

Updated: 30 April 2022; Ref: scu.235925

ABTA Ltd v British Airways Plc: ComC 26 Nov 1999

IATA Airlines standard agency agreement – implied terms – whether travel agents can be lawfully instructed to give the public misleading documentation describing the passenger service charge at UK airports as a tax-whether the passenger service charge is included in fares applicable to air passenger transportation for the purposes of commission.

Judges:

Timothy Walker J

Citations:

Unreported, 26 November 1999

Cited by:

Appeal from – Association of British Travel Agents Ltd v British Airways Plc CA 2000
Sedley LJ described the common-law rule of contra preferentem, that any doubt as to the meaning of contractual words will be resolved by construing them against the party that put them forward, as ‘a principle not only of law but of justice’ and . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 30 April 2022; Ref: scu.225433

Reckitt v Barnett Pembroke and Slater Ltd: HL 1929

The House was asked whether a power of attorney included a power to draw cheques on the principal’s bank account in order to pay his own debts. The Court of Appeal by a majority, Russell J dissenting, had held that it did having regard to the terms of a letter written by the principal to his bankers.
Held: The decision was reversed. A power of attorney is to be construed strictly. The House adopted the statement of Russell LJ: ‘the primary object of a power of attorney is to enable the attorney to act in the management of his principal’s affairs. An attorney cannot in the absence of a clear power to do so, make presents to himself or to others of his principal’s property ‘

Citations:

[1929] AC 176

Jurisdiction:

England and Wales

Cited by:

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

Agency

Updated: 30 April 2022; Ref: scu.224087

Gilchrist Watt and Sanderson Pty Ltd v York Products Pty Ltd: PC 1970

(New South Wales – Australia) The defendants were stevedores who had lost two cases of clocks that they had received as sub-bailees of the shipowners, who in turn owed a duty to deliver them to the plaintiffs under the bills of lading.
Held: The defendants were liable. They: ‘took upon themselves an obligation to the plaintiffs to exercise due care for the safety of the goods, although there was no contractual relation or attornment between the defendants and the plaintiffs.’ A sub-bailee had only voluntarily taken into his possession the goods of another if he has sufficient notice that a person other than the bailee is interested in the goods so that it can properly be said that in addition to his duties to the bailee he has, by taking the goods into his custody, assumed towards that other person the responsibility for the goods which is characteristic of a bailee.

Judges:

Lord Pearson

Citations:

[1970] 1 WLR 1262

Citing:

Approved – Morris v C W Martin and Sons Ltd CA 1965
The plaintiff took her mink stole to the defendants for cleaning. An employee received and stole the fur. The judge had held that the defendants were not liable because the theft was not committed in the course of employment.
Held: The . .

Cited by:

Cited – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Cited – Yearworth 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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Commonwealth

Updated: 30 April 2022; Ref: scu.214712

Anangel Atlas Compania Naviera SA v Ishikawajima-Harima Heavy Industries Co Ltd: 1990

The plaintiffs sought recovery of moneys paid by the defendants to one George Thomas Richardson Campbell, a distinguished naval architect on the ground that such payments has been made secretly while Mr Campbell has been acting for the plaintiffs in the negotiation of shipbuilding contracts with the defendants.
Held: Leggatt J said: ‘For the purposes of the civil law a bribe means the payment of a secret commission, which only means (i) that the person making the payment makes it to the agent of the other person with whom he is dealing; (ii) that he makes it to that person knowing that that person is acting as the agent of the other person with whom he is dealing; and (iii) that he fails to disclose to the other person with whom he is dealing that he has made the payment to the person whom he knows to be the other person’s agent.’

Judges:

Leggatt J

Citations:

[1990] 1 Lloyd’s Reports 167

Citing:

Cited – Hovenden and Sons v Millhoff 1900
Romer LJ said: ‘The courts of law in this country have always strongly condemned and, when they could, punished the bribing of agents, and have taken a strong view as to what constitutes a bribe. I believe the mercantile community as a whole . .

Cited by:

Cited – Tesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
Lists of cited by and citing cases may be incomplete.

Agency, Torts – Other

Updated: 29 April 2022; Ref: scu.194864

Branwhite v Worcester Works Finance Ltd: HL 1969

A dealer may for some ad hoc purpose be the agent of a finance company. In relation to a purchase of a motor vehicle through a motor dealer, where the prospective purchaser completes an application for hire purchase in the office of the motor dealer, he forwards it to the finance company for approval, and if approved, the dealer delivers the motor vehicle to the customer. The finance company provides the purchase price to the motor dealer and the customer pays periodic payments to the finance company. The dealer is not acting as an agent of the finance company, merely arranging a finance application to be made by a prospective customer. If the dealer forwarded the finance application to a finance broker, the broker would be acting on behalf of the prospective customer.
Lord Wilberforce said that while in all hire purchase cases much must depend on the individual facts ‘such questions as arise of the vicarious responsibility of finance companies for the acts or defaults of dealers cannot be resolved without reference to the general mercantile structure within which they arise, or if one prefers the expression, to commercial reality.’
After citing Lord Pearson in Garnac, he went on: ‘The significant words for the present purpose are ‘if they have agreed to what amounts in law to such a relationship’These I understand as pointing to the fact that while agency must derive from consent, the consent need not necessarily be to the relationship of principal and agency itself (indeed the existence of it may be denied) but may be to a state of facts on which the law imposes the consequences which results from Agency. It is consensual not contractual. So interpreted this formulation allows the establishment of an agency relationship in such cases as the present.’
Lord Upjohn (with whom Lord Guest Agreed) considered that the acts of holding stock of Worcester’s formes of hire purchase agreement, filling them in with particulars including Worcester’s charges, having a prospective hirer sign the documents, and forwarding the forms to Worcester, showed that Raven was assisting the proposed hirer but did not establish that it had actual or apparent authority from the financier.

Judges:

Lord Morris of Borth-y-Gest, Lord Wilberforce, Lord Reid, Lord Upjohn

Citations:

[1969] 1 AC 552

Statutes:

Hire Purchase Act 1965

Jurisdiction:

England and Wales

Citing:

Approved – Mercantile Credit Co Ltd v Hamblin CA 1964
Pearson LJ said: ‘There is no rule of law that in a hire purchase transaction the dealer never is, or always is, acting as agent for the finance company or as agent for the customer.Nevertheless, the dealer is to some extent an intermediary between . .
Cited – Garnac Grain Co Inc v HMF Faure and Fairclough PC 1967
The Board was asked what was necessary to establish the raltionship of principal and agent.
Held: In the essence of agency is the element of consent.
Where there is an available market for the goods, the market price is determined as at . .

Cited by:

Cited – Norman Hudson v Shogun Finance Ltd CA 28-Jun-2001
A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
Held: The dealer had not taken all the steps he might have done to check the identity of the . .
Cited – Anglo Group Plc, Winther Brown and Co Ltd v Winter Brown and Co Ltd, BML (Office Computers) Ltd, Anglo Group Plc, BML (Office Computers) Ltd TCC 8-Mar-2000
Contract – Contract for provision of computer services – purchaser contract with finance company – duty of co-operation to be implied in computer contracts – practice – responsibilities of expert witnesses generally – whether computer company liable . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 29 April 2022; Ref: scu.188419

Les Affreteurs Reunis SA v Leopold Walford (London) Ltd: HL 1919

With regard to Robertson -v- Wait: ‘My Lords, so far as I am aware, that case has not before engaged the attention of this House, and I think it right to say plainly that I agree with that decision and I agree with the reasoning, shortly as it is expressed, upon which the decision was founded. In this connection I would refer to the well-known case of In re Empress Engineering Company. In the judgment of Sir George Jessel MR the principle is examined which, in my view, underlies and is the explanation of the decision in Robertson v. Wait. The Master of the Rolls uses this language: ‘So, again, it is quite possible that one of the parties to the agreement may be the nominee or trustee of the third person. As Lord Justice James suggested to me in the course of the argument, a married woman may nominate somebody to contract on her behalf, but then the person makes the contract really as trustee for somebody else, and it is because he contracts in that character that the cestui que trust can take the benefit of the contract.’ It appears to me plain that for convenience, and under long established practice, the broker in such cases, in effect, nominates the charterer to contract on his behalf, influenced probably by the circumstance that there is always a contract between charterer and owner in which this stipulation, which is to enure to the benefit of the broker, may very conveniently be inserted. In these cases the broker, on ultimate analysis, appoints the charterer to contract on his behalf. I agree therefore with the conclusion arrived at by all the learned judges in Robertson v. Wait, that in such cases charterers can sue as trustees on behalf of the broker.’

