Category: Commercial

Motis Exports Ltd v Dampskibsselskabet Af 1912 Akleselskab (‘the Motis): CA 20 Jan 2000

Shippers were liable under a bill of lading. The goods had been obtained from them fraudulently by means of forged bills of lading. They claimed under an exemption clause in the contract, but the claim failed since the exclusions from liability for loss or damage whilst in their possession before loading or after discharge, did not excuse them for what was a deliberate if mistaken act. Under a bill of lading contract a shipowner is both entitled and bound to deliver the goods against production of an original bill of lading, provided he has no notice of any other claim or better title to the goods.

Judges:

Stuart-Smith LJ

Citations:

Times 26-Jan-2000, Gazette 20-Jan-2000, [2000] 1 Lloyds Rep 211 (CA, [2000] 1 All ER (Comm) 91

Jurisdiction:

England and Wales

Citing:

Appeal from – Motis Exports Ltd v Dampskibsselskabet Af 1912, Aktieselskab and Another ComC 1-Mar-1999
Where goods were supposed only to be handed over by a shipper on receipt of a valid bill of lading, but were instead handed over for fraudulent bill, the shipper remained liable to the owners.
ComC . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract, Commercial

Updated: 11 May 2022; Ref: scu.83876

Bouygues (Uk) Ltd v Dahl-Jensen (Uk) Ltd (In Liquidation): CA 17 Aug 2000

When the decision of an adjudicator was challenged, the court should ask whether the adjudicator had either asked the right question but in the wrong way, or whether he had even answered the wrong question. The procedure was intended to provide a quick and summary disposal, but that procedure might not be appropriate in cases involving insolvency of one party and or cross claims. Any creditor who owes a debt to an insolvent company, no matter how long overdue, may set off that debt in full against his own claim in the liquidation.

Judges:

Chadwick LJ

Citations:

Times 17-Aug-2000, Gazette 14-Sep-2000, [2000] BLR 522

Statutes:

Housing Grants Construction and Regeneration Act 1996 108

Jurisdiction:

England and Wales

Citing:

Appeal from – Bouygues UK Limited v Dahl-Jensen UK Limited TCC 17-Dec-1999
An arbitrator had made an award, the consequence of which, it was claimed, would lead to a retention being released before it was actually due. It was claimed that this part of the award was outside the adjudicator’s jurisdiction.
Held: . .

Cited by:

Cited – Carillion Construction Ltd v Devonport Royal Dockyard Ltd CA 16-Nov-2005
The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
Held: The dispute was complex and . .
Cited – Carillion Construction Ltd v Devonport Royal Dockyard TCC 26-Apr-2005
Application for leave to appeal against arbitrator’s award in construction dispute.
Held: The appeal was declined. . .
Cited – Melville Dundas Ltd and others v George Wimpey UK Ltd and others HL 25-Apr-2007
The appellant sought an interim payment for works of construction undertaken for the respondents under a JCT contract. The respondents contended that, having terminated the contract on their receivership, the contract and Act meant that the interim . .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration, Commercial, Insolvency

Updated: 10 May 2022; Ref: scu.78510

Scandlines Svergie AB v Port of Helsingborg Case: 2000

(Year?) The Commission dismissed a complaint by a ferry company of excessive and discriminatory port charges by the port operator. The Commission said that, in calculating the production costs, it was necessary to take account not only of the costs actually incurred by the port in providing its services, but also additional costs and other factors which were not reflected in the audited profits and losses, such as high sunk costs, and the benefits to customers conferred by the particular location of the port.

Citations:

COMP/A.36.568.D3

Cited by:

Cited – Attheraces Ltd and Another v British Horse Racing Board and Another ChD 21-Dec-2005
The claimants relayed horse racing events to bookmakers. The respondents collected data about the races and horses. The claimants sought the freedom to use that data, and the defendants asserted a database right to control such use.
Held: BHB . .
Lists of cited by and citing cases may be incomplete.

European, Commercial

Updated: 10 May 2022; Ref: scu.236660

NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading: CAT 10 Jul 2001

Judgment on application to extend time for service of defence.

Judges:

Bellamy QC

Citations:

1001/1/1/01, [2001] CAT 2

Links:

CAT

Jurisdiction:

England and Wales

Citing:

See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 22-May-2001
Judgment on request for interim relief.
In principle, prices are excessive if they ‘are higher than would be expected in a competitive market’ and ‘there is no effective competitive pressure to bring them down to competitive levels, nor is . .

Cited by:

See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 8-Aug-2001
Judgment on application to disallow parts of the defence. . .
See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 16-Jan-2002
. .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 6-Feb-2002
Judgment on interest and costs. . .
See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 26-Mar-2002
Judgment regarding reasons for refusing permission to appeal – dismissed with costs. . .
See Also – Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading CA 8-May-2002
The applicant sought leave to appeal against a decision of the Competition Commission Appeals Tribunal.
Held: Since the decision of the tribunal did not involve questions of law, it fell exactly within the Cooke case, and the court should be . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 09 May 2022; Ref: scu.222106

NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading: CAT 8 Aug 2001

Judgment on application to disallow parts of the defence.

Citations:

1001/1/1/01, [2001] CAT 3

Links:

CAT

Jurisdiction:

England and Wales

Citing:

See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 22-May-2001
Judgment on request for interim relief.
In principle, prices are excessive if they ‘are higher than would be expected in a competitive market’ and ‘there is no effective competitive pressure to bring them down to competitive levels, nor is . .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 10-Jul-2001
Judgment on application to extend time for service of defence. . .

Cited by:

See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 16-Jan-2002
. .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 6-Feb-2002
Judgment on interest and costs. . .
See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 26-Mar-2002
Judgment regarding reasons for refusing permission to appeal – dismissed with costs. . .
See Also – Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading CA 8-May-2002
The applicant sought leave to appeal against a decision of the Competition Commission Appeals Tribunal.
Held: Since the decision of the tribunal did not involve questions of law, it fell exactly within the Cooke case, and the court should be . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 09 May 2022; Ref: scu.222107

Marchant and Eliot Underwriting Ltd v Dr Higgins: ComC 24 Oct 1995

cw European Union – competition – Lloyd’s – article 85(1) – RSC Order 14 – cash call on underwriters – unlawful attempt to enforce anti-competitive object of Central Fund – Agency Agreement Bye-law – standard terms – per se illegality – complex agreement – anti-competitive object – incidental restrictions on competition -effect on inter-Member State trade

Judges:

Rix J

Citations:

[1996] 1 Lloyd’s Rep 313, [1996] CLC 301, [1996] 3 C M L R 313, [1997] E C C 11, Lloyd’s List January 10 1996 (I D )

Citing:

Appealed to – Marchant and Eliot Underwriting Ltd v Higgins CA 12-Jan-1996
‘Pay now sue later’ clauses in agency contracts is not breach of EU treaty. . .

Cited by:

Appeal from – Marchant and Eliot Underwriting Ltd v Higgins CA 12-Jan-1996
‘Pay now sue later’ clauses in agency contracts is not breach of EU treaty. . .
Lists of cited by and citing cases may be incomplete.

European, Commercial

Updated: 08 May 2022; Ref: scu.183293

Gardano and Giampieri v Greek Petroleum George Mamidakis and Co: 1961

The shipment was made under a candf sale contract, a straight bill of lading, pursuant to a charterparty between the defendant and the claimant shipowner, Gardano. The bill named the Greek Ministry as consignee. The shipowner argued, relying on the 1855 Act that the shipper had lost its title to sue by the transfer of the bill of lading to the consignee.
Held: That argument failed. The section did not operate where property had passed under the express terms of the sale contract not on or by reason of the consignment but ex the loading installation. In an ordinary contract of sale in the traditional c.i.f or c. and f. form, the seller discharges his obligations as regards delivery by tendering a bill of lading covering the goods. The contract is one which, though not a sale, is a sale of goods performed by delivery of documents, and the property passes when the documents are taken up.

Judges:

McNair J

Citations:

[1961] 2 Lloyds Rep 259

Statutes:

Bills of Lading Act 1855 1

Cited by:

Cited – J I MacWilliam Co Inc v Mediterranean Shipping Company S A, ‘The Rafaela S’ CA 16-Apr-2003
Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A . .
Lists of cited by and citing cases may be incomplete.

Transport, Commercial, Contract

Updated: 08 May 2022; Ref: scu.181890

Solo Industries UK Ltd v Canara Bank: CA 3 Jul 2001

The claimant sought payment under a guarantee issued by the bank. The bank refused to honour the bond, arguing that it had been obtained by some fraud. The claimant was refused summary judgment on the basis that since the defence went to the validity of the bond, arguments about it being similar to a cheque or other promissory note were not effective.
Held: The appeal failed. There was no basis for seeking to extend the principal that such instruments were to be treated like cash to situations where the underlying validity of the bond was being challenged. The bank had a real prospect of establishing its defence, and summary judgment was properly refused.

