British Telecommunicatons Plc v Office of Communications and Others: CA 17 Feb 2014

The appellant challenged challenged the imposition of certain conditions on its licence under the 2003 Act. The Office had acted to seek to prevent acts prejudicial to consumers.
Held: The appeal succeeded. The Office of Communications had jurisdiction under the section to impose conditions in broadcasting licences where the practices of licenceholders made it appropriate to impose such conditions to ensure fair and effective competition.

Arden, Aikens, Vos LJJ
[2014] EWCA Civ 133, [2014] WLR(D) 79
Bailii, WLRD
Communications Act 2003 316
England and Wales

Licensing, Consumer

Updated: 29 November 2021; Ref: scu.521297

4Finance (Advocate General’S Opinion): ECJ 19 Dec 2013

ECJ Opinion – Consumer protection – Unfair business-to-consumer commercial practices – Pyramid scheme – Whether consumers must give consideration to enter a pyramid scheme – Whether there is a link between consideration given by new entrants and compensation paid to existing members – Whether the amount of consideration is relevant

Sharpston AG
C-515/12, [2013] EUECJ C-515/12, [2014] EUECJ C-515/12
Bailii, Bailii

European, Consumer

Updated: 28 November 2021; Ref: scu.519459

Jack and Another (London Scottish Finance Ltd) v Craig and Others: ChD 17 Dec 2013

Application by the joint administrators of LSF for directions arising out of loan agreements made or acquired by LSF before the administration began, under which secured loans were made to consumers but which were unenforceable because they contravened provisions of the Consumer Credit Act 1974.
Held: The phrase ‘realisation of the security’ in section 106, is to be interpreted conventionally to achieve the policy objective (section 113) that the security provided under the regulated agreement could not be enforced so as to benefit the creditor to any greater extent than would be the case if the security were not provided. In a secured loan to which section 106(d) applied, the provisions did not catch all sums paid by the debtor in discharge of the loan.

Sir Terence Etherton Ch
[2013] EWHC 4047 (Ch), [2013] WLR(D) 498, [2014] Bus LR 424, [2013] CTLC 231
Bailii, WLRD
Insolvency Act 1986, Consumer Credit Act 1974 106(d)

Insolvency, Consumer, Banking

Updated: 27 November 2021; Ref: scu.519223

Plevin v Paragon Personal Finance Ltd and Another: CA 16 Dec 2013

The claimant sought repayment of a personal protection insurance premium paid to her broker. The broker was now in insolvent liquidation, and she sought to recover the premium from the next intermediary.
Held: Any limitation of section 140A(1)(c) to acts or omissions for which the creditor was personally or vicariously responsible would imply that the subsection extended only to breaches of duty under the ICOB rules or the general law. Since the creditor would be legally liable for those anyway, even without section 140A, Mr Elliott’s argument would give section 140A very little additional effect. Briggs LJ considered that unfairness did not have to arise from a breach of duty. He therefore rejected what he called the ‘narrower’ view of the words ‘by or behalf of the creditor’ advanced on behalf of Paragon.

Moses, Beatson, Briggs LJJ
[2013] EWCA Civ 1658, [2014] Bus LR 553, [2013] WLR(D) 500, [2013] CTLC 209, [2014] ECC 10
Bailii, WLRD
Consumer Credit Act 1974 140A 140B 140C 140D
England and Wales
Citing:
BindingHarrison and Another v Black Horse Ltd CA 12-Oct-2011
The appellant sought under section 104A to recover a Payment Protection Insurance premium paid in support of a loan. The borrower dealt directly with the lender, who acted as an intermediary with the insurer. The commission taken by the lender was . .
Appeal fromPlevin v Paragon Personal Finance Ltd and Another Misc 4-Oct-2012
Manchester County Court – The claimant sought repayment of insurance premiums paid as payment protection insurance when aking out a loan with the defendants as advised by the second defendant. The second defendant was in liquidation by the time her . .

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

Lists of cited by and citing cases may be incomplete.

Financial Services, Consumer

Updated: 27 November 2021; Ref: scu.519007

Asociacion De Consumidores Independientes De Castilla Y Leon v Anuntis Segundamano Espana Sl: ECJ 5 Dec 2013

ECJ References for a preliminary ruling – Directive 93/13/EEC – Action seeking an injunction brought by a regional consumer protection association – Jurisdiction of local courts – No remedy against a decision declining jurisdiction delivered at first instance – Procedural autonomy of the Member States – Principles of equivalence and effectiveness

C-413/12, [2013] EUECJ C-413/12
Bailii
Directive 93/13/EEC

European, Consumer

Updated: 26 November 2021; Ref: scu.518887

Peter Pammer v Reederei Karl Schluter GmbH and Co KG etc: ECJ 7 Dec 2010

ECJ (Grand Chamber) Jurisdiction in civil and commercial matters – Regulation (EC) No 44/2001 – Article 15(1)(c) and (3) – Jurisdiction over consumer contracts – Contract for a voyage by freighter – Concept of ‘package travel’ – Contract for a hotel stay – Presentation of the voyage and the hotel on a website – Concept of activity ‘directed to’ the Member State of the consumer’s domicile – Criteria – Accessibility of the website
The ECJ established the following principles: i) The trader must have manifested its intention to establish commercial relations with consumers from one or more other member states including that of the consumer’s domicile. Specifically, in the case of a contract between a trader and a given consumer, it must be determined (by reference to the trader’s websites and overall activity), whether before any contract with that consumer was concluded, there was evidence demonstrating that the trader was envisaging doing business with consumers in other member states, including the member state of that consumer’s domicile, in the sense that it was minded to conclude a contract with those consumers;
ii) While the dissemination of traditional forms of advertising in other member states, such as by the press, radio, television or other medium, may of itself demonstrate an intention of the trader to direct its activities towards those states, the mere establishment of a website which is accessible in other member states will not of itself do so since use of the internet may automatically give worldwide reach without any intention on the part of the trader to target consumers outside of the state in which it is established.
iii) When considering advertising (whether by the use of the internet or by other media which may reach across borders without any necessary intention to target consumers in other member states) the Court should look for ‘clear expressions of the intention to solicit the custom of that state’s consumers’. Such clear expressions include mention that it is offering its services or its goods in one or more member states designated by name or mention of an international clientele composed of customers domiciled in various states; however, a finding that an activity is ‘directed to’ other member states does not depend solely on the existence of such patent evidence.

V. Skouris, P
[2010] EUECJ C-144/09, [2012] Bus LR 972, [2012] All ER (EC) 34, [2011] 2 All ER (Comm) 888, [2010] ECR I-12527
Bailii
Regulation (EC) No 44/2001 15(1)
Citing:
OpinionPeter Pammer v Reederei Karl Schluter GmbH and Co KG etc ECJ 18-May-2010
ECJ (Opinion) Regulation No 44/2001 – Article 15, paragraph 1 (c) and 3 – Jurisdiction over consumer contracts – Management of a business to a Member State where the consumer’s home – Accessibility of website – . .

Cited by:
Applied.Oak Leaf Conservatories Ltd v Weir and Another TCC 24-Oct-2013
The claimant conservatory installers claimed wrongful repudiation of the contract by the defendant householders. The defendants, living in Ayrshire, said that the English courts had no jurisdiction over the contract.
Held: The court gave its . .

Lists of cited by and citing cases may be incomplete.

European, Jurisdiction, Consumer

Updated: 25 November 2021; Ref: scu.517366

Eva Martin Martin v EDP Editores, SL: ECJ 17 Dec 2009

ECJ Directive 85/577/EEC Article 4 Consumer protection – Contracts negotiated away from business premises – Right of cancellation – Obligation on the trader to give notice of that right – Contract void – Appropriate measures
The court considered the significance of the recitals to the Directive: ‘In that regard, it should be noted that the Directive, as is apparent from recitals 4 and 5, is designed to protect consumers against the risks inherent in the conclusion of contracts away from business premises (Hamilton v Volksbank Filder eG (C-412/06) [2008] E.C.R. I-2383; [2008] 2 C.M.L.R. 46 at [32]), as the special feature of those contracts is that as a rule it is the trader who initiates the contract negotiations, and the consumer has not prepared for such door-to-door selling by, inter alia, comparing the price and quality of the different offers available.’

A. Tizzano P
[2009] EUECJ C-227/08, C-227/08
Bailii
Directive 85/577/EEC 4
Citing:
OpinionEva Martin Martin v EDP Editores, SL ECJ 7-May-2009
ECJ Opinion – Directive 85/577 – Consumer Protection in the case of contracts concluded away from business premises – Termination – Failure to inform the consumer of his right to terminate the contract of . .

Cited by:
CitedRobertson v Swift SC 9-Sep-2014
Notice Absence did not Remove Right to Cancel
The defendant had contracted to arrange the removal of the claimant’s household goods on moving house. The claimant cancelled the contract, made at his housel, but refused to pay the cancellation fee, saying that the contract not having been made at . .

Lists of cited by and citing cases may be incomplete.

European, Consumer

Updated: 21 November 2021; Ref: scu.516312

Perenicova And Perenic: ECJ 15 Mar 2012

ECJ Consumer protection – Consumer credit agreement – Incorrect statement of annual percentage rate of charge – Effect of unfair commercial practices and unfair terms on the validity of the contract as a whole
Held: ‘a finding that a commercial practice is unfair has no direct effect on whether the contract is valid from the point of view of Article 6(1) of Directive 93/13.’

A. Tizzano, P
[2012] EUECJ C-453/10, C-453/10
Bailii
Citing:
OpinionPerenicova And Perenic French Text ECJ 29-Nov-2011
ECJ Opinion – Consumer protection – Directive 93/13/EEC – Article 4, paragraph 1 and Article 6, paragraph 1 – Unfair terms in consumer contracts – Directive 2005/29/EC – Unfair commercial practices of companies . .

Lists of cited by and citing cases may be incomplete.

European, Consumer, Banking

Updated: 21 November 2021; Ref: scu.516211

Torfaen County Borough Council v Douglas Willis Ltd: SC 31 Jul 2013

The Council’s officers visited the company’s premises, and after finding there packages of frozen meat whose use date had expired, pursued 23 charges under the 1990 Act and the Regulations. The justices had accepted the company’s argument that the prosecution had to prove that at the date of the alleged offence the food was highly perishable and likely after a short period to constitute an immediate danger to human health.
Held: Under regulation 44(1)(d) it is sufficient for the prosecution to prove that the defendant had food in its possession for the purpose of sale which was the subject of a mark or label showing a ‘use by’ date which had passed. The justices were therefore wrong to accept the company’s submission of no case to answer in relation to the 23 charges brought under that regulation. The answer to the question certified by the Divisional Court is ‘No’.

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Toulson
[2013] UKSC 59, [2013] WLR(D) 321, [2013] PTSR 1088, UKSC 2012/0087
Bailii, Bailii Summary, WLRD, SC Summary, SC
Food Labelling Regulations 1996, Food Safety Act 1990
England and Wales
Citing:
Appeal fromTorfaen County Borough Council v Douglas Willis Ltd Admn 20-Feb-2012
The company had been found with frozen meat which had passed the labelled ‘Use by’ date. The magistrates dismissed charges, conclusing that, since they were all frozen at the time of the inspection, they were not then highly perishable and so did . .

Lists of cited by and citing cases may be incomplete.

Consumer, Crime

Updated: 18 November 2021; Ref: scu.514222

BMW Financial Service (GB) Ltd v Hart: CA 10 Oct 2012

This appeal is concerned with a point of limitation arising out of a standard hire purchase contract concerning a car. The respondent had failed to maintain his payments, and theappelleants issued a termination notice. He was abroad fr a while, and the car repossessed and sold in his absence. Much later, the company sued for the balance due, obtaining judgment by default The defendant argued that the claim was out of time, and the judge at first instance set aside the judgment as out of time.
Held: The appeal succeeded. The judgment in default was re-instated.
Lord Justice Lewison said: ‘This is not a case of repayment of a loan already made. The consideration under the contract moving from Mr Hart was the obligation to make a series of periodical payments, plus the final balloon payment. In the ordinary way, therefore, BMW would have had to wait for each instalment to fall due before it could sue for that instalment. The payments due under clause 12 are not simply an accelerated payment. Other losses are also recoverable, and adjustments need to be made to the outstanding future payments of hire in order to produce a calculated rebate.’
Lord Justice Moore-Bick said: ‘ the right to recover the sum set out in clause 12 did not arise unless and until the hirer gave notice to terminate the contract. That was a right that he could choose to exercise or not, but unless he elected to do so, the contract continued in existence and instalments of hire would have fallen due at the stipulated intervals. Under section 5 of the Limitation Act 1980 time in a case of this kind runs from the date when the cause of action accrues. In this case, the cause of action to recover the amounts claimed under clause 12 did not accrue on the customer’s default alone, but only upon the election of the hirer to terminate the contract.’
Lord Justice Rix said: ‘ in this case there can be no right to sue for the clause 12 payments, that is to say for the full sum due upon an acceleration less any debits which should be credited, or plus any additional amounts which might be claimable, until a termination notice has been given or an acceptance of the repudiation has otherwise been communicated. In this case, the same termination notice was both the exercise of the right to terminate by notice, and also an acceptance of a repudiation, itself a matter referred to in clause 12. It is only upon the serving of such a notice or a communication of such an acceptance of a repudiation that the much greater amounts due under clause 12 become due. Before such a notice or acceptance of repudiation, the only amounts due are the outstanding instalments. Unlike the cases discussed in the jurisprudence, the mere failure to pay an instalment does not by itself, under the provisions of the relevant contract, accelerate the obligation to repay the whole amount outstanding.’

Rix, Moore-Bick, Lewison LJJ
[2012] EWCA Civ 1959
Bailii
Limitation Act 1980 5
England and Wales
Citing:
CitedHemp v Garland, Administrator and Co 1843
The Defendant gave a warrant of attorney to secure a debt payable by instalments, the plaintiff to be at liberty, in case of any default, to have judgment and execution for the whole, as if all the periods for payment had expired. Held that, in an . .
CitedReeves v Butcher CA 1891
A five-year loan was granted by the plaintiff to the defendant under a written agreement, providing for a ‘power to call in the same at an earlier period in the events hereinafter mentioned’. The plaintiff agreed not to call in the money for the . .

Lists of cited by and citing cases may be incomplete.

Consumer, Limitation

Updated: 17 November 2021; Ref: scu.513713

Green-Swann Swan Pharmaceuticals CR, a.s. v Statni zemedelsk: ECJ 18 Jul 2013

ECJ Consumer protection – Regulation (EC) No 1924/2006 – Nutrition and health claims made on foods – Article 2(2)(6) – ‘Reduction of disease risk claim’ – Article 28(2) – Products bearing trade marks or brand names – Transitional measures

Malenovsky, P
C-299/12, [2013] EUECJ C-299/12, [2013] WLR(D) 292
Bailii
Regulation (EC) No 1924/2006

European, Consumer

Updated: 17 November 2021; Ref: scu.513594

Evans and Another v Finance-U-Ltd: CA 18 Jul 2013

The court was asked whether FUL remained able to enforce the bill of sale to recover unpaid arrears in respect of the loan which Mr and Mrs Evans took out in order to purchase the car. The purchase price of the car was andpound;7,290 which the claimants financed by paying a cash deposit of andpound;1,400 and by borrowing the remaining andpound;5,890 from FUL under the terms of a loan agreement dated 20th April 2007.

Mummery, Patten, Black LJJ
[2013] EWCA Civ 869
Bailii
England and Wales

Consumer, Banking

Updated: 17 November 2021; Ref: scu.513515

Green – Swan Pharmaceuticals Cr, AS v Statni Zemedelska A Potravinarska Inspekce, Ustredni Inspektorat: ECJ 18 Jul 2013

ECJ Consumer protection – Regulation (EC) No 1924/2006 – Nutrition and health claims made on foods – Article 2(2)(6) – ‘Reduction of disease risk claim’ – Article 28(2) – Products bearing trade marks or brand names – Transitional measures

C-299/12, [2013] EUECJ C-299/12
Bailii

European, Consumer

Updated: 17 November 2021; Ref: scu.513411

Walter Endress v Allianz Lebensversicherungs-Ag: ECJ 11 Jul 2013

ECJ Opinion – Life assurance – Right of cancellation – Cancellation period – Starting point and duration – Communication of information

Sharpston AG
C-209/12, [2013] EUECJ C-209/12
Bailii
European
Cited by:
OpinionWalter Endress v Allianz Lebensversicherungs-Ag ECJ 19-Dec-2013
ECJ Request for a preliminary ruling – Directives 90/619/EEC and 92/96/EEC – Direct life assurance – Right of cancellation – Lack of information on the conditions governing the exercise of that right – Expiry of . .

Lists of cited by and citing cases may be incomplete.

Insurance, Consumer

Updated: 15 November 2021; Ref: scu.512345

BKK Mobil Oil Korperschaft Des Offentlichen Rechts v Zentrale Zur Bekampfung Unlauteren Wettbewerbs Ev: ECJ 4 Jul 2013

ECJ Consumer protection – Unfair commercial practices – Directive 2005/29/EC – Scope ratione personae – Misleading statements made by a sickness insurance fund established as a body governed by public law – Concept of ‘trader’

C-59/12, [2013] EUECJ C-59/12, [2013] EUECJ C-59/12
Bailii, Bailii
Directive 2005/29/EC

European, Consumer

Updated: 15 November 2021; Ref: scu.512169

Rogers v Parish (Scarborough) Ltd: CA 1987

The plaintiff appealed against rejection of his claim that the car he had bought from the defendant was not of merchantable quality. The goods were a Range Rover bought for a sum in excess of pounds 14,000.
Held: The appeal was allowed. Goods which were defective on delivery were not to be taken to be of merchantable quality for the purpose of section 14 of the 1979 Act by reason only of the fact that the defects had not destroyed the workable character of the goods. It was not relevant to whether the goods had been of merchantable quality upon delivery that the defects had subsequently been repaired; that in respect of any passenger vehicle the purpose for which goods of that kind were commonly bought would include not only the purchaser’s purpose in driving it but that of doing so with the degree of comfort, ease of handling, reliability and pride in its appearance appropriate for the market at which the vehicle was aimed; that defects which might be acceptable in a second hand vehicle and which would not therefore render it unmerchantable were not reasonably to be expected in a vehicle sold as new; and that the plaintiffs were entitled to repudiate the contracts since the vehicle was not as fit for its purpose as the plaintiffs were entitled to expect.
The standard of merchantable quality to be achieved under the 1979 Act depends on the market at which the product is aimed and that deficiencies might be acceptable in a product which is being sold as second-hand.
Mustill LJ said: ‘This being so, I think it legitimate to look at the whole issue afresh with direct reference to the words of section 14(6). Starting with the purpose for which ‘goods of that kind’ are commonly bought, one would include in respect of any passenger vehicle not merely the buyer’s purpose of driving the car from one place to another but of doing so with the appropriate degree of comfort, ease of handling and reliability and, one might add, of pride in the vehicle’s outward and interior appearance. What is the appropriate degree and what relative weight is to be attached to one characteristic of the car rather than another will depend on the market at which the car is aimed.
To identify the relevant expectation one must look at the factors listed in the subsection. The first is the description applied to the goods. In the present case the vehicle was sold as new. Deficiencies which might be acceptable in a secondhand vehicle were not to be expected in one purchased as new. Next, the description ‘Range Rover’ would conjure up a particular set of expectations, not the same as those relating to an ordinary saloon car, as to the balance between performance, handling, comfort and resilience. The factor of price was also significant. At more than andpound;14,000 this vehicle was, if not at the top end of the scale, well above the level of the ordinary family saloon. The buyer was entitled to value for his money.
With these factors in mind, can it be said that the Range Rover as delivered was as fit for the purpose as the buyer could reasonably expect? The point does not admit of elaborate discussion. I can only say that to my mind the defects in engine, gearbox and bodywork, the existence of which is no longer in dispute, clearly demand a negative answer.’

Mustill, Woolf LJJ, Sir Edward Eveleigh
[1987] QB 933
Sale of Goods Act 1979 13 14(6)
England and Wales
Cited by:
CitedStewart v Perth and Kinross Council HL 1-Apr-2004
The claimant challenged refusal of a licence to sell second hand cars, saying that the licensing requirements imposed were outwith the Act under which they had been made. The licensing scheme imposed additional requirements.
Held: Though a . .
CitedHarlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd CA 15-Dec-1989
The defendant auctioneer sold a painting to the plaintiff which turned out to be a forgery. The plaintiff appealed against a finding that it had not relied upon the attribution, saying that there had been a breach of the requirement that the paintig . .

Lists of cited by and citing cases may be incomplete.

Contract, Consumer

Updated: 14 November 2021; Ref: scu.195464

European Commission v Kingdom Of Spain, etc: ECJ 6 Jun 2013

ECJ Opinion – ‘ the Commission takes issue with an interpretation of Directive 2006/112 (2) under which eight Member States consider that the special VAT margin scheme for travel agents set out in Articles 306 to 310 of that directive . . applies regardless of whether the customer is actually the traveller or not. On the basis of the terminology used in some language versions of the provisions in question, that is referred to as ‘the customer approach’. The Commission asserts that, under the legislation as it stands (and in accordance with the practice in the remaining Member States), the margin scheme applies only where the customer is the traveller. Its interpretation is referred to, on the basis of the terminology in other language versions, as ‘the traveller approach’. ‘

Sharpston AG
C-189/11, [2013] EUECJ C-189/11, [2013] EUECJ C-189/11
Bailii, Bailii

European, Transport, Consumer, VAT

Updated: 12 November 2021; Ref: scu.510328

Erika Joros v Aegon Magyarorszag Hitel Zrt: ECJ 30 May 2013

ECJ Directive 93/13/EEC – Unfair terms in consumer contracts – Examination by the national court, of its own motion, as to whether a contractual term is unfair – Consequences to be drawn by the national court from a finding that the term is unfair

C-397/11, [2013] EUECJ C-397/11
Bailii
Directive 93/13/EEC

European, Consumer

Updated: 12 November 2021; Ref: scu.510308

Konsumentombudsmannen KO v Ving Sverige: ECJ 3 Feb 2011

ECJ Consumer protection – Unfair commercial practices – Directive 2005/29/EC – Concept of invitation to purchase – Requirement of information related to the marketed product and its price to the consumer to make a purchase – Definition of characteristics Product – Specify a starting price in a commercial communication published in the press – Misleading omissions.

C-122/10, [2011] EUECJ C-122/10
Bailii
European

Consumer

Updated: 12 November 2021; Ref: scu.428504

Office of Fair Trading v Miller: CA 3 Feb 2009

Order must be clear to found contempt charge

The defendant appealed against a finding of contempt of court after being found to have sold defective kitchen equipment in breach of a stop order. The defendant had been previously committed for breach of the same order, and released on his undertakings.
Held: The Order should have made it clear that it was limited to infringements of the Directive, namely the causing of harm to the collective interests of consumers. Proof of such a breach was required, whether of one or more acts. To the extent required, leave to appeal was granted.

Sedley LJ, Arden LJ, Moore-Bick LJ
[2009] EWCA Civ 34
Bailii
Fair Trading Act 1973, Stop Now Orders (EC Directive) Regulations 2001 (SI 2001 No 1422)
England and Wales
Citing:
CitedThe Government of Sierra Leone v Davenport and others CA 2002
An application was made to commit a defendant for contempt of court in failing to comply with parts of a court order.
Held: He was found to have been in contempt but the failure had been cured and no penalty beyond costs was imposed on him. . .
CitedLondon Borough of Barnet v Hurst CA 17-Jul-2002
The applicant had been sentenced to nine months imprisonment for having broken his undertaking to the Court. He appealed against that sentence. The other party also sought to appeal other parts of the order.
Held: An appeal limited to the . .
CitedOffice of Fair Trading v MB Designs (Scotland) Limited Martin Black Paul Bradley Bett OHCS 29-Jun-2005
The Office sought an order to enforce obligations under the 2002 Act against a trader. He argued that some of the acts complained of preceded the coming into force of the Act.
Held: The Act sought to protect the interests of consumers in . .
CitedFairclough and Sons v The Manchester Ship Canal Co CA 1897
The court considered the remedies for a contempt of court.
Held: Lord Russell CJ said: ‘We desire to make it clear that in such cases no casual or accidental and unintentional disobedience of an Order would justify either a commitment or . .

Lists of cited by and citing cases may be incomplete.

Consumer, Contempt of Court

Updated: 12 November 2021; Ref: scu.280418

Eurowings (Air Transport – Common Rules On Compensation and Assistance To Passengers In The Event of Cancellation or Long Delay – Judgment): ECJ 6 Oct 2021

Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Article 5(3) – Common rules on compensation and assistance to passengers in the event of cancellation or long delay of flights – Exemption from the obligation to pay compensation – Concept of ‘extraordinary circumstances’ – Strike by airline staff – Strike by the staff of a subsidiary in solidarity with the staff of the parent company

C-613/20, [2021] EUECJ C-613/20, ECLI:EU:C:2021:820
Bailii
European

Transport, Consumer

Updated: 12 November 2021; Ref: scu.668548

In re Charge Card Services Ltd: ChD 1987

The court discussed the historic availability of set-off in an insolvency: ‘By the turn of the [20th] century, therefore, the authorities showed that debts whose existence and amount were alike contingent at the date of the receiving order, and claims to damages for future breaches of contracts existing at that date, were capable of proof and, being capable of proof, could be set off under the section provided that they arose from mutual credits or mutual dealings. The only requirement was that they must in fact have resulted in quantified money claims by the time the claim to set off was made.’ The conventional contractual position in a typical credit card use, involves three (or where there is an acquirer in fact four) separate contracts. The contract of supply remains a contract of sale for a price, even where the buyer chooses to satisfy that price by means of a card. Payment by card is not conditional upon anything that may or may not happen in the chain of separate contracts between the buyer, the card-issuing company and the store, since ‘the general understanding of the public’ is ‘that when a customer signs the voucher he has discharged his obligations to the supplier and that he pays for the goods or services he has obtained when he pays the card-issuing company’.

Millet J
[1987] Ch 150
England and Wales
Citing:
CitedJones v Mossop 1844
Mr Reed held a bond for pounds 500 given by Mr Jones, who had also guaranteed some loans to Mr Reed by third parties. Mr Reed died insolvent and Mr Jones was called to pay pounds 377 to the lenders under the guarantees. When Mr Reed’s assignee Mr . .
CitedIn re Moseley-Green Coal and Coke Co Ltd, Ex parte Barrett 1865
Mr Barrett owed the company money on his partly-paid shares for which calls were made after it went into insolvent liquidation. He had also guaranteed the company’s liability for the purchase price of a coal mine, for which the vendor held security . .
CitedIn re Asphaltic Wood Pavement Co Ltd 1885
. .