Judges:

Lord Birkenhead LC, Viscount Finlay and Lords Atkinson Wrenbury

Citations:

[1919] AC 801

Jurisdiction:

England and Wales

Citing:

Approved – Robertson v Wait 1853
. .

Cited by:

Cited – Nisshin Shipping Co Ltd v Cleaves and Company Ltd and others ComC 7-Nov-2003
One party sought a declaration that arbitrators should have no jurisdiction to determine claims for commission said to be due to the Respondent chartering brokers.
Held: Because he has in effect become a statutory assignee of the promisee’s . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency, Transport

Updated: 29 April 2022; Ref: scu.187709

Carnfoote v Fowke: 1840

The phrase ‘some positive wrongful conduct’ in cases of misrepresentation, is directed to the case where the principal does something with the intention that the innocent agent will mislead the third party by a misrepresentation due to his ignorance of the truth.

Citations:

[1840] 6 MandW 358

Cited by:

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

Agency

Updated: 29 April 2022; Ref: scu.186446

Allan v Leo Lines Ltd: 1957

The court, considering whether an estate agent was entitled to his commission, emphasised the importance of the mere introduction of a buyer. In this case first the plaintiff was ‘the effective cause of the introduction’; and that that was ‘a very important consideration in determining who is the cause of the sale because in these matters the introduction is perhaps often the main difficulty.’ Negotiations and efforts by the buyer personally did not displace the causative effect of the introduction which was the effective cause of the sale. If a broker effects an introduction and is willing to go on with the usual business negotiation, it hardly lies in the mouth of an owner who takes it out of his hands to say that he has made no further contribution.

Judges:

Devlin J

Citations:

[1957] 1 LL 127

Cited by:

Cited – Nahum v Royal Holloway and Bedford New College CA 12-Nov-1998
An estate agent was entitled to his commission when he could show that it was he who had brought about the relationship of buyer and seller. Delay and actions of others intended to hide that causation did not defeat the claim. The defendant asked . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 29 April 2022; Ref: scu.183815

Loeschman v Machin: 1818

If a hirer of the goods sends them to an auctioneer to be sold, he is guilty of a conversion of the goods; and if the auctioneer afterwards refuses to deliver them to the owner, unless he will pay a sum of money which he claims, he is also guilty of a conversion.

Judges:

Abbott J

Citations:

(1818) 2 Stark 311, [1818] EngR 36, (1818) 171 ER 656

Links:

Commonlii

Cited by:

Cited – Marcq 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 . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Agency

Updated: 29 April 2022; Ref: scu.182761

Peter 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.

Citations:

[1992] EGLR 24

Cited by:

Cited – Harwood T/A RSBS Group v Smith and Smith and Bedwell Watts and Company (a Firm) CA 14-Nov-1997
An estate agent with sole selling rights was not entitled to claim commission on a sale where he had contributed no act to the sale, even though his terms were specific enough to deal with the particular circumstances which had arisen here. Such a . .
Cited – Burney 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 . .
Cited – Foxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 28 April 2022; Ref: scu.180397

Whitehead v Jenks and Cattell Engineering Ltd: 1999

Citations:

[1999] Eur LR 827

Jurisdiction:

England and Wales

Cited by:

Cited – Tigana 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 . .
Lists of cited by and citing cases may be incomplete.

European, Agency

Updated: 28 April 2022; Ref: scu.179829

Domb and Another v Isoz: CA 29 Nov 1979

In a chain of conveyancing transactions, a solicitor sent his contract and deposit to his vendor’s solicitor, asking him to hold it to his order pending exchange. On the next day, that vendor’s solicitors agreed to an exchange of contracts over the telephone on his own purchase, but his client then told him not to proceed. The solicitor did not deliver the contract on that purchase, and claimed that under the postal rule, exchange had not taken place. The purchaser appealed a finding that there was no contract.
Held: A contract had been created. The solicitor had his client’s authority to exchange in this manner, and the contract was made at the time of the agreement on the telephone. The contract could come into existence before the posting of the second part of the contract, which would be the normal rule for postal acceptance.
Buckley LJ: ‘the essential characteristic of exchange of contracts is that each party shall have such a document signed by the other party in his possession or control so that, at his own need, he can have the document available for his own use. Exchange of a written contract for sale is in my judgment effected so soon as each part of the contract, signed by the vendor or the purchaser as the case may be, is in the actual or constructive possession of the other party or of his solicitor. Such possession need not be actual or physical possession; possession by an agent of the party or of his solicitor, in such circumstances that the party or solicitor in question has control over the document and can at any time procure its actual physical possession will, in my opinion, suffice. In such a case the possession of the agent is the possession of the principal. A party’s solicitor employed to act in respect of such a contract has, subject to express instructions, implied authority to effect exchange of contracts and so to make the bargain binding upon his client. This he can, in my judgment, do by any method which is effectual to constitute exchange.’
BRIDGE LJ: ‘A solicitor acting for a vendor or a purchaser who holds his client’s signed part of the contract has his client’s ostensible authority to effect exchange of contracts.’
Templeman LJ: ‘In my judgment a client impliedly authorises, and ostensibly authorises, his solicitor to effect exchange of contracts in such manner and by such agents as the solicitor may think fit. The client confers power to exchange, but is not interested in the machinery or method of exchange, which is a matter for the solicitor and the general law.’

Judges:

Buckley, Bridge and Templeman LJJ

Citations:

[1980] 2 WLR 565, [1980] Ch 548, [1980] 1 All ER 942

Links:

lip

Jurisdiction:

England and Wales

Citing:

Cited – Eccles v Bryant and Pollock CA 1947
The Plaintiff contended that a letter written by the purchaser’s solicitor which effectively set out the terms of the agreement, enclosed the part of the contract signed by the purchaser, and asked in exchange for the counter-part signed by the . .
Cited – Johnson v Agnew HL 1979
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract, Land, Agency

Updated: 28 April 2022; Ref: scu.178200

Presentaciones Musicales Sa v Secunda and Another: CA 29 Nov 1993

A writ was issued within the limitation period applicable to the cause of action. However, the authority of the nominal plaintiff was not obtained within the limitation period.
Held: The adoption by a plaintiff of proceedings issued without his authorisation by his solicitor was acceptable where this occurred within the appropriate limitation period. The raising of proceedings was held not to be a nullity.
Roch LJ considered whether the validity of the ratification of the unauthorised act of commencing proceedings was governed by English law or Panamanian law. Counsel for PMSA had submitted that the question of Mr Van Walsum’s authority was governed by Panamanian law and under that law the acts of the liquidators in May 1991 had put the company and Mr Van Walsum in the position they would have been in had Mr Van Walsum had actual authority to commence proceedings in 1988. Roch LJ disagreed: ‘I do not doubt that if the issue had been whether Mr. Van Walsum had actual authority to instruct Goodman Derrick and Co. to issue proceedings in April 1988, that question could only have been resolved by the court examining the law relating to corporate bodies in the Republic of Panama and, probably, the constitution of the plaintiff company. In the present case there is no dispute, for the purposes of resolving the preliminary issue, that Mr. Van Walsum did not have actual authority in April 1988.
What has to be considered, in my view, is first the effect of the contract apparently entered into between the plaintiff company and Goodman Derrick and of the act of Goodman Derrick in issuing proceedings against the defendants. The law which should apply to that contract and to that act, in my opinion, is the law which has the closest connection with that contract and with that act, namely English law. Dicey and Morris, The Conflict of Laws, 12th ed. (1993), p. 1459, under the heading ‘English Conflicts Rules’ says: ‘Where the agent lacks actual authority from the principal, it seems right in principle, that the law applicable to the contract between the agent and a third party, should determine whether the principal is bound or entitled. In effect in this situation one is asking whether the agent had apparent or ostensible authority to bind the principal . . As between the principal and the agent, the scope of the agent’s authority to bind the principal and to confer rights upon him is necessarily determined by the law which governs their relationship, but third parties must be able to assume, at least where the agent has no actual authority from the principal, that the agents’ authority covers everything which would be covered by the authority of an agent appointed under the law applicable to the contract made between the agent and the third party.’
The correct analysis of the facts of this case, in my judgment, is that the agents whose authority really has to be considered are Goodman Derrick and the act, the validity of which has to be considered is their act of commencing proceedings. Goodman Derrick are English solicitors retained, ostensibly on behalf of a Panamanian company, to perform legal services for that company in England. On that analysis the validating of the act of commencing proceedings by later ratification by those who clearly have authority under Panamanian law to do so on behalf of the plaintiffs must be a matter for English law.
. . Once it is shown by the law of Panama that neither Mr. Van Walsum nor Goodman Derrick were authorised to act, the consequences of that lack of authority are matters for the law of the place where the unauthorised act was performed. Thus . . I conclude that the issue of ratification is governed by English law.’
Dillon LJ said: ‘It is well recognised law that where a solicitor starts proceedings in the name of a plaintiff – be it a company or an individual – without authority, the plaintiff may ratify the act of the solicitor and adopt the proceedings. In that event, in accordance with the ordinary law of principal and agent and the ordinary doctrine of ratification the defect in the proceedings as originally constituted is cured . . The reason is that by English law ratification relates back to the unauthorised act of the agent which is ratified . . ‘