Judges:

Potter LJ, Mance LJ, Nourse

Citations:

Gazette 19-Jul-2001, Times 31-Jul-2001

Jurisdiction:

England and Wales

Banking, Commercial

Updated: 08 May 2022; Ref: scu.89394

Shansal v Al-Kishtaini: CA 8 Mar 2001

The restrictions imposed on trading with residents of Iraq continued to apply even if the person involved left Iraq. A simple change of address could not be allowed to be used to circumvent important international provisions. Provisions existed for assessing such residence. Even so, surprising effects might follow. In this case, the former resident would not be allowed to enforce what was an illegal contract. A claimant could not recover where to do so he would have to rely upon his own illegal act. This fell within the exemption allowed under human rights law as being in the public interest and subject to law.

Citations:

Times 08-Mar-2001

Statutes:

Control of Gold, Securities, Payments and Credits (Republic of Iraq) Directions 1990 (1990 No 1616), Human Rights Act 1998

Jurisdiction:

England and Wales

International, Commercial, Human Rights

Updated: 08 May 2022; Ref: scu.89190

Shansal v Al-Kishtaini: CA 26 Apr 2001

The restrictions imposed on trading with residents of Iraq continued to apply even if the person involved left Iraq. A simple change of address could not be allowed to be used to circumvent important international provisions. Provisions existed for assessing such residence. Even so, surprising effects might follow. In this case, the former resident would not be allowed to enforce what was an illegal contract. A claimant could not recover where to do so he would have to rely upon his own illegal act. This fell within the exemption allowed under human rights law as being in the public interest and subject to law.

Citations:

Gazette 26-Apr-2001

Statutes:

Control of Gold, Securities, Payments and Credits (Republic of Iraq) Directions 1990 (1990 No 1616), Human Rights Act 1998

Jurisdiction:

England and Wales

International, Commercial, Human Rights

Updated: 08 May 2022; Ref: scu.89191

Butler v Evans: 1980

The question of the ownership of goodwill in a company is a question of fact.

Citations:

[1980] STC 613

Jurisdiction:

England and Wales

Cited by:

Cited – Condliffe and Another v Sheingold CA 31-Oct-2007
The defendant had taken an assignment of the goodwill of a restaurant from the company of which she was a director. The plaintiffs as assignees of any claims of the company, now in liquidation, said that she was liable to account to them for the . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 07 May 2022; Ref: scu.260190

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

Jones v North: 1875

Four parties were invited to tender for the supply of stone to a public authority. They agreed that one would buy stone from the others and submit the lowest tender, two parties were to submit a higher tender and the fourth party was to submit no tender. The defendants, in breach of the agreement, submitted a tender, which was accepted, and the party which was to supply under the agreement brought proceedings to restrain performance by the party which had broken ranks.
Held: The action succeeded.
Bacon V-C considered the plaintiff’s case as ‘very honest’. It was submitted that the plaintiff could not obtain equitable relief since the arrangement was a device to compel the authority, under the fiction of a public competition, to accept tenders not representing the real market price of the commodity, but this submission the vice-chancellor rejected, finding the agreement to be ‘perfectly lawful’, to contain ‘nothing illegal’, and not deserving to be characterised as a conspiracy.

Judges:

Bacon V-C

Citations:

(1888) 21 QBD 544

Cited by:

Cited – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Lists of cited by and citing cases may be incomplete.

Commercial, Contract

Updated: 05 May 2022; Ref: scu.270733

Industrie des poudres spheriques v Council: ECJ 3 Oct 2000

ECJ Appeal – Anti-dumping – Regulation (EEC) No 2423/88 – Calcium metal – Admissibility – Re-opening of an anti-dumping procedure after annulment of the regulation adopting an anti-dumping duty – Right to a fair hearing

Citations:

C-458/98, [2000] EUECJ C-458/98P

Links:

Bailii

Statutes:

Regulation (EEC) No 2423/88

Jurisdiction:

European

Commercial

Updated: 04 May 2022; Ref: scu.162568

The Case of The Tailors and Co of Ipswich: 1572

Resolved, 1. At common law tio man could be prohibited from working at any lawful trade. 3. The Corporation of the Tailors of Ipswich cannot by any ordinance make by them prohibit any one from exercising his trade, till he has presented himself before them, or till they allow him to be a workman, 3. The Act 5 ELiz. 4. Forbids not the private exercise of a trade in the house of any for the use uf the family. 4. The stat. 19 H. 7. 7. leaves the ordinances of corporations allowed etc According to that Act, to be affirmed as good or clisattirmecl as unlawful, by the law ; but exempte the corporation from the penalty of 40l. for puttiug in use any unlawful ordinances, which are allowed and approved as the statute speaks.

Citations:

[1572] EngR 418, (1572-1616) 11 Co Rep 53, (1572) 77 ER 1218

Links:

Commonlii

Jurisdiction:

England and Wales

Commercial

Updated: 02 May 2022; Ref: scu.432384

Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd: 1989

(Australia) The operation of section 46 of the 1974 Act, is predicated on the assumption that competition is a means to the end of protecting the interests of consumers: ‘Competition by its very nature is deliberate and ruthless. Competitors jockey for sales, the more effective competitors injuring the less effective by taking sales away. Competitors almost always try to ‘injure’ each other in this way. This competition has never been a tort (see Keeble v Hickeringill (1809) 11 East 574) and these injuries are the inevitable consequence of the competition section 46 is designed to foster. In fact, the purpose provisions in section 46(1) are cast in such a way as to prohibit conduct designed to threaten that competition – for example, section 46(1)(c) prohibits a firm with a substantial degree of market power from using that power to deter or prevent a rival from competing in a market. The question is simply whether a firm with a substantial degree of market power has used that power for a purpose proscribed in the section, thereby undermining competition, and the addition of a hostile intent inquiry would be superfluous and confusing.’

Judges:

Mason CJ and Wilson J

Citations:

(1989) 167 CLR 177

Statutes:

Trade Practices Act 1974 46 (Australia)

Cited by:

Cited – Carter Holt Harvey Building Products Group Ltd v The Commerce Commission PC 14-Jul-2004
(New Zealand) The company had been found guilty under the Act of abusing its dominant position. The appeal was restricted to whether the dominant position was being used in the way suggested. Would the company have introduced its price cuts if it . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Commercial

Updated: 30 April 2022; Ref: scu.199228

Stadium Finance Ltd v Robbins: 1962

A motor car was goods for the purposes of the Act. The word ‘goods’ in the section does not appear to have anything other than the ordinary meaning, there is no reason why (a motor car) does not come within the definition ‘goods’. The word ‘goods’ must include all chattels of which physical possession is possible, notwithstanding that they are not easily moveable.

Judges:

Ormerod LJ, Danckwerts LJ

Citations:

[1962] 2 QB 664

Statutes:

Factors Act 1889

Jurisdiction:

England and Wales

Cited by:

Cited – Spring House (Freehold) Ltd v Mount Cook Land Ltd CA 12-Dec-2001
A lease provided against the tenant leaving his goods outside the premises, and the landlords objected to motor vehicles being parked there.
Held: The words had to be interpreted in the light of the intentions of the parties at the time. Motor . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 29 April 2022; Ref: scu.184140

Courage Ltd and Crehan v Crehan and Courage Ltd and Others: ECJ 20 Sep 2001

The company had leased a public house to the respondent. The lease was subject to a tie, under which the respondent had to purchase supplies from the company. The company came to sue for the price of beer supplied. The respondent asserted that the tie agreement was unlawful, because the company sold beer to non-tied houses at lower prices, and so was anti-competitive. He also claimed damages.
Held: The agreement was automatically void under the article which embodies a fundamental principle of EU law. Nevertheless it was for each member state to put in place laws which dealt with the consequences of such illegality on the parties. The English law preventing a party to a an illegal agreement relying upon it where it was established that that party bore significant responsibility for the distortion of competition. ‘It follows that this court must rule in the abstract on a situation where a breach of article 81 EC has caused loss to one of the parties to the agreement. The question whether this abstract situation corresponds to the facts in the case is a question to be decided later by the referring court and does not concern this court.’
‘The full effectiveness of article 85 of the Treaty and, in particular, the practical effect of the prohibition laid down in article 85(1) would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition.’ and ‘However, in the absence of Community rules governing the matter, it is for the domestic legal system of each member state to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from Community law, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness).’

