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
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:
Cited – The 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. . .
Cited – London 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 . .
Cited – Office 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 . .
Cited – Fairclough 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
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
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:
Cited – Jones 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 . .
Cited – In 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 . .
Cited – In re Asphaltic Wood Pavement Co Ltd 1885
. .
Cited by:
Cited – Secretary 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.
Cited – Revenue 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 . .
Cited – Banco 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 . .
Cited – 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 . .
Cited – Tam 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
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 from – Robertson 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 . .
Cited – 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 – . .
Cited – Schulte 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 . .
Cited – Eva 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 – Vodafone 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 . .
Cited – Heininger 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. . .
Cited – E. 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.
Cited – Regina 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:
Cited – The 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
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:
Cited – 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 . .
Cited – 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 . .
Cited – Joachimson 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 . .
Cited – Socimer 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 . .
Mentioned – Lymington 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 . .
Cited – Westminster 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 . .
Cited – Bank 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. . .
Cited – Easycar (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 . .
Cited – Rolls 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 . .
Cited – Bairstow Eves London Central Ltd v Smith and Another QBD 20-Feb-2004
. .
Cited – Emerald 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 . .
Cited – Barclays 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 . .
Cited – Lloyds 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 . .
Cited – Abu 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 . .
Cited – 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 . .
Cited – Heininger 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. . .
Cited – 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, . .
Cited – Commission 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 . .
Cited – Lidl 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 . .
Cited – 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 . .
Cited – The County Homesearch Company (Thames and Chilterns) Ltd v Cowham CA 31-Jan-2008
The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed from a finding that they were obliged to pay his commission. The judge found . .
Cited – Dublin 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 . .
Cited – Export Credits Guarantee Department v Universal Oil Products HL 1983
A contract provided for the payment of a stated sum by one party to the contract (A) to the other party (B) in the event of the non-performance by A of one of more contractual obligations owed by A not to B himself but to C, who was not a party to . .
Cited – Joseph 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.’ . .
Cited – Regina (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 . .
Cited – Jeancharm 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 . .
Cited – Skillion 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 . .
Cited – Philip 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 . .
Cited – Shamsher 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 . .
Cited – Faaborg-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 . .
Cited – Cofidis 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 . .
Cited – Her 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’ . .
Cited – Wire 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. . .
Cited – Domsalla (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 . .
Cited – Bryen 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 . .
Cited – Lloyds Bank plc v Voller 2002
. .
Cited by:
Cited – Office 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 Also – Office 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 from – 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 . .
See also – Office of Fair Trading v Abbey National Plc and others ComC 21-Jan-2009
. .
At First Instance – 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 . .
Cited – Cavendish 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
In the context of trading standards legislation: ‘No general proposition could be laid down that one partner was necessarily responsible for the acts of his co-partner under the legislation.’
Lord Widgery CJ
[1973] CLR 537
England and Wales
Consumer, Criminal Practice
Updated: 11 November 2021; Ref: scu.570268
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:
Cited – Rhesa 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 . .
Cited – Ide 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 . .
Cited – McGlinchey 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
ECJ Jurisdiction in civil and commercial matters – Jurisdiction over consumer contracts – Regulation (EC) No 44/2001 – Article 15(1)(c) – Possible limitation of that jurisdiction to distance contracts
C-190/11, [2012] EUECJ C-190/11
Bailii
European, Consumer
Updated: 11 November 2021; Ref: scu.464425
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:
Cited – Hurstanger 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 . .
Cited – Wilson 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 from – Brophy 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
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 From – Trident 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 . .
Cited – Premium 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 . .
Cited – Handelskwekerij 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 . .
Cited – Alfred 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. . .
Cited – Sunderland 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. . .
Cited – Dolphin 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
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:
Cited – Collin 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 . .
Cited – Hill (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 . .
Cited – Bray 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. . .
Cited – 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, . .
Cited – First 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. . .
Cited – Re 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 . .
Cited – Rahman 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 . .
Cited – Letang 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 . .
Cited – National 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 . .
Cited – Swain 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 . .
Cited – Three 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 . .
Cited – E 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 . .
Cited – Nationwide Building Society v Dunlop Haywards Ltd and Another ComC 14-Jun-2007
Claims in deceit with regard to valuations of commercial properties. . .
Cited – Extraktionstechnik 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
Europa Directive 93/13/EEC Unfair terms in consumer contracts – Legal effects of an unfair term – Power of and obligation on the national court to examine of its own motion the unfairness of a term conferring jurisdiction – Criteria for assessment.
C-243/08, [2009] EUECJ C-243/08
Bailii
European
Consumer
Updated: 11 November 2021; Ref: scu.347048
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:
Cited – Black-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 . .
Cited – Regina 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 – Heather 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 . .
Cited – Credit 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 . .
Cited – Harrison 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 . .
Cited – Heather 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 . .
Cited – Baby 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 . .
Cited – Regina 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:
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Banking, Consumer, Financial Services
Updated: 10 November 2021; Ref: scu.434868
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:
Cited – Drake 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 . .
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – McCullagh v Lane Fox and Partners Ltd CA 19-Dec-1995
There was no duty in negligent mis-statement from a vendor’s estate agent to a purchaser for that purchaser’s financial loss after proceeding without first obtaining a survey relying upon the agent.
Hobhouse LJ said: ‘On the Sunday, Mr. Scott . .
Cited – Morin 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 . .