Judges:

Roch LJ, Dillon LJ

Citations:

Gazette 12-Jan-1994, Times 29-Nov-1993, [1995] EMLR 118, [1994] 2 All ER 737, [1994] Ch 271, [1994] 2 WLR 660

Jurisdiction:

England and Wales

Cited by:

Applied – Adams and Others v Ford and Others CA 26-Apr-2012
The several claimants had invested in a technology based investment scheme, which they now said was fraudulent. The defendants said that the original, large number of claimants had been reduced, but the lawyers acting for the claimants had issued . .
Lists of cited by and citing cases may be incomplete.

Agency, Litigation Practice

Updated: 28 April 2022; Ref: scu.85022

Chr Salvesen and Co v Rederi Aktiebolaget Nordstjernan: HL 14 Apr 1905

A foreign shipowner employed a Leith shipbroker to find freight for a vessel. The shipbroker entered into negotiations with third parties and reported to his principal that he had ‘fixed’ the ship on certain terms. As a matter of fact no bargain was concluded between the shipbroker and the third parties. Held (1) that the shipbroker was liable to the shipowner for loss incurred by the latter by reason of his relying on the former’s incorrect statement; (2) that in the absence of evidence that the shipowner sustained any loss of profit by his reliance on the incorrect statement, no damages fell to be awarded him in respect of loss of profit, but that a sum fell to be paid him as compensation and solatium in respect of outlays on telegrams and trouble.

Judges:

Lord Chancellor (Halsbury), Lord Davey, and Lord Robertson

Citations:

[1905] UKHL 557, 42 SLR 557

Links:

Bailii

Jurisdiction:

England and Wales

Agency

Updated: 26 April 2022; Ref: scu.621175

Lloyd v Grace Smith and Co: HL 19 Jul 1912

A principal is liable in damages for the fraud of his agent, whether benefited thereby or not, provided the agent is acting within the scope of his employment. In a case where a clerk, purporting to act on behalf of his employer a solicitor, obtained control of and embezzled the property of a client, held that the fact that the clerk was apparently invested by his employer with power to act for him was sufficient to make the employer responsible for his fraud.

Judges:

Earl Loreburn, the Earl of Halsbury, Lords Macnaghten, Atkinson, Shaw, and Robson

Citations:

[1912] UKHL 606, 50 SLR 606

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Torts – Other

Updated: 25 April 2022; Ref: scu.619250

Fenwick v MacDonald Fraser and Co: SCS 29 Jun 1904

A sale of farm animals by auction was not made without reserve because the condition of sale reserved to the owner the right to make one offer for each animal. The Lord Ordinary Lord Kyllachy had decided the case both on the grounds that there was a disclosed principal, following Mainprice’s case, and also that it was not a sale without reserve.
Held: The Lord Justice – Clerk agreed with the Lord Ordinary.
Lord Young held that because the purchaser could withdraw his bid until the hammer fell, so could the seller. He also considered that the sale was not `without reserve’.
Lord Traynor considered that the law of Scotland had been changed by the Sale of Goods Act 1893 which enabled a bid to be withdrawn until the hammer had fallen.

Judges:

Lord Young, Lord Traynor

Citations:

[1904] 6F (Ct of Sess) 850, [1904] SLR 41 – 688

Links:

Bailii

Statutes:

Sale of Goods Act 1893

Jurisdiction:

Scotland

Cited by:

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

Agency, Contract

Updated: 14 April 2022; Ref: scu.609886

Daly v Lime Street Underwriting Agencies: 1987

A name at Lloyds confers an irrevocable power of attorney on his managing agent to underwrite business.

Citations:

[1987] 2 FTLR 277

Cited by:

Cited – Bailey 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.

Insurance, Agency

Updated: 12 April 2022; Ref: scu.568650

Erikson 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 was partnership or agency’.
Jordan CJ had observed that ‘if a partner in a subsisting partnership finds that his co-partner has made a secret profit for which he is accountable to the firm, this does not entitle him to rescind the partnership ab initio’ but ‘to require the amount to be brought into the partnership account so that he may receive his proper share of it’, while ‘[i]f a person, acting as agent under a subsisting contract of commission agency, accepts a secret commission in relation to an agency transaction, he must account for it to his principal’ and ‘[o]rdinarily he also forfeits his right to commission’

Judges:

Jordan CJ

Citations:

(1945) 46 SR (NSW) 9

Jurisdiction:

England and Wales

Cited by:

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

Commonwealth, Agency

Updated: 12 April 2022; Ref: scu.569931

Premium 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 claims was effectively overtaken by the relationships out of which fiduciary duties arose, and that different policy considerations might affect remoteness of damage in cases of breach of fiduciary duty than in common law claims. But the necessity of demonstrating that a loss was caused by the claimed breach of fiduciary duty followed from the compensatory justification for the remedy.
‘The remuneration is forfeited because it has not been earned by good faith performance in relation to a completed transaction. There is no inconsistency in awarding the principal both damages and the refund of the commission, as there would be, for instance, if a court were to order a defendant fiduciary both to pay damages and to account for profits made by the use of the principal’s asset. Remuneration for services is not a profit of this kind. It is something to which an agent has no entitlement once he or she has committed a breach of fiduciary duty save in the circumstances described by Atkin LJ [in Keppel v Wheeler]’.

Judges:

Elias CJ, Blanchard, Tipping, McGrath and Gault JJ

Citations:

[2009] 2 NZLR 384, [2009] NZSC 15, (2009) 9 NZBLC 102

Links:

Nzlii

Jurisdiction:

New Zealand

Cited by:

Cited – AIB 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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity, Agency

Updated: 12 April 2022; Ref: scu.554209

Phipps 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.

Judges:

Wilberforce J

Citations:

[1964] 1 WLR 993

Jurisdiction:

England and Wales

Cited by:

Appeal from – Phipps v Boardman CA 1965
Affirmed . .
At first instance – Phipps 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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Equity, Agency

Updated: 12 April 2022; Ref: scu.551501

Walsh v Whitcomb: 1797

Lord Kenyon said that powers of attorney are ‘revocable from their nature’.

Judges:

Lord Kenyon

Citations:

[1803] EngR 393, (1796, 1799, 1803) 2 Esp 565, (1803) 170 ER 456 (B)

Links:

Commonlii

Cited by:

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

Agency

Updated: 12 April 2022; Ref: scu.344434

Gaussen And Others v W Morton And E Morton: 7 May 1830

A. being indebted to B, in order to discharge the debt executed to B a power of attorney, authorising him to sell certain lands belonging to him, A.: Held, that this, being an authority coupled with an interest could not be revoked.