Judges:

GC Rodriguez Iglesias, President and Judges C. Gulmann, M. Wathelet, V. Skouris, D. A. O. Edward, P. Jann, L. Sevon, F. Macken, N. Colneric, J. N. Cunha Rodrigues and C. W. A. Timmermans Advocate General J. Mischo

Citations:

Times 04-Oct-2001, C-453/99, [2002] QB 507, [2001] EUECJ C-453/99, [2001] 5 CMLR 28, [2002] ICR 457, [2001] ECR I-6297, , [2001] 3 WLR 1646, [2001] All ER (EC) 886, [2002] UKCLR 171, [2001] CEC 297, [2001] ECR I-6314

Links:

Bailii

Statutes:

EC Treaty 81

Jurisdiction:

European

Citing:

Appeal from – Courage Ltd v Crehan; The Inntrepreneur Beer Supply Co Ltd v Byrne; Same v Langton; Greenalls Management Ltd v Smith; Walker Cain Ltd v McCaughey CA 14-Jun-1999
There is not to be read into a beer tie term any implied provision that the beer to be supplied under the term was to be supplied at any kind of advantageous price. A tenant seeking damages for failure to supply under such a term was not entitled to . .
Remitted to – Crehan v Inntrepreneur Pub Company (Cpc), Brewman Group Limited ChD 26-Jun-2003
The landlord had signed agreements tieing him to sales of beers. After falling into debt, he challnged the prices he had been obliged to pay as contravening the Treaty. The European Court had held that there was a possible claim under the Treaty. . .
Cited – S A Brasserie de Haecht v Consorts Wilkin-Janssen ECJ 12-Dec-1967
ECJ 1. Policy of the EEC- competition – agreements between undertakings – prohibition in article 85(1) – consideration of the economic and legal context 2. Policy of the EEC – competition – agreements which may . .
Cited – Stergios Delimitis v Henninger Brau AG ECJ 28-Feb-1991
ECJ A beer supply agreement is prohibited by Article 85(1) of the EEC Treaty if two cumulative conditions are met. The first is that, having regard to the economic and legal context of the agreement at issue, it . .
See Also – Courage Limited v Crehan ChD 25-Nov-1998
. .
See Also – Crehan v Courage Limited and Byrne and Inntrepreneur Beer Supply Co Ltd and Langton v Inntrepreneur Beer Supply Co Ltd CA 27-May-1999
The court considered the validity of beer ties affecting public houses. . .

Cited by:

Remitted from – Crehan v Inntrepreneur Pub Company (Cpc), Brewman Group Limited ChD 26-Jun-2003
The landlord had signed agreements tieing him to sales of beers. After falling into debt, he challnged the prices he had been obliged to pay as contravening the Treaty. The European Court had held that there was a possible claim under the Treaty. . .
At ECJ – Inntrepreneur Pub Company (CPC) and others v Crehan HL 19-Jul-2006
The tenant had taken on pub leases with ties requiring him to buy beer from companies associated with the landlords. The European Commission had issued a decision and the House was asked whether this was binding on the parties.
Held: . .
At ECJ – Crehan v Inntrepreneur Pub Company (CPC) CA 21-May-2004
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .
Cited – Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .
Cited – Oracle America Inc v M-Tech Data Ltd SC 27-Jun-2012
The appellant complained that the respondent had imported into the European Economic Area disk drives bearing its trade marks in breach of the appellant’s rights. The respondent had argued that the appellant had abused its position by withholding . .
Cited – Emerald Supplies Ltd and Others v British Airways Plc ChD 4-Oct-2017
EC has sole jurisdiction over old cartels
Several claimants alleged that the defendant airway had been part of a cartel which had overcharged for freight services. The court now heard arguments about whether it had jurisdition to deal with claims which preceded the measures which had . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Contract, Commercial

Updated: 29 April 2022; Ref: scu.166211

Gibbs Mew Plc v Gemmell and Gibbs Mew Plc and Centric Pub Company Ltd v Gemmell: CA 22 Jul 1998

The brewery sought possession of a public house, tied by type. The lessee claimed damages for breach of Art. 81 and a declaration that the Block Exemption was inapplicable to his lease. His appeal from the judge’s order in favour of the brewery was dismissed. The Court agreed with the majority in Greenalls. ‘There is no express requirement in [the Block Exemption] that the specification required must be by brand or denomination. Article 7 (1) (a) refers to beers supplied under the agreement as of a type; the tenant may be precluded from selling beers of that type supplied by other undertakings. Thus, the comparison between the agreement beers and those which he may not sell is by reference to the type of beer. The same comparison is apparent in Article 7 (1) (b), and there appears to be an assumption that the agreement will identify beers by type. Article 7 (2) defining drinks of the same type by reference to ‘their composition appearance and taste’, is consistent with the interpretation of Gibbs Mew. Article 8 (2) (b) requires the tenant to have the right to obtain from other undertakings non-beer drinks ‘of the same type’ as those supplied under the agreement but which bear different trademarks. ‘Type’ there cannot mean brand or denomination. The regulation, in short, does not point to the specification having to be by brand or denomination but is consistent with it having to be by type. The present case differs from Delimitis in that in the lease itself are specified the types of beer and other drinks. The landlord cannot unilaterally enlarge the scope of the tie beyond those types. The landlord can change the brands or denominations on the price list, but unless it has freedom to do that, no brand or denomination could be added to or removed from the price list without a variation of the lease itself, requiring the tenants consent. That consideration seems to me to add practical force to the considerations based on the language of [the Block Exemption] which persuaded the majority in the Greenalls case.’ Though the tenant had had the benefit of protection under the 1954 Act, by hus conduct he had surrenedered his tenancy and taken an unprotected tenancy at will.

Judges:

Peter Gibson LJ, Mantell LJ, Schiemann LJ

Citations:

[1998] EWCA Civ 1262, [1998] EuLR 588, [1999] 1 EGLR 43

Jurisdiction:

England and Wales

Citing:

Applied – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – Greenalls Management Limited v Canavan CA 30-Jul-1997
A lease of a pub contained a term by which the parties purported to agree that the Block Exemption applied. The claimants sought to enforce its beer tie which was by type. The lessee contended among other things that the tie was not within the . .

Cited by:

Cited – Crehan v Inntrepreneur Pub Company (CPC) CA 21-May-2004
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .
Cited – Parks v Esso Petroleum Company Limited CA 23-Jul-1999
The claimant sought to add a claim under the regulations for compensation after termination of his agency for the defendants. The lower court had rejected his claim saying that the petrol products he sold were at a price fixed by Esso, and that . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Commercial, European, Landlord and Tenant

Updated: 29 April 2022; Ref: scu.144741

Commission of the European Communities (supported by United Kingdom, intervener) v French Republic: ECJ 13 Dec 2001

Europe had banned the export of beef from England to prevent the sale of BSE infected meat. The ban was lifted under strict conditions set under Community veterinary advice. The French Republic retained their ban, and continued it despite instruction from the Commission to lift it, saying that their own national Food Safety Agency said there were still unresolved questions, regarding the traceability of certain product. Those concerns remained apposite as to some pre-packed products, but as to the rest the complaint was upheld.

Judges:

CJ Rodriguez Iglesias, P and Judges P Jann, F Macken, N. Colneric, S. von Bahr, C. Gulmann, DAO Edward, A. La Pergola, J-P Puissochet, L Sevon, M Wathelet, R Schintgen and V Skouris Advocate General J Mischo

Citations:

Times 19-Dec-2001, Case C-1/00

Jurisdiction:

European

Agriculture, European, Commercial

Updated: 28 April 2022; Ref: scu.167073

Geraets-Smits v Stichting Ziekenfonds VGZ Peerbooms v Stichting CZ Groep Zorgverzekeringen: ECJ 12 Jul 2001

Where a member of a sickness scheme sought treatment in another member state, it was proper to require prior authorisation, but any conditions imposed had to be justifiable and proportionate. In this case the scheme required the recognition of the treatment sought, and that immediate treatment in the country was not available. Hospital services were capable of constituting economic activity, and were accordingly required to be free of restraint by Community law. Re-imbursement by a member state’s sickness benefits scheme did not take it out of the scope of Article 60. The additional restrictions were valid only in so far as they required that the treatment be tried and tested, or that equivalent treatment was available locally without undue delay.

Judges:

GC Rodriguez Iglesias, President and Judges C. Gulmann, A. La Pergola, M. Wathelet, V. Skouris, D. A. O. Edward, J.-P. Puissochet, P.
Jann, L. Sevon, R. Schintgen and F. Macken Advocate General D. Ruiz-Jarabo Colomer

Citations:

Times 03-Sep-2001, Case C-157/99

Statutes:

EC Treaty Article 60 234

Jurisdiction:

European

Cited by:

Applied – Watts, Regina (on the Application of) v Bedford Primary Care Trust and others Admn 1-Oct-2003
The claimant sought hip-replacement treatment. She was first told that she would have to wait a year. As her lawyers pressed the respondent, she looked at obtaining treatment in France. As she decided to take the treatment, the respondent reduced . .
Lists of cited by and citing cases may be incomplete.