Cited – Smith 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 . .
Cited – De 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 . .
Cited – Thomson 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.
Cited – Morin 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 . .
Cited – IFE 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 . .
Cited – Raiffeisen 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 . .
Cited – Overseas 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 . .
Cited – Springwell 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’, . .
Cited – Titan 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
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
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 from – Office 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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Consumer, Agency, Contract, European
Updated: 10 November 2021; Ref: scu.329542
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
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
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
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:
Cited – Assicurazioni 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. . .
Disapproved – Harrison 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 Court – Plevin 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 from – 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 . .
Cited – Regina (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 . .
Cited – Clixby 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 . .
Cited – Gaspet Ltd v Ellis (Inspector of Taxes) 1985
S Ltd was a member of an oil and gas exploration syndicate, the agreement relating to which provided that the exploration work was to be carried out by one member of the syndicate (the operator) on behalf of the other members. The costs, expenses, . .
Cited – Gaspet Ltd v Ellis (Inspector of Taxes) CA 1987
S Ltd. a member of an oil and gas exploration syndicate, agreeing that the exploration work was to be carried out by one member of the syndicate on behalf of the other members. The costs, expenses, rewards and benefits accruing from the exploration . .
Cited – Regina (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 . .
Cited – S, 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 . .
Cited – Rochdale 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 judgment – Plevin 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
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:
Cited – 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 . .
At First Instance – 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 . .
See also – Office 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 from – 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 . .
Cited – Chichester 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 also – Office of Fair Trading v Abbey National Plc and others ComC 21-Jan-2009
. .
Cited – Bairstow Eves London Central Ltd v Smith and Another QBD 20-Feb-2004
. .
Cited – The 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 . .
Cited – College 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 . .
Cited – Freiburger 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 . .
Cited – Srl 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:
Cited – Cavendish 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
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
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
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
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:
Distinguished – Lombard 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 . .
Cited – Abu 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 . .
Cited – Gan 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 . .
Cited – Barclays 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:
Cited – Paragon 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 . .
Cited – Lymington 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 . .
Cited – Lymington 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 . .
Cited – 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 . .
Cited – 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 . .
Cited – Unique 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. . .
Cited – Socimer 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 . .
Cited – Braganza 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 . .
Cited – British 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
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
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
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
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:
Opinion – 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 . .
Lists of cited by and citing cases may be incomplete.
European, Consumer
Leading Case
Updated: 09 November 2021; Ref: scu.463186
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:
Opinion – Barreiro, 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
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:
Cited – Wong 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 . .
Cited – Wilson 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. . .
Cited – Morgan 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 from – Morgan 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. . .
Cited – Evans 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
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:
Cited – R 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 . .
Cited – Stevenson 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 . .
Cited – GE 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
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:
Opinion – 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 . .
Lists of cited by and citing cases may be incomplete.
Consumer
Leading Case
Updated: 09 November 2021; Ref: scu.515275
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:
Order – Sanchez Morcillo And Abril Garcia v Banco Bilbao Vizcaya Argentaria SA ECJ 5-Jun-2014
(Order Of The Court) . .
Position – Sanchez 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
Judgment – Reference for a preliminary ruling – Directive 93/13/EEC – Scope – Consumer contracts – Contract for the provision of legal services concluded between a lawyer and a consumer
J Malenovsky P
C-537/13, [2015] EUECJ C-537/13, ECLI:EU:C:2015:14
Bailii
Directive 93/13/EEC
European
Legal Professions, Consumer
Updated: 09 November 2021; Ref: scu.541501
ECJ Directive 1999/44/EC – Rights of the consumer in the event of lack of conformity in a product – Minor nature of that lack of conformity – Rescission of the contract not possible – Powers of the national courts
A Tizzano, P
C-32/12, [2013] EUECJ C-32/12
Bailii
European
Consumer
Updated: 09 November 2021; Ref: scu.516353
It was necessary to show that the goods not were available at the price shown for the offence to occur. The misleading price offence was not committed when the goods sold at lower cost than displayed.
Ind Summary 14-Feb-1994, Times 14-Feb-1994
Consumer Protection Act 1987 20
England and Wales
Crime, Consumer
Updated: 02 November 2021; Ref: scu.89958
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
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
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 from – Moriarty and Another v Various Customers of BA Peters Plc (In Administration) ChD 22-Jul-2008
. .
See also – Moriarty 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:
Cited – Brazzill 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
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:
Cited – HRH 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 . .
Cited – Easyair 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 . .
Cited – Wood 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 . .
Cited – Three 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 . .
Cited – Spreadex 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 . .
Cited – Interfoto 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 . .
Cited – 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 . .
Cited – Great 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
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:
Cited – 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.
Cited – Wilson 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
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:
Cited – Canada 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 . .
Cited – Skipton 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 . .
Cited – Bayerische 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 . .
Cited – Bank of Scotland v Singh 17-Jun-2005
. .
Cited – Skipsredittforeningen 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 . .
Cited – Standard 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 . .
Cited – Prudential 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 . .
Cited – Johnson 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 . .
Cited – WRM Group Limited (Formerly Known As WRM Logistics Limited) v Wood; Burcher; Wood; Chick and Irving CA 21-Nov-1997
Breach of share sale agreement. . .
Cited – Prudential 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
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 from – Dimond 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 . .
Cited – McAll 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 . .
Cited – Giles 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 . .
Cited – Donnelly 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 . .