Citations:

[1830] EngR 564, (1830) 10 B and C 731, (1830) 109 ER 622

Links:

Commonlii

Cited by:

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

Agency

Updated: 12 April 2022; Ref: scu.321444

Smart 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 special instructions, he is bound to obey them. The authority, whether general or special, is revocable. Quaere, whether the factor’s authority to sell can be revoked after he has made advances upon the credit of the goods consigned to him, his authority then being coupled with an interest? In assumpsit, the declaration stated that the plaintiffs had consigned wheat to the defendants, who were corn factors, for sale on account of the plaintiffs ; that the defendants then promised the plaintiffs to obey and observe the lawful orders and directions of the plaintiffs to be given by them to the defendants in regard to the sale and disposal of the wheat, and that, although the plaintiffs ordered the defendants not to sell below a certain price, and although the same was a lawful order and direction in that behalf, yet the defendants, not regarding their promise, sold at a less price. Plea, that, after the delivery of the wheat to the defendants, they became and were under advances to the plaintiffs in respect thereof ; that they gave the plaintiffs notice that they required to be repaid such advances, and that in default they should sell the wheat and repay themselves; and that, although a reasonable time had elapsed, the plaintiffs did not repay them such advances ; whereupon the defendants, for the purpose of reimbursing themselves, sold the wheat for the best prices that could then be obtained for the same, andc. Held, that the plea was bad in substance, there being nothing in the transaction disclosed upon the record, from which it could be inferred that it was part of the contract that at any time the wheat should be forfeited, or the defendant’s authority to sell enlarged, so as to enable them to sell for repayment of
advances, without reference to its being for the interest of the principals to sell at
that particular time, and for that price.

Citations:

[1846] EngR 865, (1846) 3 CB 380, (1846) 136 ER 152

Links:

Commonlii

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 12 April 2022; Ref: scu.302760

Salomons 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: ‘It is true that . . the defendant has had the benefit (if it be one) of the plaintiff’s services. But the defendant is in a position to say, ‘What you have done has been done as a volunteer, and does not come within the line of your duties as agent.” And in the same case Martin B. quoted the passage from Story on Agency, where it is said: ‘In this connection, also, it seems proper to state another rule, in regard to the duties of agents, which is of general application, and that is, that, in matters touching the agency, agents cannot act so as to bind their principals, where they have an adverse interest in themselves. This rule is founded upon the plain and obvious consideration, that the principal bargains, in the employment, for the exercise of the disinterested skill, diligence, and zeal of the agent, for his own exclusive benefit. It is a confidence necessarily reposed in the agent, that he will act with a sole regard to the interests of his principal, as far as he lawfully may; and even if impartiality could possibly be presumed on the part of an agent, where his own interests were concerned, that is not what the principal bargains for; and in many cases, it is the very last thing which would advance his interests. The seller of an estate must be presumed to be desirous of obtaining as high a price as can fairly be obtained therefor; and the purchaser must equally be presumed to desire to buy it for as low a price as he may.’

Judges:

Bramwell B

Citations:

[1865] EngR 365, (1865) 3 H and C 639, (1865) 159 ER 682

Links:

Commonlii

Cited by:

Cited – 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 . .
Applied – 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 . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 12 April 2022; Ref: scu.281277

Garnac Grain Co Inc v HMF Faure and Fairclough: PC 1967

The Board was asked what was necessary to establish the raltionship of principal and agent.
Held: In the essence of agency is the element of consent.
Where there is an available market for the goods, the market price is determined as at the contractual date of delivery, unless the buyer should have mitigated by going into the market and entering into a substitute contract at some earlier stage
Lord Pearson said: ‘The relationship of principal and agent can only be established by the consent of the principal and agent. They will be held to have consented if they have agreed to what amounts in law to such a relationship even if they do not recognise it themselves and even if they have professed to disclaim it . . The consent however must be given by each of them either expressly or by words and conduct. Primarily one looks to what they said and did at the time of the alleged creation of the agency. Earlier words and conduct may afford evidence of a course of dealing in existence at that time and may be taken into account more generally as historical background . . ‘

Judges:

Lord Pearson

Citations:

[1967] 2 All ER 353, [1968] AC 1130, [1967] 3 WLR 143

Jurisdiction:

England and Wales

Cited by:

Cited – Branwhite v Worcester Works Finance Ltd HL 1969
A dealer may for some ad hoc purpose be the agent of a finance company. In relation to a purchase of a motor vehicle through a motor dealer, where the prospective purchaser completes an application for hire purchase in the office of the motor . .
Cited – National Trust for Places of Historic Interest v Birden ChD 31-Jul-2009
The parties had entered into an old-form share farm agreement in 1994. The tenant later became a farm business tenant on other land. The claimant sought a share of the Single Payment Scheme calculated with reference to the period in which the . .
Cited – Bunge Sa v Nidera Bv SC 1-Jul-2015
The court considered the effect of the default clause in a standard form of contract which is widely used in the grain trade. On 10 June 2010 the respondents, Nidera BV, whom I shall call ‘the buyers’, entered into a contract with the appellants, . .
Lists of cited by and citing cases may be incomplete.

Agency, Damages

Updated: 12 April 2022; Ref: scu.269658

Blackburn, Low and Co v Vigors: CA 1886

Lord Esher MR: ‘This seems to me to be the true doctrine. The freedom from mis-representation or concealment is a condition precedent to the right of the assured to insist on the performance of the contract, so that on a failure of the performance of the condition the assured cannot enforce the contract.’ Lindley LJ: ‘It is a condition of the contract that there is no misrepresentation or concealment either by the assured or by anyone who ought as a matter of business and fair dealing to have stated or disclosed the facts to him or to the underwriter for him.’ Lord Halsbury LC warned against ‘the somewhat vague use of the word ‘agent” which, he said, ‘leads to confusion’ in insurance cases.

Judges:

Lord Esher MR, Lindley LJ,

Citations:

(1886) 17 QBD 553

Jurisdiction:

England and Wales

Citing:

Appealed to – Blackburn, Low and Co v Vigors HL 1887
There was a condition precedent of full disclosure of material facts in an insurance contract. The duty of an agent to disclose circumstances within his own knowledge to the insurer is independent of the duty of the insured to make disclosure, but: . .

Cited by:

Appeal from – Blackburn, Low and Co v Vigors HL 1887
There was a condition precedent of full disclosure of material facts in an insurance contract. The duty of an agent to disclose circumstances within his own knowledge to the insurer is independent of the duty of the insured to make disclosure, but: . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Lists of cited by and citing cases may be incomplete.

Agency, Insurance, Torts – Other

Updated: 12 April 2022; Ref: scu.219303

Blackburn, Low and Co v Vigors: HL 1887

There was a condition precedent of full disclosure of material facts in an insurance contract. The duty of an agent to disclose circumstances within his own knowledge to the insurer is independent of the duty of the insured to make disclosure, but: ‘it would, in my opinion, be a dangerous extension of the doctrine of constructive notice to hold that persons who are themselves absolutely innocent of any concealment or misrepresentation, and who have not wilfully shut their eyes or closed their ears to any means of information, are to be affected with the knowledge of matters which other persons may be morally though not legally bound to communicate to them.’

Judges:

Lord Macnaghten, Lord Watson, Lord Fitzgerald

Citations:

(1887) 12 App Cas 531

Jurisdiction:

England and Wales

Citing:

Appeal from – Blackburn, Low and Co v Vigors CA 1886
Lord Esher MR: ‘This seems to me to be the true doctrine. The freedom from mis-representation or concealment is a condition precedent to the right of the assured to insist on the performance of the contract, so that on a failure of the performance . .