Cited by:
CitedSecretary of State for Trade and Industry v Frid HL 13-May-2004
The company went into insolvent liquidation. The secretary of state was to make payments to employees and there were other state preferential creditors. At the same time a refund of VAT was due from the Commissioners of customs and Excise.
CitedRevenue and Customs v Debenhams Retail Plc CA 18-Jul-2005
The store introduced a system whereby when a customer paid by credit card, the charges made to them for card handling were expressed as a separate amount on the receipt. The store then said that VAT was payable only on the net amount allocated to . .
CitedBanco Santander Sa v Bayfern Ltd and Others ComC 29-Jun-1999
The court was asked whether the risk of fraud on the part of the beneficiary of a confirmed deferred payment letter of credit is to be borne by the issuing bank (and so possibly the applicant for the credit) or by the confirming bank where the . .
CitedOffice of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
CitedTam Wing Chuen v Bank of Credit and Commerce Hong Kong Ltd PC 1996
The Board considered a banking transaction and the application of a chargeback by the bank, under which a loan was made only after a deposit by a third party against which it was secured, and particularly in the context of the insolvency of the bank . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Consumer

Leading Case

Updated: 11 November 2021; Ref: scu.196878

Robertson v Swift: SC 9 Sep 2014

Notice Absence did not Remove Right to Cancel

The defendant had contracted to arrange the removal of the claimant’s household goods on moving house. The claimant cancelled the contract, made at his housel, but refused to pay the cancellation fee, saying that the contract not having been made at the defendant’s premises. The Court of Appeal had found the contractor unable to recover the cancellation fee, but also that the consumer appellant was unable to recover the deposit he had paid.
Held: The appeal succeeded. A failure by a trader to give written notice of the right to cancel does not deprive a consumer of the statutory right to cancel under regulation 7(1) of the 2008 Regulations.
A national court must interpret domestic legislation, so far as possible, in the light of the wording and purpose of the Directive which it seeks to implement. The requirement to give notice of the right to cancel is not a technical prerequisite to the arousal of the right but a means of ensuring that the consumer is made aware that he is entitled to cancel the contract after a period of reflection. Any implementation of this requirement must reflect its purpose. To hold that the consumer did not have the right to cancel because the trader had not served written notice of the right to cancel would run directly counter to the overall purpose of the Directive in ensuring that a consumer has the opportunity to withdraw from a contract without suffering significant adverse consequences.
‘ it is clear from the decisions . . that the objective of the Directive where a contract is cancelled is that the consumer should not suffer adverse consequences; that, in effect, he should be placed in the position that he would have been in if he had not entered the agreement in the first place. That the achievement of this objective should be dependent on whether the trader has given written notice to the consumer of his right to cancel would be incongruous’

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge
[2014] UKSC 50, [2014] WLR(D) 396, [2014] ECC 32, [2015] 1 CMLR 15, [2014] 1 WLR 3438, [2014] BUS LR 1029, [2014] 4 All ER 869, [2014] 2 All ER (Comm) 1083, UKSC 2013/0033
Bailii Summary, Bailii, WLRD, SC, Sc Summary
The Cancellation of Contracts made in a Consumer’s Home, or Place of Work etc Regulations 2008, Council Directive (85/577/EEC)
England and Wales
Citing:
Appeal fromRobertson v Swift CA 15-Jan-2013
The claimant removal company sought payment of its fees after the defendant purported to cancel the arrangement for moving his goods. The defendant now appealed against rejection of his claim that the the contract was cancellable within the 2008 . .
CitedEva Martin Martin v EDP Editores, SL ECJ 17-Dec-2009
ECJ Directive 85/577/EEC Article 4 Consumer protection – Contracts negotiated away from business premises – Right of cancellation – Obligation on the trader to give notice of that right – Contract void – . .
CitedSchulte v Deutsche Bausparkasse Badenia AG ECJ 25-Oct-2005
ECJ Environment and Consumers – Consumer protection – Doorstep selling – Purchase of immovable property – Investment financed by a secured loan – Right of cancellation – Effects of cancellation.
‘when . .
CitedEva Martin Martin v EDP Editores, SL ECJ 7-May-2009
ECJ Opinion – Directive 85/577 – Consumer Protection in the case of contracts concluded away from business premises – Termination – Failure to inform the consumer of his right to terminate the contract of . .
CitedVodafone 2 v HM Revenue and Customs CA 22-May-2009
To avoid a restriction unlawful under European law of a company’s freedom of establishment in the context of the profits of a foreign controlled company and that company’s right of freedom of establishment, the court could properly read into the . .
CitedHeininger v Bayerische Hypo-und Vereinsbank AG ECJ 13-Dec-2001
ECJ Consumer protection – Doorstep selling – Right of cancellation – Agreement to grant credit secured by charge on immovable property. . .
CitedE. Friz GmbH v Carsten von der Heyden (Environment And Consumers) ECJ 15-Apr-2010
ECJ Consumer protection – Contracts negotiated away from business premises Scope of Directive 85/577/EEC – Entry into a closed-end real property fund established in the form of a partnership – Cancellation.
CitedRegina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .

Cited by:
CitedThe United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Contract, Consumer, European

Leading Case

Updated: 11 November 2021; Ref: scu.536472

Office of Fair Trading v Abbey National Plc and seven Others: ComC 24 Apr 2008

The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the breach of the overdraft limits.
Held: The relevant terms were not exempt from assessment under the 1999 Regulations. None of the terms failed as penalties at common law, and nor would the application of the Regulations disapply any protection given by common law. The Regulations should be read in a purposive way, and the exemptions did not save the Banks’ terms from being caught by the Regulations. In declining to provide an overdraft the banks were not providing a service. However: ‘the Banks supply to current account customers services within the meaning of the 1999 Regulations when they pay in accordance with a payment instruction regardless of whether it is a Relevant Instruction and involves the Bank in carrying out additional procedures and when they operate the running account with a debit balance, that is to say, when they allow borrowing on the account, regardless of whether the borrowing is by way of an unarranged overdraft. However, this does not mean that it is irrelevant to the application of Regulation 6(2)(b) that charges are levied for carrying out payment instructions and allowing borrowing only when the instructions are Relevant Instructions and the borrowing is by way of unarranged overdraft.’

Andrew Smith J
[2008] EWHC 875 (Comm), Times 29-Apr-2008, Gazette 08-May-2005, [2008] 2 All ER (Comm) 625
Bailii
Unfair Terms in Consumer Contracts Regulations 1999, Enterprise Act 2002 213(1)
England and Wales
Citing:
CitedLondon Borough of Newham v Khatun, Zeb and Iqbal CA 24-Feb-2004
The council made offers of accommodation which were rejected as inappropriate by the proposed tenants.
Held: The council was given a responsibility to act reasonably. It was for them, not the court to make that assessment subject only to . .
CitedDirector General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .
CitedJoachimson v Swiss Bank Corporation CA 1921
The service of the order nisi binds the debt in the hands of the garnishee – that is, it creates a charge in favour of the judgment creditor. No cause of action for non payment arises in respect of money standing on a current account until the . .
CitedSocimer International Bank Ltd v Standard Bank London Ltd CA 22-Feb-2008
Rix LJ considered the restraints operating a party to a contract in exercising any discretion gien under it, preferring the use of the term ‘irrationality’ to ‘unreasonableness’: ‘It is plain from these authorities that a decision-maker’s discretion . .
MentionedLymington Marina Ltd v MacNamara and others CA 2-Mar-2007
A share in a marina had been inherited by one brother whose application to grant successive sub-lcences of it to the other two was rejected by the marina, who said that this was not permitted. The marina appealed a finding that it had to make its . .
CitedWestminster Bank Ltd v Hilton HL 1926
As against the money of the customer’s in the banker’s hands the relationship between banker and customer is that of principal and agent.
Lord Atkinson said: ‘It is well established that the normal relation between a banker and his customer . .
CitedBank of New South Wales v Laing 1954
A bank is not under an obligation to lend to a current account customer or to allow him overdraft facilities unless it has agreed to do so. . .
CitedEasycar (UK) Ltd v Office of Fair Trading ECJ 10-Mar-2005
The claimant was a self drive car hire company taking bookings over the internet. Its terms refused a refund on cancellation save in special circumstances. The OFT said these terms infringed the regulations. The claimant said their contracts were . .
CitedRolls Razor Ltd v Cox CA 1967
Winn LJ said: ‘the relationship of banker and customer upon a current account implies from its very nature an intention on the part of both parties that debits and credits arising between them shall be brought into a running account on which by . .
CitedBairstow Eves London Central Ltd v Smith and Another QBD 20-Feb-2004
. .
CitedEmerald Meats (London) Ltd v AIB Group (UK) Plc CA 12-Apr-2002
The claimant appealed a finding that it had not been overcharged interest by the respondent. The account was overdrawn. They claimed that on each occasion when a cheque was paid into the account, the bank had charged a day’s extra interest before . .
CitedBarclays Bank v WJ Simms and Cooke (Southern) Ltd QBD 1979
The customer made out a cheque to pay his builder, but countermanded it. The bank paid the cheque when it was presented by mistake, and now sought repayment from the builder.
Held: The bank succeeded. The court discussed the extent of a . .
CitedLloyds Bank Plc v Independent Insurance Co Ltd CA 26-Nov-1998
The bank had made an electronic transfer of funds for a customer in satisfaction of that customer’s proper debt, but it was done under a mistake of fact as to the cleared status of funds received.
Held: The appeal was turned down. The bank was . .
CitedAbu Dhabi National Tanker Co v Product Star Shipping Ltd (No 2) CA 1993
Where parties enter into a contract which confers a discretion on one of them, the discretion must be exercised honestly and in good faith, and not ‘arbitrarily, capriciously or unreasonably’. The owner had acted unreasonably in that there was no . .
CitedIn re Charge Card Services Ltd ChD 1987
The court discussed the historic availability of set-off in an insolvency: ‘By the turn of the [20th] century, therefore, the authorities showed that debts whose existence and amount were alike contingent at the date of the receiving order, and . .
CitedHeininger v Bayerische Hypo-und Vereinsbank AG ECJ 13-Dec-2001
ECJ Consumer protection – Doorstep selling – Right of cancellation – Agreement to grant credit secured by charge on immovable property. . .
CitedParagon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .
CitedCommission v Netherlands C-144/99 ECJ 10-May-2001
ECJ Failure by a Member State to fulfil its obligations – Directive 93/13/EEC – Unfair terms in consumer contracts – Incomplete transposition of the directive into national law. As to the applicable principles in . .
CitedLidl Belgium GmbH and Co KG v Etablissementen Franz Colruyt NV ECJ 19-Sep-2006
ECJ (Approximation of Laws) – Directives 84/450/EEC and 97/55/EC – Misleading advertising – Comparative advertising – Conditions under which comparative advertising is permitted – Comparison of the general level . .
CitedBaybut v Eccle Riggs Country Park Ltd ChD 2-Nov-2006
The purchaser of a caravan park purported to terminate the 10 year licences under which the owners of the various caravans occupied their respective pitches. The sale agreement of the caravan site had contained a covenant by the purchaser with the . .
CitedThe County Homesearch Company (Thames and Chilterns) Ltd v Cowham CA 31-Jan-2008
The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed from a finding that they were obliged to pay his commission. The judge found . .
CitedDublin Port and Docks Board v Bank of Ireland 22-Jul-1976
(Supreme Court of Ireland) The court discussed a bank’s obligation to process cheques issued by its customers: ‘a banker should pay his customers’ cheques in the order in which they are presented, subject to the interest of the customer being taken . .
CitedExport Credits Guarantee Department v Universal Oil Products HL 1983
A contract provided for the payment of a stated sum by one party to the contract (A) to the other party (B) in the event of the non-performance by A of one of more contractual obligations owed by A not to B himself but to C, who was not a party to . .
CitedJoseph Constantine SS Line Ltd v Imperial Smelting Corp Ltd 1942
Before a court, he who asserts something must must prove it: ‘Ei qui affirmat non ei qui negat incumbit probatio’
Lord Wight discussed the question of whether there had been ‘a vital change of the law . . Operating on the circumstances.’ . .
CitedRegina (Factortame Ltd and Others) v Secretary of State for Transport, Local Government and the Regions (No 8) CA 3-Jul-2002
A firm of accountants had agreed to provide their services as experts in a case on the basis that they would be paid by taking part of any damages awarded. The respondent claimed that such an agreement was champertous and unlawful.
Held: The . .
CitedJeancharm Ltd (T/A Beaver International) v Barnet Football Club Ltd CA 16-Jan-2002
The claimant contracted to supply football shirts to the defendant, but claimed that clauses in the contract with regards to late delivery and payment operated as penalties and so were void at common law.
Held: The sums set out were immodest . .
CitedSkillion pIc v Keltec Industrial Research Ltd 1992
In the context of a covenant in a lease restricting the tenant’s use of the demised premises, it is the landlord who requires and puts forward the clause, and, the landlord will be treated as the proposer and the clause must therefore be construed . .
CitedPhilip Bernstein (Successors) Ltd v Lydiate Textiles Ltd; orse Sterling Industrial Facilities v Lydiate Textiles Ltd CA 26-Jun-1962
Lord Justice Diplock: ‘. . the ordinary rule which the courts apply is that contracts should be enforced, pacta sunt servanda, unless they can be brought within that limited category of cases in which, for reasons of public policy, the court refuses . .
CitedShamsher Jute Mills Ltd v Sethia (London) Ltd 1987
The plaintiff sold goods to the defendant under the protection of a letter of credit. The plaintiff did not himself provide approriate documentation to claim under the letter of credit, and the banker did not pay.
Held: The plaintiffs were the . .
CitedFaaborg-Gelting Linien v Finanzamt Flensburg ECJ 2-May-1996
A non-takeaway restaurant is a supply of services, and a ferry supply was made from its place of business. The supply of prepared food and drink at a restaurant resulted from a whole series of services (including the preparation and service of the . .
CitedCofidis SA v Jean-Louis Fredout ECJ 21-Nov-2002
ECJ Directive 93/13/EEC – Unfair terms in consumer contracts – Action brought by a seller or supplier – National provision prohibiting the national court from finding a term unfair, of its own motion or following . .
CitedHer Majesty’s Customs and Excise v Gerhart Schindler and Jorg Schindler ECJ 24-Mar-1994
Europa The importation of lottery advertisements and tickets into a Member State with a view to the participation by residents of that State in a lottery conducted in another Member State relates to a ‘service’ . .
CitedWire TV Limited v Cabletel (UK) Limited CA 30-Jul-1997
When construing an agreement which is not a sham, the court should recognise that the parties might have a choice as to how a contract is structured and pay appropriate respect to the structure adopted by the parties. . .
CitedDomsalla (T/A Domsalla Building Services) v Dyason TCC 4-May-2007
A consumer has no grounds for complaining about the construction adjudication process per se under the Regulations . .
CitedBryen and Langley Ltd v Boston CA 29-Jul-2005
The special facts surrounding the agreement of the standard term at issue were such that the court held that it could not possibly say that there had been a breach of the principle of fair dealing and that rendered it unnecessary for the court to . .
CitedLloyds Bank plc v Voller 2002
. .

Cited by:
CitedOffice of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
See AlsoOffice of Fair Trading v Abbey National Plc and others ComC 8-Oct-2008
The director sought a further judgment as to whether charges imposed by banks on a customer taking an unauthorised overdraft, and otherwise were unlawful penalties. . .
Appeal fromAbbey National Plc and others v The Office of Fair Trading CA 26-Feb-2009
The OFT had sought to enquire as to the fairness of the terms on which banks conducted their accounts with consumers, and in particular as to how they charged for unauthorised overdrafts. The banks denied that the OFT had jurisdiction, and now . .
See alsoOffice of Fair Trading v Abbey National Plc and others ComC 21-Jan-2009
. .
At First InstanceOffice of Fair Trading (OFT) v Abbey National Plc and Others SC 25-Nov-2009
The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could . .
CitedCavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer

Updated: 11 November 2021; Ref: scu.267090

Love v Halfords Ltd: QBD 8 Apr 2014

The claimant had purchased a new bicycle from the defendants who also maintained it. Several months later, the steerer tube broke causing an accident and severe injury. The cycle had been finally assembled by the defendant after importation, but that element was already put together.
Held: The claim failed. The expert evidence had been difficult, but the accident happened when the tube failed after being weakened by a previous, unknown, incident in which it was assumed to have been bent and straightened. The claimant worked in an engineering environment in which such repairs would have been possible. His denial of such a repair was not accepted.

Sir Colin Mackay
[2014] EWHC 1057
Bailii
Consumer Protection Act 1987, Supply of Goods and Services Act 1982, Sale of Goods Act 1979
England and Wales
Citing:
CitedRhesa Shipping Co SA v Edmonds (The Popi M) HL 16-May-1985
The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was . .
CitedIde v ATB Sales Ltd and Another CA 28-Apr-2008
Each appellant challenged how the judge had decided between alternative proofs of causation of the respective loss. In Ide, the claimant asserted a fault in a cycle handlebar, and in Lexus, the claimant asserted that it caught fire whilst . .
CitedMcGlinchey v General Motors UK SCS 4-Dec-2012
. .

Lists of cited by and citing cases may be incomplete.

Contract, Consumer, Personal Injury

Updated: 11 November 2021; Ref: scu.523597

HSBC Bank Plc v Brophy: CA 2 Feb 2011

The customer appealed against an order finding that his credit card agreement was binding upon him.
Held: The appeal failed. His argument that the application form amounted only to an invitation to treat, and that the contract was one made by conduct only and therefore not compliant with the 1974 Act, failed. The form was an application for credit: ‘By signing the application form and returning it to the Bank Mr. Brophy applied for credit and offered to be bound by the terms and conditions set out in the form. The form itself made it clear that it contained a request for credit and that the applicant should not sign it unless he was willing to be bound. It cannot therefore be regarded as a mere invitation to treat on his part which might lead the Bank to make him a formal offer of credit. Nor, on the other hand, did it contain an agreement of any kind unless and until it was countersigned by the Bank. The Bank accepted Mr. Brophy’s offer by counter-signing the form, at which point there came into being an executed agreement within the meaning of section 61 of the Act.’ Similarly, applying Hurstanger, the document contained the information required.

Sedley, Moore-Bick, Sullivan LJJ
[2011] EWCA Civ 67, [2011] Bus LR 1004, [2011] ECC 14
Bailii
Consumer Credit Act 1974 61
England and Wales
Citing:
CitedHurstanger Ltd v Wilson 2006
(Coventry County Court) Michael Douglas discussed the 1983 Regulations, saying: ‘The 1983 Regulations prescribe, among other things, the minimum contents of a regulated agreement, the information which must be brought to the attention of the . .
CitedWilson and Another v Hurstanger Ltd CA 4-Apr-2007
The company sought to enforce its loan agreement and charge over the defendants’ property. The defendants appealed saying that the agreement was unenforceable under the Act, since a commission had been paid to the introducing broker, and his fee had . .
Appeal fromBrophy v HFC Bank QBD 22-Mar-2010
The customer sought to appeal against a finding of liability for the debt on his credit card, and that the credit card agreement which operated between Mr Brophy and the bank for a period of some 14 years, from 1994 to 2008, was a valid and . .

Lists of cited by and citing cases may be incomplete.

Consumer, Banking

Leading Case

Updated: 11 November 2021; Ref: scu.428529

Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd: CA 2 Apr 2009

The appellant entered into two aircraft leasing agreements but were unable to maintain payments. They appealed against rejection of their argument that the agreements were not exempt from the controls under the 1977 Act by being international supply agreements.
Held: The appeal failed. The intention of section 26 was to exclude such agreements entirely from control, and the section could be satisfactorily construed to do this: ‘although the aircraft were to be delivered to the lessee in this country, both parties were well aware that they were being leased by First Flight for use in their business and were to be taken to India for that purpose. If, therefore, as its language suggests, subsection (4)(a) is not limited to contracts under which goods must be carried across national boundaries in order to fulfil a contractual obligation, a contract of this kind must fall within it.’

Lord Justice Waller, Lady Justice Arden and Lord Justice Moore-Bick
[2009] EWCA Civ 290
Bailii, Times
Unfair Contract Terms Act 1977 26, Misrepresentation Act 1967 3
England and Wales
Citing:
Appeal FromTrident Turboprop (Dublin) Ltd v First Flight Couriers Ltd Comc 17-Jul-2008
Trident entered into Aircraft Operating Lease Agreements in identical terms with First Flight in respect of two ATP model aircraft. The leases represented the culmination of negotiations between a representative of the manufacturer, BAE Systems . .
CitedPremium Nafta Products Ltd (20th Defendant) and others v Fili Shipping Company Ltd and others; Fiona Trust and Holding Corporation v Privalov HL 17-Oct-2007
The owners of a ship sought to rescind charters saying that they had been procured by bribery.
Held: A claim to rescind a contract by reason of bribery fell within the scope of an arbitration clause under which the parties had agreed to refer . .
CitedHandelskwekerij GJ Bier Bv v Mines De Potasse D’Alsace Sa ECJ 30-Nov-1976
Europa Where the place of the happening of the event which may give rise to liability in tort, delict or quasi-delict and the place where that event results in damage are not identical, the expression ‘place . .
CitedAlfred Dunhill Ltd v Diffusion Internationale De Maroquinerie De Prestige Sarl QBD 1-Feb-2001
The words of Article 5(3) are to be given an autonomous meaning and are not to be interpreted by reference to the definition of a cause of action under the particular national law concerned. . .
CitedSunderland Marine Mutual Insurance Company Ltd v Wiseman and others ComC 22-Jun-2007
The parties disputed as to whether the claim should be tried in England or Scotland. . .
CitedDolphin Maritime and Aviation Services Ltd v Sveriges Angartygs Assurans Forening ComC 2-Apr-2009
The defendant sought to strike out the claim for want of jurisdiction and that it had no prospect of success. . .

Lists of cited by and citing cases may be incomplete.

Consumer, Contract

Updated: 11 November 2021; Ref: scu.329548

Nolan v Wright: ChD 26 Feb 2009

The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement amounted to an extortionate bargain would not be a substantive relief, and was therefore not subject to a time bar. The claimant had admitted leaving agreements to run unenforced to avoid arguments over whether the agreement was extortionate.
Held: The defendant was required under the rules to give notice to apply for such an order, and therefore ‘a claim to reopen a credit agreement as an extortionate credit bargain is an action upon a specialty to which in principle, and subject to section 9 (and the other provisions) of the 1980 Act, a limitation period of 12 years from the date of entry into the relevant credit agreement applies.’ It was clear that many of the defendant’s assertions were fanciful, and contradicted by his own contemporaneous and later documents. However there were similarly doubts about the claimants own case which required investigation at trial.

Hodge QC J
[2009] EWHC 305 (Ch)
Bailii
Consumer Credit Act 1974 137 138 139 140, Limitation Act 1980 8
England and Wales
Citing:
CitedCollin v Duke of Westminster CA 1985
In 1975 the tenant sought to exercise his right to purchase the freehold reversion of his property. The landlord argued that the rent payable precluded any such entitlement. Under the law as then understood, the landlord’s contention appeared . .
CitedHill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .
CitedBray v Stuart A West and Co 1989
The court’s inherent supervisory jurisdiction over legal professions are not proceedings founded on any cause of action, and so are not subject to the Limitation Act. . .
CitedParagon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .
CitedFirst National Bank Plc v Syed CA 1991
The court can exercise the supervisory jurisdiction over consumer contracts under the 1974 Act irrespective of any application made by a party. . .
CitedRe Priory Garage (Walthamstow) Limited ChD 2001
The court considered the relevance of a statutory limitation period in relation to applications to set aside transactions as being at an undervalue or as voidable preferences under section 238 to 241 of the 1986 Act. Applications to set aside . .
CitedRahman v Sterling Credit Ltd CA 17-Oct-2000
A lender sought repossession of a property securing a loan from 1998. The borrower sought to assert that the loan was an extortionate credit bargain under the Act. The lender asserted that that claim was out of time.
Held: A claim under a . .
CitedLetang v Cooper CA 15-Jun-1964
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking . .
CitedNational Westminster Bank v Daniel CA 1993
The defence contained two contradictory grounds, and the defendant’s evidence again contradicted the defences. The plaintiff sought summary judgment.
Held: A judge, when considering whether a claim should be determined then or allowed to . .
CitedSwain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
CitedThree Rivers District Council and Others v Governor and Company of The Bank of England HL 18-May-2000
The applicants alleged misfeasance against the Bank of England in respect of the regulation of a bank.
Held: The Bank could not be sued in negligence, but the tort of misfeasance required clear evidence of misdeeds. The action was now properly . .
CitedE D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
CitedNationwide Building Society v Dunlop Haywards Ltd and Another ComC 14-Jun-2007
Claims in deceit with regard to valuations of commercial properties. . .
CitedExtraktionstechnik Gesellschaft fur Anlagenbau GmbH v Oskar CA 1984
Where there are unexplained features of both the claim and the defence which are disturbing because they bear the appearance of falsity and disreputable business dealings and questionable conduct, the Court should not make tentative assessments of . .

Lists of cited by and citing cases may be incomplete.

Limitation, Contract, Consumer

Updated: 11 November 2021; Ref: scu.304541

British Bankers Association, Regina (on The Application of) v The Financial Services Authority and Another: Admn 20 Apr 2011

The claimant sought relief by way of judicial review from a policy statement issued by the defendants regarding the alleged widespread misselling of payment protection insurance policies, and the steps to be taken to compensate the purchasers. They objected that the policy statement would require them to act beyond their obligations in law.
Held: The objection failed. The parliamentary background materials did not require restriction of the scope of rules capable of being made by the respondent. The respondent was not limited to making rules with regard to matters which were actionable in themselves. Ouseley J discussed the relationship between the FSA Principles and Rules and said: ‘The Principles are best understood as the ever present substrata to which the specific rules are added. The Principles always have to be complied with. The specific rules do not supplant them and cannot be used to contradict them. They are but specific applications of them to the particular requirements they cover. The general notion that the specific rules can exhaust the application of the Principles is inappropriate. It cannot be an error of law for the Principles to augment specific rules.’
Though a specific provision is capable of carrying an implied exclusion of other general or other specific powers, section 404 did not implicitly exclude what the FSA had done, even though it would have been possible for a scheme to have been set up to achieve much or rather more of the same end, and part of the reason why it was not was the cumbersome nature of the remedy, and the fact that it would not apply to breaches of the Principles.

Ouseley J
[2011] EWHC 999 (Admin), [2011] Bus LR 1531, [2011] ACD 71
Bailii
Financial Services and Markets Act 2000 2 404
England and Wales
Citing:
CitedBlack-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
CitedRegina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
CitedHeather Moor and Edgecomb Ltd, Regina (on the Application Of) v Financial Ombudsman Service and Another CA 11-Jun-2008
Rix LJ considered the possible scope of rules made by the respondent saying: ‘In my judgment, the following values are all to be appreciated and brought into a pragmatic balance: that an efficient and cost-effective and relatively informal type of . .
CitedCredit Suisse and Another v Waltham Forest London Borough Council CA 20-May-1996
Parliament had made detailed provision in a number of Acts for the discharge of the housing duties by local authorities. These detailed provisions did not contain a power to give a guarantee in connection with a bank loan to a company which the . .
CitedHarrison v Black Horse Ltd QBD 1-Dec-2010
The claimant sought damages for breach of the statutory duty in ICOB, and for damages for negligence. The bank faced a claim that it had assumed responsibility to take reasonable care in recommending the policy it did. The bank had relied on the . .
CitedHeather Moor and Edgecomb Ltd, Regina (on the Application Of) v Financial Ombudsman Service and Another CA 11-Jun-2008
Rix LJ considered the possible scope of rules made by the respondent saying: ‘In my judgment, the following values are all to be appreciated and brought into a pragmatic balance: that an efficient and cost-effective and relatively informal type of . .
CitedBaby Products Association and Another, Regina (on the Application of) v Liverpool City Council Admn 23-Nov-1999
The 1987 Act and its Regulations enabled a local authority with proper grounds for suspecting that a safety provision had been contravened in relation to goods, to issue a ‘suspension notice’ prohibiting a person on whom it was served from supplying . .
CitedRegina v J HL 14-Oct-2004
The defendant was to have been accused of having unlawful sexual intercourse with a girl under 16. Proceedings could not be brought, because the allegation was more than a year old, and he was instead accused of indecent assault, but on the same . .