Cited – British 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 . .
Cited – Parry 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 . .
Cited – Hunt 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 . .
Cited – Bellingham 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 . .
Cited – 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 . .
Cited by:
Cited – 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 . .
Cited – Lagden 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 . .
Cited – McMillan 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 . .
Cited – Bee 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 . .
Cited – Bee 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 . .
Cited – Armchair 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 . .
Cited – Heath 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 . .
Cited – Copley 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 . .
Cited – Southern 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 . .
Cited – 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 . .
Cited – 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 . .
Cited – The 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 . .
Cited – Dickinson 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 . .
Cited – Salat 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
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:
Cited – Investors 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 . .
Cited – Chartbrook 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: . .
Cited – St 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 . .
Cited – Mira 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 . .
Cited – Association of British Travel Agents Ltd v British Airways Plc CA 2000
Sedley LJ described the common-law rule of contra preferentem, that any doubt as to the meaning of contractual words will be resolved by construing them against the party that put them forward, as ‘a principle not only of law but of justice’ and . .
Approved – The 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 . .
Cited – Rainy 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 . .
Cited – Pink 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 . .
Cited – Direct 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 . .
Cited – Du 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 . .
Cited – Brown 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 . .
Cited – Curtis 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 . .
Cited – Amalgamated 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 . .
Cited – Peekay 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
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:
Cited – Robshaw 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 . .
Cited – In 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 . .
Cited – Royscott 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
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:
Cited – Sidhu 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 . .
Cited – Regina, 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 – . .
Cited – Sturgeon 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 . .
Cited – Nelson 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 . .
Cited – Stott 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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Transport, Consumer, European
Updated: 02 November 2021; Ref: scu.526734
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 HL – OB 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 Also – O’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 – 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. . .
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
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 Also – O’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 HL – OB 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 . .
Cited – Geffroy 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 . .
Cited – Severi, 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
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:
Cited – Astley 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 . .
Cited – Kemble 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: . .
Cited – Clydebank 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 . .
Cited – Cavendish 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 . .
Cited – Lordsvale 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 . .
Cited – Cine 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, . .
Cited – Murray 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 . .
Cited – El 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 . .
Cited – 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 . .
Cited by:
Appeal from – Cavendish 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
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 Instance – Director 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 from – Director 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 . .
Cited – In 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 . .
Cited – Economic 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:
Cited – Bankers 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 . .
Cited – 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 . .
Cited – Office 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 . .
Cited – 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 . .
Cited – 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 . .
Cited – The 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 . .
Cited – 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 . .
Cited – The 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 . .
Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
Rossetti_diamondQBD2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
Cited – Rochdale 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 – Perpetual 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’ . .
Cited – Du 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 . .
Cited – Chubb 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 . .
Cited – 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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Banking, Consumer, Litigation Practice
Leading Case
Updated: 01 November 2021; Ref: scu.166701
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
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 from – Durkin (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. . .
Cited – United Dominions Trust Ltd v Taylor ScSf 1980
. .
Cited – Krell 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 . .
Cited – McWilliams 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 . .
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – Federal 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 . .
Cited – Photo 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
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:
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Transport, Consumer, Limitation
Updated: 01 November 2021; Ref: scu.465996
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:
Cited – The 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 . .
Cited – Shirlaw 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: . .
Cited – Brian 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 . .
Cited – Toulmin v Millar HL 1887
The agent claimed a second commission when his principal, who had already paid a commission for the procuring of a tenant, was asked to pay a second commission on the purchase of the property by the tenant at a later date.
Held: Where there . .
Cited – Doyle v Mount Kidston Mining and Exploration Property Ltd 1984
(Queensland) McPherson J considered an estate agent’s contract: ‘it would have been quite artificial to suppose that the parties intended that the agent should earn his commission simply by finding an individual who, independently of any further . .
Cited – Shirlaw 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 . .
Cited – Millar Son and Co v Radford CA 1903
For an estate agent to recover his commission, it was ‘necessary’ to show that the agent’s introduction was an ‘efficient’ (namely effective) cause in bringing about the transaction. . .
Cited by:
Cited – 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 . .
Cited – Foxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
Cited – Glentree Estates Ltd and Others v Favermead Ltd ChD 20-May-2010
The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original . .
Lists of cited by and citing cases may be incomplete.
Contract, Agency, Consumer
Updated: 01 November 2021; Ref: scu.264035
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 Also – Office of Fair Trading v Abbey National Plc and others ComC 21-Jan-2009
. .
Cited – Commission 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 . .
Cited – 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 . .
Cited – 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 . .
See Also – Office 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 from – 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 . .
Cited by:
Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.
Banking, Consumer, European
Updated: 01 November 2021; Ref: scu.304530
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
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 from – Khatun, 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 . .
Cited – Associated 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:
Cited – Slater 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 . .
Cited – 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 . .
Cited – Peabody 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 . .
Cited – 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 . .
Cited – W 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 . .
Cited – Rochdale 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 – Nzolameso 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
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
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 Followed – Hobbs 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 . .
Cited – Bailey v Bullock 1950
The court awarded damages against solicitors for the inconvenience to the plaintiff of having to live in an overcrowded house. . .
Cited – Stedman 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 . .
Cited – Bruen v Bruce (Practice Note) CA 1959
. .
Cited – Feldman v Allways Travel Service 1957
The claimant sought damages after a disappointing holiday.
Held: Such damages were capable of being awarded. . .