Cited by:

Appealed to – Blackburn, Low and Co v Vigors CA 1886
Lord Esher MR: ‘This seems to me to be the true doctrine. The freedom from mis-representation or concealment is a condition precedent to the right of the assured to insist on the performance of the contract, so that on a failure of the performance . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 12 April 2022; Ref: scu.219302

Anglo Group Plc, Winther Brown and Co Ltd v Winter Brown and Co Ltd, BML (Office Computers) Ltd, Anglo Group Plc, BML (Office Computers) Ltd: TCC 8 Mar 2000

Contract – Contract for provision of computer services – purchaser contract with finance company – duty of co-operation to be implied in computer contracts – practice – responsibilities of expert witnesses generally – whether computer company liable to purchaser – whether purchaser liable to finance company.
The parties disputed the delivery and quality of a computer system. The buyer complained of many defects and eventually sought to reject the system.
Held: Anglo’s claim succeeded. The court provided updated Ikarian Reefer guidelines for expert witnesses. The court criticised one expert witness for failing to keep separate his role as negotiator and witness. It is normally inappropriate to seek to combine the two.
The court gave Ikarian Reefer guidelines updated to comply with the CPR:
‘1.An expert witness should at all stages in the procedure, on the basis of the evidence as he understands it, provide independent assistance to the court and the parties by way of objective unbiased opinion in relation to matters within his expertise. This applies as much to the initial meetings of experts as to evidence at trial. An expert witness should never assume the role of an advocate.
2. The expert’s evidence should normally be confined to technical matters on which the court will be assisted by receiving an explanation, or to evidence of common professional practice. The expert witness should not give evidence or opinions as to what the expert himself would have done in similar circumstances or otherwise seek to usurp the role of the judge.
3.He should co-operate with the expert of the other party or parties in attempting to narrow the technical issues in dispute at the earliest possible stage of the procedure and to eliminate or place in context any peripheral issues. He should co-operate with the other expert(s) in attending without prejudice meetings as necessary and in seeking to find areas of agreement and to define precisely arrears of disagreement to be set out in the joint statement of experts ordered by the court.
4.The expert evidence presented to the court should be, and be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of the litigation.
5.An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
6.An expert witness should make it clear when a particular question or issue falls outside his expertise.
7.Where an expert is of the opinion that his conclusions are based on inadequate factual information he should say so explicitly.
8.An expert should be ready to reconsider his opinion, and if appropriate, to change his mind when he has received new information or has considered the opinion of the other expert . He should do so at the earliest opportunity.’

Judges:

Toulmin QC J

Citations:

[2000] EWHC Technology 127, (2000) 144 Sol Jo LB 197

Links:

Bailii

Statutes:

Supply of Goods and Services Act 1982 9

Jurisdiction:

England and Wales

Citing:

Clarified – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Cited – Graigola Merthyr Co Ltd v Swansea Corporation CA 1928
The plaintiff mine-owner having had a contract that the neighbouring land owner would not refill its reservoir which would result in its workings being flooded, and that contract having expired, now sought an injunction to prevent the reservoir from . .
Cited – Edwin John Stevens v R J Gullis and David Pile CA 27-Jul-1999
The new Civil Procedure Rules underline the existing duty which an expert owes to the Court as well as to the party which he represents. . .
Cited – Tradition (UK) Ltd, Tradition Bond Brokers Limited, Howard, Harland v Cantor Fitzgerald International ChD 15-Apr-1999
When deciding whether a copying of a computer program was substantial, the test was not whether the program would run without that code. It had to be looked at as a whole allowing for the skill and labour which had gone into different sections of . .
Cited – Cala Homes (South) Ltd and others v Alfred McAlpine Homes East Ltd ChD 6-Jul-1995
The plaintiff alleged that the defendant had copied its house designs after a senior employee involved in creating the designs left and eventually came to work for the defendant. The plaintiff alleged that the copying was flagrant allowing . .
Cited – Cullinane v British ‘Rema’ Manufacturing Co Ltd CA 1954
The court considered the possibility of a claim in breach of contract for damages for both capital loss and loss of profit.
Lord Evershed MR said: ‘It seems to me, as a matter of principle, that the full claim of damages in the form in which . .
Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Cited – Anglia Television v Oliver Reed CA 1971
The television company had agreed with the actor defendant for him to appear in a production. He breached the contract. The company sought both loss of profits and for the expense incurred. The issue before the Court of Appeal was whether such . .
Cited – Lep Air Services v Rolloswin Investments Ltd; Moschi v LEP Air Services HL 1973
The obligation of a guarantor under a contract ‘is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something.’ When a repudiatory breach is accepted by the injured . .
Cited – Branwhite v Worcester Works Finance Ltd HL 1969
A dealer may for some ad hoc purpose be the agent of a finance company. In relation to a purchase of a motor vehicle through a motor dealer, where the prospective purchaser completes an application for hire purchase in the office of the motor . .
Cited – Lease Management Services Ltd v Purnell Secretarial Services Ltd CA 1-Apr-1994
A leasing company adopting the style of a like supplier had to adopt that supplier’s representations. . .
Cited – Sovereign Finance v Silver Crest 1997
. .
Cited – Dunlop 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, . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract, Agency

Updated: 12 April 2022; Ref: scu.201803

Stait v Fenner: 1912

The lease to Fenner contained a break clause. The lease was legally assigned to X and then to Y. Y then agreed to assign back to Fenner (but no formal assignment was entered). Fenner then ‘assigned’ to Z (the contract saying that he was not obliged to get in the bare legal estate outstanding in Y). Z then exercised the break clause.
Held: The beneficiary under a bare trust is not thereby constituted the agent of the trustee. A break clause was operable by the tenant if he gave notice and if he should pay all the rent and perform all the covenants up to the determination of the lease. The question for the court was whether that condition for payment and performance was a condition precedent to be performed before the expiration of the term: ‘it must have been intended, in construing a covenant of this kind, that the question whether the lease does or does not exist after the expiration of the seven or fourteen years should be capable of being decided there and then and not left to future contingency leaving both the lessor and the lessee in uncertainty as to whether they are bound by the lease or whether they are not.’ In this case the condition was a condition precedent.
Neville J held: ‘In my opinion, the legal estate in the term being outstanding, it was not competent for the lessee or any assignee of the lessee who had not the legal estate vested in him to give a notice.’

Judges:

Neville J

Citations:

[1912] 2 Ch 504

Jurisdiction:

England and Wales

Cited by:

Cited – Dun and Bradstreet Software Services (England) Ltd; Dun and Bradstreet Software Services Ltd v Provident Mutual Life Assurance Association and General Accident Linked Life Assurance CA 9-Jun-1997
Break clauses had been exercised on behalf of the plaintiffs. The defendant landlords appealed a decision upholding the notices. A penalty rent had been sought.
Held: There had been no sufficient agency established to validate the notice. The . .
Cited – JBW Group Ltd v Westminster City Council CA 12-Mar-2010
The tenant had applied to the landlord for consent to assign certain leases. The court had declared the right to exercise break clauses in certain leases as lost. The court had found the right to be lost after the assignment of the leases by the . .
Cited – Stodday Land Ltd and Another v Pye ChD 7-Oct-2016
The agricultural landlord sold part of his land subject to the respondent’s tenancy to the appellant. Before the transfer was registered, notices to quit were served by both the landlord and his buyer. The tenant challenged both notices in the . .
Lists of cited by and citing cases may be incomplete.

Trusts, Agency, Landlord and Tenant

Updated: 12 April 2022; Ref: scu.188165

Sampson and Others v Wilson and Others: CA 19 Apr 1995

A landlord’s estate management agent was not jointly liable with the Landlord for damages for acts of harassment of the tenant committed by the landlord.

Citations:

Times 19-Apr-1995

Statutes:

Housing Act 1988 27 28

Jurisdiction:

England and Wales

Cited by:

Cited – Abbott v Bayley CA 20-Jan-1999
Appeal against award of damages for breach by landlord of covenant for quiet enjoyment and under the 1988 Act.
Held: The landlord’s appeal failed. ‘There is no fixed point at which it can be said that breaches of the covenant of quiet . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Agency

Updated: 10 April 2022; Ref: scu.88993

The Great Estates Group Ltd v Digby: CA 13 Oct 2011

The Claimant, an estate agent, considers that it was cut out of its entitlement to commission on the sale of a property in London in the buoyant market of the summer of 2007. By these proceedings it seeks compensation for that loss.
Toulson LJ explained that, if the contract was ‘capable’ of being read in two ways, the meaning which would result in validity might be upheld ‘even if it is the less natural construction’.