Health, Benefits, Commercial

Updated: 28 April 2022; Ref: scu.162937

Verein Fur Lauteren Wettbewerb eV v Princesport GmbH: ECJ 5 Jul 2018

Approximation of Laws – Textile Fibre Names and Related Labelling and Marking Requirements – Judgment – Reference for a preliminary ruling – Textile fibre names and related labelling and marking requirements – Regulation (EU) No 1007/2011 – Articles 7 and 9 – Pure textile products – Multi-fibre textile products – Labelling or marking methods

Citations:

C-339/17, [2018] EUECJ C-339/17, ECLI:EU:C:2018:539

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 25 April 2022; Ref: scu.620053

Apple Sales International and Others v MJA, as liquidator of eBizcuss.com: ECJ 5 Jul 2018

Area of Freedom, Security and Justice – Opinion
Reference for a preliminary ruling – Area of ??freedom, security and justice – Jurisdiction in civil and commercial matters – Article 23 of Regulation (EC) No 44/2001 – Jurisdiction clause in a distribution agreement – Distributor action for damages founded on the infringement of Article 102 TFEU by the supplier

Citations:

ECLI:EU:C:2018:541, [2018] EUECJ C-595/17 – O

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 25 April 2022; Ref: scu.619998

Sainsbury’s Supermarkets Ltd v Mastercard Incorporated and Others: CA 4 Jul 2018

‘The central question in these three appeals is whether the setting of default multilateral interchange fees (‘MIFs’) within the MasterCard and Visa payment card systems contravenes article 101 of the Treaty on the Functioning of the European Union 2012/C326/01 (the ‘TFEU’).[1] Article 101(1) provides that agreements between undertakings which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market are prohibited as incompatible with the internal market of the European Union. Section 2 of the Competition Act 1998 (the ‘1998 Act’) makes the same provision in relation to agreements which may affect trade within the United Kingdom, and which prevent, restrict or distort competition within the United Kingdom.’
Held: The Court allowed the merchants’ appeals on the article 101(1) issue. The court will make appropriate declarations in each of the three cases to the effect that the agreements are restrictive of competition infringing article 101(1). The cases were remitted for indeividual reconsideration.

Judges:

Sir Terence Ttherton MR, Sir Geoffrey Vos Ch, Flaux LJ

Citations:

[2018] EWCA Civ 1536

Links:

Bailii, Press Summary

Jurisdiction:

England and Wales

European, Commercial

Updated: 24 April 2022; Ref: scu.618972

Unlockd Ltd and Others v Google Ireland Ltd and Others: ChD 25 May 2018

The claimant app developer sought leave to serve the dependant group of companies out of the jurisdiction so as to pursue its claim for breach of EU anti-competition law in withdrawing the app from its Google Play store.
Held: Leave to serve was granted.

Judges:

Roth J

Citations:

[2018] EWHC 1363 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Commercial

Updated: 24 April 2022; Ref: scu.618784

Ceske Drahy v Commission T-325/16: ECFI 20 Jun 2018

(Competition – Judgment) Competition – Administrative procedure – Decision ordering an inspection – Proportionality – Absence of arbitrary character – Obligation to state reasons – Significantly serious evidence – Legal certainty – Legitimate expectations – Right to respect for private life – Rights of the defense

Citations:

ECLI:EU:T:2018:368, [2018] EUECJ T-325/16

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 24 April 2022; Ref: scu.618749

Ceske Drahy v Commission T-621/16: ECFI 20 Jun 2018

Competition – Administrative procedure – Decision ordering an inspection – Inspection ordered on the basis of information from another inspection – Proportionality – Obligation to state reasons – Right to respect for private life – Rights of the defense

Citations:

[2018] EUECJ T-621/16, ECLI:EU:T:2018:367

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 24 April 2022; Ref: scu.618750

Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others: ChD 19 Oct 2007

The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach of statutory duty the court can in appropriate circumstances make a restitutionary award, that is, a sum of money assessed by reference to the gain which the wrongdoer has made as a result of the wrong, in place of compensatory damages, that is, damages which compensate the claimant for loss suffered as a result of the wrongdoing. However there were Community rules precluding the award of exemplary damages on the facts of this case.

Judges:

Lewison J

Citations:

[2007] EWHC 2394 (Ch), [2008] 2 WLR 637, [2008] 2 All ER 249

Links:

Bailii

Statutes:

EC Treaty 81

Jurisdiction:

England and Wales

Citing:

Cited – Courage Ltd and Crehan v Crehan and Courage Ltd and Others ECJ 20-Sep-2001
The company had leased a public house to the respondent. The lease was subject to a tie, under which the respondent had to purchase supplies from the company. The company came to sue for the price of beer supplied. The respondent asserted that the . .
Cited – Garden Cottage Foods Ltd v Milk Marketing Board HL 1984
In English law a breach of statutory duty, is actionable as such by a private individual to whom loss or damage is caused by a breach of that duty. Lord Diplock said that it was quite unarguable: ‘that if such a contravention of Article 86 gives . .
Cited – Sempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
Cited – The Owners of the Steamship Mediana v The Owners, Master and Crew of the Lightship Comet HL 1900
A lightship was damaged by negligence. The plaintiff harbour board kept a ship ready for emergencies, and consequently the damaged ship was replaced with the spare while she was being repaired. The question was whether the claimant could recover . .
Cited – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
Cited – Watson Laidlaw and Co Ltd v Pott Cassells and Williamson 1914
Damages were claimed for the infringement of a patent. The defender had sold 252 infringing machines sold in Java. The Lord Ordinary had given an unexplained award of andpound;1,500, which the Inner House had doubled. The defendant appealed saying . .
Cited – Catnic Components Ltd and Another v Hill and Smith Ltd HL 1982
The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The patent was for a novel type of galvanised steel lintel, which . .
Cited – Gerber Garment Technology Inc v Lectra Systems Ltd ChD 30-Jan-1995
A prior art recital in a Patent application is strong but rebuttable evidence of the state of knowledge. . .
Cited – Gerber Garment Technology Inc v Lectra Systems Limited Lectra Systemes SA CA 18-Dec-1996
The plaintiffs claimed damages for patent infringement. Some of the lost profits for which the plaintiff company claimed damages were suffered by subsidiary companies in which it held all the shares.
Held: When a shareholder has a cause of . .
Cited – Blayney (T/A Aardvark Jewelry) v Clogau St David’s Gold Mines Ltd and others CA 16-Jul-2002
. .
Cited – Ratcliffe v Evans CA 28-May-1892
The plaintiff was an engineer and boiler-maker. He alleged that a statement in the local newspaper that he had ceased business had caused him loss. The evidence that was given at trial consisted of general evidence of a downturn in trade; but the . .
Cited – Elliniki Radiophonia Tileorass-AE v Plisofatissis and Kouvelas ECJ 18-Jun-1991
ellinikiECJ1991
National measures adopted in order to give effect to Community rights must themselves comply with the fundamental principles of Community law: ‘With regard to Article 10 of the European Convention on Human Rights, referred to in the ninth and tenth . .
Cited – Regina v Intervention Board for Agricultural Produce, ex parte First City Trading and others ECJ 29-Sep-1998
ECJ Reference for a preliminary ruling: High Court of Justice, Queen’s Bench Division – United Kingdom. Agriculture – Common organisation of the markets – Beef – Export refunds -Beef of British origin repatriated . .
Cited – Manfredi v Lloyd Adriatico Assicurazioni SpA; Antonio Cannito v Fondiaria Sai SpA, Nicolo Tricarico; Pasqualina Murgolo v Assitalia SpA C-295/04 ECJ 13-Jul-2006
ECJ Article 81 EC- Competition – Agreements, decisions and concerted practices – Accidents caused by motor vehicles, vessels and mopeds – Compulsory civil liability insurance – Increase in premiums – Effect on . .
Cited – Archer Daniels Midland and Another v Commission (Competition) ECJ 18-May-2006
ECJ Appeals – Competition – Cartels – Synthetic lysine market – Fines – Guidelines on the method of setting fines – Non-retroactivity – Non bis in idem principle – Equal treatment – Turnover which may be taken . .
Cited – AB v South West Water Services Ltd CA 1993
Exemplary and aggravated damages were claimed in an action for nuisance arising out of the contamination of water by the defendant utility.
Held: Sir Thomas Bingham MR said: ‘A defendant accused of crime may ordinarily be ordered (if . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Cited – Borders (UK) Ltd and others v Commissioner of Police of the Metropolis and Another CA 3-Mar-2005
The second defendant had received large numbers of stolen books and sold them from his stall. An application for compensation was made at his trial. Compensatory and exemplary damages were sought, but the court had to consider how to estimate the . .
Cited – Kuddus v Chief Constable of Leicestershire Constabulary HL 7-Jun-2001
There is no rule of law preventing the award of exemplary damages against police officers. The fact that no case of misfeasance in public office had led to such awards before 1964, did not prevent such an award now. Although damages are generally . .
Cited – Archer v Brown 1984
The defendant sold shares in his company to the plaintiff. He had however already sold them elsewhere. The plaintiff sought both rescission and damages. The defendant argued that he could not be entitled to both.
Held: The misrepresentation . .
Cited – Severn Trent Water Ltd v Barnes CA 13-May-2004
The water company appealed an award of damages after it had been found to have laid a water main under the claimant’s land without his knowledge or consent. The court had awarded restitutionary damages.
Held: The judge fell into error in . .
Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Cited – Esso Petroleum Co Ltd v Niad Ltd ChD 2001
Esso had entered into a solus agreement with Naid covering one filling station. Esso introduced a marketing scheme called ‘Pricewatch’ under which it made financial support available to its dealers in return for their selling petrol at recommended . .
Cited – Experience Hendrix LLC v PPX Enterprises Inc and Another CA 20-Mar-2003
The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form . .
Cited – Stoke-on-Trent City Council v W and J Wass Ltd CA 1988
The council had operated open markets on its land under statutory authority. In breach of the statute, the defendant operated a market on a different day, but within the excluded area. This was a nuisance actionable on proof of damage. The council . .
Cited – Halifax Building Society v Thomas and Another CA 29-Jun-1995
Defrauded Mortgagee cannot take surplus on sale
A Building Society cannot keep any excess proceeds of sale of a house mortgaged to it by fraud. Policy was against unjust enrichment and will not allow a lender to take a profit from a fraudulent borrower.
Peter Gibson LJ said: ‘I remain wholly . .