Cited by:
CitedBarnes and Another v Black Horse Ltd QBD 31-May-2011
barnes_blackQBD11
The claimants sought repayment by the bank of sums paid to them for Payment Protection Insurance policies sold to them in connection with loans made by the bank. The Bank now resisted an application for leave to amend the particulars of the . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer, Financial Services

Updated: 10 November 2021; Ref: scu.434868

Avrora Fine Arts Investment Ltd v Christie, Manson and Woods Ltd: ChD 27 Jul 2012

The claimants had bought a painting (Odalisque) through the defendant auctioneers. They now claimed that it had been misattributed to Kustodiev, and claimed in negligence and misrepresentation.
Held: Based on the connoisseurship evidence, the painting was likely not to be by Kustodiev. The claimant was entitled under the contract to cancel the contract and recover the money paid. The claims for negligence and under the Misrepresentation Act failed.

Newey J
[2012] EWHC 2198 (Ch)
Bailii
Misrepresentation Act 1967 2(1), Unfair Contract Terms Act 1977 2
England and Wales
Citing:
CitedDrake v Thos Agnew and Sons Limited QBD 8-Mar-2002
The claimant sought the return of money paid by him for a painting. He said it had been sold to his agent as by ‘Van Dyck’ but subsequently proved not to be so. He had employed an agent to acquire the painting, but the agent had not disclosed to him . .
CitedHedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
CitedMcCullagh v Lane Fox and Partners Ltd CA 19-Dec-1995
There was no duty in negligent mis-statement from a vendor’s estate agent to a purchaser for that purchaser’s financial loss after proceeding without first obtaining a survey relying upon the agent.
Hobhouse LJ said: ‘On the Sunday, Mr. Scott . .
CitedMorin v Bonhams and Brooks Limited Bonhams and Brooks S A M CA 18-Dec-2003
The claimant had bought a vintage Ferrari motor car through the defendant auctioneers in Monaco but sought rescission after it appeared that the odometer had been altered. The auction conditions purported to exclude any description of the car. He . .
CitedSmith v Land and House Property Corporation CA 1885
Bowen LJ said: ‘if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of material fact, for he impliedly states that he knows facts which justify his . .
CitedDe Balkany v Christie Manson and Woods Ltd QBD 19-Jan-1995
Over-painting was deemed to be a forgery within the Christie terms and conditions. The exception was excluded. Christie’s was liable under the guarantee it had given. Morison J also considered (obiter) the defendant’s possible liability in tort, and . .
CitedThomson v Christie Manson and Woods Ltd and Another QBD 2004
Two urns had been auctioned as ‘a pair of Louis XV porphyry and gilt-bronze two-handled vases’. The buyer claimed that this was false. The parties agreed Christie’s had impliedly represented that it had reasonable grounds for its opinion.
CitedMorin v Bonhams and Brooks Ltd and Another ComC 18-Mar-2003
Claim for rescission of contract for purchase of Ferrari car at auction after discovery of alteration to odometer.
Jonathan Hirst QC said (after discussing the Christie’s case): ‘Plainly this authority provides substantial ammunition for BandB . .
CitedIFE Fund Sa v Goldman Sachs International ComC 21-Nov-2006
A claim advanced depended on the defendant having owed a duty to provide information. Toulson J said: ‘[The claimant] relies on the publication of the SIM [i.e. a Syndicate Information Memorandum] to give rise to the alleged duty of care. The . .
CitedRaiffeisen Zentralbank Osterreich Ag v The Royal Bank of Scotland Plc ComC 11-Jun-2010
The court was asked whether certain provisions fell within section 3 of the Misrepresentation Act.
Held: Christopher Clarke J referred to dicta of Gloster J and said: ‘In Springwell Gloster J took the view that terms which simply defined the . .
CitedOverseas Medical Supplies Limited v Orient Transport Services Limited CA 20-May-1999
The appellant challenged a finding that it was responsible for the loss of medical equipment being transported from Tehran to the UK, and of failing to insure it as required, the contractual term exempting it from responsibility being an . .
CitedSpringwell Navigation Corporation v JP Morgan Chase Bank and Others CA 1-Nov-2010
The court was asked as to whether representations has been made.
Held: Aikens LJ referred to a provision stating ‘no representation or warranty, express or implied, is or will be made . . in or in relation to such documents or information’, . .
CitedTitan Steel Wheels Ltd v The Royal Bank of Scotland Plc Comc 11-Feb-2010
. .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Negligence, Consumer

Updated: 10 November 2021; Ref: scu.463298

A And Centrale Adriatica v Autorita Garante della Concorrenza e del Mercato: ECJ 19 Dec 2013

ECJ Request for a preliminary ruling – Consumer protection – Unfair business-to-consumer commercial practices – Directive 2005/29/EC – Article 6(1) – Concept of ‘misleading action’ – Cumulative nature of the conditions set out in the provision in question

C-281/12, [2013] EUECJ C-281/12
Bailii
Directive 2005/29/EC
European

European, Consumer

Updated: 10 November 2021; Ref: scu.519493

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

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

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

Lists of cited by and citing cases may be incomplete.

Consumer, Agency, Contract, European

Updated: 10 November 2021; Ref: scu.329542

Air France Sa v Heinz-Gerke Folkerts: ECJ 26 Feb 2013

airfrance_folkertsECJ2013

ECJ (Grand Chamber) Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Articles 6 and 7 – Connecting flight(s) – Delay in arrival at the final destination – Delay equal to or in excess of three hours – A passenger’s right to compensation

V Skouris, P
C-11/11, [2013] EUECJ C-11/11
Bailii
Regulation (EC) No 261/2004 6 7

European, Transport, Consumer

Leading Case

Updated: 10 November 2021; Ref: scu.471208

Citroen Commerce GmbH v Zentralvereinigung des Kraftfahrzeuggewerbes zur Aufrechterhaltung lauteren Wettbewerbs eV: ECJ 7 Jul 2016

ECJ (Judgment) Reference for a preliminary ruling – Directives 98/6/EC and 2005/29/EC – Consumer protection – Advertisement containing an indication of price – Concepts of ‘offer’ and ‘price inclusive of taxes’ – Obligation to include in the price of a motor vehicle the additional costs necessarily incurred in connection with the transfer of the vehicle)

L. Bay Larsen, P
ECLI:EU:C:2016:527, [2016] EUECJ C-476/14
Bailii

European, Consumer, Media

Updated: 10 November 2021; Ref: scu.566723

Hobohm v Benedikt Kampik Ltd and Co KG and Others: ECJ 23 Dec 2015

ECJ (Judgment) Reference for a preliminary ruling – Judicial cooperation in civil and commercial matters – Regulation (EC) No 44/2001 – Jurisdiction in respect of consumer contracts – Articles 15(1)(c) and 16(1) – Meaning of a commercial or professional activity ‘directed to’ the Member State of the consumer’s domicile – Transaction-management contract designed to achieve the economic objective pursued by means of a brokerage contract concluded beforehand in the course of a commercial or professional activity ‘directed to’ the Member State of the consumer’s domicile – Close link

L Bay Larsen, P
ECLI:EU:C:2015:844, [2015] EUECJ C-297/14, [2015] WLR(D) 546, [2016] 2 WLR 940, [2016] ILPr 9
Bailii, WLRD
Regulation (EC) No 44/2001
European

Consumer

Updated: 10 November 2021; Ref: scu.565745

Plevin v Paragon Personal Finance Ltd: SC 12 Nov 2014

PPI Sale – No Recovery from Remote Parties

The claimant sought repayment of payment protection insurance premiums paid by her under a policy with Norwich Union. The immediate broker arranging the loan was now insolvent, and she sought repayment from the second and other level intermediaties. She said that the commission disclosure by the defendants had been inadequate.
Held: The appeal failed.
Disapproving Harrison: ‘The view which a court takes of the fairness or unfairness of a debtor-creditor relationship may legitimately be influenced by the standard of commercial conduct reasonably to be expected of the creditor. The ICOB rules are some evidence of what that standard is. But they cannot be determinative of the question posed by section 140A, because they are doing different things. The fundamental difference is that the ICOB rules impose obligations on insurers and insurance intermediaries. Section 140A, by comparison, does not impose any obligation and is not concerned with the question whether the creditor or anyone else is in breach of a duty. It is concerned with the question whether the creditor’s relationship with the debtor was unfair.’
The non-disclosure of the commissions paid made the arrangement unfair: ‘A sufficiently extreme inequality of knowledge and understanding is a classic source of unfairness in any relationship between a creditor and a non-commercial debtor. It is a question of degree . . at some point commissions may become so large that the relationship cannot be regarded as fair if the customer is kept in ignorance. At what point is difficult to say, but wherever the tipping point may lie the commissions paid in this case are a long way beyond it.’
As to whether the defendant was liable having had only contact with the intermediary: ‘it is enough to consider the acts or omissions of Paragon itself, without exploring the conduct of others acting on its behalf. Paragon owed no legal duty to Mrs Plevin under the ICOB rules to disclose the commissions and, not being her agent or adviser, they owed no such duty under the general law either. However . . the question which arises under section 140A(1)(c) is not whether there was a legal duty to disclose the commissions. It is whether the unfairness arising from their non-disclosure was due to something done or not done by Paragon . . the unfairness which arose from the non-disclosure of the amount of the commissions was the responsibility of Paragon. Paragon were the only party who must necessarily have known the size of both commissions. They could have disclosed them to Mrs Plevin. Given its significance for her decision, I consider that in the interests of fairness it would have been reasonable to expect them to do so.’ The Court of Appeal had failed to have regard to the words of the section.
However there was no basis for making the respondent liable for the acts of the agent. The claimant was entitled to have the agreement re-opened for unfairness, but that was her only remedy.

Lady Hale, Deputy President, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge
[2014] UKSC 61, [2014] 1 WLR 4222, [2014] WLR(D) 487, [2014] BUS LR 1257
Bailii, Bailii Summary, SC Summary, SC, WLRD
Consumer Credit Act 1974 140A 140B 140C 140D
England and Wales
Citing:
CitedAssicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
DisapprovedHarrison and Another v Black Horse Ltd CA 12-Oct-2011
The appellant sought under section 104A to recover a Payment Protection Insurance premium paid in support of a loan. The borrower dealt directly with the lender, who acted as an intermediary with the insurer. The commission taken by the lender was . .
At County CourtPlevin v Paragon Personal Finance Ltd and Another Misc 4-Oct-2012
Manchester County Court – The claimant sought repayment of insurance premiums paid as payment protection insurance when aking out a loan with the defendants as advised by the second defendant. The second defendant was in liquidation by the time her . .
Appeal fromPlevin v Paragon Personal Finance Ltd and Another CA 16-Dec-2013
The claimant sought repayment of a personal protection insurance premium paid to her broker. The broker was now in insolvent liquidation, and she sought to recover the premium from the next intermediary.
Held: Any limitation of section . .
CitedRegina (Cherwell District Council) v First Secretary of State, Secretary of State for the Home Department CA 28-Oct-2004
The applicant sought to develop an asylum centre. Rather than apply for planning permission, it had served a notice of proposed development for the Crown. The Council appealed dismissal of its objections to the use of the procedure.
Held: The . .
CitedClixby v Poutney ChD 1968
Cross J said: ‘I do not find it in the least surprising that Parliament, when it decided in 1942 to allow assessments to be reopened and penalties claimed at any distance of time if fraud or wilful default was proved, should have wished the . .
CitedGaspet Ltd v Ellis (Inspector of Taxes) 1985
S Ltd was a member of an oil and gas exploration syndicate, the agreement relating to which provided that the exploration work was to be carried out by one member of the syndicate (the operator) on behalf of the other members. The costs, expenses, . .
CitedGaspet Ltd v Ellis (Inspector of Taxes) CA 1987
S Ltd. a member of an oil and gas exploration syndicate, agreeing that the exploration work was to be carried out by one member of the syndicate on behalf of the other members. The costs, expenses, rewards and benefits accruing from the exploration . .
CitedRegina (Cherwell District Council) v First Secretary of State, Secretary of State for the Home Department CA 28-Oct-2004
The applicant sought to develop an asylum centre. Rather than apply for planning permission, it had served a notice of proposed development for the Crown. The Council appealed dismissal of its objections to the use of the procedure.
Held: The . .
CitedS, Regina (on the Application of) v A Social Security Commissioner and Others Admn 3-Sep-2009
The Claimant sought judicial review of a decision of the Defendant Social Security Commissioner refusing the Claimant (and six other appellants) permission to appeal against a decision of a Social Security Appeal Tribunal relating to their housing . .
CitedRochdale Borough Council v Dixon CA 20-Oct-2011
The defendant tenant had disputed payment of water service charges and stopped paying them. The Council obtained a possession order which was suspended on payment or arrears by the defendant at andpound;5.00. The tenant said that when varying the . .

Cited by:
Main judgmentPlevin v Paragon Personal Finance Ltd SC 29-Mar-2017
The court had ordered the respondent to pay the claimant’s costs. These were high because the solicitors had acted under a conditional fee agreement, and disproportionate to the funds at issue. The respondents challenged assignments of the original . .

Lists of cited by and citing cases may be incomplete.

Financial Services, Consumer

Leading Case

Updated: 10 November 2021; Ref: scu.538697

Office of Fair Trading (OFT) v Abbey National Plc and Others: SC 25 Nov 2009

The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could be used neither by the OFT, nor by individual consumers to object to their charges.
Held: The banks’ appeal succeeded. The charging system had to be looked at as a package. An investigation of the charges would relate to the adequacy of the price as against the services supplied, and therefore be incorrect with 6(2)(b). The charges complained of did not relate solely to the immediate tranactions. The two sub-paragraphs of regulation 6(2) must be given their natural meaning, and ‘read in that way they set out tests which are separate but not unconnected. They reflect (but in slightly different ways) the two sides (or quid pro quo) of any consumer contract, that is (a) what it is that the trader is to sell or supply and (b) what it is that the consumer is to pay for what he gets. The definition of the former is not to be reviewed in point of fairness, nor is the ‘adequacy’ (appropriateness) of the latter.’
There was no sufficient point of doubt to require any reference to the European Court.
Lord Walker said: ‘Charges for unauthorised overdrafts are monetary consideration for the package of banking services supplied to personal current account customers. They are an important part of the banks’ charging structure, amounting to over 30 per cent of their revenue stream from all personal current account customers. The facts that the charges are contingent, and that the majority of customers do not incur them, are irrelevant. On the view that I take of the construction of Regulation 6(2), the fairness of the charges would be exempt from review in point of appropriateness under Regulation 6(2)(b) even if fewer customers paid them, and they formed a smaller part of the banks’ revenue stream. ‘
Lord Mance said: ‘Article 4(2) and regulation 6(2) are as exceptions to be construed narrowly. Nevertheless, the concepts of ‘price or remuneration’ must, I think, be capable in principle of covering, under a banking contract, an agreement to make a payment in a particular event. The language of regulation 6(2)(b) is on its face therefore capable of covering a customer’s commitment, under the package contracts put before the House, to pay the Relevant Charges in the specified events. There is no reason why a customer should not be given free services in some circumstances, but, as a quid pro quo, be expected to pay for them in others.’

Lord Phillips, President, Lord Walker, Lady Hale, Lord Mance, Lord Neuberger
[2009] UKSC 6, Times 26-Nov-2009, [2009] 3 WLR 1215
Bailii
Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) 6(2), Council Directive 93/13/EEC on unfair terms in consumer contracts
England and Wales
Citing:
CitedDirector General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .
At First InstanceOffice of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
See alsoOffice of Fair Trading v Abbey National Plc and others ComC 8-Oct-2008
The director sought a further judgment as to whether charges imposed by banks on a customer taking an unauthorised overdraft, and otherwise were unlawful penalties. . .
Appeal fromAbbey National Plc and others v The Office of Fair Trading CA 26-Feb-2009
The OFT had sought to enquire as to the fairness of the terms on which banks conducted their accounts with consumers, and in particular as to how they charged for unauthorised overdrafts. The banks denied that the OFT had jurisdiction, and now . .
CitedChichester Diocesan Board of Finance v Simpson HL 21-Jun-1944
The court was asked whether a gift in a will to the trustees ‘for such charitable institution or institutions or other charitable or benevolent object or objects in England’ as they should select, was valid.
Held: ‘The fundamental principle is . .
See alsoOffice of Fair Trading v Abbey National Plc and others ComC 21-Jan-2009
. .
CitedBairstow Eves London Central Ltd v Smith and Another QBD 20-Feb-2004
. .
CitedThe Office Of Fair Trading v Foxtons Ltd ChD 10-Jul-2009
The OFT alleged that certain standard terms in the defendant’s letting agent contracts were unfair. The agent had withdrawn the former terms, but relief was still sought on those terms and their effect, and as to the fairness of the new ones. The . .
CitedCollege of Estate Management v Customs and Excise HL 20-Oct-2005
The college supplied educational services by distance learning. The commissioner sought to argue that printe daterials supplied with the course were ancillary and did not have the same exemption form VAT.
Held: The supplies did benefit from . .
CitedFreiburger Kommunalbauten GmbH Baugesellschaft and Co. KG v Ludger Hofstetter, Ulrike Hofstetter ECJ 1-Apr-2004
ECJ Directive 93/13/EEC – Unfair terms in consumer contracts – Contract for the building and supply of a parking space – Reversal of the order of performance of contractual obligations provided for under national . .
CitedSrl CILFIT v Ministero Della Sanita ECJ 6-Oct-1982
ECJ The obligation to refer to the Court of Justice questions concerning the interpretation of the EEC Treaty and of measures adopted by the community institutions which the third paragraph of article 177 of the . .

Cited by:
CitedCavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer, European

Updated: 10 November 2021; Ref: scu.381455

Ferguson v British Gas Trading Ltd: CA 10 Feb 2009

Harassment to Criminal Level needed to Convict

The claimant had been a customer of the defendant, but had moved to another supplier. She was then subjected to a constant stream of threatening letters which she could not stop despite re-assurances and complaints. The defendant now appealed against a refusal to strike out the claim of harassment.
Held: The appeal failed. The court considered her claim of harassment, and what level of seriousness was sufficient to come within the Act.
Jacob LJ said ‘British Gas says it has done nothing wrong; that it is perfectly all right for it to treat consumers in this way, at least if it is all just done by computer.’ and ‘I accept that the course of conduct must be grave before the offence or tort of harassment is proved . . It has never been suggested generally that the scope of the civil wrong is restricted because it is also a crime. What makes the wrong of harassment different and special is because, as Lord Nicholls and Lady Hale recognise, in life one has to put up with a certain amount of annoyance: things have got to be fairly severe before the law, civil or criminal, will intervene . . I am quite unable to conclude that the impugned conduct is incapable of satisfying the test. On the contrary I think, at the very least, that it is strongly arguable that it does. I ask myself whether a jury or bench of magistrates could reasonably conclude that the persistent and continued conduct here pleaded was on the wrong side of the line, as amounting to ‘oppressive and unacceptable conduct’. I am bound to say that I think they could.’
British Gas had ‘sought to downgrade it by saying that Ms Ferguson knew the claims and threats were unjustified. That is absurd: a victim of harassment will almost always know that it is unjustified. The Act is there to protect people against unjustified harassment. Indeed if the impugned conduct is justified it is unlikely to amount to harassment at all.
Mr Porter also made the point that the correspondence was computer generated and so, for some reason which I do not really follow, Ms Ferguson should not have taken it as seriously as if it had come from an individual. But real people are responsible for programming and entering material into the computer. It is British Gas’s system which, at the very least, allowed the impugned conduct to happen.
Moreover the threats and demands were to be read by a real person, not by a computer. A real person is likely to suffer real anxiety and distress if threatened in the way which Ms Ferguson was. And a real person is unlikely to take comfort from knowing that the claims and threats are unjustified or that they were sent by a computer system: that will not necessarily allay the fear that the threats will not be carried out. ‘

Jacob LJ, Sedley LJ, Lloyd LJ
[2009] EWCA Civ 46, [2009] 3 All ER 304, [2010] 1 WLR 785
Bailii
Protection from Harassment Act 1997 1
England and Wales
Citing:
CitedLennard’s Carrying Company Limited v Asiatic Petroleum Company Limited HL 1915
The House was asked as to when the acts of an individual became those of his employer under section 502 (‘any loss or damage happening without (the ship owner’s) actual fault or privity’).
Held: Viscount Haldane LC said: ‘It must be upon the . .
CitedTesco Supermarkets Ltd v Nattrass HL 31-Mar-1971
Identification of Company’s Directing Mind
In a prosecution under the 1968 Act, the court discussed how to identify the directing mind and will of a company, and whether employees remained liable when proper instructions had been given to those in charge of a local store.
Held: ‘In the . .
CitedAllen v London Borough of Southwark CA 12-Nov-2008
The claimant appealed against a strike out of his claim for harrassment after being subjected to five sets of possession proceedings by the defendant, each of which relied upon the same bad point.
Held: The Court refused to strike out a claim . .
CitedEssendon Engineering v Maile 1982
. .
CitedDirector General of Fair Trading v Pioneer Concrete (UK) Ltd, sub nom Supply of Ready Mixed Concrete (No 2) HL 25-Nov-1994
The actions of company employees, acting in the course of their employment and in contempt may put the company employer in contempt also, and even though the company may have given explicit instructions that no infringing agreement should be entered . .
CitedConn v Sunderland CA 7-Nov-2007
The claimant said that he had been harassed by the respondent through an employee.
Held: Under the 1997 Act, the behaviour had to go beyond the regrettable to the unacceptable, and would be of such gravity as would sustain criminal liability . .
CitedRegina v British Steel Plc CACD 31-Dec-1994
British Steel employed two sub-contractors to work in moving a steel tower under their supervision. One platform fell on one of the sub-contractors, killing him. British Steel claimed they had delegated their responsibilities under the Act, and were . .
CitedCambridgeshire County Council v Kama Admn 21-Nov-2006
. .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
CitedMeridian Global Funds Management Asia Ltd v Securities Commission PC 26-Jun-1995
(New Zealand) The New Zealand statute required a holder of specified investments to give notice of its holding to a regulator as soon as it became aware of its holding. Unbeknown to any others in the company apart from one colleague, its chief . .

Cited by:
CitedVeakins v Kier Islington Ltd CA 2-Dec-2009
The claimant alleged that her manager at work had harassed her. The court, applying Conn, had found that none of the acts complained of were sufficiently serious to amount to criminal conduct, and had rejected the claim.
Held: The claimant’s . .
CitedRayment v Ministry of Defence QBD 18-Feb-2010
The claimant sought damages alleging harassment by officers employed by the defendant. An internal investigation had revealed considerable poor behaviour by the senior officers, and that was followed by hostile behaviour. The defendant had put up . .
CitedCalland v Financial Conduct Authority CA 13-Mar-2015
The claimant appealed against the striking out of his claim of harassment against the Authority who had contacted him in an intended review of pensions mis-selling. They had contacted him once by letter, once by telephone and once by e-mail.
CitedGerrard and Another v Eurasian Natural Resources Corporation Ltd and Another QBD 27-Nov-2020
The claimants, a solicitor and his wife, sought damages in harassment and data protection, against a party to proceedings in which he was acting professionally, and against the investigative firm instructed by them. The defendants now requested the . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Consumer

Leading Case

Updated: 09 November 2021; Ref: scu.282601

Wathelet: ECJ 9 Nov 2016

ECJ (Judgment) Reference for a preliminary ruling – Directive 1999/44/EC – Sale of consumer goods and associated guarantees – Scope – Concept of ‘seller’ – Intermediary – Exceptional circumstances

C-149/15, [2016] EUECJ C-149/15, [2016] WLR(D) 585
Bailii, WLRD
European

Consumer

Updated: 09 November 2021; Ref: scu.571289

Pedro Espada Oviedo v Iberia Lineas Aereas De Espana Sa: ECJ 22 Nov 2012

ECJ Air transport – Montreal Convention – Article 22(2) – Liability of carriers in respect of baggage – Limits of liability in the event of the destruction, loss, damage or delay of baggage – Shared baggage belonging to a number of passengers – Baggage checked in by one of those passengers

R Silva de Lapuerta P
C-410/11, [2012] EUECJ C-410/11
Bailii
European

Transport, Consumer

Updated: 09 November 2021; Ref: scu.466398

Banif Plus Bank Zrt v Csipai: ECJ 21 Feb 2013

barif_csipaoECJ2013

ECJ Directive 93/13/EEC – Unfair terms in consumer contracts – Examination by the national court, of its own motion, as to whether a term is unfair – Obligation on the national court, once it has found, of its own motion, that a term is unfair, to invite the parties to submit their observations before drawing conclusions from that finding – Contractual terms to be taken into account in the assessment of that unfairness

A. Tizzano, P
C-472/11, [2013] EUECJ C-472/11
Bailii
Directive 93/13/EEC

European, Contract, Consumer

Leading Case

Updated: 09 November 2021; Ref: scu.471210

Barnes and Another v Black Horse Ltd: QBD 31 May 2011

barnes_blackQBD11

The claimants sought repayment by the bank of sums paid to them for Payment Protection Insurance policies sold to them in connection with loans made by the bank. The Bank now resisted an application for leave to amend the particulars of the counterclaim to allege that the taking out of the insurance had been made to appear obligatory.
Held: The amendments alleging breach of fiduciary duty were unsupported and bound to fail and were not allowed. Nor was any allegation of breach of a duty of care, and or unenforcability under Unfair Terms legislation, sufficiently set out in the proposed amendments and they too were rejected. Mrs Barnes however could raise the unfair relationship argument against the bank.

Waksman QC J
[2011] EWHC 1416 (QB)
Bailii
Consumer Credit Act 1974 140A, Unfair Contract Terms Act 1977, Unfair Terms in Consumer Contract Regulations 1999
Citing:
CitedPatel v Patel QBD 10-Dec-2009
The parties had entered into a loan agreement at a high rate of annual interest but with monthly rests. The court was asked to set aside the agreement as unfair under the 1974 Act. . .
CitedMothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
CitedBritish Bankers Association, Regina (on The Application of) v The Financial Services Authority and Another Admn 20-Apr-2011
The claimant sought relief by way of judicial review from a policy statement issued by the defendants regarding the alleged widespread misselling of payment protection insurance policies, and the steps to be taken to compensate the purchasers. They . .
CitedHarrison v Black Horse Ltd QBD 1-Dec-2010
The claimant sought damages for breach of the statutory duty in ICOB, and for damages for negligence. The bank faced a claim that it had assumed responsibility to take reasonable care in recommending the policy it did. The bank had relied on the . .
CitedBlack Horse Ltd v Speak and Another QBD 21-Jul-2010
The court considered a case involving the selling of payment protection policies by lenders. The defendants said that since the bank had required them to take out the policy, its cost should have been included in the total charge for credit. Since . .

Lists of cited by and citing cases may be incomplete.