Judges:

Rix, Lloyd, Toulson LJJ

Citations:

[2011] EWCA Civ 1120, [2012] 2 All ER (Comm) 361

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 10 April 2022; Ref: scu.445446

Owners of Cargo On K H Enterprise v Owners of Pioneer Container: PC 29 Mar 1994

Owners who were claiming under a bailment must accept the terms of a sub-bailment to which it had agreed. This result is both principled and just. A sub-bailee can only be said for these purposes to have voluntarily taken into his possession the goods of another if he has sufficient notice that a person other than a bailee is interested in the goods so that it can properly be said that (in addition to his duties to the bailee) he has, by taking the goods into his custody, assumed towards that other person the responsibility for the goods which is characteristic of a bailee. This they believe to be the underlying principle.
Where an exclusive jurisdiction clause exists, a party who seeks a stay brought in breach of that agreement to refer disputes to a named forum, will have to show strong cause
Lord Goff asked whether an exclusive jurisdiction clause in a bill of lading issued by a sub-bailee was binding on the cargo owner, and said: ‘Here is a ship, upon which the goods are loaded in a large number of containers; indeed, one container may contain goods belonging to a number of cargo owners. One incident may affect goods owned by several cargo owners, or even (as here) all the cargo owners with goods on board. Common sense and practical convenience combine to demand that all of these claims should be dealt with in one jurisdiction, in accordance with one system of law. If this cannot be achieved, there may be chaos. Much expense may be wasted on litigation in a number of different jurisdictions, as indeed happened in the present case, where there was litigation in eight other countries as well as Hong Kong and Taiwan. There is however no international regime designed to produce a uniformity of jurisdiction and governing law in the case of a multiplicity of claims of this kind. It is scarcely surprising therefore that shipowners seek to achieve uniformity of treatment in respect of all such claims, by clauses designed to impose an exclusive jurisdiction and an agreed governing law . . Within reason, such an attempt must be regarded with a considerable degree of sympathy and understanding . . Their Lordships do not consider that it can possibly be said that the incorporation of such a clause in a bill of lading is per se unreasonable.’

Judges:

Lord Goff

Citations:

Times 29-Mar-1994, Gazette 11-May-1994, [1994] 2 AC 324

Cited by:

Cited – Scottish and Newcastle International Limited v Othon Ghalanos Ltd HL 20-Feb-2008
The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have . .
Cited – Angara Maritime Ltd v Oceanconnect UK Ltd and Another QBD 29-Mar-2010
The court was asked as to the application of Section 25(1) of the Sale of Goods Act 1979 when an unpaid supplier of bunkers to a time charterer claims against the owner of the vessel.
Held: The issue was whether as a matter of fact there was a . .
Lists of cited by and citing cases may be incomplete.

Transport, Commonwealth, Contract, Agency

Updated: 09 April 2022; Ref: scu.84505

Moore v Piretta Pta Ltd: QBD 11 May 1998

M had a series of agency contracts selling women’s clothing. The last contract was in 1994, and on termination, M claimed an indemnity under the contract which itself applied the regulations. Reg 17(3) gave an indemnity for new customers, where the principal continued to derive benefit.
Held: The agency contract was to be interpreted to include the series of contracts, including those before the regulations. The indemnity was capped at one year’s average remuneration over the previous five years. A commercial agent whose contract had been terminated during term of contract was entitled nevertheless to an indemnity in accordance with the Regulations for custom introduced for entire period. In an indemnity case, equitable principles might require there to be taken into account such part of the goodwill as the agent was able to exploit for himself, or for the benefit of another principal.
John Mitting QC said: ‘Consistent with the purpose of achieving harmony between member states, it is in my judgment permissible to look into the law and practice of the country in which the relevant right . . originated . . ; and to do so for the purpose of construing the English (sic) Regulations and to use them as a guide to their application’.
and ‘There are three stages in assessing the amount of the indemnity. First, it has to be asked what is the value of the business to the principal of new customers brought . . by the agent and of existing customers whose business has been significantly increased. The factors to be taken into account in making that judgment include the loss of the business of such customers after the agency has been terminated, whether due to causes beyond the agent’s and principal’s control (for example insolvency on the part of the customer or a decision on the part of that customer to buy goods elsewhere) or to factors within the agent’s control, for example the agent taking the custom of that customer with him. That is because the thing that has to be assessed is the extent to which the principal continues to derive substantial benefits from the efforts of the agent. The value of the business which remains for the benefit of the principal can, and in some cases no doubt should be, assessed by reference to periods as short as a year. But there is nothing in the regulations that requires them to be thus limited. If on the evidence the benefits of the agent’s efforts are likely to endure for more than a year after the termination of the agency then that fact can be taken into account in the assessment and need not be limited to looking at the period of one year after termination only.
The second factor is that the payment must be equitable having regard to all the circumstances and particularly the commission ‘lost’ by the agent. . Other factors which can be taken into account under this head include . . the expenses which the agent would have incurred in earning the commission which was his due. Another factor common to all cases is accelerated payment: the indemnity is accrued as at the date of termination in respect of commission which would have occurred after it. Some discount on that account must be made.
The purpose of the indemnity seems to me to be to award a share of the goodwill built up by the efforts of the agent to him on the termination of the agency. Otherwise the whole benefit of that goodwill will remain with his former principal.
The third step in the calculation is this. Having calculated the amount of the indemnity, a cap is applied. The cap is provided for in reg 17(4).’

Judges:

John Mitting QC

Citations:

Times 11-May-1998, [1999] 1 All ER 174, [1998] CLY 113

Statutes:

Commercial Agents (Council Directive) Regulations 1993 No 3053, Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents 17

Cited by:

Cited – Tigana 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 . .
Cited – Smith, Bailey Palmer v Howard and Hallam Ltd QBD 14-Nov-2005
Claim for compensation after termination of commercial agency agreement. . .
Cited – Stewart Roy v M R Pearlman Limited SCS 10-Mar-1999
A court investigating legislation, made to implement a European Directive, had still to apply UK principles in that interpretation, and not to disregard entirely common law rules. . .
Cited – David Frape v Emreco International Limited (2) SCS 2-Aug-2001
. .
Cited – Hardie Polymers Ltd v Polymerland Ltd SCS 31-Oct-2001
. .
Cited – Ingmar GB Limited v Eaton Leonard Technologies Inc CA 31-Jul-1998
Case referred to ECJ. . .
Cited – Pure Fishing (UK) Ltd v Cooper Watkins and Bartle CA 29-Sep-2003
The claimant sought a compensation payment under the Regulations after its sales agency for fishing tackle was terminated. The defendant argued that compensation was payable only where the agency was terminated before its term.
Held: The . .
Cited – Cooper and others v Pure Fishing (UK) Ltd CA 18-Mar-2004
. .
Cited – PJ Pipe and Valve Co. Ltd. v Audco India Ltd QBD 2-Sep-2005
The claimant was an agent in the petrochemical industry promoting and selling the defendant’s valves. There were two agency agreements, one relating solely to products to be supplied to a particular petro-chemical complex in Nanhai, the other being . .
Lists of cited by and citing cases may be incomplete.

Agency, European, Commercial

Updated: 09 April 2022; Ref: scu.83818

McCullagh 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.

Citations:

Gazette 30-Mar-1994, Times 25-Jan-1994

Citing:

Appealed to – 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 . .

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Negligence, Agency

Updated: 09 April 2022; Ref: scu.83516

Kelly 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 self-interest conflicted.
Held: It was appropriate to imply a term into the contract to the effect that the agent was entitled to act for other principals selling competing properties and to keep confidential the information obtained from each of those principals, even though that information might well have been material to the client. Estate agents have no general duty to disclose the details of another sale to their client. The existence and scope of the duties of an agent, fiduciary and otherwise, depend on the terms on which they are acting. The court was able to imply into an express contract of agency a term entitling an estate agent to act for numerous other competing principals selling similar properties and to keep confidential information received from each principal. It was known to the principal that the estate agent would be so acting in the course of its business. The effect of the implied term was to modify the normally strict fiduciary duties owed by an agent to the principal not to put himself into a position where his duty and interest conflicted, not to profit from his position (for example, by earning commissions from selling properties for rival principals) and to make disclosure of confidential information to the principal.
Lord Browne-Wilkinson said: ‘In a case where a principal instructs as selling agent for his property or goods a person who to his knowledge acts and intends to act for other principals selling property or goods of the same description, the terms to be implied into such agency contract must differ from those where an agent is not carrying on such general agency business. In the case of estate agents, it is their business to act for numerous principals: where properties are of a similar description, there will be a conflict of interest between the principals each of whom will be concerned to attract potential purchasers to their property rather than that of another. Yet, despite this conflict of interest, estate agents must be free to act for several competing principals otherwise they will be unable to perform their function . . The scope of the fiduciary duties owed by the [estate agent] to the [client] (in particular the alleged duty not to put themselves in a position where their duty and their interest conflicted) are to be defined by the terms of the contract of agency.’