Not Followed – Hamlin 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.’ . .
Cited – Griffiths 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:
Applied – Heywood 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 . .
Cited – Wiseman 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, . .
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Milner 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 . .
Cited – Ruxley 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
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 instance – Office 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. . .
Reference – Purely 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
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
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
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:
Cited – 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 . .
Cited – Davies 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
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:
Cited – 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 . .
Cited – Castle 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 . .
Cited – 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.
Applied – Cheltenham 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, . .
Cited – Boscawen 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 . .
Cited – 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 . .
Cited – Bankers 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 . .
Cited – Bank 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
ECJ Directive 2003/55/EC – Internal market in natural gas – Directive 93/13/EEC – Articles 1(2) and 3 to 5 – Contracts between suppliers and consumers – General conditions – Unfair terms – Unilateral alteration by the supplier of the price of the service – Reference to mandatory legislation designed for another category of consumers – Applicability of Directive 93/13 – Obligation of use of plain and intelligible language and transparency
A. Tizzano, P
C-92/11, [2013] EUECJ C-92/11
Bailii
Directive 2003/55/EC, Directive 93/13/EEC
European, Consumer, Utilities
Updated: 01 November 2021; Ref: scu.471948
ECJ Judgment – Request for a preliminary ruling – Directive 93/13/EEC – Thirteenth recital in the preamble – Article 1(2) – Consumer contracts – Mortgage loan agreement – Mortgage enforcement proceedings – National statutory and regulatory provisions – Contractual balance
A. Borg Barthet, P
C-280/13, [2014] EUECJ C-280/13
Bailii
Directive 93/13/EEC
European
European, Consumer, Banking
Updated: 01 November 2021; Ref: scu.525423
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 air carrier to make reasonable efforts to provide his seating needs.
Held: Such a claim was precluded by the Montreal Convention. The Court declined to refer the Case to the ECJ. The meanings of the Regulations was not in issue, and nor was there said to be incompatibility with the Montreal Convention, and nor did it involve a question of European Law.
Lord Toulson said: ‘To summarise, this case is not about the interpretation or application of a European Regulation, and it does not in truth involve a question of European law, notwithstanding that the Montreal Convention has effect through the Montreal Regulation. The question at issue is whether the claim is outside the substantive scope and/or temporal scope of the Montreal Convention, and that depends entirely on the proper interpretation of the scope of that Convention. The governing principles are those of the Vienna Convention on the Law of Treaties. If the issue concerned the compatibility of the Regulation with the Convention (as in Nelson) it would indeed involve a question of European law, but no such question arises and there is no basis for supposing that the Montreal Convention should be given a different ‘European’ meaning from its meaning as an international convention. On the contrary, it was the acknowledged purpose of the Regulation to ensure full alignment between the Convention as an international instrument and community law.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Reed, Lord Hughes, Lord Toulson
[2014] UKSC 15, [2014] 1 All ER (Comm) 849, [2014] 2 All ER 461, [2014] 2 Lloyd’s Rep 207, [2014] 3 CMLR 7, [2014] Eq LR 287, [2014] 2 WLR 521, [2014] AC 1347, [2014] WLR(D) 111
Bailii, WLRD, Bailii Summary
Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007, EC Regulation No. 1107/2006
England and Wales
Citing:
Appeal from – Stott v Thomas Cook Tour Operators Ltd and Another CA 7-Feb-2012
The claimants were disabled and, despite promises, had not had their seating needs met when flying with the defendants. . .
Cited – Sidhu 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 . .
Cited – Regina, 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 – . .
Cited by:
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Transport, Consumer, Limitation
Leading Case
Updated: 01 November 2021; Ref: scu.521995
ECJ Consumer protection – Contracts negotiated away from business premises – Directive 85/577/EEC – Scope – Not included – Unit-linked insurance contracts
Safjan P
C-166/11, [2012] EUECJ C-166/11
Bailii
Directive 85/577/EEC
European, Consumer
Updated: 01 November 2021; Ref: scu.451788
ECJ Article 56 TFEU – Freedom to provide services – Directive 2005/29/EC – Unfair commercial practices – Consumer protection – Combined offers involving at least one financial service – Prohibition – Exceptions)
A. Tizzano, P
C-265/12, [2013] EUECJ C-265/12
Bailii
Directive 2005/29/EC
European, Consumer
Updated: 01 November 2021; Ref: scu.513402
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 registered social landlord who had taken over the tenancies from local authorities which would have had such powers. The tenant said that such a term would be void under the 1999 Regulations.
Held: The sanction was refused. The case of Kilby concerned restricting a statutory power, and it was not impossible to manage properties without such a power. The associated risks were ones which the legislature had passed to such landlords.
It is now clear that the 1999 Regulations do apply to contracts relating to land. To the extent that the clause was ambiguous it was to be read in favour of the tenants. In tis case there was not abiguity, but rather two clauses flatly contradicting each other, and ‘if there is no compelling reason to choose one sub-clause over the other, the contra proferentem principle does enable the court to break the deadlock and apply the provision less favourable to the party putting the terms forward. ‘
Moss QC
[2008] EWHC 1432 (Ch), Times 09-Jun-2008
Bailii
Housing Act 1985 103, Unfair Terms in Consumer Contracts Regulations 1999
England and Wales
Citing:
Cited – 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 . .
Cited – Tam 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 . .