Consumer, Banking

Updated: 09 November 2021; Ref: scu.440466

Paragon Finance plc v Nash etc: CA 15 Oct 2001

The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, included an implied term not to impose an unreasonable or extortionate rate, nor to act for an unreasonable, improper, dishonest, or capricious purpose. When a court looked at the question of whether an arrangement was an extortionate credit bargain, it must look at the situation at the time the bargain is made. Also, the setting of interest rates was not ‘contractual performance’ under the 1977 Act, so as to allow that Act to bite. In this case, the lenders had failed to reduce interest rates in line with other rates generally available. This had however been for proper commercial considerations, and so any implied term did not apply. Unreasonableness in the context connotes conduct or a decision to which no reasonable person having the relevant discretion could have subscribed.

Lord Justice Thorpe, Lord Justice Dyson and Mr Justice Astill
Times 25-Oct-2001, Gazette 15-Nov-2001, [2001] EWCA Civ 1466, [2002] 1 WLR 685
Bailii
Consumer Credit Act 1974 137(2)(b) 138, Unfair Contract Terms Act 1977 3(2)(b)
England and Wales
Citing:
DistinguishedLombard Tricity Finance Ltd v Paton CA 1989
The borrower challenged a variation of the interest rate to be charged on his regulated loan. The agreement purported to give the lender a full discretion to vary the rate on notice.
Held: The Regulations required the agreement to identify the . .
CitedAbu Dhabi National Tanker Co v Product Star Shipping Ltd (No 2) CA 1993
Where parties enter into a contract which confers a discretion on one of them, the discretion must be exercised honestly and in good faith, and not ‘arbitrarily, capriciously or unreasonably’. The owner had acted unreasonably in that there was no . .
CitedGan Insurance Co Ltd v Tai Ping Insurance Co Ltd CA 3-Jul-2001
A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to . .
CitedBarclays Bank Ltd v Bird 1954
An equitable chargee has an immediate right to possession, subject only to his first obtaining an order for possession from the court: ‘An equitable mortgagee . . has no right to possession until the court gives it to him.’ . .

Cited by:
CitedParagon Finance Plc v Pender and Another CA 27-Jun-2005
The defendants had purchased their property from the local authority with the support of a loan from the claimants. The defendants fell into arrears but now sought to resist possession on the basis that the claimant, in securitising their portfolio . .
CitedLymington Marina Ltd v MacNamara and others ChD 4-Apr-2006
The claimant marina had been constructed with financial assistance from debenture holders who in return were given low cost licences. The claimant sought to refuse to the defendant debenture holders the right to sub-licence their rights to berth . .
CitedLymington Marina Ltd v MacNamara and others CA 2-Mar-2007
A share in a marina had been inherited by one brother whose application to grant successive sub-lcences of it to the other two was rejected by the marina, who said that this was not permitted. The marina appealed a finding that it had to make its . .
CitedOffice of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
CitedNolan v Wright ChD 26-Feb-2009
The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement . .
CitedUnique Pub Properties Ltd v Broard Green Tavern Ltd and Another ChD 26-Jul-2012
The claimant freeholder sought to install in the tenant’s pub, equipment to monitor sales. It claimed a right for this in the lease. The tenant refused access, saying that the proposed system was inaccurate. The claimant now sought summary relief. . .
CitedSocimer International Bank Ltd v Standard Bank London Ltd CA 22-Feb-2008
Rix LJ considered the restraints operating a party to a contract in exercising any discretion gien under it, preferring the use of the term ‘irrationality’ to ‘unreasonableness’: ‘It is plain from these authorities that a decision-maker’s discretion . .
CitedBraganza v BP Shipping Ltd SC 18-Mar-2015
The claimant’s husband had been lost from the defendant’s ship at sea. The defendant had contracted to pay compensation unless the loss was by suicide. They so determined. The court was now asked whether that was a permissible conclusion in the . .
CitedBritish Telecommunications Plc v Telefonica O2 UK Ltd SC 9-Jul-2014
The parties disputed the termination charges which BT was entitled to charge to mobile network operators for putting calls from the latter’s networks through to BT fixed lines with associated 08 numbers. BT had introduced new tariff charges.
Consumer, Banking, Contract

Leading Case

Updated: 09 November 2021; Ref: scu.166707

LCL Le Credit Lyonnais v Fesih Kalhan: ECJ 27 Mar 2014

lcl_kalhanECJ0314

ECJ Consumer protection – Credit agreements for consumers – Directive 2008/48/EC – Articles 8 and 23 – Creditor’s obligation to assess the borrower’s creditworthiness prior to conclusion of the agreement – National provision imposing the obligation to consult a database – Forfeiture of entitlement to contractual interest in the event of failure to comply with that obligation – Effective, proportionate and dissuasive nature of the penalty

L. Bay Larsen, P
C-565/12, [2014] EUECJ C-565/12
Bailii
Directive 2008/48/EC 8 23

European, Banking, Consumer

Updated: 09 November 2021; Ref: scu.523332

Donoghue (or M’Alister) v Stevenson: HL 26 May 1932

Decomposed Snail in Ginger Beer Bottle – Liability

The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a friend, so she was unable to rely upon any contract.
Held: The English and the Scots law on the subject are identical. The pursuer was entitled to recover damages for negligence. The manufacturer intended that the contents be consumed without the opportunity first to examine them, and unless reasonable care was taken in the preparation a consumer may suffer injury. The cases of George v. Skivington and `the dicta in Heaven v. Pender ‘should be buried so securely that their perturbed spirits shall no longer vex the law.’ (Majority) The nature of an article ‘may very well call for different degrees of care’. ‘the person dealing with [an inherently dangerous article] may well contemplate persons as being within the sphere of his duty to take care who would not be sufficiently proximate with less dangerous goods; so that not only the degree of care but the range of persons to whom the duty is owed may be extended.’
Lord Atkin said: ‘. . the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’

Atkin, Thankerton, MacMillan, Buckmaster Tomlin LL
[1932] AC 562, [1932] SC (HL) 31, [1932] ScLT 317, [1932] All ER Rep 1, (1932) 101 LJPC 119, (1932) 147 LT 281, [1932] SLT 317, (1932) 48 TLR 494, (1932) 37 Com Cas 350, [1932] UKHL 100, [1932] Sol Jo 396, [1932] WN 139, [1932] SC 31, (1933) 4 DLR 337, 533 CA 47
Bailii
Scotland
Citing:
CitedLe Lievre v Gould CA 6-Feb-1893
Mortgagees of the interest of a builder under a building agreement, advanced money to him from time to time, relying upon certificates given by a surveyor as to stages reached. The surveyor was not appointed by the mortgagees, and there was no . .
ApprovedGeorge v Skivington 1869
There was an injury to the wife, from a hair wash purchased under a contract of sale with the husband.
Held: The wife had a good cause of action. There was a duty in the vendor to use ordinary care in compounding the article sold, and that . .
Dicta ConsideredHeaven v Pender, Trading As West India Graving Dock Company CA 30-Jul-1883
Duty Arising to Use Ordinary Care and Skill
The plaintiff was a painter. His employer engaged to repaint a ship, and the defendant erected staging to support the work. The staging collapsed because one of the ropes was singed and weakened, injuring the plaintiff.
Held: The defendant had . .
OverruledMullen v Barr and Co Ld, and M’Gowan v Barr and Co Ld 1929
A mouse was found in a bottle. The buyer claimed damages for the shock: ‘In a case like the present, where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them responsible to . .
CitedLongmeid v Holliday 1851
A defective lamp was sold to a man whose wife was injured by its explosion. The seller of the lamp, against whom the action was brought, was not the manufacturer.
Held: No general duty of care was owed by a manufacturer of a lamp to a user.
DistinguishedLangridge v Levy ExP 1836
A man sold a gun which he knew to be dangerous for the use of the purchaser’s son. The gun exploded in the son’s hands.
Held: The son had a right of action in tort against the gunmaker, but, Parke B said: ‘We should pause before we made a . .
CitedWinterbottom v Wright 1842
Owing to negligence in the construction of a carriage it broke down. A third party sought damages for injuries which he alleged were due to negligence in the work.
Held: The doctrine of privity of contract precluded actions in tort by third . .
CitedEarl v Lubbock CA 1905
The plaintiff was injured when a wheel came off a van which he was driving for his employer, and which it was the duty of the defendant, under contract with the employer, to keep in repair. The county court judge and the Divisional Court both hold . .
CitedBlacker v Lake and Elliot Ld HL 1912
A brazing lamp which, by exploding owing to a latent defect, injured a person other than the purchaser of it, and the vendor was held not liable to the party injured. The House considered earlier cases on liability for defectively manufactured . .
CitedBlackmore v Bristol and Exeter Ry Co 1858
. .
CitedCollis v Selden 1868
The defendant installed a chandelier in a public house. It fell and injured the plaintiff.
Held: There was nothing to say that the defendant had any knowledge that the plaintiff, as opposed to members of the public in general, would enter the . .
CitedBates v Batey & Ld 1913
The defendants, who manufactured ginger beer, were held not liable to a consumer (who had purchased from a retailer one of their bottles) for injury occasioned by the bottle bursting as the result of a defect of which the defendants did not know, . .
CitedThomas v Winchester 1852
(New York) A chemist carelessly issued poison in answer to a request for a harmless drug, and he was held responsible to a third party injured by his neglect. . .
CitedMacPherson v Buick Motor Co 1916
(New York Court of Appeal) A manufacturer of a defective motor-car was held liable for damages at the instance of a third party. A motor-car might reasonably be regarded as a dangerous article: ‘There is no claim that the defendant know of the . .
CitedCunnington v Great Northern Ry Co 1883
. .
CitedHawkins v Smith QBD 1896
A dock labourer in the employ of the dock company was injured by a defective sack which had been hired by the consignees from the defendant, who knew the use to which it was to be put, and had been provided by the consignees for the use of the dock . .
CitedElliott v Hall QBD 1885
The defendants, colliery owners, consigned coal to the plaintiff’s employers, coal merchants, in a truck hired by the defendants from a wagon company. The plaintiff was injured in the course of unloading the coal by reason of the defective condition . .
CitedOliver v Saddler and Co HL 1929
Stevedores had been employed to unload a cargo of maize in bags. They provided the rope slings by which the cargo was raised to the ship’s deck by their own men using the ship’s tackle, and then transported to the dockside by the shore porters, of . .
CitedGrote v Chester and Holyhead Ry CEC 1848
The defendants had constructed a bridge over the Dee on their railway and had licensed the use of the bridge to the Shrewsbury and Chester Railway to carry passengers over it, and had so negligently constructed the bridge that the plaintiff, a . .
CitedDixon v Bell 18-Jun-1816
The defendant had left a loaded gun at his lodgings and sent his servant, a mulatto girl aged about thirteen or fourteen, for the gun, asking the landlord to remove the priming and give it her. The landlord did remove the priming and gave it to the . .
CitedHodge and Sons v Anglo-American Oil Co 1922
The plaintiffs, London barge repairers claimed after an explosion on the Anglo-American Oil Company’s oil tank barge Warwick, when she was being repaired by the plaintiffs, to whom she had been sent for that purpose by the defendants. As a result of . .
CitedBrass v Maitland 1856
There is an implied warranty from a consignor to the carrier as to the non-dangerous nature of what is to be carried. . .
CitedDominion Natural Gas Co Ltd v Collins 1909
The defendants had installed a gas apparatus to provide natural gas on the premises of a railway company. They had installed a regulator to control the pressure and their men negligently made an escape-valve discharge into the building instead of . .
CitedFarrant v Barnes 1862
A duty of care from a consignor to a carrier’s servant that the goods to be transported can be safely carried, is owed independently of any contract. . .
CitedCaledonian Ry Co v Mulholland or Warwick HL 1898
The appellant company were held not liable for injuries caused by a defective brake on a coal wagon conveyed by the railway company to a point in the transit where their contract ended, and where the wagons were taken over for haulage for the last . .
CitedCavalier v Pope HL 22-Jun-1906
The wife of the tenant of a house let unfurnished sought to recover from the landlord damages for personal injuries arising from the non-repair of the house, on the ground that the landlord had contracted with her husband to repair the house.
CitedEmmens v Pottle CA 1885
A subordinate distributor, here a vendor of newspapers, can plead the common law defence to defamation, of innocent dissemination.
Held: The vendor was prima facie liable, and therefore had to demonstrate the defence to avoid liability. He . .
CitedGordon v M’Hardy 1903
The pursuer sought to recover damages from a retail grocer on account of the death of his son by ptomaine poisoning, caused by eating tinned salmon purchased from the defender. The pursuer averred that the tin, when sold, was dented, but he did not . .
CitedBottomley v Bannister CA 1932
The deceased man, the father of the plaintiff, had taken an unfurnished house from the defendants, who had installed a gas boiler with a special gas-burner which if properly regulated required no flue. The deceased and his wife were killed by fumes . .
CitedWhite v Steadman 1913
Lush J said: ‘a person who has the means of knowledge and only does not know that the animal or chattel which he supplies is dangerous because he does not take ordinary care to avail himself of his opportunity of knowledge is in precisely the same . .
CitedClelland v Robb 1911
If a man has no duty or obligation of diligence, he cannot be charged with negligence. . .
CitedKemp and Dougall v Darngavil Coal Co 1909
A man cannot be charged with negligence if he has no obligation to exercise diligence. . .

Cited by:
CitedAlcock and Others v Chief Constable of South Yorkshire Police CA 31-May-1991
The defendant policed a football match at which many people died. The plaintiffs, being relatives and friends of the deceased, inter alia suffered nervous shock having seen the events either from within the ground, or from outside or at home on . .
CitedK v the Secretary of State for the Home Department CA 31-May-2002
The applicant sought damages from the defendant who had released from custody pending deportation a man convicted of violent sexual crimes and who had then raped her. She appealed against a strike out of her claim. She had been refused information . .
CitedBritish Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
CitedDorset Yacht Co Ltd v Home Office HL 6-May-1970
A yacht was damaged by boys who had escaped from the supervision of prison officers in a nearby Borstal institution. The boat owners sued the Home Office alleging negligence by the prison officers.
Held: Any duty of a borstal officer to use . .
DistinguishedCandler v Crane Christmas and Co CA 15-Dec-1950
Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as . .
CitedStovin v Wise, Norfolk County Council (Third Party) HL 24-Jul-1996
Statutory Duty Does Not Create Common Law Duty
The mere existence of statutory power to remedy a defect cannot of itself create a duty of care to do so. A highway authority need not have a duty of care to highway users because of its duty to maintain the highway. The two stage test ‘involves . .
CitedBellefield Computer Services Limited, Unigate Properties Limited; Unigate Dairies Limited; Unigate (Uk) Limited; Unigate Dairies (Western) Limited v E Turner and Sons Limited Admn 28-Jan-2000
The Defendant builders constructed a steel building to be used as, inter alia. a dairy. The original owners sold it to the appellants. A fire spread from the storage area to the rest of the dairy and caused much damage. The Builders, had they . .
CitedDutton v Bognor Regis Urban District Council CA 1972
The court considered the liability in negligence of a Council whose inspector had approved a building which later proved defective.
Held: The Council had control of the work and with such control came a responsibility to take care in . .
AppliedTate and Lyle Industries Ltd v Greater London Council HL 24-Mar-1983
The plaintiff had constructed and used two jetties, and dredged a channel down to the Thames for their use. The Council constructed two terminals nearby, the result of which was to cause a build up of silt blocking the channel.
Held: The . .
CitedDennis v Charnwood Borough Council CA 1983
The respondent approved plans for a new house. The raft foundation was inadequate and serious cracks developed. The authority appealed a finding of negligence in having approved defective plans.
Held: The appeal failed. The authority had a . .
CitedCaparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
CitedThe Attorney General v Hartwell PC 23-Feb-2004
PC (The British Virgin Islands) A police officer had taken the police revolver, and used it to shoot the claimant. It was alleged that the respondent police force were vicariously liable for his acts and also . .
AppliedBurfitt v A and E Kille 1939
A shopkeeper in Minehead sold a ‘blank cartridge pistol’ to a twelve year old boy. Later, when the boy fired the pistol in the air, the plaintiff was injured by a tiny piece of copper going into his eye.
Held: The duty of care was owed not . .
CitedBolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
CitedBinod Sutradhar v Natural Environment Research Council CA 20-Feb-2004
The defendant council had carried out research into a water supply in India in the 1980s. The claimant drank the water, and claimed damages for having consumed arsenic in it.
Held: There is a close link between the tests in law for proximity . .
CitedBlake v Galloway CA 25-Jun-2004
The claimant was injured whilst playing about with other members of his band throwing sticks at each other. The defendant appealed against a denial of his defence on non fit injuria.
Held: The horseplay in which the five youths were engaged . .
CitedHedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
CitedOld Gate Estates Ltd v Toplis and Harding and Russell 1939
The case of Donoghue -v- Stevenson was restricted in its application to cases of negligence causing damage to life, limb or health. . .
CitedMcTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
CitedWatson v Fram Reinforced Concrete Co (Scotland) Ltd HL 1960
A workman had been injured through the breaking of a defective part in the machine with which he was working. He brought an action of damages against his employers, and later convened as second defenders the manufacturers of the machine, who had . .
SummarisedLondon Graving Dock Co Ltd v Horton HL 1951
An experienced welder had for a month been carrying out work on a ship as an employee of sub-contractors engaged by ship-repairers in occupation of the ship. He was injured, without negligence on his part, owing to the inadequacy of certain staging, . .
CitedMurphy v Brentwood District Council HL 26-Jul-1990
Anns v Merton Overruled
The claimant appellant was a house owner. He had bought the house from its builders. Those builders had employed civil engineers to design the foundations. That design was negligent. They had submitted the plans to the defendant Council for approval . .
CitedJolley v Sutton London Borough Council HL 24-May-2000
An abandoned boat had been left on its land and not removed by the council. Children tried to repair it, jacked it up, and a child was injured when it fell. It was argued for the boy, who now appealed dismissal of his claim by the Court of Appeal, . .
CitedNational Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
CitedLMS International Ltd and others v Styrene Packaging and Insulation Ltd and others TCC 30-Sep-2005
The claimants sought damages after their premises were destroyed when a fire started in the defendants neighbouring premises which contained substantial volumes of styrofoam. They alleged this was an unnatural use of the land.
Held: To . .
CitedFrench and others v Chief Constable of Sussex Police CA 28-Mar-2006
The claimants sought damages for psychiatric injury. They were police officers who had been subject to unsuccessful proceedings following a shooting of a member of the public by their force.
Held: The claim failed: ‘these claimants have no . .
CitedJain and Another v Trent Strategic Health Authority CA 22-Nov-2007
The claimant argued that the defendant owed him a duty of care as proprietor of a registered nursing home in cancelling the registration of the home under the 1984 Act. The authority appealed a finding that it owed such a duty.
Held: The . .
CitedLeakey v The National Trust for Places of Historic Interest or Natural Beauty CA 31-Jul-1979
Natural causes were responsible for soil collapsing onto neighbouring houses in Bridgwater.
Held: An occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is . .
CitedD Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
ExplainedBolton v Stone HL 10-May-1951
The plaintiff was injured by a prodigious and unprecedented hit of a cricket ball over a distance of 100 yards. He claimed damages in negligence.
Held: When looking at the duty of care the court should ask whether the risk was not so remote . .
CitedWhippey v Jones CA 8-Apr-2009
The claimant was running along a river embankment. A large dog owned by the appellant, taking it for a walk, was off the leash. It ran out at the claimant who broke his ankle falling into the river. The defendant appealed against a finding that he . .
CitedSmith v Scott ChD 1973
It is not open to the court to reshape the law relating to the rights and liabilities of landowners by applying the principle of Donoghue v Stevenson [1932] AC 562 and thus saying that a landowner owed a duty of care to his neighbour when selecting . .
CitedWoodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .
CitedGlaister and Others v Appelby-In-Westmorland Town Council CA 9-Dec-2009
The claimant was injured when at a horse fair. A loose horse kicked him causing injury. They claimed in negligence against the council for licensing the fair without ensuring that public liability insurance. The Council now appealed agaiinst a . .
CitedAlcock and Others v Chief Constable of South Yorkshire Police QBD 31-Jul-1990
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
CitedTaylor v A Novo (UK) Ltd CA 18-Mar-2013
The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. The . .
CitedAlcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .
CitedStannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .
CitedWoodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .
CitedChaudry v Prabhakar CA 1988
The plaintiff sued a friend of hers for wrongly advising her that a car she was thinking of buying was in good condition.
Held: An agent, even a volunteer, owed a duty of care appropriate for those circumstances. The measurement was objective, . .
CitedRegina v The Secretary of State for the Environment, ex Parte Ostler CA 16-Mar-1976
Statutory Challenge must be timely
The applicant had not taken objection to a proposed road scheme believing wrongly that it would not affect his business. Other objectors had withdrawn because of secret re-assurances given to them by the respondent.
Held: The court was asked, . .
CitedMichael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
CitedHowmet Ltd v Economy Devices Ltd and Others CA 31-Aug-2016
Appeal by the owners of a factory which suffered fire damage against a judgment dismissing their action. The owners claimed damages against the manufacturers of a device which, they said, should have prevented the fire from occurring. This takes us . .
CitedWooldridge v Sumner and Another CA 4-Jun-1962
The plaintiff photographer was injured when attending a show jumping competition at the White City Stadium. A horse caught him as it passed.
Held: The defendant’s appeal against the finding of negligence succeeded: ‘a competitor or player . .
CitedPaul and Another v The Royal Wolverhampton NHS Trust QBD 4-Jun-2020
Nervous shock – liability to third parties
The claimants witnessed the death of their father from a heart attack. They said that the defendant’s negligent treatment allowed the attack to take place. Difficult point of law about the circumstances in which a defendant who owes a duty of care . .
CitedJames-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .

Lists of cited by and citing cases may be incomplete.

Negligence, Consumer

Leading Case

Updated: 09 November 2021; Ref: scu.180110

American Express (Freedom of Establishment – Opinion): ECJ 6 Jul 2017

Regulation (EU) 2015/751 – Card-based payment transactions – Interchange fees for card-based payment transactions – Four party payment card schemes – Three party payment card schemes – Definition of card issuer – Three party payment card scheme with a co-branding partner – Three party payment card scheme with an agent

C-304/16, [2017] EUECJ C-304/16_O, ECLI:EU:C:2017:524
Bailii
European

Consumer, Banking

Updated: 09 November 2021; Ref: scu.668593

Kolassa v Barclays Bank plc: ECJ 3 Sep 2014

kolassaECJ1409

ECJ (Advocate General’s Opinion) Area of ??Freedom, Security and Justice – Jurisdiction in civil and commercial matters – Contracts concluded by consumers – Consumer domiciled in a Member State, who bought on the secondary market, with an intermediary established in another State Member, securities issued by a bank established in a third Member State – Competence for recourse against the bank issuing such securities

Sczpunar AG
C-375/13, [2014] EUECJ C-375/13 – O, [2015] EUECJ C-375/13
Bailii, Bailii

European, Consumer, Banking

Updated: 09 November 2021; Ref: scu.536451

Content Services Ltd v Bundesarbeitskammer: ECJ 6 Mar 2012

Content_serviceECJ0312

ECJ Opinion – Consumer protection – Distance contracts – Directive 97/7/EC – Article 5 – Information that the consumer must ‘receive’ in a ‘durable medium’ – Information available on a website which the consumer can access via a hyperlink

Mengozzi AG
C-49/11, [2012] EUECJ C-49/11
Bailii
Directive 97/7/EC
Cited by:
OpinionContent Services Ltd v Bundesarbeitskammer ECJ 5-Jul-2012
ECJ Reference for a preliminary ruling – Directive 97/7/EC – Consumer protection – Distance contracts – Consumer information – Information given or received – Durable medium – Meaning – Hyperlink on the website . .

Lists of cited by and citing cases may be incomplete.

European, Consumer

Leading Case

Updated: 09 November 2021; Ref: scu.463186

Barreiro, Alonso, Rodriguez v Air France: ECJ 28 Jun 2011

barreiroECJ11

ECJ Air transport – Assistance, care and compensation for passengers – Meaning of ‘cancellation’ and ‘further compensation’

C-83/10, [2011] EUECJ C-83/10
Bailii
Cited by:
OpinionBarreiro, Alonso, Rodriguez v Air France SA ECJ 13-Oct-2011
Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Article 2(l) – Compensation for passengers in the event of cancellation of a flight – Meaning of ‘cancellation’ – Article 12 – Meaning of ‘further compensation’ – . .

Lists of cited by and citing cases may be incomplete.

European, Transport, Consumer

Updated: 09 November 2021; Ref: scu.441288

Davies v Sumner: HL 1984

The defendant used his own car almost exclusively in the course of his occupation as a courier. He sold and replaced it with another for similar use. He was charged before justices with the offence of applying, ‘in the course of trade or business’, a false trade description in respect of the mileage as shown on the odometer and he was acquitted on the grounds that the sale was not in the course of a trade or business within the meaning of the section. On appeal, the prosecution submitted that it was sufficient that the transaction was reasonably incidental to the carrying on of his business as courier.
Held: ‘Any disposal of any chattel held for the purposes of a business may, in a certain sense, be said to have been in the course of that business, irrespective of whether the chattel was acquired with a view to resale or for consumption or as a capital asset. But in my opinion section 1(1) of the Act is not intended to cast such a wide net as this. The expression ‘in the course of a trade or business’ in the context of an Act having consumer protection as its primary purpose conveys the concept of some degree of regularity and it is to be observed that the long title to the Act refer to ‘ mis-descriptions of goods, services, accommodation and facilities provided in the course of trade.’

Lord Keith of Kinkel
[1984] 1 WLR 1301
Trade Descriptions Act 1968 1(1)
England and Wales
Cited by:
CitedR and B Customs Brokers Co Ltd v United Dominions Trust Ltd CA 1988
There was an issue whether or not the purchase by the plaintiff of a second-hand car was made ‘in the course of a business’ so as to preclude the plaintiff from relying upon the provisions of the 1977 Act.
Held: Speaking of Lord Keith’s . .
CitedStevenson and Another v Rogers CA 8-Dec-1998
The defendant, who carried on the business of a fisherman, sold his vessel Jelle to the plaintiff with a view to having a new boat built to his requirements. In the event he bought a replacement vessel which he continued to use for his business. The . .
CitedGE Capital Bank Ltd v Rushton and Another CA 14-Dec-2005
The bank had entered into a master trading agreement with a trader under which the trader bought motor vehicles as agent for the bank for resale. The vehicles belonged to the bank. The defendant bought all the trader’s vehicles. The defendant now . .

Lists of cited by and citing cases may be incomplete.

Contract, Consumer

Leading Case

Updated: 09 November 2021; Ref: scu.187298

TUI UK Ltd v Morgan: ChD 9 Nov 2020

Tour Co Responsible For injury – Standards Applied

The claimant suffered an injury tripping at a hotel on a package holiday. The company now appealed.
Held: The appeal was refused. A term will generally be implied into a contract for services by operation of law (the 1982 Act s 13) to the effect that those services are to be performed with reasonable skill and care and contracts for the provision of package holidays are typically contracts of ‘vicarious performance’. The scope of the reasonable care and skill implied term is now such that the organiser has an obligation to provide the services under the contract with reasonable care and skill regardless of the party to whom the organiser delegates performance of those obligations. The question before the court involves consideration of the alleged breach of an obligation governed by English law, but performed abroad. No questions of private international law arise.
The court will not automatically apply the standards that would pertain if the performance were in England. To the contrary, the court will regard the standards prevailing in the place of performance as ‘a very important signpost’ in determining the content of the obligation.
If it can be shown that the standards prevailing in the place of performance have been infringed, then it seems to me that the organiser’s English law obligation to exercise reasonable skill and care will almost inevitably also be breached, but not in the reverse. Here, the safety regulations in Mauritius as to external lighting applicable in hotels was unclear.