Judges:

Lord Browne-Wilkinson

Citations:

Gazette 25-Nov-1992, [1993] AC 205, [1992] 3 WLR 936, [1993] ANZ Conv R 138

Citing:

Approved – Hospital Products Ltd v United States Surgical Corporation 25-Oct-1984
High Court of Australia – A solicitor’s duty of loyalty to his client’s interest, and his duty to respect his client’s confidences, have their roots in the fiduciary nature of the solicitor-client relationship, but may have to be moulded and . .

Cited by:

Cited – 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 . .
Cited – DEG-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 . .
Cited – Parker v Parker ChD 24-Jul-2003
Lord Macclesfield claimed a right to occupy a castle. The owners claimed that he had only a mere tenancy at will. The exact rooms in the castle which had been occupied had varied over time.
Held: The applicant was entitled to reasonable . .
Cited – Prince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
Conflicts of Duty with former Client
The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .
Cited – Hilton v Barker Booth and Eastwood HL 3-Feb-2005
The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and . .
Cited – Ultraframe (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 . .
Cited – Burkle Holdings Ltd v Laing TCC 23-Mar-2005
The parties had each instructed the same solicitor, but now disputed the entitlement of the other to see documents held by the solicitor. . .
Cited – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
Cited – 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 . .
Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 09 April 2022; Ref: scu.82715

Jerry Juhan Developments Sa v Avon Tyres Ltd: QBD 25 Jan 1999

Where bailors were in breach of a term of the bailment to collect the goods, and after lengthy delay the bailees had mislaid the goods, the bailees were under no duty to demonstrate that they had properly cared for the goods until the duty to keep ceased.

Citations:

Times 25-Jan-1999, Gazette 10-Feb-1999

Jurisdiction:

England and Wales

Agency

Updated: 08 April 2022; Ref: scu.82516

Fyffes Group Ltd and Others v Templeman and Others: QBD 14 Jun 2000

A person who bribed an agent to award a contract was liable to account for profits secured by the bribery as was the agent he bribed, but unlike for the agent, the extent of his liability was limited to exclude profits which he would have earned in any event. The recompense in damages should not be allowed to lead to the unjust enrichment of the injured party.

Judges:

Toulson J

Citations:

Times 14-Jun-2000, Gazette 22-Jun-2000, [2000] 2 Lloyds Rep 643

Cited by:

Cited – Crown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
Cited – Ultraframe (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 . .
Cited – Fiona Trust Holding Corp and others v Privalov and others ComC 21-May-2007
Allegations were made of different varieties of fraud. Applications were made for freezing orders. . .
Lists of cited by and citing cases may be incomplete.

Agency, Equity

Updated: 08 April 2022; Ref: scu.80712

Computer Associates UK Ltd v The Software Incubator Ltd: CA 19 Mar 2018

Appeal from award following termination of commercial agency, asking whether a licence to use electronically supplied software amounts to the ‘sale of goods’ under the Regulations.

Citations:

[2018] EWCA Civ 518

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993

Jurisdiction:

England and Wales

Agency

Updated: 06 April 2022; Ref: scu.606471

Kaefer Aislamientos Sa De Cv v AMS Drilling Mexico Sa De Cv and Others: CA 17 Jan 2019

Judges:

Davis, Asplin, Green LJJ

Citations:

[2019] EWCA Civ 10, [2019] WLR(D) 23

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – Soleymani v Nifty Gateway Llc ComC 24-Mar-2022
Arbitration jurisdiction applications stayed
The claimant sought declaratory relief as to the basis of a purchase after he placed a bid for a blockchain-based non-fungible token (also known as an NFT) associated with an artwork by the artist known as Beeple titled ‘Abundance’. The court was . .
Lists of cited by and citing cases may be incomplete.

Agency, Transport, Jurisdiction

Updated: 03 April 2022; Ref: scu.632656

UBS Ag (London Branch) and Another v Kommunale Wasserwerke Leipzig Gmbh: CA 16 Oct 2017

The claimant investment bank sought recovery of its loans. The defendant German municipal water company alleged corruption by its financial advisers who were under financial incentives to sell the claimant’s loans.

Judges:

Gloster LJ, Briggs of Westbourne L, Hamblen LJ

Citations:

[2017] EWCA Civ 1567

Links:

Bailii

Jurisdiction:

England and Wales

Banking, Local Government, Agency

Updated: 31 March 2022; Ref: scu.597393

ERGO Poist’Ovna as v Barlikova: ECJ 17 May 2017

Reference for a preliminary ruling – Self-employed commercial agents – Directive 86/653 – Commercial agent’s commission – Article 11 – Partial non-execution of the contract between the third party and the principal – Consequences for the right to commission – Concept of ‘reason for which the principal is to blame’

Citations:

[2017] EUECJ C-48/16, ECLI:EU:C:2017:377, [2017] WLR(D) 337, [2018] Bus LR 41

Links:

Bailii, WLRD

Statutes:

Directive 86/653/EEC 11

Jurisdiction:

European

Citing:

Opinion – ERGO Poist’Ovna as v Barlikova ECJ 12-Jan-2017
(Self-Employed Commercial Agents – Directive 86/653 – Commercial Agenta’s Commission : Opinion) Reference for a preliminary ruling – Self-employed commercial agents – Directive 86/653/EEC – Article 11 – Right to commission – Extinction – Partial . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 30 March 2022; Ref: scu.633460

James Graham v Elizabeth Ker: HL 9 Mar 1758

Negotiorum Gestor – Interdiction.-
Held a party who acted voluntarily, and without any legal authority, for another, in changing the security of money lent, was liable, on failure of the new borrower, notwithstanding the person for whom he acted was of age-was present on the occasion, and consenting to the whole transaction, but was unable to manage his own affairs, from weakness of mind, and was soon thereafter interdicted.

Citations:

[1758] UKHL 2 – Paton – 13

Links:

Bailii

Jurisdiction:

Scotland

Agency

Updated: 29 March 2022; Ref: scu.558247

The Public Guardian v VT: CoP 10 Dec 2014

Application by the Public Guardian for the court to revoke a Lasting Power of Attorney (‘LPA’) for property and financial affairs on the ground that the donee of the power has behaved in a way that contravenes her authority or is not in the donor’s best interests.

Citations:

[2014] EWCOP 52

Links:

Bailii

Jurisdiction:

England and Wales

Health, Agency

Updated: 29 March 2022; Ref: scu.539820

ERGO Poist’Ovna as v Barlikova: ECJ 12 Jan 2017

(Self-Employed Commercial Agents – Directive 86/653 – Commercial Agenta’s Commission : Opinion) Reference for a preliminary ruling – Self-employed commercial agents – Directive 86/653/EEC – Article 11 – Right to commission – Extinction – Partial non-execution of a contract between the third party and the principal – Meaning of ‘reason for which the principal is not to blame’

Citations:

C-48/16, [2017] EUECJ C-48/16 – O, ECLI:EU:C:2017:15

Links:

Bailii

Statutes:

Directive 86/653/EEC 11

Jurisdiction:

European

Cited by:

Opinion – ERGO Poist’Ovna as v Barlikova ECJ 17-May-2017
Reference for a preliminary ruling – Self-employed commercial agents – Directive 86/653 – Commercial agent’s commission – Article 11 – Partial non-execution of the contract between the third party and the principal – Consequences for the right to . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 26 March 2022; Ref: scu.584260

Harris 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, having a commission to buy the office furniture, went down to the sale; on the third day, on which the furniture was advertised for sale, all the lots of furniture were withdrawn. Upon which the plaintiff brought an action against the defendant to recover for his loss of time and expenses. Held, that plaintiff could not maintain the action : for that the advertising the sale was a mere declaration and did not amount to a contract with any one who might act upon it, nor to a warranty that all the articles advertised would be put up for sale.
Blackburn J said: ‘In the case of Warlow v. Harrison, the opinion of the majority of the judges in the Exchequer Chamber appears to have been that an action would lie for not knocking down the lot to the highest bona fide bidder when the sale was advertised as without reserve; in such a case it may be that there is a contract to sell to the highest bidder, and that if the owner bids there is a breach of contract.’
Quain J said: ‘When a sale is advertised as without reserve, and a lot is put up and bid for, there is ground for saying, as was said in Warlow v. Harrison, that a contract is entered into between the auctioneer and the highest bona fide bidder.’