Cited – Kilby, Regina (on the Application of) v Basildon District Council CA 22-May-2007
The court was asked whether a local authority can lawfully bind itself by contract to subject the exercise of its statutory power to vary its tenancy agreements by notice to the approval of tenants’ representatives.
Held: The local authority . .
Cited – Freiburger 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 . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant, Consumer
Updated: 01 November 2021; Ref: scu.276669
The bank appealed against an order that a consumer credit agreement was unenforceable for failing to meet the requirements. The amount of credit figure had been calculated to include the deferred obligation to pay the broker’s fee.
Held: The appeal succeeded. The fee was not part of the amount of credit, but rather of the total charge for credit. However there was nothing in the Act or Regulations to prevent the figure being so included and the loan was not unenforceable.
Mummery, Sullivan LJJ, Owen J
[2009] EWCA Civ 1176, [2009] WLR (D) 333, [2010] 1 All ER (Comm) 854, [2010] Bus LR 418
Bailii
Consumer Credit Act 1974 9(1)(4), Consumer Credit (Total Charge for Credit) Regulations 1980 (SI 1980/51), Consumer Credit (Agreements) Regulations 1983 (SI 1983/1535)
England and Wales
Cited by:
Appeal from – Southern Pacific Securities 05-2 Plc v Walker and Another SC 7-Jul-2010
The appellant borrowed a sum from the respondent under a fixed sum credit agreement. A broker administration fee had been advanced to facilitate the loan. The agreement recorded the ‘Amount of Credit’ net of the fee, and the ‘Total Amount Financed’ . .
Lists of cited by and citing cases may be incomplete.
Consumer
Updated: 31 October 2021; Ref: scu.377885
ECJ Opinion – Directive 2003/54/EC – Internal market in electricity – Directive 2003/55/EC – Internal market in natural gas – Contracts between suppliers and customers based on national legislation – Universal service obligation – General conditions – Unilateral adjustment by the supplier of the price of the service – Appropriate level of consumer protection – Final customers – Transparency requirement in relation to contractual terms and conditions – Interrelationship with Directive 93/13/EEC – Unfair terms in consumer contracts – Limitation of the temporal effects of a judgment
Wahl AG
C-359/11, [2014] EUECJ C-359/11
Bailii
Directive 2003/54/EC, Directive 2003/55/EC, Directive 93/13/EEC
European
Utilities, Consumer
Updated: 31 October 2021; Ref: scu.525449
The appellant borrowed a sum from the respondent under a fixed sum credit agreement. A broker administration fee had been advanced to facilitate the loan. The agreement recorded the ‘Amount of Credit’ net of the fee, and the ‘Total Amount Financed’ included the fee. The borrower said the agreement was unenforceable for mis-stating the amount of credit by not including the charge for credit.
Held: The borrower’s appeal failed. Since under section 9(4) ‘an item entering into the total charge for credit shall not be treated as credit even though time is allowed for its payment.’ The fee was indisputably part of the total charge for credit and must accordingly be excluded from the amount of credit. The fact that interest was charged on the fee did not change this: ‘Section 9(4) does not prohibit the charging of interest. If the fee itself was part of the total charge for credit, it seems to us to follow that interest on that fee was also part of the total charge for credit and not therefore to be treated as credit.’
Lord Hope, Deputy President, Lord Walker, Lord Brown, Lord Mance, Lord Clarke
[2010] UKSC 32, UKSC 2009/0217, [2010] Bus LR 1396, [2010] 1 WLR 1819, [2010] 4 All ER 277, [2011] 1 All ER (Comm) 164
SC, Bailii, Bailii Summary, SC Summary
Consumer Credit Act 1974
England and Wales
Citing:
Cited – Wilson v First County Trust Ltd (1) CA 3-Nov-2000
The administrative charges for entering into a loan were not to be included in the loan, but rather as an item entering into the total charge for credit. To hold otherwise went against accounting practice, would disguise the cost of the loan, and . .
Appeal from – Southern Pacific Personal Loans Ltd v Walker and Another CA 12-Nov-2009
The bank appealed against an order that a consumer credit agreement was unenforceable for failing to meet the requirements. The amount of credit figure had been calculated to include the deferred obligation to pay the broker’s fee.
Held: The . .
Cited – Wilson v Robertsons (London) Ltd. ChD 5-Jul-2005
The parties entered into pawnbroking arrangements. In order to get around the consequences of the 1974 Act, the agreements were antedated.
Held: The court would not allow parties to contract out of the 1974 Act. Also, by including a document . .
Cited – Watchtower Investments Ltd v Payne and Another CA 20-Jul-2001
The mortgagor borrowed funds against the charge, and part of the condition of the loan was that any arrears on the first charge must be discharged. The total amount of the loan was calculated to include sufficient to discharge the arrears on the . .
Lists of cited by and citing cases may be incomplete.
Consumer, Banking
Leading Case
Updated: 31 October 2021; Ref: scu.420386
ECJ Directive 2005/29/EC – Unfair commercial practices – National legislation laying down a prohibition in principle of commercial practices which make the participation of consumers in a lottery conditional on the purchase of goods or the use of services
Art 2(d) of Directive 2005/29: ‘gives a particularly wide definition to the concept of commercial practices: ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers.’