Marcus Smith J
[2020] EWHC 2944 (Ch)
Bailii
Package Travel, Package Holidays and Package Tours Regulations 1992, Supply of Goods and Services Act 1982 13
England and Wales
Citing:
CitedWong Mee Administratrix of The Estate of Ho Shui Yee, Deceased v Kwan Kin Travel Services Ltd, China Travel Services Co (Zhong Shan) And, Pak Tang Lake Travel Services Co (Doumen County) Co PC 6-Nov-1995
The appellant’s daughter died in an accident whilst on holiday in China from Hong Kong on a trip booked with the respondent.
Held: Lord Slynn said: ‘ . . the issue is thus whether . . [the package tour operator] undertook no more than that . .
CitedWilson v Best Travel Ltd 1993
The Greek hotel at which the plaintiff stayed had glass patio doors fitted with ordinary glass, not safety glass, of 5mm thickness, which complied with Greek but not with British safety standards, which would have required the use of safety glass. . .
CitedMorgan v TUI UK Ltd Misc 12-Jun-2020
The claimant as injured walking back along a terrace on a holiday put together by the defendant package holiday company.
Held: The claim succeeded. . .
Appeal fromMorgan v TUI UK Ltd Misc 12-Jun-2020
The claimant as injured walking back along a terrace on a holiday put together by the defendant package holiday company.
Held: The claim succeeded. . .
CitedEvans v Kosmar Villa Holidays Plc CA 23-Oct-2007
The claimant sought damages from the tour operator after he suffered a head injury resulting in incomplete tetraplegia after diving into a shallow swimming pool in the early hours of the morning in a resort in Greece while on a tour run by the . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Consumer

Updated: 09 November 2021; Ref: scu.655632

Content Services Ltd v Bundesarbeitskammer: ECJ 5 Jul 2012

ECJ Reference for a preliminary ruling – Directive 97/7/EC – Consumer protection – Distance contracts – Consumer information – Information given or received – Durable medium – Meaning – Hyperlink on the website of the supplier – Right of withdrawal
‘a durable medium, within the meaning of Article 5(1) of Directive 97/7, must ensure that the consumer, in a similar way to paper form, is in possession of the information referred to in that provision to enable him to exercise his rights where necessary.
Where a medium allows the consumer to store the information which has been addressed to him personally, ensures that its content is not altered and that the information is accessible for an adequate period, and gives consumers the possibility to reproduce it unchanged, that medium must be regarded as ‘durable’ within the meaning of that provision.’
. . And: ‘a business practice consisting of making the information referred to in that provision accessible to the consumer only via a hyperlink on a website of the undertaking concerned does not meet the requirements of that provision, since that information is neither ‘given’ by that undertaking nor ‘received’ by the consumer, within the meaning of that provision, and a website such as that at issue in the main proceedings cannot be regarded as a ‘durable medium’ within the meaning of Article 5(1). ‘

K Lenaerts, P
[2012] EUECJ C-49/11, C-49/11, [2012] WLR(D) 195
Bailii, WLRD
Directive 97/7/EC
European
Citing:
OpinionContent Services Ltd v Bundesarbeitskammer ECJ 6-Mar-2012
Content_serviceECJ0312
ECJ Opinion – Consumer protection – Distance contracts – Directive 97/7/EC – Article 5 – Information that the consumer must ‘receive’ in a ‘durable medium’ – Information available on a website which the consumer . .

Lists of cited by and citing cases may be incomplete.

Consumer

Leading Case

Updated: 09 November 2021; Ref: scu.515275

Sanchez Morcillo And Abril Garcia v Banco Bilbao Vizcaya Argentaria SA: ECJ 17 Jul 2014

ECJ Judgment – Preliminary ruling – Directive 93/13/EEC – Article 7 – Charter of Fundamental Rights of the European Union – Article 47 – Contracts with consumers – mortgage contract – Unfair – foreclosure procedure – Right of Appeal

A Tizzano, P
ECLI:EU:C:2014:2099, [2014] EUECJ C-169/14
Bailii
Directive 93/13/EEC, Charter of Fundamental Rights of the European Union
European
Citing:
OrderSanchez Morcillo And Abril Garcia v Banco Bilbao Vizcaya Argentaria SA ECJ 5-Jun-2014
(Order Of The Court) . .
PositionSanchez Morcillo And Abril Garcia v Banco Bilbao Vizcaya Argentaria SA ECJ 3-Jul-2014
ECJ Position – Directive 93/13/EEC – Unfair terms in contracts concluded with consumers – adequate and effective means for the continued use of unfair terms – Limiting the possibility of appeal against a ruling . .

Lists of cited by and citing cases may be incomplete.

Consumer, Human Rights

Updated: 09 November 2021; Ref: scu.535388

Fisher v Bell: QBD 10 Nov 1960

Fisher_BellQBD1960

A shopkeeper displayed a flick-knife in his window for sale. A price was also displayed. He was charged with offering it for sale, an offence under the Act. The words ‘offer for sale’ were not defined in the Act, and therefore the magistrates construed them as under the general law of contract, in which case the shopkeeper had merely issued an invitation to treat.
Held: The display of the knife in the window was indeed only an invitation to treat, and the knife had not been offered for sale. In the Keating and Wiles cases the Acts in question allowed a conviction where an item was exposed for sale. That did not apply here. The appeal was dismissed.
Lord Justice Parker said: ‘It is perfectly clear that according to the ordinary law of contract the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract.’

Parker LJ CJ, Ashworth Elwes JJ
[1961] 1 QB 394
Citing:
DistinguishedWiles v Maddison 1943
It was proved that the defendant had the intention to commit an offence. Viscount Caldecote CJ said ‘A person might, for instance, be convicted of making an offer of an article at too high a price by putting it in his shop window to be sold at an . .
CitedMagor and St Mellons Rural District Council v Newport Corporaion HL 1951
The Court of Appeal had tried to fill in the gaps in a statute where parliament had intended an effect.
Held: Rights to compensation are well capable of falling within the definition of ‘property of a company’ in the relevant provisions of the . .
DistinguishedKeating v Horwood QBD 1926
A baker’s van was doing its rounds, delivering bread which had already been ordered but the van also contained bread which could be bought as required. The bread was underweight The Order prohibited the offering or exposing for sale of food . .

Lists of cited by and citing cases may be incomplete.

Crime, Consumer, Contract

Leading Case

Updated: 09 November 2021; Ref: scu.185104

McGuffick v The Royal Bank of Scotland Plc: ComC 6 Oct 2009

Requirements for Enforcing Consumer Loan Agreement

The claimant challenged the validity of a loan agreement with his bank as a regulated consumer credit agreement. After default, the lender failed to satisfy a request for a copy of the agreement under section 77. The bank said that though it could not enforce the agreement, it remained valid and that default would be reported to credit reference agencies. The court was asked whether during a period when the agreement was unenforceable for non-compliance, the debt was extinguished/suspended or continued and what steps were available to the bank.
Held: The House of Lords in Wilson had left this situation unclear, and the conflicting judgements were issued without full citation of the case law. The effect of unenforceability under section 65 is that the rights of the creditor and corresponding liability or obligations of the debtor do exist but are unenforceable, rather than that those rights were never acquired or that the creditor was deprived of those rights whilst the agreement was unenforceable.
The 1974 Act did not make clear what was meant by enforcement, but reference to credit reference agencies was said by the claimant to be coercive. Steps up to and including applications to court for permission to enforce such an agreement did not themselves amount to enforcement.
The 2008 regulations were not enforceable by private action.

The claimant had objected under the 1998 Act to the continued holding of information regarding his account. That claim failed: ‘There is simply no basis for the contention that the data is not being processed fairly and lawfully. The processing of the data by sharing it with other financial institutions through the CRAs, pursuant to the Principles of Reciprocity, is clearly in the legitimate interests of the bank, the CRAs and other financial institutions, for all of whom the governing principle is that the sharing of data has the aim of promoting responsible lending.’

Flaux J
[2009] EWHC 2386 (Comm)
Bailii
Consumer Credit Act 1974, Consumer Protection from Unfair Trading Regulations 2008, Directive 2005/29EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices., Data Protection Act 1998 10(1)
England and Wales
Citing:
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedTaylor v Great Eastern Railway Company 1901
The section provided that: ‘A contract for the sale of any goods of the value of ten pounds or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in . .
CitedRankine v American Express Services Europe Ltd 2009
The court considered the enforcement of a contract which offended the 1974 Act.
Held: The bringing of proceedings is only a step taken with a view to enforcement and not actually enforcement. . .
CitedEastern Distributors Limited v Goldring (Murphy, Third Party) CA 1957
The court considered the meaning of the phrase: ‘shall not be entitled to enforce’ in the section.
Held: ‘How is the present case affected by the fact that the hire-purchase agreement is unenforceable? If the Act said that it was void, then of . .
CitedVTB-VAB v Total Belgium NV; Galatea BVBA v Sanoma Magazines Belgium NV ECJ 21-Oct-2008
ECJ (Approximation of Laws) Opinion – Admissibility of a reference for a preliminary ruling – Proper subject of interpretation Relevance to the decision Combined offers – Directive 2005/29/EC – Interpretation in . .
CitedConister Trust Ltd v John Hardman and Co CA 21-Jul-2008
The court was asked whether an agreement by the defendant solicitors under a personal injury litigation funding scheme, to discharge a client’s ‘remaining liability’ under a loan agreement applies on its true construction where the loan agreement is . .
CitedOrakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .
CitedRegina v Modupe CACD 1991
The appellant obtained loans enabling him to buy cars by giving false information when entering into hire purchase agreements. The relevant agreement did not contain all the prescribed information and was improperly executed so that by virtue of . .

Cited by:
CitedCarey v HSBC Bank plc, Yunis v Barclays Bank plc and similar QBD 23-Dec-2009
carey_hsbcQBD2009
(Manchester Mercantile Court) The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client.
Held: The court set out to give . .

Lists of cited by and citing cases may be incomplete.

Consumer, Banking, Information

Updated: 09 November 2021; Ref: scu.375741

Ruijssenaars and Jansen v Staatssecretaris van Infrastructuur en Milieu: ECJ 17 Mar 2016

ECJ Judgment Air transport – Regulation (EC) No 261/2004 – Article 7 – Compensation payable to passengers in the event that their flight is cancelled or delayed by more than three hours – Article 16 – National bodies responsible for the enforcement of the regulation – Powers – Adoption of enforcement measures against the air carrier for payment of the compensation due to the passenger

D Svaby (Rapporteur), P
C-145/15, [2016] EUECJ C-145/15, ECLI:EU:C:2016:187
Bailii
Regulation (EC) No 261/2004
European

European, Transport, Consumer

Updated: 02 November 2021; Ref: scu.561963

Kusionova v SMART Capital as: ECJ 10 Sep 2014

kusionavaECJ1409

ECJ Judgment – Preliminary ruling – Directive 93/13 / EEC – Unfair terms – Contract for consumer credit – Article 1, paragraph 2 – Clause reflects a peremptory legislation – Scope of the Directive – Article 3, paragraph 1, 4, 6, paragraph 1, and 7, paragraph 1 – Guarantee of the claim by a security interest in property – Ability to achieve that security through an auction – Judicial review

Ilesic P
C-34/13, [2014] EUECJ C-34/13, ECLI:EU:C:2014:2189
Bailii
Directive 93/13 / EEC

European, Consumer

Updated: 02 November 2021; Ref: scu.536521

Moriarty and Another v Atkinson and Various Customers of BA Peters Plc: CA 16 Dec 2008

The company, a boat sales agent, made a promise to its customers to hold the funds received from them in a trust account. In breach of that promise, it used the funds to pay its own debt. The customers now appealed against a refusal to allow them to trace the funds paid in breach of trust.
Held: The claim failed. No specific fund had been created in which the claimants had any proprietary right such as would allow tracing to apply. The fact that the customers might have other good claims in equity did not mean that the remedy of tracing would apply to support them in the absence of a proprietary claim. There was a need to restrict any growth in the ambit of proprietary claims to avoid confusion and unfairness to other creditors.

Lord Justice Dyson, Lord Justice Jacob and Lord Neuberger of Abbotsbury
[2008] EWCA Civ 1604, Times 14-Jan-2009
Bailii
England and Wales
Citing:
Appeal fromMoriarty and Another v Various Customers of BA Peters Plc (In Administration) ChD 22-Jul-2008
. .
See alsoMoriarty and others v Various Customers of BA Peters Plc (In Administration) ChD 29-Apr-2008
The company had acted as boat sales and brokerage. Claims were made on its insolvency as to the status of boats sold and unsold, and of deposits paid and held by the company. . .

Cited by:
CitedBrazzill and Others v Willoughby and Others CA 27-May-2010
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .

Lists of cited by and citing cases may be incomplete.

Equity, Insolvency, Consumer

Updated: 02 November 2021; Ref: scu.291916

Green v Petfre (Gibraltar) Ltd (T/A Betfred): QBD 7 Apr 2021

Onerous Contract Terms Unclear – Not Incorporated

The claimant said that he had won a substantial sum on the online gaming platform operated by the defendants, but that they had refused to pay up. The defendants said that there had been a glitch in the game. The court faced a request for summary judgment for the claimant.
Held: The clauses in question fell foul of the requirements of the statutory obligation of fairness. The obscurity of the language, the context of the contract, and the failure adequately to signpost the exclusion clauses and explain their consequences to the player are inconsistent with the fairness envisaged by the Act as indicated in the light of the previous relevant case law.

Mrs Justice Foster DBE
[2021] EWHC 842 (QB)
Bailii
Consumer Rights Act 2015 62 64 68 69
England and Wales
Citing:
CitedHRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .
CitedEasyair Ltd (T/A Openair) v Opal Telecom Ltd ChD 2-Mar-2009
Principles Applicable on Summary Judgment Request
The court considered an application for summary judgment.
Held: Lewison J set out the principles: ‘the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as . .
CitedWood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
CitedThree Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
CitedSpreadex Ltd v Cochrane ComC 18-May-2012
The spread betting bookmaker claimed summary judgment in respect of a consumer, Mr Cochrane, who had made certain initial personal trades with significant profitability. In his absence, without his knowledge and authorisation, his account was . .
CitedInterfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
CitedDirector General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .
CitedGreat Peace Shipping Ltd v Tsavliris (International) Ltd CA 14-Oct-2002
The parties contracted for the hire of a ship. They were each under a mistaken impression as to its position, and a penalty became payable. The hirer claimed that the equitable doctrine of mutual mistake should forgive him liability.
Held: . .

Lists of cited by and citing cases may be incomplete.

Contract, Consumer

Updated: 02 November 2021; Ref: scu.661636

Sternlight v Barclays Bank Plc: QBD 22 Jul 2010

Various credit card customers said that the respondent banks had mis-stated the interest rates applied to them, in that the interest charged did not match the APR advertised, and that therefore the agreements were unenforceable.
Held: The claimants’ calculations did not apply. The driver of the interest rate was not the statement as to the APR, but the agreement itself. The APR was not a term of the agreement, and a mis-statement of it, if one had occurred, did not make the agreement unenforceable.

Waksman QC J
[2010] EWHC 1865 (QB)
Bailii
Consumer Credit Act 1974 60, Consumer Credit (Agreements) Regulations 1983 Sch 6
England and Wales
Citing:
CitedDimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
CitedWilson and Another v Hurstanger Ltd CA 4-Apr-2007
The company sought to enforce its loan agreement and charge over the defendants’ property. The defendants appealed saying that the agreement was unenforceable under the Act, since a commission had been paid to the introducing broker, and his fee had . .

Lists of cited by and citing cases may be incomplete.

Consumer, Banking

Updated: 02 November 2021; Ref: scu.421269

Barclays Bank Plc v Kufner: ComC 10 Oct 2008

barclays_kufnerComC2008

The bank sought summary judgment under a guarantee to secure a loan to purchase a luxury yacht which was to be hired out in business. The loan had been charged against the yacht, but when the yacht was re-registered, the bank failed to re-establish its charge.
Held: The application succeeded. There was no duty in equity on the bank to re-establish the charge, since the agreement allowed it to release the charge. Was the bank a supplier within the 1999 Regulations? Whilst the Regulations might apply to a banking guarantee, the defendant here was not acting as a consumer, and therefore they did not apply to him. Nor could he sustain a defence based on negligent misrepresentation.

Field J
[2008] EWHC 2319 (Comm)
Bailii
Unfair Terms in Consumer Contracts Regulations 1999 4(1)
Citing:
CitedCanada Steamship Lines Ltd v The King PC 21-Jan-1952
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .
CitedSkipton Building Society v Stott CA 2001
The issue was whether a mortgagee had sold at an undervalue, and if so what the damages should be.
Held: In a well-developed property market where a sale is assured and the only possible issue is as to the market level, damages for loss of . .
CitedBayerische Hypotheken- und Wechselbank v Dietzinger ECJ 17-Mar-1998
The court was asked whether the Directive applied to a bank guarantee given by a natural person who was not acting in the course of a trade or business to secure the overdraft of a third party.
Held: The scope of the Directive is not limited . .
CitedBank of Scotland v Singh 17-Jun-2005
. .
CitedSkipsredittforeningen v Emperor Navigation SA 1997
The court considered the reaonableness of a contract clause which sought to exclude liability for misrepresentation: ‘The consequence of the approach adopted in Stewart Gill [[1992] 1 QB 600] is (as the present case shows) that the court may hear . .
CitedStandard Bank London Ltd v Apostolakis and Another ComC 9-Feb-2001
Banking and financial services – conflict of laws – contract – anti-suit injunction – unfair contract terms – defendants signed foreign exchange margin trading agreement in greece – proceedings in greece and england – agreement contained english . .
CitedPrudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
CitedWRM Group Limited (Formerly Known As WRM Logistics Limited) v Wood; Burcher; Wood; Chick and Irving CA 21-Nov-1997
Breach of share sale agreement. . .
CitedPrudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer

Updated: 02 November 2021; Ref: scu.278851

Dimond v Lovell: HL 12 May 2000

A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
Held: The arrangement was a consumer credit agreement, and since it was not in proper form, the sums were not recoverable from the claimant and so in turn were not recoverable either from the defendant. The Act was intended to punish those who sought to work around it.
The additional benefits achieved as part of the mitigation of loss must be taken into account. Even if the claimant could have recovered she could have recovered no more than the ‘spot’ charge and not the charges made for an agreement that entitled the claimant to more benefit than the cost of hire itself (eg by way of financing the cost of replacement pending resolution of a claim or the cost of fighting the claim itself).

Lord Browne-Wilkinson, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Saville of Newdigate, Lord Hobhouse of Wood-borough
Gazette 31-May-2000, Times 12-May-2000, [2000] UKHL 27, [2000] 2 All ER 897, [2000] 2 WLR 1121, [2002] 1 AC 384, (2000) Rep LR 62, [2000] CCLR 57, [2000] RTR 243
House of Lords, Bailii
Consumer Credit Act 1974 127(1)
England and Wales
Citing:
Appeal fromDimond v Lovell CA 29-Apr-1999
Mrs Dimond had a car accident as a result of Mr Lovell’s negligence and sought to recover from him the cost of the hire of a replacement vehicle while her car was being repaired. Under clause 5 of the hire agreement the hire company had the conduct . .
CitedMcAll v Brooks CA 1984
After a road accident the plaintiff hired a car. His insurance brokers provided the car under an arrangement that was alleged to be illegal insurance business and would have prevented them from being subrogated to the plaintiff’s claim for damages . .
CitedGiles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
CitedDonnelly v Joyce CA 18-May-1973
A six year old injured his leg in a road accident, and needed daily attention. His mother gave up her job to look after him. The claim for damages on behalf of he boy included the mother’s loss of earnings. This was objected to on the grounds that . .
CitedBritish Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
CitedParry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
CitedHunt v Severs HL 7-Sep-1994
The tortfeasor, a member of the claimant’s family provided her with voluntary nursing care after the injury. The equivalent cost of that care, was recoverable, but would be held on trust for the carer. The underlying rationale of English Law is to . .
CitedBellingham v Dhillon QBD 1973
The plaintiff claimed damages for personal injuries, and in particular the loss of profits from his driving school business. He lost the opportunity to lease a driving simulator which would have enabled his company to earn a continuing profit. In . .
CitedOrakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .

Cited by:
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedLagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
CitedMcMillan Williams (a Firm) v Range CA 17-Mar-2004
The respondent was employed as a solicitor to be paid commission on fees paid. She received advances against those payments. She was dismissed after failing to reach the targets. The employer sought repayment of the excess advances. She replied that . .
CitedBee v Jenson ComC 21-Dec-2006
The defendant objected to paying the plaintiff the costs of a replacement hire car after the accident for which he was liable. He said that the plaintiff was in any event insured to recover that cost, and the insurance company were subrogated to the . .
CitedBee v Jenson CA 13-Sep-2007
The claimant hired a car whilst his own, damaged by the defendant, was being repaired. His insurer sought to recover the cost from the other driver. The insurer had first arranged te hire with one company, but then another provided a finacial reward . .
CitedArmchair Passenger Transport Ltd v Helical Bar Plc and Another QBD 28-Feb-2003
Objection was made to the use of an expert witness who had formerly been a senior employee of the defendant.
Held: The court set out criteria for testing the independence of a proposed expert witness: ‘i) It is always desirable that an expert . .
CitedHeath v Southern Pacific Mortgage Ltd ChD 29-Jan-2009
The appellant challenged a mortgagee’s possession order saying that the loan agreements sought to be enforced were invalid and the charges unenforceable. The loan had been in two parts. She said that as a multi-part agreement it fell within section . .
CitedCopley v Lawn; Maden v Haller CA 17-Jun-2009
The parties had been involved in a road accident. The insurer for the liable party offered a car for use whilst the claimant’s car was being repaired. The claimants had rejected that offer, and now appealed against a refusal to award them the cost . .
CitedSouthern Pacific Mortgage Ltd v Heath CA 5-Nov-2009
The court considered the effect of an agreement within the 1974 Act falling into more than one category of agreement. Part was used to be used for the repayment of an existing mortgage (restricted use credit), and part was unrestricted. The question . .
CitedCarey v HSBC Bank plc, Yunis v Barclays Bank plc and similar QBD 23-Dec-2009
carey_hsbcQBD2009
(Manchester Mercantile Court) The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client.
Held: The court set out to give . .
CitedSternlight v Barclays Bank Plc QBD 22-Jul-2010
Various credit card customers said that the respondent banks had mis-stated the interest rates applied to them, in that the interest charged did not match the APR advertised, and that therefore the agreements were unenforceable.
Held: The . .
CitedThe Office of Fair Trading v Ashbourne Management Services Ltd and Others ChD 27-May-2011
The OFT alleged that the defendant companies had been engaged in breaches of the Act and the Regulations in their practices in selling gym memberships. The defendant were selling and managing memberships for gyms. They advised as to the different . .
CitedDickinson and Others v Tesco Plc and Others CA 4-Feb-2013
The court considered the practice on claims for hire of a replacement car on credit terms after a road traffic accident. The defendant resisted paying for the credit where the claimant could have hired without a credit arrangement. The defendants . .
CitedSalat v Barutis CA 20-Nov-2013
The claimant had been knocked from his motor cyle by the defendant. He hired a replacement, but when he sought payment of the associated hire charges, the defendant said that the hire company had failed to comply with the 208 Regulations, and that . .

Lists of cited by and citing cases may be incomplete.

Consumer, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.79968

AJ Building and Plastering Ltd v Turner and Others: QBD 11 Mar 2013

An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent liquidation before the works were paid for. The claimant now sought payment direct from the insured. The defendants denied any contract with the claimant, despite mandates signed by them.
Held: The claims failed. It was both a perfectly possible reading of the mandate and far more consonant with the commercial common sense of the situation to interpret it to mean that, although the insurer will be responsible for paying the cost of the insured losses, the householder will remain liable for all other costs, namely the policy excess and any works not covered by the insurance.
The court considered the possible application of the contra preferentem rule: ‘The fact that the contra proferentem rule is a matter of common law whereas regulation 7 (2) is a creature of statute is no reason to differentiate between their applications; the 1999 Regulations give wholesale effect to a European Directive and it is unnecessary to suppose that they were intended to affect the common law relating to contractual interpretation. The occasions on which the principle of construction and the common-law rule apply are the same: their operation is limited to cases of genuine interpretative doubt or ambiguity’
The contracts were to be determined on the standard rules for construction. If the terms were unambiguous then the 1999 Regulation had no application, and ‘ it is impermissible to prejudge the construction of the mandates by presupposing an analysis that ignores them. The mandates were in fact signed. A common reason for having written express contracts is to impose and assume liabilities that would not otherwise be implied.’

Keyser QC J
[2013] EWHC 484 (QB)
Bailii
Unfair Terms in Consumer Contracts Regulations 1999 7
England and Wales
Citing:
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
CitedChartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
CitedSt Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) CA 1973
When looking at a contract ‘one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances.’
The contra preferetem rule can only come into play . .
CitedMira Oil Resources of Tortola v Bocimar NV ChD 1999
Colman J discussed the application of the contra preferentem rule: ‘Further, this is not a case where the meaning of the words is so finely balanced that the contra proferentum rule should be applied in favour of the owners. If in the view of the . .
CitedAssociation of British Travel Agents Ltd v British Airways Plc CA 2000
Sedley LJ described the common-law rule of contra preferentem, that any doubt as to the meaning of contractual words will be resolved by construing them against the party that put them forward, as ‘a principle not only of law but of justice’ and . .
ApprovedThe Financial Services Authority v Asset L I Inc and Others ChD 8-Feb-2013
The court was asked whether so-called ‘land-banking’ schemes were ‘collective investments schemes’ within section 235.
Held: Andrew Smith J discussed the difference in effect between the contra preferentem rule, and regulation 7 of the 1999 . .
CitedRainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
CitedPink Floyd Music Ltd and Another v EMI Records Ltd CA 14-Dec-2010
The defendant appealed against an order made on the claimant’s assertion that there were due to it substantial underpayments of royalties over many years. The issues were as to the construction of licensing agreements particularly in the context of . .
CitedDirect Travel Insurance v McGeown CA 12-Nov-2003
The contra proferentem interpretation rule is to be invoked only in cases of genuine doubt or ambiguity. Auld LJ said: ‘A court should be wary of starting its analysis by finding an ambiguity by reference to the words in question looked at on their . .
CitedDu Plessis v Fontgary Leisure Parks Ltd CA 2-Apr-2012
The claimant, who owned a holiday mobile home on the respondent’s site challenged the raising of site fees, saying that the contract was unfair. Previously all site fees were equal within the site, but the respondent had introduced a scheme which . .
CitedBrown and Davis Ltd v Galbraith CA 1972
The defendant’s car was damaged in a collision. It was taken to the plaintiff’s garage for repair. The defendant’s insurers contracted with the defendant to pay for the repairs for a specified amount. The plaintiff carried out repair work, and the . .
CitedCurtis v Chemical Cleaning and Dyeing Co CA 1951
The defendant sought to rely on an exemption clause in its garment cleaning contract. The defendant’ shop assistant had said that it extended only to damage to beads and sequins, whereas by its terms it covered all liability for damage to articles . .
CitedAmalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd CA 1982
The court explained the nature of an estoppel by convention.
Lord Denning MR said: ‘The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone . .
CitedPeekay Intermark Ltd v Australia and New Zealand Banking Group Ltd CA 6-Apr-2006
Moore-Bick LJ discussed whether the court should give effect to a non-reliance clause in a contract saying: ‘It is common to include in certain kinds of contracts an express acknowledgement by each of the parties that they have not been induced to . .