Cited by:

Appeal from – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Lists of cited by and citing cases may be incomplete.

Commercial, European, Damages, Torts – Other

Updated: 24 April 2022; Ref: scu.260343

United States v Apple Sales International and Others: ECJ 17 May 2018

State Aid – Aid Implemented By Ireland In Favour of Apple – Order – Appeal – Intervention – Third country – State aid – Aid implemented by Ireland in favour of Apple – Advance tax agreement (tax ruling) – Selective tax advantages – Action for annulment – Interest in the result of the case

Citations:

ECLI:EU:C:2018:330, [2018] EUECJ C-12/18P-I – CO

Links:

Bailii

Jurisdiction:

European

Commercial, Corporation Tax

Updated: 22 April 2022; Ref: scu.616985

Consorzio Di Garanzia Dell’Olio Extra Vergine Di Oliva Di Qualita v Commission: ECFI 31 May 2018

(Judgment) Non-contractual liability – Concurrent campaigns for the promotion of olive oil in third countries, one financed by the EAGF and intended for the promotion of olive oil of European origin, the other, financed by the ERDF and intended for the promotion of olive oil of Spanish origin – Lack of coordination between the Commission services responsible for the management of the two programs – Material damage – Loss of the market and loss of profit – Injury moral – Breach of the commercial image

Citations:

ECLI:EU:T:2018:318, [2018] EUECJ T-163/17

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 22 April 2022; Ref: scu.616933

Cementos Portland Valderrivas v Commission: 14 Mar 2014

Competition – Administrative procedure – Request for information decision – Necessary nature of the information requested – Significantly serious evidence – Judicial review – Proportionality

Citations:

[2014] EUECJ T-296/11

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – Cementos Portland Valderrivas v Commission ECFI 29-Jul-2011
ECFI (Competition) Interim measures – Competition – Enquiry – Article 18, paragraph 3 of Regulation (EC) No 1 / 2003 – Application for stay of execution – Lack of urgency. . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 22 April 2022; Ref: scu.616749

European Commission v Tomkins Plc: 22 Jan 2013

Competition – Agreements, decisions and concerted practices – European market for copper and copper alloy fittings – Liability of the parent company stemming solely from the unlawful conduct of its subsidiary – Principle of ‘ne ultra petita’ – Effect on the legal situation of the parent company of an annulment determined by a judgment concerning a subsidiary

Citations:

[2013] EUECJ C-286/11, [2013] Bus LR 999, [2013] WLR(D) 17

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – European Commission v Tomkins Plc ECJ 19-Jul-2012
. .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 22 April 2022; Ref: scu.616748

Shanshal v Al-Kishtaini: QBD 16 Jun 1999

The rules preventing any trading activity with residents of Iraq ceased to apply where the person was so resident when the ban came into force but later left. A party could not rely upon the prohibition to make his contract illegal in these circumstances.

Citations:

Times 16-Jun-1999

Statutes:

Control of Gold, Securities, Payments and Credits (Republic of Iraq) Directions 1990 (1990 No 1616)

Jurisdiction:

England and Wales

Commercial

Updated: 22 April 2022; Ref: scu.89192

Vossloh Laeis GmbH v Stadtwerke Munchen GmbH: ECJ 16 May 2018

Opinion – Reference for a preliminary ruling – Public procurement – Procedure – Directives 2014/24 / EU and 2014/25 / EU – Grounds for exclusion – Obligation on the economic operator to cooperate with the contracting authority to demonstrate its reliability before the end of the period of exclusion – Concept of ‘investigating authorities’ – Calculation of the maximum period of the exclusion period

Citations:

ECLI:EU:C:2018:316, [2018] EUECJ C-124/17 – O

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 21 April 2022; Ref: scu.615565

Cellnex Telecom v Commission: ECJ 26 Apr 2018

Competition – Judgment – Appeal – State aid – Digital television – Support for the deployment of digital terrestrial television in the remote and less urbanized areas of Comunidad Autonoma de Castilla-La Mancha (Autonomous Community of Castile-La Mancha, Spain) – Subsidy for operators of digital terrestrial television platforms – Decision partially declaring aid measures incompatible with the internal market – Concept of ‘State aid’ – Advantage – Service of general economic interest – Definition – States’ margin of appreciation members

Citations:

ECLI: EU: C: 2018: 284, [2018] EUECJ C-91/17P

Links:

Bailii

Jurisdiction:

European

Commercial, Media

Updated: 14 April 2022; Ref: scu.609301

Meo – Servicos De Comunicacoes E Multimedia v Autoridade da Concorrencia: ECJ 19 Apr 2018

Competition – Abuse of Dominant Position – Judgment – Reference for a preliminary ruling – Competition – Abuse of dominant position – Article 102, second paragraph, point (c), TFEU – Concept of ‘competitive disadvantage’ – Discriminatory prices on a downstream market – Cooperative for the management of rights relating to copyright – Royalty payable by domestic entities which provide a paid television signal transmission service and television content

Citations:

ECLI:EU:C:2018:270, [2018] EUECJ C-525/16

Links:

Bailii

Jurisdiction:

European

Commercial, Intellectual Property

Updated: 13 April 2022; Ref: scu.609062

Sviluppo Italia Basilicata v Commission: ECJ 25 Mar 2010

Appeal – European Regional Development Fund (ERDF) – Reduction of financial assistance – General allocation for the purpose of implementing measures to support small and medium-sized enterprises Deadline for completion of investment projects Discretion of the Commission

Citations:

[2009] EUECJ C-414/08 – O

Links:

Bailii

Jurisdiction:

European

Citing:

Opinion – Sviluppo Italia Basilicata v Commission ECJ 29-Oct-2009
ECJ (Regional Policy) Appeal European Regional Development Fund (ERDF) Overall allocation for the implementation of incentive measures for small and medium-sized enterprises (SMEs) operating in the Region of . .
Lists of cited by and citing cases may be incomplete.

European, Commercial

Updated: 13 April 2022; Ref: scu.608952

NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading: CAT 6 Feb 2002

Judgment on interest and costs.

Citations:

[2002] CAT 3, 1001/1/1/01

Links:

CAT

Citing:

See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 22-May-2001
Judgment on request for interim relief.
In principle, prices are excessive if they ‘are higher than would be expected in a competitive market’ and ‘there is no effective competitive pressure to bring them down to competitive levels, nor is . .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 10-Jul-2001
Judgment on application to extend time for service of defence. . .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 8-Aug-2001
Judgment on application to disallow parts of the defence. . .
See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 16-Jan-2002
. .