Judges:

Blackburn J, Quain J

Citations:

(1873) LR 8 QB 286, [1873] UKLawRpKQB 34

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .

Cited by:

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

Updated: 25 March 2022; Ref: scu.267741

SAD and Another v SED: CoP 4 Nov 2016

This application raises issues in relation to a Lasting Power of Attorney for property and affairs (an LPA) under which SAD and ACD (the Applicants) were appointed attorneys by their mother, SED (the Respondent).

Judges:

Glentworth DJ

Citations:

[2017] EWCOP 3

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Health

Updated: 24 March 2022; Ref: scu.581700

Messrs Sturrock and Stewart v William Porter, Merchant St Petersburgh, and Alexander Ogilvie, Merchant Leith, His Attorney: HL 27 Mar 1786

Factor – Sale – Notice. – Held, where a foreign merchant was commissioned to purchase flax for a merchant in Dundee, that the former was not liable for the loss of the flax by fire, which he had purchased, though he had not intimated the purchase to his employer; the flax being only part of the quantity ordered, and was put into a store, waiting the arrival of a vessel to take it to Dundee.

Citations:

[1786] UKHL 3 – Paton – 45

Links:

Bailii

Jurisdiction:

Scotland

Agency

Updated: 23 March 2022; Ref: scu.581011

Nitedals 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’

Judges:

Neville J

Citations:

[1906] 2 Ch 671

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .

Cited by:

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

Agency

Updated: 23 March 2022; Ref: scu.282638

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.’

Judges:

Bankes LJ, Atkin LJ

Citations:

[1927] 1 KB 577

Jurisdiction:

England and Wales

Cited by:

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

Agency

Updated: 23 March 2022; Ref: scu.282639

Hippisley 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 triggered the minimum commission and the auctioneers’ bill included that plus the gross cost of the advertisements. In fact the auctioneers had received a discount on this cost. They included the gross sum in the bill in the honest but mistaken belief that there was a custom which entitled them to do this, the point being that if the client had ordered the advertisements directly, no discount would have been given. The bill was paid in full. When, later, the plaintiff discovered that there had been a discount he sued, not only for the amount of the discount, but also for the entire andpound;20 commission.
Held: He succeeded in the first claim but not the second. The defendants were not entitled to charge more thatn they had been called upon to pay, but the discounts were received without fraud, and the recovery of expenses was only ancillary to the main item and purpose of the contract, so the commission itself remained payable.
Kennedy J: ‘With regard to the andpound;20 claim, I agree with my Lord that this is not one of the cases in which it would be just to deprive the agent of his agreed remuneration as well as of his secret profit. I feel it is difficult to lay down any definite rule upon the subject with confidence, but I would venture to suggest the following: that where the agent’s remuneration is to be paid for the performance of several inseparable duties, if the agent is unfaithful in the performance of any one of those duties by reason of his receiving a secret profit in connection with it – and I here use that word ‘unfaithful’ as including a breach of obligation without moral turpitude – it may be that he will forfeit his remuneration, just as in certain cases a captain of a ship might be held in the Admiralty Court to forfeit his wages as a result of misconduct in any branch of his duty as a captain; but where the several duties to be performed are separable, as to my mind they are in the present case, the receipt of a secret profit in connection with one of those duties would not, in the absence of fraud, involve the loss of the remuneration which has been fairly earned in the proper discharge of the other duties. Here the auctioneers were employed for a certain commission to act faithfully as auctioneers. If they had improperly by connivance sold to a purchaser at a lower price than they could fairly have got they would clearly not have been able to recover their commission. There is nothing of this kind in the present case. But by the special terms of their contract they undertook, in addition to their duty as auctioneers, that if the plaintiff would pay them their out of pocket expenses they would truly account to the plaintiff for those expenses. And it seems to me that it would be wrong to say that because the defendants failed in the performance of their duty properly to account for the out of pocket expenses, therefore they are not to have their commission, although they performed all their duty as auctioneers faithfully.’

Judges:

Lord Alverstone CJ, Kennedy J

Citations:

[1905] 1 KB 1, [1905] 1 LJKB 68, [1905] 92 LT 20, [1905] 21 TLR 5, [1905] 49 Sol Jo 15

Jurisdiction:

England and Wales

Cited by:

Cited – Stewart Chartering Ltd v Owners of the ship ‘the Peppy’; Stewart Offshore Services (Jersey) Ltd v Silan Maritime Co and Another AdCt 15-Apr-1997
ComC Admiralty action in rem – dishonest withholding of freight paid – meaning of dishonesty – objective and subjective considerations – reimbursement of commission – Admiralty action in rem – entitlement to . .
Cited – Stubbs 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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 23 March 2022; Ref: scu.282637

Peter Long and Partners v Burns: CA 1956

The estate agency agreement at issue said that commission was payable on the agents ‘introducing a person ready, willing and able to enter into a binding contract to purchase’. The purchaser entered into the contract, but then resiled after discovery of a misrepresentation. The contract was cancelled by agreement between the parties on payment of a sum of money by the purchaser. The estate agents claimed their commission but the vendor refused to pay. The agent failed in their action for breach of contract. That action failed.
Held: In this context, a ‘binding contract’ meant one which was legally enforceable by the vendor against the purchaser. Since the contract had been rendered unenforceable by the vendor as a result of the innocent misrepresentation of the estate agents, no commission was payable. The estate agents argued that the vendor could not take advantage of the misrepresentation made by them to the purchaser since she herself had given the relevant information to the estate agents. Singleton LJ did not agree. The making of such a representation to the purchaser without checking the information given by the vendor bordered on recklessness.
Romer, LJ, said: ‘I have no doubt that the contract which [the purchaser] did sign was not a binding contract within the terms of the commission note. I agree . . that ‘a binding contract’ in this context is the same as a legally binding contract, and that means a contract binding on the purchaser and legally enforceable against the purchaser by the vendor. The contract which [the purchaser] signed was never legally enforceable against her by [the vendor] because of the innocent misrepresentation which was made to her by [the estate agents’ representative]. Moreover, the contract was voidable by [the purchaser], who could rescind it the moment that she discovered what the true facts were. Accordingly, it appears to me impossible to say that it was a binding contract within the meaning of that phrase as used in the commission note.
A voidable contract, when rescinded, is avoided ab initio.’
Morris LJ said: ‘The Plaintiffs further submit there was an estoppel. They plead as follows in paragraph 3 of the reply: ‘If it is found that the said contract was not binding on [the purchaser] [the estate agents] will further say that [the vendor] having innocently misled [the estate agents’ representative] who upon [the vendor’s] said instructions innocently misled [the purchaser], [the vendor] is estopped from setting up her own misrepresentation, resulting in the rescission of her contract with [the purchaser], to defeat [the estate agents’] claim for commission.’ But, in my judgment, this is not a case where the doctrine of estoppel can be relied upon. There was nothing to prevent [the purchaser] from proving that there had been an innocent misrepresentation and so from resiling from the contract. Upon proof that [the purchaser] did disaffirm the contract it was shown there had been no binding contract and so that commission had not been earned. There is no evidence, for no oral evidence was called, that had Mrs Pritchard known the true facts as to the road widening she might have purchased at a lower figure and so enabled [the estate agents] to earn some commission. There was no evidence to that effect.
What, then, is the legal basis of [the estate agents’] complaint? [The estate agents] may say that they wasted some time because they had some dealing with [the purchaser] which led to an abortive contract. But there is no claim against [the vendor] on that basis; nor do I see there could be. [The vendor] made no fraudulent misrepresentation to [the estate agents], and no sort of suggestion of that kind is or could be made. [The estate agents] do not suggest that [the vendor] gave any warranty to them of the truth of the representation which she made.’

Judges:

Romer LJ, Singleton LJ, Morris LJ

Citations:

[1956] 1 WLR 1083

Jurisdiction:

England and Wales

Cited by:

Cited – John 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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 23 March 2022; Ref: scu.263806