Lists of cited by and citing cases may be incomplete.

Contract, Insurance, Consumer

Leading Case

Updated: 02 November 2021; Ref: scu.471743

Dawson v Thomson Airways Ltd: CA 19 Jun 2014

The claimant’s flight had been delayed for six hours. The airline said that the claim having been made outside the two year period applicable under the Montreal convention, no compensation was payable.
Held: The claimant’s appeal failed. ‘We are bound to follow and apply the decisions of the European Court in relation to the nature of the claim for compensation under article 7 and its compatibility with the Montreal Convention. That includes the Court’s ruling that the obligation in question lies outside the scope of the Convention.’

Moore-Bick, Kitchin, Fulford LJJ
[2014] EWCA Civ 845
Bailii
EC Regulation No. 261/2004, Montreal Convention of 1999, EC Regulation 2027/97
England and Wales
Citing:
CitedSidhu and Others v British Airways Plc; Abnett (Known as Sykes) v Same HL 13-Dec-1996
The claimants had been air passengers who were unlawfully detained in Kuwait, when their plane was captured whilst on the ground on the invasion of Kuwait. They sought damages for that detention.
Held: There are no exceptions to the Warsaw . .
CitedRegina, ex parte International Air Transport Association, European Low Fares Airline Association v Department for Transport ECJ 10-Jan-2006
ECJ Carriage by air – Regulation (EC) No 261/2004 – Articles 5, 6 and 7 -Compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights – Validity – . .
CitedSturgeon and Others v Condor Flugdienst GmbH ECJ 19-Nov-2009
The claimants’ flights had been cancelled. In one case the passengers had been booked on an alternative flight which had been treated as a substitute for the original flight and the carriage had been performed under the original tickets. In the . .
CitedNelson v Deutsche Lufthansa AG, International Air Transport Association v Civil Aviation Authority ECJ 23-Oct-2012
ECJ Air transport – Regulation (EC) No 261/2004 – Articles 5 to 7 – Montreal Convention – Articles 19 and 29 – Right to compensation in the event of delay of flights – Compatibility . .
CitedStott v Thomas Cook Tour Operators Ltd SC 5-Mar-2014
The Court was asked whether a person may recover damages for discomfort and injury to feelings caused by a breach of the 2007 Regulations, which implement EC Regulation No. 1107/2006. The disabled passenger claimant alleged failure by the defendant . .
CitedJoan Cuadrench More v Koninklijke Luchtvaart Maatschappij Nv ECJ 22-Nov-2012
Air transport – Compensation and assistance to passengers – Denied boarding and cancellation or long delays of flights – Period allowed for commencing proceedings
After cancellation of his flight in December 2005 the claimant brought . .

Lists of cited by and citing cases may be incomplete.

Transport, Consumer, European

Updated: 02 November 2021; Ref: scu.526734

VFS Financial Services Ltd v JF Plant Tyres Ltd: QBD 26 Feb 2013

The defendant had acquired a vehicle in lieu of payment of a debt. The vehicle was subject to an HP agreement with the claimant, who now sought possession of it. The defendant argued that it had the protection of section 27, there having been a disposition of the vehicle. The claimant now sought summary judgment.
Held: Summary judgment was granted. The term ‘disposition’ was limited to a specific transaction where the vehicle was transferred in return for money. That there was no need to stretch the definition to cover less straightforward transactions: ‘There may be scope for argument about how far the Sections cover payment of a genuine price by means other than cash. Part exchange is it seems covered by the section no doubt because there is at least some passing of money and that process is a very common if not usual incident of buying a car. The distinction may become more difficult when the value of the car to be traded in reaches or exceeds the price of the car being acquired – where in Mr Stone’s submissions the transactions would not be protected – but that is not this case. There is no suggestion here that the Vehicle was sold for a price and payment subsequently agreed to be made by set-off of debts. The debts are only half the value of the ‘invoice’. This was some odd barter.’

Judge Mackie QC
[2013] RTR 29, [2013] EWHC 346 (QB), [2013] 1 WLR 2987, [2013] 1 Lloyd’s Rep 462, [2013] WLR(D) 91
Bailii
Hire-Purchase Act 1964 27 29(1)
Citing:
CitedRobshaw Brothers Limited v Mayer 1956
Upjohn J considered what would amount to a sale. He quoted the following passage from an article which he said correctly stated the law: ‘But it is well established by judicial authority that in English law the primary meaning of the word ‘sale’ is . .
CitedIn Re Westminster Property Group plc 1984
The court considered the meaning of the word ‘sale’ in the phrase ‘sale or purchase’ in Order 14A RSC. Nourse J said: ‘The authorities establish that in legislative usage and in the absence of a special context the word ‘sale’ denotes an exchange of . .
CitedRoyscott Trust v Burno Daken Ltd and David Ball QBD 9-Jul-1993
R let a vehicle on hire purchase terms to one E(SS), who passed it to BD in breach of his obligations under the hire purchase agreement. E(SS) drew up an ‘invoice’ stating the value of the car to be a certain sum, X. At the time, E(SS) owed BD . .

Lists of cited by and citing cases may be incomplete.

Consumer, Contract

Updated: 02 November 2021; Ref: scu.471303

Aventis Pasteur v O’Byrne (Environment And Consumers): ECJ 2 Dec 2009

Europa Directive 85/374/EEC – Liability for defective products Articles 3 and 11 Mistake in the classification of ‘producer’ Judicial proceedings – Application for substitution of the producer for the original defendant Expiry of the limitation period.
(Grand Chamber of the Court of Justice) The claimant sought damages after consuming a defective medicine supplied by the company. In his action, he sought to amend his pleadings to name the company, having sued the wrong party.
Held: The action was for a claim having its origins in European law which would not give the same discretion as would be given in an English court to add a party after the expiration of the limitation period. However, here the proper defendant was a wholly owned subsidiary of the party named in the original proceedings, and the defendant must have known this, and the court was free, using article 3(3) of the Directive, to treat the actual defendant as the producer liable at law.
‘Article 11 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products must be interpreted as precluding national legislation, which allows the substitution of one defendant for another during proceedings, from being applied in a way which permits a ‘producer’, within the meaning of Article 3 of that directive, to be sued, after the expiry of the period prescribed by that article, as defendant in proceedings brought within that period against another person.’

V Skouris, P and Judges A. Tizzano, J. N. Cunha Rodrigues, K. Lenaerts, E. Levits, C. W. A. Timmermans, A. Rosas, A Borg Barthet, M. Ilesic, J. Malenovsk}, U. Lohmus, AO Caoimh and J-J Kasel
C-358/08, [2009] EUECJ C-358/08, Times 09-Dec-2009
Bailii
Consumer Protection Act 1987, Directive 85/374 3(3)
European
Citing:
At ECJ (1)Declan O’Byrne v Sanofi Pasteur MSD Ltd, formerly Aventis Pasteur MSD Ltd, Sanofi Pasteur SA ECJ 9-Feb-2006
ECJ Directive 85/374/EEC – Liability for defective products – Definition of -putting into circulation- of the product – Supply by the producer to a wholly owned subsidiary. . .
At HLOB v Aventis Pasteur SA HL 11-Jun-2008
The claimant had been vaccinated with a HIB vaccine. He was severely injured and it was said that the vaccine was the cause, and a claim made under the 1987 Act. Originally the claim was made against a UK company, but it should have been against . .
See AlsoO’Byrne v Aventis Pasteur MSD Ltd QBD 20-Oct-2006
The claimant sought damages under the 1967 Act asserting injury from a drug sold by the defendant. Proceedings had been mistakenly commenced against Aventis Pasteur MSD Ltd within the limitation period, but outside the limitation period, it was . .
At CAO’Byrne v Aventis Pasteur Sa CA 9-Oct-2007
The claimant had made a mistake in naming the defendant company, but had intended the company which it now requested the court to substitute as defendant. The limitation period had expired.
Held: The substitution was necessary to decide the . .
At CA (2)O’Byrne v Aventis Pasteur Sa CA 9-Oct-2007
Whether two applications for leave to appeal between the same parties should be heard together. . .

Cited by:
At ECJ (2)O’Byrne v Aventis Pasteur Sa SC 26-May-2010
The claimant wished to claim damages after suffering serious injury as a child having been vaccinated with a drug manufactured by a defendant (APMSD). The defendant had relied on a defence saying that the limitation period under the Directive was 10 . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Consumer, Limitation

Updated: 02 November 2021; Ref: scu.384094

O’Byrne v Aventis Pasteur Sa: SC 26 May 2010

The claimant wished to claim damages after suffering serious injury as a child having been vaccinated with a drug manufactured by a defendant (APMSD). The defendant had relied on a defence saying that the limitation period under the Directive was 10 years. The claimant had then to choose another company (APSA) as defendant. On a second reference to the ECJ, the reply was that the domestic court was to consider, in accordance with domestic rules of proof, whether the manufacturer, APSA, was in fact controlling APMSD and determining when it put the Product into circulation.
Held: Though the original basis of the substitution was no longer available, the ECJ had provided a new basis upon which a substitution might be allowed: ‘The domestic court must look at the circumstances to see whether, despite appearances, in fact, it was the manufacturing parent company which had determined that the product should be put into circulation.’ On this basis, and on the facts of the case, the company’s appeal succeeded, and the claimant was unable to substitute it as defendant.

Lord Hope, Deputy President, Lord Saville, Lord Rodger, Lord Walker, Lady Hale
[2010] WLR (D) 137, [2010] UKSC 23
WLRD, Times, SC Summ, SC, Bailii, Bailii Summary
Consumer Protection Act 1987 2, Limitation Act 1980 11(3), Council Directive 85/374/EEC
England and Wales
Citing:
At ECJ (1)Declan O’Byrne v Sanofi Pasteur MSD Ltd, formerly Aventis Pasteur MSD Ltd, Sanofi Pasteur SA ECJ 9-Feb-2006
ECJ Directive 85/374/EEC – Liability for defective products – Definition of -putting into circulation- of the product – Supply by the producer to a wholly owned subsidiary. . .
See AlsoO’Byrne v Aventis Pasteur MSD Ltd QBD 20-Oct-2006
The claimant sought damages under the 1967 Act asserting injury from a drug sold by the defendant. Proceedings had been mistakenly commenced against Aventis Pasteur MSD Ltd within the limitation period, but outside the limitation period, it was . .
At CA (1)O’Byrne v Aventis Pasteur Sa CA 9-Oct-2007
The claimant had made a mistake in naming the defendant company, but had intended the company which it now requested the court to substitute as defendant. The limitation period had expired.
Held: The substitution was necessary to decide the . .
At CA (2)O’Byrne v Aventis Pasteur Sa CA 9-Oct-2007
Whether two applications for leave to appeal between the same parties should be heard together. . .
At HLOB v Aventis Pasteur SA HL 11-Jun-2008
The claimant had been vaccinated with a HIB vaccine. He was severely injured and it was said that the vaccine was the cause, and a claim made under the 1987 Act. Originally the claim was made against a UK company, but it should have been against . .
At ECJ (2)Aventis Pasteur v O’Byrne (Environment And Consumers) ECJ 2-Dec-2009
Europa Directive 85/374/EEC – Liability for defective products Articles 3 and 11 Mistake in the classification of ‘producer’ Judicial proceedings – Application for substitution of the producer for the original . .
CitedGeffroy v Casino France SNC ECJ 12-Sep-2000
Europa Free movement of goods – National legislation on the marketing of a product – Description and labelling – National legislation requiring use of the official language of the Member State – Directive . .
CitedSeveri, in his own name and representing Cavazzuti e figli SpA, now known as Grandi Salumifici Italiani SpA v Regione Emilia-Romagna ECJ 7-May-2009
ECJ Regulation (EEC) No 2081/92 Directive 2000/13/EC – Name of a food product evocative of a place not registered as a protected designation of origin or protected geographical indication – Uninterrupted use in . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Consumer, European

Updated: 01 November 2021; Ref: scu.416042

Parkingeye Ltd v Beavis: CA 23 Apr 2015

The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of 85.00 pounds. The judge had found that the appellant was in breach of a contract entered into when parking. The charge had been a penalty, but one which was commercially justifiable in the light of the 2012 Act.
The court noted the development of ‘a tendency to recognise that a simple dichotomy between liquidated damages and penalty is inadequate, because it fails to take into account the fact that some clauses which require payment on breach of a sum which cannot be justified as liquidated damages in accordance with established principles should nonetheless be enforceable because they are not extravagant and unconscionable and are justifiable in other terms.’
Held: The appeal failed. The court approved the judges interpretation.
Moore-Bick LJ said ‘The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss suffered by the innocent party is inappropriate. In order to achieve a just outcome it is necessary in my view to return to the principles which underlie what is ultimately no more than a rule grounded in public policy, namely, that the court will not enforce an agreement for the payment in the event of breach of an amount which is extravagant and unconscionable, despite the importance which it would normally attach to enforcing contracts freely entered into’
Nor did the company breah the requirements of the 1999 Regulations.

Moore-Bick LJ VP, Patten LJ, Sir Timothy Lloyd
[2015] EWCA Civ 402, [2015] WLR(D) 190
Bailii, WLRD
Unfair Terms in Consumer Contracts Regulations 1999, Protection of Freedoms Act 2012 56
England and Wales
Citing:
CitedAstley v Frances Weldon CCP 27-Jan-1801
Clause was a Penalty – Not Estimate of Loss
By articles of agreement between the Plaintiff arid Defendant it was agreed on the part of the former that he should pay the latter so much per week to perform at his theatres, with her travelling expences of removing from one theatre to another . .
CitedKemble v Farren 6-Jul-1829
Liquidated Damages Clause to Specify Which Loss
The manager of Covent Garden sought damages from an actor (a principal comedian) in the form of liquidated damages for breach of a contract. He had contracted to perform for four seasons, but had refused to continue after the first.
Held: . .
CitedClydebank Engineering Co v Castaneda HL 19-Nov-1904
The House considered a contract for the construction by a Scottish shipbuilder of four torpedo boats for the Spanish government. The contract provided that: ‘The penalty for late delivery shall be at the rate of andpound;500 per week for each . .
CitedCavendish Square Holdings Bv and Another v El Makdessi ComC 14-Dec-2012
The parties disputed whether clauses in a share sale agreement between them amounted to a penalty and as such were rendered unenforeable.
Held: Burton J felt able to escape those constraints, and concluded that the two provisions were valid . .
CitedLordsvale Finance Plc v Bank of Zambia QBD 20-Mar-1996
The court looked at a facility agreement opened by a bank in favour of the defendant which provided that in the event of default the defendant should pay interest during the period of default at an aggregate rate equal to the cost to the bank of . .
CitedCine Bes Filmcilik Ve Yapimcilik and Another v United International Pictures and Others CA 21-Nov-2003
The parties entered into agreements licensing the exclusive distribution of encrypted television channels within Turkey. A clause provided a calculation of damages for a breach amounting to the balance of licence fees due, and other penalties, . .
CitedMurray v Leisureplay Plc CA 28-Jul-2005
The court considered the extent to which the content of negotiations leading up to the signing of a contract were admissible. Arden LJ said: ‘Lord Dunedin in the Dunlop case makes the point that, although the issue is one of construction, the court . .
CitedEl Makdessi v Cavendish Square Holdings Bv and Another CA 26-Nov-2013
The appellants had agreed for the sale of his company by way of a share sale agreement. The price to be paid was to vary accoriding to the operating profits. A large part of the price reflected goodwill. The agreement contained a clause providing . .
CitedDirector General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .

Cited by:
Appeal fromCavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .

Lists of cited by and citing cases may be incomplete.

Consumer, Contract, Road Traffic, News

Updated: 01 November 2021; Ref: scu.545936

Director General of Fair Trading v First National Bank: HL 25 Oct 2001

The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the Regulations. It was by way of a default condition, rather than a penalty. The provision excluding the award of statutory interest after judgment did not operate to exclude the contractual term, and the inconsistency would not defeat the regulations if such clauses were only allowed to operate if they fell fairly and squarely within the section. The 1999 Regulations set up a ‘a dual system of ex casu challenges and pre-emptive or collective challenges by appropriate bodies’, and ‘The system of preemptive challenges is a more effective way of preventing the continuing use of unfair terms . . than ex casu actions.’
Lord Bingham explained the regulations: ‘A term falling within the scope of the Regulations is unfair if it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer in a manner or to an extent which is contrary to the requirement of good faith. The requirement of significant imbalance is met if a term is so weighted in favour of the supplier as to tilt the parties’ rights and obligations under the contract significantly in his favour. This may be by the granting to the supplier of a beneficial option or discretion or power, or by the imposing on the consumer of a disadvantageous burden or risk or duty. The illustrative terms set out in Schedule 3 to the Regulations provide very good examples of terms which may be regarded as unfair; whether a given term is or is not to be so regarded depends on whether it causes a significant imbalance in the parties’ rights and obligations under the contract. This involves looking at the contract as a whole. But the imbalance must be to the detriment of the consumer; a significant imbalance to the detriment of the supplier, assumed to be the stronger party, is not a mischief which the Regulations seek to address. The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer’s necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 to the Regulations. Good faith in this context is not an artificial or technical concept; nor, since Lord Mansfield was its champion, is it a concept wholly unfamiliar to British lawyers. It looks to good standards of commercial morality and practice. Regulation 4 (1) lays down a composite test, covering both the making and the substance of the contract, and must be applied bearing clearly in mind the objective which the Regulations are designed to promote.’

Lord Bingham of Cornhill Lord Steyn Lord Hope of Craighead Lord Millett Lord Rodger of Earlsferry
Times 01-Nov-2001, [2002] 1 AC 481, [2001] UKHL 52, [2001] 3 WLR 1297, [2002] 1 LLR 489, [2001] 2 All ER (Comm) 1000, [2002] 1 All ER 97, [2002] ECC 22, [2002] 1 Lloyd’s Rep 489
House of Lords, Bailii
Unfair Terms in Consumer Contracts Regulations 1994 (1994 No 3159), County Courts (Interest on Judgment Debts) Order 1991 (1991 No 1184), Consumer Credit Act 1974, County Courts Act 1984 71, Council Directive 93/13/EEC (OJ 1993, L95, p 29) on unfair terms in consumer contracts
England and Wales
Citing:
At First InstanceDirector General of Fair Trading v First National Bank Plc ChD 30-Jul-1999
The claimants sought an injunction under the regulations to prevent the defendant bank from including in any of its agreements a clause allowing them to claim interest on judgments on regulated agreements. . .
Appeal fromDirector General of Fair Trading v First National Bank Plc CA 15-Sep-1999
A bank had a clause in its standard terms which provided that it could continue to recover interest at the contract rate after judgment for default. The clause was an unfair term. The clause allowed a bank to impose an arrangement for repayment by . .
CitedIn re Sneyd; Ex parte Fewings CA 1883
The mortgagee’s costs, whether costs of an enforcement or a redemption action or included in ‘costs, charges and expenses’, are not recoverable from the mortgagor personally, but both as against the mortgagor and other persons interested in the . .
CitedEconomic Life Assurance Society v Usborne HL 1902
If the loan agreement provides that the contract term for payment of interest survives judgment, then the contract term remains enforceable after judgment. Lord Halsbury said: ‘My Lords, it seems to me that Fry LJ in the case of Ex parte Fewings . . . .

Cited by:
CitedBankers Insurance Company Limited v South, Gardner QBD 7-Mar-2003
The two defendants had been involved in a jet-ski accident on holiday in Europe. The claimant sought a declaration that it was not liable to indemnify its insured under the holiday insurance under which they travelled. The policy excluded liability . .
CitedOffice of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
CitedOffice of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
CitedAbbey National Plc and others v The Office of Fair Trading CA 26-Feb-2009
The OFT had sought to enquire as to the fairness of the terms on which banks conducted their accounts with consumers, and in particular as to how they charged for unauthorised overdrafts. The banks denied that the OFT had jurisdiction, and now . .
CitedOffice Of Fair Trading v Foxtons Ltd CA 2-Apr-2009
The OFT had sought and obtained an injunction regarding the use of certain standard terms in their estate agency business. Both parties appealed.
Held: The OFT’s appeal succeeded. The court had been wrong to restrict the effect of the . .
CitedThe Office Of Fair Trading v Foxtons Ltd ChD 10-Jul-2009
The OFT alleged that certain standard terms in the defendant’s letting agent contracts were unfair. The agent had withdrawn the former terms, but relief was still sought on those terms and their effect, and as to the fairness of the new ones. The . .
CitedOffice of Fair Trading (OFT) v Abbey National Plc and Others SC 25-Nov-2009
The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could . .
CitedThe Office of Fair Trading v Ashbourne Management Services Ltd and Others ChD 27-May-2011
The OFT alleged that the defendant companies had been engaged in breaches of the Act and the Regulations in their practices in selling gym memberships. The defendant were selling and managing memberships for gyms. They advised as to the different . .
CitedRossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
Rossetti_diamondQBD2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
CitedRochdale Borough Council v Dixon CA 20-Oct-2011
The defendant tenant had disputed payment of water service charges and stopped paying them. The Council obtained a possession order which was suspended on payment or arrears by the defendant at andpound;5.00. The tenant said that when varying the . .
CitedPerpetual Trustee Co Ltd v Khoshaba 20-Mar-2006
Austlii (Supreme Court of New South Wales – Court of Appeal) CONTRACTS – Unjust contracts – Determination that a contract ‘unjust’ – Appellate review – Nature of decision appealed from – Conclusion that ‘unjust’ . .
CitedDu Plessis v Fontgary Leisure Parks Ltd CA 2-Apr-2012
The claimant, who owned a holiday mobile home on the respondent’s site challenged the raising of site fees, saying that the contract was unfair. Previously all site fees were equal within the site, but the respondent had introduced a scheme which . .
CitedChubb and Another v Dean and Another ChD 24-Apr-2013
The court considered whether it had power to award a post judgment interest at a contractual rather than the statutory interest rate.
Held: There is no power of the court in this claim to add any amount beyond the statutory interest to the . .
CitedParkingeye Ltd v Beavis CA 23-Apr-2015
The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of 85.00 pounds. The judge had found that the appellant was in breach of a . .
CitedGreen v Petfre (Gibraltar) Ltd (T/A Betfred) QBD 7-Apr-2021
Onerous Contract Terms Unclear – Not Incorporated
The claimant said that he had won a substantial sum on the online gaming platform operated by the defendants, but that they had refused to pay up. The defendants said that there had been a glitch in the game. The court faced a request for summary . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.166701

Oak Leaf Conservatories Ltd v Weir and Another: TCC 24 Oct 2013

The claimant conservatory installers claimed wrongful repudiation of the contract by the defendant householders. The defendants, living in Ayrshire, said that the English courts had no jurisdiction over the contract.
Held: The court gave its reasons for accepting the defendants’ submission. The mere fact that Oak Leaf’s primary focus in advertising is on England did not correctly reflect the statutory test or determine the outcome of the application. While the primary focus of the claimant’s business may be in England and most of the business had been in England, it was apparent from its websites and its overall activity (including the acceptance of previous projects in Scotland as well as that of the Weirs) that Oak Leaf was envisaging doing business with consumers domiciled in Scotland. Accordingly, the action must be brought in Sotland.

Stuart-Smith J
[2013] EWHC 3197 (TCC)
Bailii
Civil Jurisdiction and Judgments Act 1982 16(1) Sch 4
England and Wales
Citing:
Applied.Peter Pammer v Reederei Karl Schluter GmbH and Co KG etc ECJ 7-Dec-2010
ECJ (Grand Chamber) Jurisdiction in civil and commercial matters – Regulation (EC) No 44/2001 – Article 15(1)(c) and (3) – Jurisdiction over consumer contracts – Contract for a voyage by freighter – Concept of . .

Lists of cited by and citing cases may be incomplete.

Contract, Jurisdiction, Consumer

Updated: 01 November 2021; Ref: scu.517363

Durkin v DSG Retail Ltd and Another: SC 26 Mar 2014

Cancellation of Hire Finance Contract

The claimant had bought a PC with a finance agreement with the respondent. He rejected it a day later, but the respondent refused to cancel the credit agreement. The respondent had threatened to report his non-payment to credit reference companies, which in due course caused the appellant more difficulties. He claimed damages of 250,000 pounds for this damage, alleging negligence. He had succeeded in establishing a right to reject the computer. The bank succeeded on appeal against a finding that it was liable in damages.
Held: The appeal succeeded. Lord Hodge said that the purpose of the restricted-use credit agreement is to finance a transaction between the consumer and the supplier. Where, as here, the contract is tied to a particular transaction, it has no other purpose. The rescission of the supply agreement excuses the innocent party from further performance of any obligations he has under it. It is inherent in a debtor-creditor-supplier agreement under the 1974 Act, which is also tied into a specific supply transaction, that if the supply transaction it financed is brought to an end by the supplier’s repudiatory breach of contract, the debtor must repay the borrowed funds recovered from the supplier. In order to reflect that reality, the law implies a term into such a credit agreement that it is conditional upon the survival of the supply agreement. The debtor on rejecting the goods and thereby rescinding the supply agreement for breach of contract may also rescind the credit agreement by invoking this condition.

Hale, Hodge LL
[2014] 1 WLR 1148, [2014] UKSC 21, [2014] WLR(D) 144, 2014 GWD 12-211, UKSC 2012/0135
Bailii, WLRD, SC Summary, SC
Consumer Credit Act 1974 75(1)
Scotland
Citing:
Appeal fromDurkin (Aberdeen Sheriff Court) v DSG Retail Ltd SCS 15-Jun-2010
The appellant had purchased a computer from an associated company of the defender with finance from the defender. He complained that on his return of the computer the defender had failed to cancel the consumer credit agreement, causing him losses. . .
CitedUnited Dominions Trust Ltd v Taylor ScSf 1980
. .
CitedKrell v Henry CA 1903
A contract to rent rooms for two days and from which the coronation processions of King Edward VII were to be viewed was frustrated when the processions were cancelled on the days the rooms were taken for because the contract was ‘a licence to use . .
CitedMcWilliams v Sir William Arrol and Company Ltd HL 21-Feb-1962
Damages were sought after the death of the pursuer’s husband working for the respondent. The trial judge had been satisfied that even if the defendants had performed their duty at common law and pursuant to statute, and had provided the deceased . .
CitedHedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
CitedFederal Commerce Ltd v Molena Alpha Inc; (The ‘Nanfri’) CA 1978
The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire.
Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to . .
CitedPhoto Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .

Lists of cited by and citing cases may be incomplete.