Cited by:

See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 26-Mar-2002
Judgment regarding reasons for refusing permission to appeal – dismissed with costs. . .
See Also – Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading CA 8-May-2002
The applicant sought leave to appeal against a decision of the Competition Commission Appeals Tribunal.
Held: Since the decision of the tribunal did not involve questions of law, it fell exactly within the Cooke case, and the court should be . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 12 April 2022; Ref: scu.227108

Unipart Group Ltd v O2 (UK) Ltd (Formerly BT Cellnet Ltd) and Another: CA 30 Jul 2004

Allegedly anti-competitive conduct in the market for the wholesale supply of airtime for mobile telephones.

Judges:

Lord Justice Peter Gibson Lord Justice Jonathan Parker Mr Justice Laddie

Citations:

[2004] EWCA 1034

Statutes:

EC Treaty 81

Jurisdiction:

England and Wales

European, Commercial

Updated: 12 April 2022; Ref: scu.199791

Dranez Anstalt and Others v Hayek and Others: CA 26 Nov 2002

A company had bought another and, with it patents assigned to it by the inventor. In addition they obtained an agreement from the inventor not to compete, which agreement they now sought to enforce.
Held: The inventor’s appeal was upheld. The judge had failed properly to allow for the statutory context. Patents law set a balance of rights, granting a monopoly as a way of encouraging invention. It would be a wholly exceptional case where restraints on a person capable of making a real contribution to the development of science could be justified, and that monopoly right extended. Those restraints here, were unenforceable on the grounds of public policy.

Judges:

Woolf, LCJ, Brooke, Chadwick LJJ

Citations:

Times 03-Dec-2002

Statutes:

Patents Act 1980 60 61

Jurisdiction:

England and Wales

Intellectual Property, Commercial

Updated: 12 April 2022; Ref: scu.178321

Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland: ECJ 25 Apr 1985

Europa Free movement of goods – quantitative restrictions – measures having equivalent effect – legislation requiring an indication of origin on certain products – prohibited – consumer protection – not a permissible ground of justification (EEC treaty, art. 30)
national legislation prohibiting the retail sale of certain products imported from other member states unless they bear or are accompanied by an indication of origin has the effect of increasing the production costs of the imported goods and of making it more difficult to sell them. Even if it is applicable without distinction to domestic and imported products, it is in practice and by its nature intended to enable the consumer to distinguish between those two categories of products, which may prompt him to give his preference to national products; no imperative reason relating to consumer protection justifies such legislation so that it must be considered a measure having an effect equivalent to a quantitative restriction prohibited by article 30 of the treaty.

Citations:

Case 207/83

European, Commercial

Updated: 11 April 2022; Ref: scu.133716

Fratelli Pardini SpA: ECJ 26 Jun 1980

Europa The reference to ‘loss’ of the export document in article 17 (7) of regulation no 193/75 includes a theft which takes place before or after the performance of the import or export transaction. Therefore the aforesaid provision must be interpreted as meaning that an exporter who has suffered the theft of an export licence or advance fixing certificate may not obtain a new licence or certificate or equivalent document permitting him to carry out the export transactions on the conditions laid down in the stolen document. It is clear from the wording of article 12 (2) of regulation no 2727/75 that the council conferred wide powers upon the commission for the purpose of implementing the system of import and export licences introduced by that provision and that the period of validity of licences or certificates is only one example of the detailed rules which may be adopted by the commission under the procedure known as the management committee procedure. Since , moreover , the function given to licences does not enable a distinction to be made between the right to carry out the transaction and the document which allegedly serves only as a manifestation of that right , there is no reason to suppose that the commission is not empowered to lay down rules in connexion with that right or to prescribe that the loss of the document shall entail the extinction of the right. It is necessary for the authorities entrusted with the management of the common organization of the markets to have available precise forecasts on future imports and exports. Whilst that objective requires that the performance of the undertaking to export or import in accordance with the licences or certificates issued be ensured by appropriate means , it also makes it necessary to ensure that the documents are used only for the transactions covered thereby. In the case of advance fixing certificates , that need is all the more imperative since the use of such certificates twice over may confer unjustified benefits upon traders and thus impose heavy financial burdens upon the community.

Citations:

C-808/79

European, Commercial

Updated: 11 April 2022; Ref: scu.132967

Regina v Thompson, Johnson and Woodiwiss (Judgment): ECJ 23 Nov 1978

Europa In the system of the EEC treaty means of payment are not to be considered as goods falling within the terms of articles 30 to 37 of the treaty. These provisions do not therefore apply to (a) silver alloy coins which are legal tender in a member state, (b) gold coins such as krugerrands which are produced in a non- member country but which circulate freely within a member state. A ban on the export from a member state of silver alloy coins, which have been but are no longer legal tender in that state and the melting down or destruction whereof on national territory is forbidden, which has been adopted with a view to preventing such melting down or destruction in another member state, is justified on grounds of public policy within the meaning of article 36 of the treaty because it stems from the need to protect the right to mint coinage which is traditionally regarded as involving the fundamental interests of the state.

Citations:

C-7/78

European, Commercial

Updated: 10 April 2022; Ref: scu.132587

De Beste Boter and Others v Balm: ECJ 11 May 1977

Article 18 of regulation no 1259/72 as amended by regulation no 1237/73 must be interpreted as meaning that even where the successful tenderer does not himself carry out processing it is necessary to establish that the processed products comply with the conditions laid down in article 6(1)(c) of the regulation and that they have been produced within the period prescribed before the deposit may be released. The system regarding the processing deposit laid down by regulation no 1259/72 rests on a proper legal basis and was adopted in accordance with the opinion of the management committee concerned; as the forfeiture of the deposit is not in the nature of a penalty for non-fulfilment of an independent obligation, the system does not exceed what is appropriate and necessary to attain the objective desired.

Citations:

C-99/76

European, Commercial

Updated: 10 April 2022; Ref: scu.132499

Procureur du Roi v Benoit and Gustave Dassonville (Judgment): ECJ 11 Jul 1974

Europa All trading rules enacted by member states which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade are to be considered as measures having an effect equivalent to quantitative restrictions. In the absence of a community system guaranteeing for consumers the authenticity of a product’s designation or origin, member states may take measures to prevent unfair practices in this connexion, on condition that such measures are reasonable and do not constitute a means of arbitrary discrimination or a disguised restriction on trade between member states. Consequently, the requirement by a member state of a certificate of authenticity which is less easily obtainable by importers of an authentic product which has been put into free circulation in a regular manner in another member state than by importers of the same product coming directly from the country of origin constitutes a measure having an effect equivalent to a quantitative restriction as prohibited by the treaty. An exclusive dealing agreement falls within the prohibition of article 85 when it impedes, in law or in fact, the importation of the products in question from other member states into the protected territory by persons other than the exclusive importer. An exclusive dealing agreement may adversely affect trade between member states and can have the effect of hindering competition if the concessionaire is able to prevent parallel imports from other member states into the territory covered by the concession by means of the combined effects of the agreement and a national law requiring the exclusive use of a certain means of proof of authenticity. For the purpose of judging whether this is the case, account must be taken not only of the rights and obligations flowing from the provisions of the agreement, but also of the legal and economic context in which it is situated and, in particular, the possible existence of similar agreements concluded between the same producer and concessionaires established in other member states. Price differences found to exist between member states are an indication to be taken into account .

Citations:

C-8/74

European, Commercial

Updated: 10 April 2022; Ref: scu.132350

Unifrigo Gadus Srl and Cpl Imperial 2 Spa v Ec Commission Case T-10/97 and 11/97 Ecj/Cfi Bulletin 15/98, 26: ECJ 9 Sep 1998

An importer who relied upon certificates provided and which by stating the country of origin did not need to pay customs duties. When it was discovered that the certificates were wrong, the importer was found liable for the duties even he could not have known of the fault.

Citations:

Gazette 09-Sep-1998

Statutes:

EC Regulation 1697/79/EEC

Commercial

Updated: 10 April 2022; Ref: scu.90052

Mitchel v Reynolds: 1711

A bond or promise to restrain oneself from trading in a particular place, if made upon a reasonable consideration, is good. (So Davis v Mason, 5 TR 118.) Secus if it be on no reasonable consideration, or to restrain a man from trading at all.
Lord Macclesfield held
(a) that all restraints of trade were presumed to be bad but that the presumption was rebuttable;
(b) that Judge Hull’s vehemence towards them had been excusable but not his manner of expressing it;
(c) that a restraint of trade throughout England would always be bad (‘for what does it signify to a tradesman in London what another does at Newcastle?’); but
(d) that this baker’s bond, limited to Holborn and to the five years of the assignment, was reasonable and should be enforced.