A Tizzano R
C-304/08, [2011] All ER (EC) 338, [2010] EUECJ C-304/08
Bailii
Directive 2005/29/EC
Citing:
Opinion – Zentrale zur Bekampfung unlauteren Wettbewerbs eV v Plus Warenhandelsgesellschaft mbH ECJ 3-Sep-2009
ECJ Environment And Consumers – French Text – Opinion – Admissibility of a preliminary ruling qualifying Relevance Subject to the decision to make joint offers Interpretation in accordance with Directive . .
Cited by:
Cited – X Ltd, Regina v CACD 23-May-2013
The prosecutor appealed after the judge at the crown court had found no case to answer on a prosecution of the company under the 2008 Regulations. The company had sold a home security system to an elderly and vulnerable man. His family found that he . .
Lists of cited by and citing cases may be incomplete.
European, Consumer
Updated: 31 October 2021; Ref: scu.510097
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 claim was issued. In pursuing a claim for at the most andpound;5,000, her lawyers had accumulated costs to date of andpound;320,000.
Recorder Yip QC
[2012] EW Misc 24 (CC)
Bailii
Consumer Credit Act 1974 140A 140B 140C 140D
Citing:
Binding – Harrison 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 . .
Cited by:
Appeal from – 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 . .
At County Court – Plevin v Paragon Personal Finance Ltd SC 12-Nov-2014
PPI Sale – No Recovery from Remote Parties
The claimant sought repayment of payment protection insurance premiums paid by her under a policy with Norwich Union. The immediate broker arranging the loan was now insolvent, and she sought repayment from the second and other level intermediaties. . .
Lists of cited by and citing cases may be incomplete.
Insurance, Costs, Consumer
Updated: 31 October 2021; Ref: scu.510059
The claimant said it had taken an assignment of the defendant’s consumer credit act debt to Barclaycard. There was evidential confusion as to the assignment, and as to the necessary notice of assignment.
Held: The claim failed.
Hill DJ
[2011] EW Misc 23 (CC)
Bailii
Consumer, Banking
Updated: 31 October 2021; Ref: scu.510066
‘claim brought by the claimant for monies allegedly owed by the defendant under a credit agreement regulated by the Consumer Credit Act 1974. It is claimed that the credit agreement was made between Barclaycard and the defendant in about June 2006. It involved the provision of a credit card by Barclaycard to the defendant.!
[2012] EW Misc 19 (CC)
Bailii
Consumer Credit Act 1974
Banking, Consumer
Updated: 31 October 2021; Ref: scu.510048
[1862] EngR 579, (1862) 2 B and S 419, (1862) 121 ER 1129
Commonlii
England and Wales
Updated: 27 October 2021; Ref: scu.286745
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 court should be reluctant to interfere in the exercise of a statutory discretion, that discretion must not be exercised for a non-statutory purpose. The purpose was to prevent crime, not to regulate arrangements between a licensee and his customers. ‘The practice of Parliament is to provide for the protection of consumers by means of primary legislation which can be applied uniformly across the country. It is not its practice to delegate powers to legislate in this area to individual local authorities.’ Even if the conditions would not be incorporated into any contract with the consumer, the statements required would amount to representations.
Lord Hope of Craighead, Lord Steyn, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Carswell
[2004] UKHL 16, Times 06-Apr-2004, [2004] 28 SLLP 32, 2004 SCLR 849, 2004 GWD 12-273, 2004 SLT 383
House of Lords, Bailii
Civic Government (Scotland) Act 1982, Sale of Goods Act 1979 13
Scotland
Citing:
Appeal from – Douglas Stewart v Perth and Kinross Council for Judicial Review IHCS 1-Oct-2002
. .
Cited – 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 andpound;14,000.
Held: The appeal was allowed. . .
Cited – Heilbut Symons and Co v Buckleton HL 11-Nov-1912
In an action of damages for fraudulent misrepresentation and breach of warranty, the plaintiff founded on a conversation between himself and the defendants’ representative. In this conversation the plaintiff said-‘I understand that you are bringing . .
Cited – Bartlett v Sidney Marcus Ltd 1965
A dealer will be bound by the implied condition in section 14(3) that a vehicle sold will be reasonably fit for the purpose as a vehicle to drive along the road. . .
Cited – Eastern Marine Services (and Supplies) Ltd v Dickson Motors Ltd 1981
The pursuer agreed to purchase a second-hand car from a car dealer on the basis of an assurance that the mileage shown on the odometer was genuine. It was alleged that this assurance was false and that the pursuers were entitled to damages. The . .
Cited – Twomax Ltd v Dickson, McFarlane and Robinson 1982
. .
Cited – Kruse v Johnson QBD 16-May-1898
The validity of a by-law prohibiting the playing of music in a public place within fifty yards of any dwelling after being requested by a constable or resident of that dwelling to desist was upheld. A private citizen taxed with a criminal charge . .
Cited – Spook Erection Ltd v City of Edinburgh District Council ScSf 1995
. .
Cited – Rossi v Magistrates of Edinburgh HL 1904
Conditions in an ice-cream vendors’ licence which restricted their right to open their shops when they liked and sell what they pleased were held to be ultra vires of the licensing authority. The court applied the rule that while the legislature may . .
Cited – Mixnams Properties Ltd v Chertsey Urban District Council HL 1965
The local authority was not entitled under the 1960 Act to lay down conditions relating to the licensee’s powers of letting or licensing caravan spaces to its customers. The freedom to contract is a fundamental right, and that if Parliament intends . .
Cited – Nicol v Magistrates of Aberdeen 1870
A very strong case is required before a court could intefere with the exercise of a statutory discretion given to a local authority in a matter affecting the community. . .