Consumer, Negligence, Banking

Leading Case

Updated: 01 November 2021; Ref: scu.523194

Joan Cuadrench More v Koninklijke Luchtvaart Maatschappij Nv: ECJ 22 Nov 2012

Air transport – Compensation and assistance to passengers – Denied boarding and cancellation or long delays of flights – Period allowed for commencing proceedings
After cancellation of his flight in December 2005 the claimant brought proceedings against the airline in Spain in February 2009 seeking compensation under Regulation 261. The limitation period under Spanish law was ten years. Under the Convention is two years. The Court was asked to decide whether article 35 of the Montreal Convention or the Spanish law of limitation applied.
Held: The time limit for bringing a claim under Regulation 261 was a matter for national Spanish law, because the provisions for compensation contained in the Regulation fall outside the terms of the Convention. Regulation 261 provides a system of standardised and immediate redress for the inconvenience caused by delay and cancellation of flights which operates at an earlier stage than the Convention and is independent of it.

R. Silva de Lapuerta
C-139/11, [2012] EUECJ C-139/11, [2013] 2 All ER (Comm) 1152
Bailii
European
Cited by:
CitedDawson v Thomson Airways Ltd CA 19-Jun-2014
The claimant’s flight had been delayed for six hours. The airline said that the claim having been made outside the two year period applicable under the Montreal convention, no compensation was payable.
Held: The claimant’s appeal failed. ‘We . .

Lists of cited by and citing cases may be incomplete.

Transport, Consumer, Limitation

Updated: 01 November 2021; Ref: scu.465996

Carey v HSBC Bank plc, Yunis v Barclays Bank plc and similar: QBD 23 Dec 2009

carey_hsbcQBD2009

(Manchester Mercantile Court) The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client.
Held: The court set out to give guidance on these issues. A photocopy of the signed document was not required, and a reconstruction would do, though as matter of good practice and so as not to mislead the debtor it is clearly desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. The document produced need not be in a condition such that if it were signed it would be satisfy the requirements for regulation. What mattered was that it provided what was needed clearly and without misleading the debtor. Also, regulation 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.
Waksman QC J set out costs principles on a discontinuance: ‘(1) when a claimant discontinues the proceedings, there is a presumption by reason of CPR 38.6 that the defendant should recover his costs; the burden is on the claimant to show a good reason for departing from that position;
(2) the fact that the claimant would or might well have succeeded at trial is not itself a sufficient reason for doing so;
(3) however, if it is plain that the claim would have failed, that is an additional factor in favour of applying the presumption;
(4) the mere fact that the claimant’s decision to discontinue may have been motivated by practical, pragmatic or financial reasons as opposed to a lack of confidence in the merits of the case will not suffice to displace the presumption;
(5) if the claimant is to succeed in displacing the presumption he will usually need to show a change of circumstances to which he has not himself contributed;
(6) however, no change in circumstances is likely to suffice unless it has been brought about by some form of unreasonable conduct on the part of the defendant which in all the circumstances provides a good reason for departing from the rule.’

Waksman QC J
[2009] EWHC 3417 (QB), Times 25-Jan-2010, [2010] Bus LR 1142, [2009] CTLC 103
Bailii
Consumer Credit Act 1974 61 78 189, The Consumer Credit (Agreements) Regulations 1983, The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983
Citing:
CitedIn re Hewer 1882
A true copy of a document was provided, but it was said that it could not be a true copy for an error as to the description of monthly payments.
Held: Bacon CJ said that a true copy did not necessarily need to be an exact copy: ‘but that it . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedDimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
CitedBurchell v Thompson CA 1920
A printed form of bill of sale set out that in consideration of andpound;250 being ‘now paid by the grantees to’ and then identifying a third person ‘at the request of the grantor’ chattels were assigned by way of security for the repayment of the . .
CitedBarras v Aberdeen Steam Trawling and Fishing Co HL 17-Mar-1933
The court looked at the inference that a statute’s draughtsman could be assumed when using a phrase to rely on a known interpretation of that phrase.
Viscount Buckmaster said: ‘It has long been a well established principle to be applied in the . .
CitedLloyds Bank v Mitchell CC 13-Sep-2009
(Leeds County Court) The defendant sought to escape liability under a consumer credit agreement saying that the bank had failed to provide a true copy of the agreement as required by the Act.
Held: A strict requirement that the bank produce . .
CitedHuntpast v Leadbetter 1993
It is crucial to the working of the Act that the parties know at the date when they make the agreement whether or not it is a regulated agreement. . .
CitedMcGinn v Grangewood Securities Ltd CA 23-Apr-2002
The lender used part of the loan to repay a small amount of arrears of the claimant on another loan. The part so used was not part of the objective of the loan, but one of the costs of obtaining it.
Held: The deduction was properly part of the . .
CitedRowlands v Hodson CA 8-Oct-2009
. .
CitedMcGuffick v The Royal Bank of Scotland Plc ComC 6-Oct-2009
Requirements for Enforcing Consumer Loan Agreement
The claimant challenged the validity of a loan agreement with his bank as a regulated consumer credit agreement. After default, the lender failed to satisfy a request for a copy of the agreement under section 77. The bank said that though it could . .
CitedKhodari v Al Tamimi QBD 18-Dec-2008
Claim for repayment of the balance of eighteen loans said to have been made to the Defendant. The total loaned was about pounds 1,125,000. Less repayments, and including an additional 10 percent he claims to be entitled to on the money advanced, his . .

Cited by:
AppliedKneale v Barclays Bank Plc (T/A Barclaycard) ComC 23-Jul-2010
The bank appealed against an order for pre-action dicslosure and payment of the costs to date of its customers request for copies of the agreement under which it sought payment, and otherwise.
Held: After Carey it was not to be argued . .
Appeal fromBrookes v HSBC Bank Plc CA 29-Mar-2011
The appellant had failed in his challenge to the bank’s imposition of charges. . .
CitedFresenius Kabi Deutschland Gmbh and Others v Carefusion 303 Inc CA 8-Nov-2011
The parties had litigated the validity of a patent. . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer

Updated: 01 November 2021; Ref: scu.384472

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

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

Longmore LJ
[2008] EWCA Civ 26, [2008] 1 EGLR 24, [2008] 1 WLR 909, [2008] NPC 10, [2008] 15 EG 178
Bailii
Estate Agents Act 1979, Unfair Terms in Consumer Contracts Regulations 1999 (1999 SI No. 2083) 7(2)
England and Wales
Citing:
CitedThe Moorcock CA 1889
Unless restricted by something else, an employer ought to find work to enable a workman to perform his part of the bargain, namely, to do his work. A term will be implied into a contract only to the extent required to give the contract efficacy: ‘if . .
CitedShirlaw v Southern Foundries (1926) Ltd CA 1939
The court warned against the over-ready application of any principle to justify the implication of terms into a contract. McKinnon LJ set out his ‘officious bystander’ test: ‘If I may quote from an essay which I wrote some years ago, I then said: . .
CitedBrian Cooper and Co v Fairview Estates (Investments) Ltd CA 13-Mar-1987
A substantial property developer sought a tenant for its office block and agreed with his selling agent to pay ‘a full scale letting fee . . should you introduce a tenant by whom you are unable to be retained and with whom we have not been in . .
CitedToulmin v Millar HL 1887
The agent claimed a second commission when his principal, who had already paid a commission for the procuring of a tenant, was asked to pay a second commission on the purchase of the property by the tenant at a later date.
Held: Where there . .
CitedDoyle v Mount Kidston Mining and Exploration Property Ltd 1984
(Queensland) McPherson J considered an estate agent’s contract: ‘it would have been quite artificial to suppose that the parties intended that the agent should earn his commission simply by finding an individual who, independently of any further . .
CitedShirlaw v Southern Foundries (1926) Ltd HL 1940
Where a party enters into an arrangement which can only take effect by the continuance of an existing state of circumstances, there is an implied engagement on his part that he will do nothing of his own motion to put an end to that state of . .
CitedMillar Son and Co v Radford CA 1903
For an estate agent to recover his commission, it was ‘necessary’ to show that the agent’s introduction was an ‘efficient’ (namely effective) cause in bringing about the transaction. . .

Cited by:
CitedOffice of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
CitedFoxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
CitedGlentree Estates Ltd and Others v Favermead Ltd ChD 20-May-2010
The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original . .

Lists of cited by and citing cases may be incomplete.

Contract, Agency, Consumer

Updated: 01 November 2021; Ref: scu.264035

Abbey National Plc and others v The Office of Fair Trading: CA 26 Feb 2009

The OFT had sought to enquire as to the fairness of the terms on which banks conducted their accounts with consumers, and in particular as to how they charged for unauthorised overdrafts. The banks denied that the OFT had jurisdiction, and now appealed against an order against them.
Held: An assessment of the fairness of the Relevant Charges in this case was not excluded by regulation 6(2)(b), and the appeal was dismissed. The contracts between banks and their customers were covered by the 1999 regulations, and the OFT could investigate. The 1999 Regulations were to be interpreted so as to give effect to the Directive, and the travaux preparatoires are a legitimate aid to the construction of the Directive. Those works showed that the underlying idea of excluding anything from the assessment for fairness was that there should be excluded only that which could be expected to result from the contractual freedom of the parties to negotiate the particular term. That might exclude the core terms of a contract but should not exclude ancillary terms. In the circumstances the Relevant Charges were not part of the core or essential bargain with the customer.
The court adopted four propositions as to the interpretation of EC instruments: ‘rules or principles of interpretation. A provision means what it means, in the context in which it appears and, as in domestic law, resort may be had to a variety of different indicators in arriving at the true meaning of the provision in hand, and in different contexts different indicators will have different degrees of influence. There are no hard edged rigid rules.
ii) It is wrong to set up a teleological or purposive interpretation on the one hand and a literal interpretation on the other as if they were mutually exclusive alternatives. It is not as simple as that. A literal interpretation of legislative wording may be required in order to achieve the legislative purpose. In that event a teleological approach would require a literal interpretation. A teleological interpretation does not necessarily mean an expansive interpretation. It simply means giving effect to the intended purpose of the legislative instrument, which may or may not involve simply giving its words their literal meaning.
iii) It is wrong to adopt a prescriptive approach to the meaning of the expression ‘restrictive interpretation’. It is not a mathematical formula to be applied with precision. As Lord Steyn has said extrajudicially, interpretation is an art and not a science. When applying a restrictive interpretation, the court must take account of the ordinary meaning of the words used but it must do so in the relevant legislative context and must therefore have regard to the overall purpose of the Directive, and in particular to the specific interests that the relevant exception (here article 4(2) of the Directive (and therefore paragraph 6(2)(b) of the 1999 Regulations)) is designed to protect. Such an exercise might involve reading words in, cutting them out or taking any other step necessary to produce a result which reflects the relevant purpose in the circumstances. It follows that it is wrong to suggest that the phrase ‘restrictive interpretation’ must involve simply giving the words their ordinary meaning. It is not as simple as that. As ever, all depends upon the circumstances.
iv) It does not help to say that a restrictive interpretation means giving words their ordinary or usual meaning because legislative wording inevitably has a certain elasticity of meaning depending upon its context. Put another way, the natural meaning of the words will itself depend upon the purpose for which and the context in which they are being used.’

Sir Anthony Clarke MR
[2009] EWCA Civ 116, Times 03-Mar-2009, [2009] 2 CMLR 30, [2009] 1 All ER (Comm) 1097, [2009] 2 WLR 1286
Bailii
Unfair Terms in Consumer Contracts Regulations 1999 6(2)(b), Council Directive 93/13/EEC on unfair terms in consumer contracts, EC Treaty 95(3)
England and Wales
Citing:
See AlsoOffice of Fair Trading v Abbey National Plc and others ComC 21-Jan-2009
. .
CitedCommission v Spain ECJ 18-Jan-2001
ECJ Judgment – Failure of a Member State to fulfil its obligations – Article 12(3)(a) of the Sixth VAT Directive – Application of a reduced rate to motorway tolls . .
CitedDirector General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .
CitedLondon Borough of Newham v Khatun, Zeb and Iqbal CA 24-Feb-2004
The council made offers of accommodation which were rejected as inappropriate by the proposed tenants.
Held: The council was given a responsibility to act reasonably. It was for them, not the court to make that assessment subject only to . .
See AlsoOffice of Fair Trading v Abbey National Plc and others ComC 8-Oct-2008
The director sought a further judgment as to whether charges imposed by banks on a customer taking an unauthorised overdraft, and otherwise were unlawful penalties. . .
Appeal fromOffice of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .

Cited by:
Appeal fromOffice of Fair Trading (OFT) v Abbey National Plc and Others SC 25-Nov-2009
The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer, European

Updated: 01 November 2021; Ref: scu.304530

Tesco Supermarkets Ltd v Nattrass: HL 31 Mar 1971

Identification of Company’s Directing Mind

In a prosecution under the 1968 Act, the court discussed how to identify the directing mind and will of a company, and whether employees remained liable when proper instructions had been given to those in charge of a local store.
Held: ‘In the expression ‘act or default’ in section 23 and in paragraph (a) of section 24(1) the word ‘act’ is wide enough to include any physical act of the other person which is causative of the offence. But the use of the word ‘default’ instead of the neutral expression ‘omission’ connotes a failure to act which constitutes a breach of a legal duty to act. A legal duty to act may arise independently of any contract or it may be a duty owed to another person arising out of a contract with him.’ The defendants were the company in the sense that any offences committed by them in relation to the affairs of the company would be capable of being treated as offences committed by the company itself.
Lord Reid said: ‘Where a limited company is the employer difficult questions do arise in a wide variety of circumstances in deciding which of its officers or servants is to be identified with the company so that his guilt is the guilt of the company.
I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company’s servant or agent. In that case any liability of the company can only be a statutory or vicarious liability.’ and
‘. . . Normally the board of directors, the managing director and perhaps other superior officers of a company carry out the functions of management and speak and act as the company. Their subordinates do not. They carry out orders from above and it can make no difference that they are given some measure of discretion. But the board of directors may delegate some part of their functions of management giving to their delegate full discretion to act independently of instructions from them. I see no difficulty in holding that they have thereby put such a delegate in their place so that within the scope of the delegation he can act as the company. It may not always be easy to draw the line but there are cases in which the line must be drawn. Lennard’s case [1915] AC 705 was one of them.’
Viscount Dilhorne set out the test: ‘a person who is in actual control of the operations of a company or of part of them and who is not responsible to another person in the company for the manner in which he discharges his duties in the sense of being under his orders’
Lord Diplock said: ‘Consumer protection, which is the purpose of statutes of this kind, is achieved only if the occurrence of the prohibited acts or omissions is prevented. It is the deterrent effect of penal provisions which protects the consumer from the loss he would sustain if the offence were committed. If it is committed he does not receive the amount of any fine. As a tax payer he will bear part of the expense of maintaining a convicted offender in prison.
The loss to the consumer is the same whether the acts or omissions result in him being given inaccurate or inadequate information are intended to mislead him, or are due to carelessness or inadvertance. So is the corresponding gain to the other party to the business transaction with the consumer in the course of which those acts or omissions occur. Where, in the way that businesses are now conducted, they are likely to be acts or omissions of employees of that party and subject to his orders, the most effective method of deterrence is to place upon the employer the responsibility of doing everything which lies within his power to prevent his employees from doing anything which will result in the commission of an offence.
This, I apprehend, is the rational and moral justification for creating in the field of consumer protection, as also in the field of public health and safety, offences of ‘strict liability’ for which an employer or principal, in the course of whose business the offences were committed, is criminally liable, notwithstanding that they are due to acts or omissions of his servants or agents which were done without his knowledge or consent or even were contrary to his orders. But this rational and moral justification (and here come words of significance in the present case) does not extend to penalising an employer or principal who has done everything that he can reasonably be expected to do by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to control or influence to prevent the commission of the offence (see Lim Chin Aik v. The Queen (1963) AC 160, 174; Sweet v. Parsley (1970) AC 132, 163). What the employer or principal can reasonably be expected to do to prevent the commission of an offence would depend upon the gravity of the injury which it is sought to prevent and the nature of the business in the course of which such offences are committed. The Trade Descriptions Act 1968 applies to all businesses engaged in the supply of goods and services. If considerations of costs and business practicability did not play a part in determining what employers carrying on such business could reasonably be expected to do to prevent the commission of an offence under the Act, the price to the public of the protection afforded to a minority of consumers might well be an increase in the cost of goods and services to consumers generally.’

Lord Diplock, Lord Reid, Viscount Dilhorne
[1971] CLY 10538, [1972] AC 153, [1971] 2 WLR 1166, [1971] 2 All ER 127, [1971] UKHL 1
Bailii
Trade Descriptions Act 1968 23
England and Wales
Citing:
CitedLennard’s Carrying Company Limited v Asiatic Petroleum Company Limited HL 1915
The House was asked as to when the acts of an individual became those of his employer under section 502 (‘any loss or damage happening without (the ship owner’s) actual fault or privity’).
Held: Viscount Haldane LC said: ‘It must be upon the . .

Cited by:
ConsideredRegina v British Steel Plc CACD 31-Dec-1994
British Steel employed two sub-contractors to work in moving a steel tower under their supervision. One platform fell on one of the sub-contractors, killing him. British Steel claimed they had delegated their responsibilities under the Act, and were . .
CitedMCI Worldcom International Inc v Primus Telecommunications Inc ComC 25-Sep-2003
The claimant sought judgment, and the defendant leave to amend its defence. The question was whether the proposed defence had any reasonable prospect of success.
Held: The misrepresentation alleged was made by the claimant’s in-house . .
CitedExpress Ltd v The Environment Agency QBD 15-Jul-2004
The dairy appealed its conviction for allowing cream to enter a brook from the land of its customer.
Held: Polluting matter did not need to be itself noxious or poisonous, it was enough that it stained or tinted the water as did cream. Though . .
CitedMahonia Limited v JP Morgan Chase Bankwest Lb Ag QBD 3-Aug-2004
The Claimant claimed on a letter of credit issued by the Defendant on behalf of Enron Ltd, who asserted it was not liable to pay there having been unlawful behaviour by Enron Ltd. Swap agreements had been entered into, and the defendant said the . .
CitedAttorney-General’s Reference (No. 2 of 1982) CACD 1984
Two men were charged with theft from a company which they wholly owned and controlled. The court considered the actions of company directors in dishonestly appropriating the property of the company, and whether since the title to the goods was . .
CitedDirector of Public Prosecutions v Gomez HL 3-Dec-1992
The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
CitedKR and others v Royal and Sun Alliance Plc CA 3-Nov-2006
The insurer appealed findings of liability under the 1930 Act. Claims had been made for damages for child abuse in a residential home, whom they insured. The home had become insolvent, and the claimants had pursued the insurer.
Held: The . .
CitedFerguson v British Gas Trading Ltd CA 10-Feb-2009
Harassment to Criminal Level needed to Convict
The claimant had been a customer of the defendant, but had moved to another supplier. She was then subjected to a constant stream of threatening letters which she could not stop despite re-assurances and complaints. The defendant now appealed . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
CitedA Ltd and Othersi, Regina v CACD 28-Jul-2016
The Serious Fraud Office appealed against rulings on the admission of evidence after its exclusion under section 78.
Held: The appeal was allowed. The appeal had been brought within time and could proceed. Police and Criminal Evidence Act . .
CitedLincolnshire County Council v Safeway Stores Plc Admn 19-Apr-1999
Appeal against conviction for selling food after sell by date. . .

Lists of cited by and citing cases may be incomplete.

Crime, Company, Consumer

Leading Case

Updated: 01 November 2021; Ref: scu.186448

Matei v SC Volksbank Romania SA: ECJ 26 Feb 2015

mateiECJ201502

ECJ Judgment – Directive 93/13/EEC – Unfair terms in contracts concluded between a seller or supplier and a consumer – Article 4(2) – Assessment of the unfairness of contractual terms – Exclusion of terms relating to the main subject-matter of the contract or the adequacy of the price and remuneration as long as they are in plain intelligible language – Terms including a ‘risk charge’ charged by the lender and authorising it, under certain conditions, unilaterally to alter the interest rate

K. Jurimae, P
ECLI:EU:C:2015:127, C-143/13, [2015] EUECJ C-143/13
Bailii
Directive 93/13/EEC 4(2)

European, Consumer

Updated: 01 November 2021; Ref: scu.543687

London Borough of Newham v Khatun, Zeb and Iqbal: CA 24 Feb 2004

The council made offers of accommodation which were rejected as inappropriate by the proposed tenants.
Held: The council was given a responsibility to act reasonably. It was for them, not the court to make that assessment subject only to Wednesbury considerations. Nor was it for the proposed tenants’ views to hold sway. At first instance the court held the tenant to have a right to express a view, but that right was not granted by statute nor common law considerations of procedural fairness. However the terms of a tenancy were governed by Unfair Contract Term Regulations so as to disallow unfair terms. The dominant purpose of the European Directive implemented by the 1999 Regulations is that of consumer protection, albeit promoted in the context of the internal market. The 1999 Regulations do apply to contracts affecting land.
Laws LJ: ‘I am clear that the applicant’s subjective view of suitability is not a factor which a reasonable council is obliged in principle to regard as relevant to their decision . . . No doubt where an authority operates a procedure by which an applicant is in fact afforded an opportunity to view and comment, it would be difficult see how the authority might then rationally decline to consider what the applicant had to say. Of course I do not suggest that the applicant’s views are not capable of being treated by a reasonable authority as relevant to its decision. I hold only that they are not required by law to be so treated.’

Lord Justice Laws Lord Justice Auld Mr Justice Wilson
[2004] EWCA Civ 55, Times 27-Feb-2004, [2005] QB 37, [2004] NPC 28, [2004] HLR 29, [2004] BLGR 696, [2004] 3 WLR 417, [2004] Eu LR 628
Bailii
Unfair Terms in Consumer Contract Regulations 1999
England and Wales
Citing:
Appeal fromKhatun, Zeb, Iqbal v London Borough of Newham Admn 10-Oct-2003
Each applicant had been accepted as homeless by the respondent, but was then offered alternative accomodation under terms which they found unacceptable. They argued that the Regulations applied. The council had disapplied one statutory guidance in . .
CitedAssociated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .

Cited by:
CitedSlater v London Borough of Lewisham CA 12-Apr-2006
The applicant was heavily pregnant when she was offered a first floor one bedroomed flat. She rejected it.
Held: When a housing authority reviewed its decision on the applicant’s decision not to accept the accommodation offered, that review . .
CitedOffice of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
CitedPeabody Trust v Reeve ChD 2-Jun-2008
The court was asked to sanction the unilateral alteration by the landlord of the terms of some ten thouand tenancies. The agreements contained a clause which the landlord said allowed for variations under the Housing Act 1985. The landlord was a . .
CitedAbbey National Plc and others v The Office of Fair Trading CA 26-Feb-2009
The OFT had sought to enquire as to the fairness of the terms on which banks conducted their accounts with consumers, and in particular as to how they charged for unauthorised overdrafts. The banks denied that the OFT had jurisdiction, and now . .
CitedW v Chief Constable of Northumbria Admn 7-Apr-2009
The claimant challenged the decision of the respondent to reveal to his employers details of a conviction in 1987, when he was 15, for sexual assault on a child, and that he was presently on bail pending a decision for a further allegation. He was . .
CitedRochdale Borough Council v Dixon CA 20-Oct-2011
The defendant tenant had disputed payment of water service charges and stopped paying them. The Council obtained a possession order which was suspended on payment or arrears by the defendant at andpound;5.00. The tenant said that when varying the . .
CitedNzolameso v City of Westminster SC 2-Apr-2015
The court was asked ‘When is it lawful for a local housing authority to accommodate a homeless person a long way away from the authority’s own area where the homeless person was previously living? ‘ The claimant said that on applying for housing she . .

Lists of cited by and citing cases may be incomplete.

Housing, Consumer

Updated: 01 November 2021; Ref: scu.193903

Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2): HL 10 Jul 2003

The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property rights. It was also argued that it was not possible to make a declaration of incompatibility in respect of matters arising from events before the coming into force of the 1998 Act.
Held: Parliament cannot have intended that section 3(1) should have the effect of altering the parties’ existing rights and obligations under the Consumer Credit Act. In this transitional type of case, section 3(1) is inapplicable to the interpretation of the Consumer Credit Act, and the court had no jurisdiction to make a declaration of incompatibility. The courts are now required to evaluate the effect of primary legislation in terms of Convention rights and, where appropriate, to make a formal declaration of incompatibility. In carrying out this evaluation the court has to compare the effect of the legislation with the Convention right. The court was entitled for this purpose (and not merely for the purposes of interpretation) to look at ministerial statements (but not generally at parliamentary debates) to establish the purpose of the Act under consideration, and in doing so it was neither encroaching upon parliamentary prvilege nor questioning the proceedings of Parliament. The severity of the effect of non-compliance with the requirements as to the form of Consumer Credit agreements, was reflected in the intention to protect consumers, and accordingly the legislation reflected the intended balance and was not incompatible.
Lord Rodger said this of the cases on vested rights: ‘It is not easy to reconcile all the decisions. This lends weight to the criticism that the reasoning in them is essentially circular: the courts have tended to attach the somewhat woolly label ‘vested’ to those rights which they conclude should be protected from the effect of the new legislation. If that is indeed so, then it is perhaps only to be expected since, as Lord Mustill observed in L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486, 525A, the basis of any presumption in this area of the law ‘is no more than simple fairness, which ought to be the basis of every general rule.” He said that the test might well be expressed: ‘would the consequences of applying the statutory provision retroactively, or so as to affect vested rights or pending proceedings, be ‘so unfair’ that Parliament could not have intended it to be applied in these ways? In answering that question, a court would rightly have regard to the way the courts have applied the criterion of fairness when embodied in the various presumptions.’
and ‘Since provisions which affect existing rights prospectively are not retroactive, the presumption against retroactivity does not apply. Nor is there any general presumption that legislation does not alter the existing legal situation or existing rights: the very purpose of Acts of Parliament is to alter the existing legal situation and this will often involve altering existing rights for the future . . ‘
Lord Nicholls said: ‘The Human Rights Act 1998 requires the court to exercise a new role in respect of primary legislation. This new role is fundamentally different from interpreting and applying legislation. The courts are now required to evaluate the effect of primary legislation in terms of Convention rights and, where appropriate, make a formal declaration of incompatibility. In carrying out this evaluation the court has to compare the effect of the legislation with the Convention right. If the legislation impinges upon a Convention right the court must then compare the policy objective of the legislation with the policy objective which under the Convention may justify a prima facie infringement of the Convention right. When making these two comparisons the court will look primarily at the legislation, but not exclusively so. Convention rights are concerned with practicalities. When identifying the practical effect of an impugned statutory provision the court may need to look outside the statute in order to see the complete picture, as already instanced in the present case regarding the possible availability of a restitutionary remedy. As to the objective of the statute, at one level this will be coincident with its effect. At this level, the object of section 127(3) is to prevent an enforcement order being made when the circumstances specified in that provision apply. But that is not the relevant level for Convention purposes. What is relevant is the underlying social purpose sought to be achieved by the statutory provision. Frequently that purpose will be self-evident, but this will not always be so.’