Judges:

Lord Macclesfield

Citations:

[1711] EngR 38, (1711) 1 P Wms 181, (1711) 24 ER 347

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Restated – Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company HL 1894
Exceptions to Freedom to Trade
The purchaser of the goodwill of a business sought to enforce a covenant in restraint of trade given by the seller.
Held: At common law a restraint of trade is prima facie contrary to public policy and void, unless it can be shown that the . .
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, Commercial

Updated: 10 April 2022; Ref: scu.391698

Dickson v Pharmaceutical Society of Great Britain: HL 1970

The Society was concerned by the extension of the range of non-pharmaceutical goods sold in chemist’s shops and the effect which it might have on the quality and status of the profession, proposed a new rule for inclusion in the code of ethics and submitted it in the form of a motion to a specially convened meeting of the members. The effect of the rule would be that new pharmacies would have to be situated in physically distinct premises and their trading activities confined to pharmaceutical and traditional goods as defined in a report of one of the society’s committees. The main object of the society was ‘to maintain the honour and safeguard and promote the interests of the members in the exercise of the profession of pharmacy’. The respondent, a member of the society, brought an action for a declaration that the motion was ultra vires the society’s objects and in unreasonable restraint of trade.
Held: The rules against arrangement imposing restrictions on trade are not limited to particular kinds of restraint, and are not confined to contractual arrangements but apply to all restraints of trade, howsoever imposed. If the effect of the decision is unreasonably in restraint of trade the courts will declare it invalid.
Lord Reid said: ‘ There are about 29,000 registered pharmacists. Some, such as those employed in hospitals, have no other duties than the professional task of dispensing. But the typical pharmacist owns or is employed in a chemist’s shop where goods other than dispensed medicines are sold to the public. Such goods have been divided into three classes: first ‘professional’, which include, besides medicines and sick room requirements, agricultural, horticultural, and industrial chemicals and various scientific and other appliances; secondly, ‘traditional’, which, largely for historical reasons include cosmetics and photographic requisites; and thirdly ‘non-traditional’, which include a wide variety of articles which many pharmacists have found it profitable and convenient to sell in chemist’s shops. So most pharmacists act in a dual capacity, combining retail trading with their professional work. That pharmacists should be engaged in trade is regarded by many pharmacists as undesirable. But it is generally recognised that comparatively few chemist’s shops could survive without engaging in some degree of trading . .
In every profession of which I have any knowledge there is a code of conduct, written or unwritten, which makes it improper for members of the profession to engage in certain activities in which ordinary members of the public are quite entitled to engage. Normally this is regarded as a domestic matter within the profession. But it appears to me that if a member of a profession can show that a particular restriction on his activities goes beyond anything which can reasonably be related to the maintenance of professional honour or standards, the court must be able to intervene, and in the present case there is a question whether these restrictions are within the objects of the society. In Jenkin v. Pharmaceutical Society of Great Britain it was held that certain attempts to regulate trading by the members were ultra vires. But the respondent does not dispute that the society is entitled to regulate such trading activities in so far as that is reasonably necessary to achieve the society’s objects set out in the Charter. So it becomes a question whether these restrictions can properly be related to the maintenance or improvement of the status of the profession of pharmacy.
That these restrictions are in restraint of trade cannot be doubted. Any pharmacist who opens a new chemist’s shop can only sell professional or traditional goods in it, and in any existing chemist’s shop no new classes of non-traditional goods can be sold unless the council consents. This restraint may severely hamper the shopkeeper, and indeed it may make the business so unprofitable that the shop has to be closed. I need not consider the wider aspects of public interest, whether that might seriously inconvenience members of the public who wish to have prescriptions dispensed or to buy medicines.’

Judges:

Lord Reid

Citations:

[1970] AC 403

Jurisdiction:

England and Wales

Cited by:

Cited – Bermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
Cited – Bermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
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.

Company, Commercial

Leading Case

Updated: 10 April 2022; Ref: scu.221578

Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd: HL 1968

Agreement in Restraint of Trade Unenforceable

The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an agreement in restraint of trade.
Held: An agreement in restraint of trade is not generally unlawful if the parties choose to abide by it: it is only unenforceable if a party chooses not to abide by it. It was necessary to ascertain the legitimate interests of the landlords which they were entitled to protect and to discover whether those restraints exceeded what was adequate for that purpose. The doctrine of restraint of trade had no application to restraints imposed on persons who, before the transaction by which the restraints were imposed, had no right whatsoever to trade at all on the land in question.
Lord Hodson said: ‘When one remembers that the basis of the doctrine of restraint of trade is the protection of the public interest, it is not difficult to see how the law developed in its conception of reasonableness as the test which must be passed in order to save a contract in restraint of trade from unenforceability.’
Lord Reid said: ‘It has often been said that a person is not entitled to be protected against mere competition. I do not find that very helpful in a case like the present. I think it better to ascertain what were the legitimate interests of the appellants which they were entitled to protect and then to see whether these restraints were more than adequate for that purpose.’

Judges:

Lord Reid, Lord Morris of Borth-y-Gest, Lord Hodson, Lord Pearce, Lord Wilberforce

Citations:

[1968] AC 269, [1967] UKHL 1, [1967] 1 All ER 699

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Young v Timmins 1831
The servant had agreed not to work for anyone else bu the employer, but he might have been given no work and he received no remuneration for considerable periods.
Held: He had been deprived of a livelihood, and the agreement was in restraint . .
Cited – Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company HL 1894
Exceptions to Freedom to Trade
The purchaser of the goodwill of a business sought to enforce a covenant in restraint of trade given by the seller.
Held: At common law a restraint of trade is prima facie contrary to public policy and void, unless it can be shown that the . .
Cited – Attorney General of the Commonwealth of Australia v Adelaide Steamship Company PC 1913
ag_adeleaidePC1913
There was an agreement between a group of colliery owners and a group of shipowners which was ancillary to an agreement between the colliery owners themselves. Each agreement was in restraint of trade.
Held: Lord Parker explained the doctrine . .
Cited – Mogul Steamship Co Ltd v McGregor, Gow and Co HL 18-Dec-1891
An association of shipowners agreed to use various lawful means to dissuade customers from shipping their goods by the Mogul line.
Held: The agreement was lawful in the sense that it gave the Mogul Company no right to sue them. But (majority) . .
Cited – Foley v Classique Coaches Ltd CA 1934
The sellers had sold to the buyers a piece of land to use in the latter’s business as coach proprietors, and also contracted with them to supply all the petrol required for that business ‘at a price to be agreed by the parties in writing and from . .
Cited – English Hop Growers v Dering CA 1928
The defendant farmer had agreed to sell his crop of hops to the Society for five years. He failed to do so and was sued. He replied that the contract was in restraint of trade.
Held: The restraint was reasonable. Scrutton LJ allowed that it . .
Cited – McEllistrim v Ballymacelligott Co-operative Society HL 1919
The Co-operative had changed its rules to prevent any member from selling (except under heavy penalty) any milk produced by him in a large area of County Kerry to anyone except the Society, and a member could not terminate his membership without the . .
Cited – Servais Bouchard v Princes Hall Restaurant CA 1904
A restaurant in Piccadilly had contracted with a supplier of burgundy not to sell burgundy to its customers other than such as it had purchased from the supplier. The restaurant broke the contract
Held: A contract by which defendant Restaurant . .
Cited – Herbert Morris Ltd v Saxelby HL 1916
For a covenant in restraint of trade to be treated as reasonable in the interests of the parties ‘it must afford no more than adequate protection to the benefit of the party in whose favour it is imposed.’ There is a need for the court to consider . .
Cited – United Shoe Machinery Company of Canada v Brunet PC 23-Mar-1909
(Quebec) The defendant Company leased machinery under a condition that it should not be used in conjunction with machinery made by any other manufacturer.
Held: The condition was not in restraint of trade. . .
Cited – Biggs v Hoddinott 1898
The owner of a freehouse had agreed to a tie in favour of a brewer who had lent him money. . .
Cited – Warner Brothers Pictures v Nelson 1936
Bette Davis contracted with the plaintiff film company to render her services as an actress exclusively to that company. With nearly six years of the contractual term yet to run, Ms Davis contracted with a third person to appear as a film artist. . .

Cited by:

Cited – WWF -World Wide Fund for Nature (Formerly World Wildlife Fund), World Wildlife Fund Inc v World Wrestling Federation Entertainment Inc ChD 1-Oct-2001
The Fund sought summary relief against the use of the sign ‘WWF’ by the defendants, in breach of a contract. The defendants urged that the contract operated in restraint of trade. There had been long running and widespread trade mark disputes, . .
Cited – Alec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .
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.

Landlord and Tenant, Commercial

Leading Case

Updated: 10 April 2022; Ref: scu.180312

Regina v Secretary of State for Trade and Industry, Ex Parte Thomson Holidays Ltd: CA 12 Jan 2000

Regulations made by the Secretary of State which purported to restrict the range of contracts which could be made between tour operators and travel agents were beyond his powers. The ability to make such regulations followed directly only from a report prepared by the Monopolies and Mergers Commission, and in this case the regulations went beyond the findings, and were to that extent ultra vires.