Cited – Da Prato v Magistrates of Partick IHCS 1907
. .
Cited – Pyx Granite Co Ltd v Minister of Housing and Local Government CA 1958
Pyx Granite had the right to quarry in two areas of the Malvern Hills. The company required permission to break fresh surface on one of the sites.
Held: Conditions attached to the planning permission relating to such matters as the times when . .
Cited – Reid v Mini-Cabs SCS 1966
The general aim of regulations imposed by local authorities on traders was to ensure the good conduct and efficiency of the various trades and activities for the benefit and protection of the citizens in the burgh. . .
Cited – Grampian Regional Council v Secretary of State for Scotland HL 1983
The House endorsed the practice of imposing negative conditions in planning consents, upholding the validity of a condition that the development of the site could not commence until the road on the western boundary of the site had been closed by a . .
Cited – Hyslop v Shirlaw 1905
. .
Cited – Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd CA 3-Mar-1965
When a person gives a promise or an assurance to another, intending that he should act on it by entering into a contract, and he does act on it by entering into the contract, it is binding.
Lord Denning MR said of a collateral warranty: . .
Cited by:
Appealed to – Douglas Stewart v Perth and Kinross Council for Judicial Review IHCS 1-Oct-2002
. .
Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.195057
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 fit the description given.
Held: The appeal failed (Slade LJ dissenting).
Nourse LJ said: ‘many dealers habitually deal with each other on the principle caveat emptor. For my part, being confident that that principle would receive general acceptance amongst dealers, I would say that the astuteness of lawyers ought to be directed towards facilitating, rather than impeding, the efficient working of the market. The court ought to be exceedingly wary in giving a seller’s attribution any contractual effect. To put it in lawyers’ language, the potential arguability of almost any attribution, being part of the common experience of the contracting parties, is part of the factual background against which the effect if any, of an attribution must be judged.
Slade, Nourse, Stuart-Smith LJJ
[1991] 1 QB 564, [1989] 3 WLR 13, [1990] 1 All ER 737, Times 22-Dec-1989, [1989] EWCA Civ 4
Bailii
Sale of Goods Act 1979 13
England and Wales
Citing:
Cited – Varley v Whipp QBD 1900
The defendant agreed to buy from the plaintiff a self binder reaping machine, which the defendant had not seen, but which the plaintiff told him had been new the previous year and was represented to have only been used to cut 50 or 60 acres. On . .
Cited – Couchman v Hill CA 1947
The plaintiff purchased from the defendant at auction a heifer which was described in the sale catalogue as ‘unserved’. Later, having been found to be in calf, she died as a result of carrying it at too young an age.
Held: the description of . .
Cited – Joseph Travers and Sons Ltd v Longel Ltd 1947
It being found that the plaintiff buyer had not relied on the inaccurate descriptive name for boots purchased, the sale was not one by description. . .
Cited – Solle v Butcher CA 1949
Fundamental Mistake Needed to Allow Rescission
The court set out the circumstances in which the equitable remedy of rescission of a contract is available for mutual mistake. The mistake has to be as to some fundamental element of the contract. What is ‘fundamental’ is a wider category of event . .
Cited – Leaf v International Galleries (a Firm) CA 1-Mar-1950
In 1944, the plaintiff had purchased a picture of Salisbury Cathedral from the defendant. By innocent misrepresentation, he was told that it was by Constable, and only learned of the error when he set out to sell it five years later.
Held: On . .
Cited – Berger and Co Inc v Gill and Duffus SA (No 2) HL 1984
The sellers had agreed to sell 500 tonnes of bolita beans cif Le Havre. In the event only 445 tonnes were discharged at Le Havre and the remaining 55 tonnes were on-carried to Rotterdam. The documents in respect the 500 tonnes were presented but . .
Cited – Grant v Australian Knitting Mills PC 21-Oct-1935
(Australia) The Board considered how a duty of care may be established: ‘All that is necessary as a step to establish a tort of actionable negligence is define the precise relationship from which the duty to take care is deduced. It is, however, . .
Cited – 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 andpound;14,000.
Held: The appeal was allowed. . .
Cited by:
Cited – Drake 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.183425
Lord Justice Clarke Lord Justice Pill Lord Justice Rix
[2003] EWCA Civ 1834, [2004] RTR 19, [2004] 1 Lloyd’s Rep 268, [2004] Lloyd’s Rep IR 277, [2004] QB 601, [2004] 2 WLR 530
Bailii
England and Wales
Updated: 15 October 2021; Ref: scu.188911
The respondent had been accused of selling milk not of the nature, substance and quality demanded, in that it was deficient in milk fat. The justices found facts proved as admitted: ‘When the summons was served on the respondent on August 14, 1944, there was also served on him a copy of the certificate of the public analyst (numbered 7582) of his analysis of the sample, the subject of the information, taken on July 17, in accordance with s80, subs3, of the Food and Drugs Act, 1938. The sample had duly been divided into three parts as required by the statute, and certificate No 7582 related to that sample. On July 19, 1944, two days after the aforesaid sample was taken, the appellant, in order to meet a possible defence that the contravention was due to the act or default of another person under s83, subs1, took a further sample of the respondent’s milk, in accordance with s70, subs 2. A copy of the certificate of the public analyst relating thereto (numbered 386) was not served on the respondent with the summons, but was sent to him by registered post on August 21, 1944, by the appellant’s solicitor with a covering letter, saying that he proposed to adduce the certificate in evidence at the hearing. ‘At the hearing the prosecuting solicitor having stated that he proposed to adduce in evidence both certificates 7582 and 386, the solicitor for the respondent objected that the respondent had not been served with a copy of certificate 386 with the summons and that consequently the information was bad.’ The justices agreed with that submission and dismissed the information.