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Scott of Foscote, Lord Rodger of Earlsferry
Gazette 18-Sep-2003, Times 11-Jul-2003, [2003] UKHL 40, [2003] 3 WLR 568, [2004] 1 AC 816, [2003] 2 All ER (Comm) 491, [2003] HRLR 33, [2003] UKHRR 1085, [2003] 4 All ER 97
House of Lords, Bailii
Consumer Credit Act 1974 8 61(1)(a) 65(1) 127(3), Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) 6, Human Rights Act 1998 3(1) 22(4), Interpretation Act 1977
England and Wales
Citing:
CitedWilson v First County Trust (2) CA 2-May-2001
Rules under the Act which precluded a party from any recovery for non-compliance with its provisions were disproportionate, and a denial of the human right of the lender to a fair trial, and a declaration of incompatibility was made. A pawnbroker’s . .
CitedSecretary of State for Social Security v Tunnicliffe CA 1991
Staughton LJ considered the interpretation of an Act of Parliament to give it retrospective powers: ‘In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in . .
CitedL’Office Cherifien Des Phosphates and Another v Yamashita-Shinnihon Steamship Co Ltd HL 19-Jan-1994
The subject matter of statutes is so varied that generalised maxims are not a reliable guide. An arbitrator can dismiss a claim for inordinate and inexcusable delay, even where this had arisen before the Act which created the power.
Lord . .
CitedThe Home Office v Wainwright and Wainwright CA 20-Dec-2001
The claimants were awarded damages, following the way they were searched on seeking to enter prison on a visit. The Home Office appealed. They were asked to sign a consent form, but only after the search was nearly complete. They were told the . .
CitedRegina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
CitedRegina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
CitedGolder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
CitedMatthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
CitedZ And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
CitedFayed v United Kingdom ECHR 6-Oct-1994
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb . .
CitedBramelid v Sweden ECHR 1983
A law may infringe article 1 if it creates an ‘imbalance’ between the parties which would result in one party being arbitrarily or unjustly deprived of his possessions for the benefit of the other . .
CitedJames and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
CitedHakansson And Sturesson v Sweden ECHR 21-Feb-1990
Where agricultural property is bought subject to the conditions of the general law, and the purchaser is subsequently obliged to re-sell the property at a substantially lower price, the Court will consider the lawfulness and purpose of the . .
CitedWestdeutsche Landesbank Girozentrale v Islington London Borough Council CA 30-Dec-1993
A bank paid money to a local authority under an interest rate swap agreement, which was held later to be outside the local authority’s powers.
Held: The local authority was to repay the money paid to it for an ultra vires purpose (a swap . .
CitedTinnelly and Sons Ltd and Others and McElduff and Others v United Kingdom ECHR 10-Jul-1998
Legislation which disallowed claimants who asserted that they had been discriminated against, on the grounds of their religious background, from appealing through the courts system, was a clear breach of their human rights. A limitation will not be . .
CitedOrakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .
CitedDimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
CitedBlack-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
CitedMellacher and Others v Austria ECHR 19-Dec-1989
The case concerned restrictions on the rent that a property owner could charge. The restrictions were applied to existing leases. It was said that the restrictions brought into play the second paragraph of Article 1 of the First Protocol to the . .
CitedPrebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
CitedRegina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
CitedRegina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .
CitedRegina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
CitedRegina v Field (Brian John); Regina v Young (Alfred) CACD 12-Dec-2002
Each applicant having been convicted of indecent assaults involving children, now appealed an order banning them from working with children.
Held: The orders were not penalties within article 7. The order was available in the absence of a . .
CitedBeswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
CitedReardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
CitedMarckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
CitedH v Belgium ECHR 30-Nov-1987
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings
It is for . .
CitedPowell v United Kingdom ECHR 4-May-2000
A ten-year old boy had died from Addison’s disease. No inquest took place, because the coroner decided that the boy had died of natural causes. The parents, who were also affected by the events, had accepted compensation from the local health . .
CitedPoplar Housing and Regeneration Community Association Ltd v Donoghue CA 27-Apr-2001
The defendant resisted accelerated possession proceedings brought for rent arrears under his assured shorthold tenancy, by a private housing association who was a successor to a public authority.
Held: Once the human rights issue was raised, . .
CitedRe S (Children: Care Plan); In re W and B (Children: Care plan) In re W (Child: Care plan) HL 14-Mar-2002
The Court of Appeal had imposed conditions upon the care plan to be implemented by the local authorities, identifying certain ‘starred’ essential milestones. The local authorities appealed.
Held: This was not a legitimate extension of the . .
CitedMaxwell v Murphy 1957
Sir Owen Dixon CJ said: ‘The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a . .
CitedWest v Gwynne CA 1911
The plaintiffs were assignees of a lease dating from 1874. The lease contained a covenant by the lessees against underletting the premises or any part thereof without the consent in writing of the landlord. Under the Act, landlords could no longer . .
CitedAttorney General v Vernazza HL 1960
Vernazza was a vexatious litigant. The Attorney-General obtained an order pursuant to an Act which gave the court power to prohibit such a litigant instituting proceedings without leave. Vernazza appealed. Between the making of the original order . .
CitedAbbott v Minister for Lands PC 30-Mar-1895
(From the Supreme Court for New South Wales) When considering what was a ‘vested right’ for the purposes of applying the presumption against retrospectivity of statutes affecting such rights, to convert a mere right existing in the members of the . .
CitedIn re Athlumney 1898
Wright J said: ‘Perhaps no rule of construction is more firmly established than this – that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, . .
CitedZainal bin Hashim v Government of Malaysia PC 1980
A statute should not be given a construction that would impair existing rights personal or in property unless the language in which it is couched requires such a construction. The court considered the presumption that vested rights are not affected . .
CitedIn re Joseph Suche and Co Ltd CA 1875
There is a a presumption, that legislation does not apply to actions which are pending at the time when it comes into force unless the language of the legislation compels the conclusion that Parliament intended that it should. It is ‘a general rule . .
CitedHedderwick v The Federal Commissioner of Land Tax 1913
When considering the operation of the presumption against retrospectivity in Acts affecting vested rights, ‘the Crown’s vested rights are to be respected as much as are the rights of private persons.’ . .
CitedChief Adjudication Officer and Another v Maguire CA 23-Mar-1999
A claimant who had satisfied the conditions required to become eligible for special hardship allowance but who had yet made no claim, retained his right to the allowance after the Act under which the claim might be brought was repealed. ‘A mere hope . .
CitedWright v Hale 23-Nov-1860
When considering the retrospective effects of an Act, ‘where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act.’ . .
CitedRepublic of Costa Rica v Erlanger 1876
The court explained why the retrospectivity of an Act of Parliament was treated differently for matters of procedure. Mellish LJ said: ‘No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation . .
Appeal fromGeorge Hudson Ltd v Australian Timber Workers’ Union 1923
When considering the intentions behind an Act of Parliament to enquire as to its retrospective effect, the court must look to all the circumstances, ‘that is to say, the whole of the circumstances which the legislature may be assumed to have had . .
CitedIn re a Debtor CA 1936
Lord Wright MR said: ‘Thus while an appellate court is able, and bound, to give effect to new remedies which have been introduced by enactments passed after the order appealed from was made by the court of first instance, yet with regard to . .
CitedYew Bon Tew v Kenderaan Bas Mara PC 7-Oct-1982
(Malaysia) In 1972 the appellants were injured by the respondent’s bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue . .
CitedSmith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .

Cited by:
CitedRegina on the Application of Isle of Anglesey County Council v Secretary of State for Work and Pensions Admn 30-Oct-2003
The claimant council sought re-imbursement from the Secretary of the excess housing benefit payments it had made to claimants. The system expected the Council to have made referrals of high rents to rent officers. The respondent had decided that it . .
CitedSecretary of State for Work and Pensions v Kehoe CA 5-Mar-2004
The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of . .
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
CitedFlynn, Meek, Nicol and McMurray v Her Majesty’s Advocate PC 18-Mar-2004
PC (High Court of Justiciary) The applicants had each been convicted of murder, and complained that the transitional provisions for determining how long should be served under the life sentences infringed their . .
CitedRegina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
CitedGhaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
CitedEvans v Amicus Healthcare Ltd and others CA 25-Jun-2004
The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked . .
CitedThe Financial Services Authority v William Matthews Patricia Janet Matthews ChD 21-Dec-2004
The Authority sought a finding that the respondents had infringed their duties in providing financial advice with respect to the moving of personal pensions and had failed to comply with an order an order for compensation. The defendants asserted . .
CitedTrailer and Marina (Leven) Ltd, Regina (ex parte) v Secretary of State for the Environment, Food and Rural Affairs and Another CA 15-Dec-2004
The claimant sought a declaration that the 1981 Act, as amended, interfered with the peaceful enjoyment of its possession, namely a stretch of canal which had been declared a Site of Special Scientific Interest, with the effect that it was unusable. . .
CitedMalcolm v Mackenzie, Allied Dunbar Plc CA 21-Dec-2004
The bankrupt complained that having been made bankrupt, his self-employed pension was subject to attachment by his trustee, but had he been a member of a company scheme the asset would not, and that this was discriminatory.
Held: The . .
CitedNational Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
CitedJackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
CitedJ A Pye (Oxford) Ltd v The United Kingdom ECHR 15-Nov-2005
The claimants had been the registered proprietors of land, they lost it through the adverse possession of former tenants holding over. They claimed that the law had dispossessed them of their lawful rights.
Held: The cumulative effect of the . .
CitedWilson v Wychavon District Council and Another Admn 20-Dec-2005
The claimant complained that the law which protected an occupier of a dwelling house from a temporary stop notice did not apply to those living in caravans, and that this was discriminatory.
Held: The claim failed. ‘usually a change of use of . .
CitedBegum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
CitedBaiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
CitedOxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
CitedLisa Smith, Regina (on the Application of) v South Norfolk Council Admn 10-Nov-2006
The claimant gypsies had bought and moved onto land in Norfolk and stayed there in breach of planning enforcement notices. The inspector upheld the notices, but advised the Council of the difficulties in finding sites and had stayed enforcement for . .
CitedWright and Others, Regina (on the Application of) v Secretary of State for Health Secretary of State for Education and Skills Admn 16-Nov-2006
The various applicants sought judicial review of the operation of the Protection of Vulnerable Adults List insofar as they had been placed provisionally on the list, preventing them from finding work. One complaint was that the list had operated . .
CitedBradley and Others, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 21-Feb-2007
The claimant had lost his company pension and complained that the respondent had refused to follow the recommendation of the Parliamentary Commissioner for Administration that compensation should be paid.
Held: The court should not rely on . .
CitedL, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 1-Mar-2007
The court considered the proper content of an enhanced criminal record certificate. The claimant said that it should contain only matter relating to actual or potential criminal activity.
Held: As to the meaning of section 115: ‘if Parliament . .
CitedBelfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
CitedSecretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
CitedAnimal Defenders International, Regina (on the Application of) v Secretary of State for Culture, Media and Sport HL 12-Mar-2008
The applicant, a non-profit company who campaigned against animal cruelty, sought a declaration of incompatibility for section 321(2) of the 2003 Act, which prevented adverts with political purposes, as an unjustified restraint on the right of . .
CitedHurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
CitedG, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . .
CitedHorsham Properties Group Ltd v Clark and Another ChD 8-Oct-2008
The court was asked whether section 101 of the 1925 Act infringes the Convention rights of residential mortgagors by allowing mortgagees to overreach the mortgagor by selling the property out of court, without first obtaining a court order either . .
CitedRJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
CitedRegina v Kenning, Blackshaw, Fenwick CACD 24-Jun-2008
The defendants appealed against their convictions for conspiracy to aid and abet the production of drugs. They sold materials which could be used for the growing of cannabis, but exhibited a notice warning customers against this. They told . .
CitedHeath v Southern Pacific Mortgage Ltd ChD 29-Jan-2009
The appellant challenged a mortgagee’s possession order saying that the loan agreements sought to be enforced were invalid and the charges unenforceable. The loan had been in two parts. She said that as a multi-part agreement it fell within section . .
CitedOdelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
CitedMcGuffick v The Royal Bank of Scotland Plc ComC 6-Oct-2009
Requirements for Enforcing Consumer Loan Agreement
The claimant challenged the validity of a loan agreement with his bank as a regulated consumer credit agreement. After default, the lender failed to satisfy a request for a copy of the agreement under section 77. The bank said that though it could . .
CitedA, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
CitedCarey v HSBC Bank plc, Yunis v Barclays Bank plc and similar QBD 23-Dec-2009
carey_hsbcQBD2009
(Manchester Mercantile Court) The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client.
Held: The court set out to give . .
CitedF and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Apr-2010
The defendants had been convicted and sentenced for offences which under the 2003 Act would mean that they stayed permanently on the Sex Offenders’ register without possibility of a review. The Secretary of State appealed aganst a finding that the . .
CitedMcCaughey and Another, Re Application forJudicial Review SC 18-May-2011
The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. . .
CitedSimpson v Norfolk and Norwich University Hospital NHS Trust CA 12-Oct-2011
The court was asked whether it was possible to assign as a chose in action a cause of action in tort for damages for personal injury, and if so under what circumstances it was possible.
Held: The appeal was dismissed. The claimant did not have . .
CitedSecretary of State for Energy and Climate Change v Friends of The Earth and Others CA 25-Jan-2012
The Secretary had issued a consultation on the payments for solar energy feed-in-tarriffs, with a view to the new rate being brought in in April 2012. As the consultation ended, he proposed to reduce rates from December 2011. He now appealed against . .
CitedGolden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another CA 9-Mar-2012
The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial . .
CitedRe Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .
CitedWheeler, Regina (on the Application of) v Office of the Prime Minister and Another Admn 2-May-2008
The applicant sought leave to bring judicial review of the prime minister’s decsion not to hold a referendum on the ratification of the treaty of Lisbon.
Held: The claimant had arguable points under the 2000 Act and otherwise, and permission . .
CitedSalvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
CitedLord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
CitedThe Manchester Ship Canal Company Ltd and Another v United Utilities Water Plc SC 2-Jul-2014
The court was asked: ‘whether a sewerage undertaker under the Water Industry Act 1991 has a statutory right to discharge surface water and treated effluent into private watercourses such as the Respondents’ canals without the consent of their . .
CitedSG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
CitedT and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
CitedSmith v Lancashire Teaching Hospitals NHS Trust and Another QBD 8-Sep-2016
The claimant had cohabited with the deceased: ‘The claimant seeks a declaration in one of two alternative forms:
i) Pursuant to s.3 of the Human Rights Act 1998 . . that s.1A(2)(a) of the Fatal Accidents Act 1976 . . is to be read as including . .
CitedHS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another SC 22-Jan-2014
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .
CitedHand and Another v George ChD 17-Mar-2017
Adopted grandchildren entitled to succession
The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not . .
CitedDocherty, Regina v SC 14-Dec-2016
After conviction on his own admission for wounding with intent, and with a finding that he posed a threat to the public, the defendant was sentenced to imprisonment for public protection. Such sentences were abolished with effect from the day after . .
CitedBarlow v Wigan Metropolitan Borough Council CA 1-Jun-2020
Presumption of dedication dates back.
The claimant tripped over a tree root raising a path in the park. The court was now asked whether the pathway through a public park, but which was not a public right of way, was maintainable at public expense as a highway governed by the 1980 Act. . .
CitedHuman Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.

Consumer, Human Rights, Financial Services

Leading Case

Updated: 01 November 2021; Ref: scu.184398

Zentrale Zur Bekampfung Unlauteren Wettbewerbs Frankfurt Am Main eV v comtech GmbH: ECJ 2 Mar 2017

Consumer Helpline may not charge basic Rate

ECJ (Judgment) Reference for a preliminary ruling – Consumer protection – Directive 2011/83/EU – Article 21 – Communication by telephone – Operation of a telephone line by a trader to enable consumers to contact him in relation to a contract concluded – Prohibition on applying a rate higher than the basic rate – Concept of ‘basic rate’

A Prechal (Rapporteur) P
C-568/15, [2017] EUECJ C-568/15, [2017] WLR(D) 149, ECLI:EU:C:2017:154
Bailii, WLRD
Directive 2011/83/EU 21
European

Consumer

Updated: 01 November 2021; Ref: scu.579690

Jarvis v Swans Tours Ltd: CA 16 Oct 1972

The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, including a contract for a holiday, damages can be recovered for mental distress and vexation. The damages awarded by the county court judge were inadequate. The descriptions in the brochure were representations or warranties, but after the 1967 Act, it was no longer necessary to decide which since damages were available for either. The measure of damages was the loss of entertainment and enjoyment which was promised, and not delivered.
Lord Denning said: ‘In a proper case damages for mental distress can be recovered in contract, just as damages for shock can be recovered in tort. One such case is a contract for a holiday or any other contract to provide entertainment and enjoyment. If the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach. I know that it is difficult to assess in terms of money, but it is no more difficult than the assessment which the courts have to make every day in personal injury cases for loss of amenity. Take the present case. Mr Jarvis has only a fortnight’s holiday in the year. He books it far ahead and looks forward to it all that time. He ought to be compensated for the loss of it . . Here Mr Jarvis’s fortnight’s winter holiday has been a grave disappointment. It is true that he was conveyed to Switzerland and had meals and bed in the hotel. But that is not what he went for. He went to enjoy himself with all the facilities which the defendant said he would have. He is entitled to damages for the lack of those facilities and for his loss of enjoyment.’
Edmund Davies LJ said: ‘The court is entitled, and indeed bound, to contrast the overall quality of the holiday so enticingly promised with that which the defendant in fact provided . . When a man has paid for and properly expects an invigorating and amusing holiday and, through no fault of his, returns home dejected because his expectations have been largely unfulfilled in my judgment it would be quite wrong to say his disappointment must find no reflection in the damages to be awarded.’

Lord Denning MR, Edmund Davies and Stephenson LJJ
[1973] 1 All ER 71, [1972] 3 WLR 954, [1973] QB 233, [1972] EWCA Civ 8
lip, Bailii
Misrepresentation Act 1967
England and Wales
Citing:
Not FollowedHobbs v London and South Western Railway Co 1875
The court considered an application for damages for inconvenience in a breach of contract case: ‘for the mere inconvenience, such as annoyance and loss of temper, or vexation, or for being disappointed in a particular thing which you have set your . .
CitedBailey v Bullock 1950
The court awarded damages against solicitors for the inconvenience to the plaintiff of having to live in an overcrowded house. . .
CitedStedman v Swan’s Tours CA 1951
The plaintiffs sought damages for their disappointing holiday in Jersey. Instead of enjoying the superior rooms with a sea view in a first class hotel expected, the holiday party found that the rooms reserved for them were very inferior and had no . .
CitedBruen v Bruce (Practice Note) CA 1959
. .
CitedFeldman v Allways Travel Service 1957
The claimant sought damages after a disappointing holiday.
Held: Such damages were capable of being awarded. . .
Not FollowedHamlin v Great Northern Railway Co 19-Nov-1856
A plaintiff can recover whatever damages naturally resulted from the breach of contract, but damages cannot be given ‘for the disappointment of mind occasioned by the breach of contract.’ . .
CitedGriffiths v Evans CA 1953
The parties disputed the terms on which the solicitor had been engaged, and in particular as to the scope of the duty undertaken by and entrusted to the solicitor as regards advising the client.
Held: Where there is a dispute between a . .

Cited by:
AppliedHeywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
CitedWiseman v Virgin Atlantic Airways Ltd QBD 29-Jun-2006
The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, . .
CitedYearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
CitedMilner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
CitedRuxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .

Lists of cited by and citing cases may be incomplete.

Consumer, Contract, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.174316

Purely Creative And Others v Office of Fair Trading: ECJ 18 Oct 2012

ECJ Directive 2005/29/EC – Unfair commercial practices – Practice of informing the consumer that he has won a prize and obliging him, in order to receive that prize, to incur a cost of whatever kind

A Rosas R
C-428/11, [2012] EUECJ C-428/11
Bailii
Unfair Commercial Practices Directive 2005/29/EC 5, Directive 2005/29/EC
European
Citing:
At first instanceOffice of Fair Trading v Purely Creative Ltd and Others ChD 2-Feb-2011
The OFT sought an order to restrain the defendants from continuing what it said were unfair commercial practices in the arrangements it made for prize draws.
Held: Each of the promotions relied upon by the Office contravened the Regulations. . .
ReferencePurely Creative Ltd and Others v The Office of Fair Trading CA 29-Jul-2011
The appellants sought to challenge undertakings they had been required to as to the mode of conduct of prize draw competitions. The Regulations forbad misrepresentations that the addressee may already have won a prize. In particular they challenged . .

Lists of cited by and citing cases may be incomplete.

Consumer

Updated: 01 November 2021; Ref: scu.465021

Ingrid Putz v Medianess Electronics GmbH (Environment And Consumers): ECJ 18 May 2010

Replacement rights not in conformity

Europa Consumer protection – Sale of consumer goods – Article 3(2) and (3) of Directive 1999/44/EC – Consumer goods not in conformity with the contract installed by the consumer – Right to replacement of goods not in conformity – Scope – No liability of the seller for costs incurred by the disconnection of the defective product and the installation of the substitute product in conformity.

C-87/09, [2010] EUECJ C-87/09 – O, [2011] EUECJ C-87/09
Bailii, Bailii
Directive 1999/44/EC
European

Consumer

Updated: 01 November 2021; Ref: scu.416436

Baczo And Vizsnyiczai v Raiffeisen Bank Zrt: ECJ 12 Feb 2015

baczo_ECJ201502

ECJ Judgment – Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Article 7 – Mortgage loan agreement – Arbitration clause – Unfairness – Action by consumer – National procedural rule – Lack of jurisdiction of the court hearing the action by a consumer for a declaration of invalidity of a standard contract to hear the application for a declaration of unfairness of terms in the same contract

M Ilesic P
C-567/13, [2015] EUECJ C-567/13
Bailii
Directive 93/13/EEC 7

European, Banking, Consumer

Updated: 01 November 2021; Ref: scu.543252

Baybut v Eccle Riggs Country Park Ltd: ChD 2 Nov 2006

The purchaser of a caravan park purported to terminate the 10 year licences under which the owners of the various caravans occupied their respective pitches. The sale agreement of the caravan site had contained a covenant by the purchaser with the vendor to perform and observe the future obligations imposed by the licences. The claimant sought to assert that a term implied into her contract with the defendant was unfair under the 1999 Regulations.
Held: Under the sale agreement the purchaser took the benefit of the licences conditionally on accepting the burdens thereunder, and there is a principle that one who takes the benefit of a licence to occupy the land granted to another in the form of an income stream, presumably by receiving periodical payments, will be bound by the burden to permit the licence-holder to occupy his pitch.
Regulation 4(2) excluded terms which reflected mandatory statutory provisions, but clauses implied at common law were to reflect the unspoken but obvious intentions of the parties. It was highly unlikely that the 1999 Regulations could ever apply to such terms. This was supported by an examination of the indicative list of unfair terms in the Regulations.

Judge Pelling, QC
Times 13-Nov-2006, [2006] All ER (D) 161 (Nov), 2006 WL 3206169
Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999 No 2083)
England and Wales
Cited by:
CitedOffice of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
CitedDavies and Others v Jones and Another CA 9-Nov-2009
The parties contracted for the sale of land for development. The contract allowed for the costs of environmental remediation, but disputed the true figure set by the eventual builder and retained. The court now heard argument about whether the sum . .

Lists of cited by and citing cases may be incomplete.

Contract, Consumer

Updated: 01 November 2021; Ref: scu.247641

Orakpo v Manson Investments Ltd: HL 1977

Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of payments of interest and moneys due but was successful in his defence that all the transactions including those which provided security rights to the creditor were unenforceable.
Held: While the Acts were designed to protect unsophisticated borrowers from being overreached by unscrupulous moneylenders, they were capable of being used by unscrupulous borrowers to avoid paying their just debts to moneylenders. Whether a remedy in subrogation to redress the unjust enrichment might be available was considered, but it was not open to the court to mitigate the harshness to the moneylender and the undeserved enrichment of the borrower which had resulted from the technical failure to observe the provisions of the Act.
Lord Diplock stated the principle in relation to such provisions as follows: ‘Agreements or securities that are unenforceable are not devoid of all legal effect. Payments made voluntarily pursuant to their terms are not recoverable and I regard it as open to question whether the unenforceability of a higher ranking security which is not void ab initio excludes the doctrine of the merger in it of a lower ranking security in respect of the same charge, at any rate when the higher ranking security remains potentially enforceable in the hands of an assignee.’
As to subrogation: ‘It is a convenient way of describing a transfer of rights from one person to another, without assignment or assent of the person from whom the rights are transferred and which takes place by operation of law in a whole variety of widely different circumstances.’ and as an example ‘One of the sets of circumstances in which a right of subrogation arises is when a liability of a borrower B to an existing creditor C secured on the property of B is discharged out of moneys provided by the lender L and paid to C either by L himself at B’s request and on B’s behalf or directly by B pursuant to his agreement with L. In these circumstances L is prima facie entitled to be treated as if he were the transferee of the benefit of C’s security on the property to the extent that the moneys lent by L to B were applied to the discharge of B’s liability to C. This subrogation of L to the security upon the property of B is based upon the presumed mutual intentions of L and B; in other words where a contract of loan provides that moneys lent by L to B are to be applied in discharging a liability of B to C secured on property, it is an implied term of that contract that L is to be subrogated to C’s security.’
As to unjust enrichment, Lord Diplock said: ‘My Lords, there is no general doctrine of unjust enrichment recognised in English law. What it does is to provide specific remedies in particular cases of what might be classified as unjust enrichment in a legal system that is based upon the civil law. There are some circumstances in which the remedy takes the form of ‘subrogation’, but this expression embraces more than a single concept in English law. It is a convenient way of describing a transfer of rights from one person to another, without assignment or assent of the person from whom the rights are transferred and which takes place by operation of law in a whole variety of widely different circumstances. Some rights by subrogation are contractual in their origin, as in the case of contracts of insurance. Others, such as the right of an innocent lender to recover from a company moneys borrowed ultra vires to the extent that these have been expended on discharging the company’s lawful debts, are in no way based on contract and appear to defeat classification except as an empirical remedy to prevent a particular kind of unjust enrichment.’
Lord Salmon said: ‘The test as to whether the courts will apply the doctrine of subrogation to the facts of any particular case is entirely empirical. It is, I think, impossible to formulate any narrower principle than that the doctrine will be applied only when the courts are satisfied that reason and justice demand that it should be.’

Lords Diplock, Salmon and Keith
[1978] AC 95, [1977] 3 All ER 1
Moneylenders Act 1927 6 13(1)
England and Wales
Cited by:
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedCastle Phillips Finance v Piddington CA 1995
The wife charged the matrimonial home to Lloyds to secure the husband’s indebtedness. The husband subsequently agreed with Barclays for the indebtedness to be refinanced. The husband and an accomplice forged her signature on a transfer of the . .
CitedDimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
AppliedCheltenham and Gloucester Plc v Appleyard and Another CA 15-Mar-2004
The owners had purchased their property with a loan from the BBBS. A charge was then given to BCCI, which charge said no further charge could be registered without BCCI ‘s consent. The C and G agreed to lend a sum to refinance the entire borrowings, . .
CitedBoscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
CitedMcGuffick v The Royal Bank of Scotland Plc ComC 6-Oct-2009
Requirements for Enforcing Consumer Loan Agreement
The claimant challenged the validity of a loan agreement with his bank as a regulated consumer credit agreement. After default, the lender failed to satisfy a request for a copy of the agreement under section 77. The bank said that though it could . .
CitedBankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
CitedBank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .

Lists of cited by and citing cases may be incomplete.

Consumer, Financial Services, Equity

Leading Case

Updated: 01 November 2021; Ref: scu.184428