Citations:

Times 12-Jan-2000

Statutes:

Fair Trading Act 1973 56(2), Foreign Package Holidays (Tour Operators and Travel Agents) Order 1998 (1998 N0 1945)

Jurisdiction:

England and Wales

Judicial Review, Commercial, Consumer

Updated: 09 April 2022; Ref: scu.85547

Regina v Secretary of State for Health and Others, Ex Parte Imperial Tobacco Ltd and Others etc: ECJ 10 Oct 2000

A ban on tobacco advertising had been reached on the wrong legal basis under the Treaty, and was accordingly invalid. The Directive had been adopted under article 100a, but that was concerned only with measures to support harmonisation of member legal systems. The true aim of the directive was to improve health levels, but article 129(4) explicitly prevented this from being a purpose for measures under article 100a. There was no element which sought to promote the free movement of goods. There was no absence of free movement of goods, nor distortion of markets between member states to justify the need for the Directive under the article.

Citations:

Times 10-Oct-2000, C-376/99, C-74/99

Statutes:

ECTreaty Art 100a, Directive 98/43/EC on the approximation of laws relating to the advertising and sponsorship of tobacco products

Jurisdiction:

European

Media, European, Commercial, Health

Updated: 09 April 2022; Ref: scu.85479

Regina v Director General of Telecommunications, Ex P Cellcom Ltd and others: QBD 7 Dec 1998

The Director General of Telecommunications can quite properly use his powers and discretion to ensure competition in telecommunications by the granting and withholding of licences. He may take account of economic factors in making such a decision. Section 3 draws a distinction between ‘means’ (namely how the demand is to be met) and ‘ends’ (the satisfaction of reasonable demands) and that as a matter of language, whilst the Director is expressly made the arbiter of the means to the end, he is not so made the arbiter of the ends. Section 3 recognises that there is a public interest in reasonable demands for telecommunication services being met and the court is intended to be the guardian of that public interest. The exercise in deciding whether a demand is reasonable or not requires no sophisticated exercise necessitating the Director’s experience, expertise and fund of knowledge of this and other markets. The court is well equipped and experienced in deciding questions of reasonableness. The duty of the Director was to exercise his functions in the manner which ‘he considers best calculated to secure . . such telecommunications services as satisfy all reasonable demands for them . . ‘ and ‘Where the Act has conferred the decision making and function on the Director, it is for him, and him alone, to consider the economic arguments, weigh the compelling considerations and arrive at a judgment. The . applicants have no right of appeal; in these judicial review proceedings so long as he directs himself correctly in law, his decision may only be challenged on Wedensbury grounds. The court must be astute to avoid the. danger of substituting its views for the decision maker and of contradicting (as in this case) a conscientious decision maker acting in good faith and with knowledge of all the facts. ‘ and ‘If (as I have stated)the court should be very ‘slow to impugn decisions of fact made by an expert and experienced decision maker, it must surely be even slower to impugn his educated prophesises and predictions for the future.’

Judges:

Lightman J

Citations:

Times 07-Dec-1998, Gazette 10-Feb-1999, [1999] ECC 314

Statutes:

Telecommunications Act 1984 3

Cited by:

Cited – Regina on the Application of T-Mobile (Uk) Ltd, Vodafone Ltd, Orange Personal Communication Services Ltd v The Competition Commission, the Director-General of Telecommunications Admn 27-Jun-2003
The applicants sought to challenge a proposed scheme regulating the prices of telephone calls.
Held: The principle objection was to termination charges, charges on calls between networks. The present charges were greater than the actual cost, . .
Cited – Office of Fair Trading and others v IBA Health Limited CA 19-Feb-2004
The OFT had considered whether it was necessary to refer a merger between two companies to the Competition Commission, and decided against. The Competition Appeal Tribunal held that the proposed merger should have been referred. The OFT and parties . .
Cited – Wildman, Regina (on the Application of) v The Office of Communications Admn 25-Jul-2005
The claimant sought judicial review of an order quashing the decision of the Office of Communications to refuse a radio licence.
Held: The court should be very cautious before quashing a decision as to the allocation of broadcasting licences. . .
Lists of cited by and citing cases may be incomplete.

Commercial, Judicial Review, Licensing

Updated: 09 April 2022; Ref: scu.85227

Motis Exports Ltd v Dampskibsselskabet Af 1912, Aktieselskab and Another: ComC 1 Mar 1999

Where goods were supposed only to be handed over by a shipper on receipt of a valid bill of lading, but were instead handed over for fraudulent bill, the shipper remained liable to the owners.
ComC Defendant shipowners issued delivery orders in respect of goods stored on land after discharge from the ship, against presentation of forged bills of lading.
Held: That the shipowners were liable to the time owners of the cargo even on the assumption that they were not negligent in being deceived by the forgeries, and despite a bill of lading clause which exempted them from any ‘liability whatsoever for any loss or damage to the goods which links actual or constructive possession ….. after discharge’. Held also, that there would be no defence in contract or conversion based on the non-negligent acceptance of forged bills of lading as being genuine.

Citations:

Times 31-Mar-1999, [1999] 1 Lloyds Rep 837, [1999] CLC 914, [1999] 1 All ER (Comm) 571

Cited by:

Appeal from – Motis Exports Ltd v Dampskibsselskabet Af 1912 Akleselskab (‘the Motis) CA 20-Jan-2000
Shippers were liable under a bill of lading. The goods had been obtained from them fraudulently by means of forged bills of lading. They claimed under an exemption clause in the contract, but the claim failed since the exclusions from liability for . .
Lists of cited by and citing cases may be incomplete.

Commercial, Transport

Updated: 09 April 2022; Ref: scu.83877

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

Scuola Elementare Maria Montessori v Commission: ECJ 11 Apr 2018

Competition – Opinion – Appeal – Article 263 (4) TFEU – Admissibility – Regulatory act not involving implementing measures – Direct allocation – State aid – Scheme of aid granted by the Italian authorities to non-commercial entities carrying out specific activities in certain areas -Exemption from the municipal tax on immovable property – Decision declaring the recovery of State aid incompatible with the internal market impossible – Decision declaring as non-State aid the tax exemption scheme municipal land for premises where non-economic activities are carried out by non-commercial entities – Action for the annulment of potential competitors

Citations:

ECLI: EU: C: 2018: 229, [2018] EUECJ C-622/16P – O

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 07 April 2022; Ref: scu.608648

Swedish Match AB v Secretary of State for Health, intervener: New Nicotine Alliance: ECJ 12 Apr 2018

Approximation of Laws – Tobacco Products – Opinion – Reference for a preliminary ruling – Approximation of laws – Manufacture, presentation and sale of tobacco products – Directive 2014/40/EU – Article 1(c) – Article 17 – Prohibition on the placing on the market of tobacco for oral use – Request for an assessment of validity – Principle of proportionality – Precautionary principle

Citations:

C-151/17, [2018] EUECJ C-151/17 – O, ECLI:EU:C:2018:241

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 07 April 2022; Ref: scu.608651

Infineon Technologies v Commission: ECJ 12 Apr 2018

Competition – European Market for Smart Card Chips – Opinion – Appeal – Agreements, decisions and concerted practices – European market for smart card chips – Network of bilateral contacts with the aim of coordinating the response to clients seeking to obtain price reductions – Dispute over authenticity of evidence – Scope of judicial review – Unlimited jurisdiction

Citations:

ECLI:EU:C:2018:238, [2018] EUECJ C-99/17P – O

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 07 April 2022; Ref: scu.608638

Editions Jacob v Commission T-471/11: ECJ 5 Sep 2014

ECJ Competition – Concentrations – Book publishing market – Decision declaring the concentration compatible with the common market subject to retrocession of assets – Decision approving the acquirer of the assets transferred – Decision taken following the annulment by the General Court of the original decision concerning the same procedure – Interest in bringing proceedings – Infringement of Article 266 TFEU – Lack of knowledge of the commitments imposed by the conditional authorization decision – Distinction between conditions and charges – Principle of non-retroactivity – Assessment of the assignee’s application – Independence of the assignee in relation to the assignor – Misuse of powers – Obligation to state reasons

Citations:

[2014] EUECJ T-471/11, ECLI:EU:T:2014:739

Links:

Bailii

Jurisdiction:

European

Citing:

Order – Editions Jacob v Commission T-471/11 ECFI 24-Nov-2011
(Competition) Merits – Competition – Concentration of undertakings – Decision declaring the concentration compatible with the common market subject to retrocession of assets – Annulment by the General Court of the initial decision concerning the . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 07 April 2022; Ref: scu.608296