Held:
Atkinson J said, at 551-2: ‘Prima facie, the sample under s70, subs2, taken on July 19, 1944, is one which does not affect the respondent, but is more concerned with the original supplier. Both samples were sent to the public analyst, and on July 25 he issued two certificates. The certificate relating to the milk in respect of which Cox was prosecuted was certificate No 7582, and it certifies that there was only 2.85 percentage of fat. The certificate of the sample taken on July 19 was No 386. I do not know that anything really turns upon what precisely happened at the hearing, but the solicitor for the prosecution opened the case, and stated that he proposed to adduce in evidence both the certificates. At once the respondent objected that he had not received a copy of the second certificate numbered 386. with the summons, and the justices took the view that he was entitled to, and ought to have been served with a copy of that certificate along with the summons, and on that ground dismissed the information.
The contention of the respondent is that ‘any’ in s80, subs 3, means ‘every’ certificate of analysis. There the submission ends. Analysis of what, and within what limitation, I know not. The appellant says that the obvious meaning of that word is: ‘any certificate of analysis of the article sampled, of that which you are speaking about, the subject-matter of the information.’ And in my view the argument of the appellant is unanswerable. It seems to me that some limitation must be put upon the words ‘any certificate of analysis’. If it is not limited in that way, where is the line to be drawn? Is it any certificate of analysis of any milk at any time purchased, however irrelevant to the article sold and sampled? If it had been meant to go beyond the analysis relating to the article sampled, surely there would have been some words indicating the class or the limits within which the certificates to be served must come.’
Wrottesley J said: ‘I agree that what is meant by the words ‘any certificate of analysis’ is any certificate of analysis of the article sampled, and therefore to that extent of the article which is the subject of the information.’
Tucker J said: ‘I agree, although I do not think the point is perhaps quite so clear as do the other members of the court, for this reason, that, in my opinion, some words have to be read into s 80, subs 3, whatever interpretation is placed on the sub-section. I think it would suffice Mr. Quass’s argument if one read in the words ‘any certificate of analysis obtained on behalf of the prosecutor for the purposes of such proceedings.’ On the other hand, if Mr Hutton is right, I think the words which have to be read in are ‘in respect of the article which is the subject matter of the prosecution.’ And the question to my mind, is which of those alternative sentences should be read in. On the whole, I have come to the conclusion that the words which should be read in are ‘in respect of the article which is the subject-matter of the prosecution.’ When one reads the whole of s 80, I think that is what is envisaged. Generally speaking, what is envisaged is the taking of one sample, no doubt for the purpose of the prosecution, although there may conceivably be cases in which two samples might be taken in respect of the article which is the subject-matter of the prosecution. If that were so, then, no doubt, service of both analyses would have to be made on the seller.’
. . And ‘It seems to me, therefore, to follow that if a prosecutor has an analysis made and obtains a certificate afterwards which he intends to use at the proceedings, he does so at his peril if he has not served a copy on the defendant in sufficient time to enable the defendant to comply with the requirements of subs3. If he does not, the court will no doubt grant an adjournment and the prosecution very likely will be penalised in costs.’
Atkinson, Wrottesley, Tucker JJ
[1945] 1 KB 549
Food and Drugs Act 1938
England and Wales
Cited by:
Cited – Sargent v GRE (UK) Limited CA 16-Apr-1997
The plaintiff had been injured, losing a finger, playing football whilst in the forces. He was unable to continue his profession within the army, and claimed under his insurance against loss of employment through permanent disablement. The insurers . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.186065
A company, organising student exchanges between member states, where the exchanges may be for six months at a time, was wrongly required to register as a travel agent, and to provide the associated financial security. This action was not within the directive since students were to be treated as family.
Times 04-Mar-1999, C-237/97, [1999] EUECJ C-237/97
Bailii
EC Treaty Art 177, Council Directive 90/314/EEC
European
Updated: 13 October 2021; Ref: scu.77654
The several cases claimed the cost of provision by credit hire companies of car hire and repair services to the innocent victims of road accidents. The transactions were ‘res inter alios acta’ – collateral to the commission of the tort.
Gray J
[2003] QB 36, [2001] 1 WLR 1751
Consumer Credit Act 1974 60 61, Consumer Credit (Exempt Agreements) Order 1989, Consumer Credit (Agreements) Regulations 1983
England and Wales
Cited by:
Appeal from – Lagden 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 . .
Cited – Bee 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 . .
Cited – Southern 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.188634
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 was as to whether different parts of the contract could be treated separately so as to bring it under the Act.
Held: It is from the terms of the agreement that one must find out whether the agreement is one under which there are two or more parts, in different categories, or whether it, or part of it, falls into two or more categories. It is not correct to start from the proposition that more than one disparate category is concerned, and to conclude from this that the agreement must fall into two or more parts. Though this might cause practical difficulties, the section was intended to restrict avoidance of the Act. There was nothing in the agreement requiring a division of it into two parts. The agreement was one whose terms placed the whole of the agreement in two relevant and disparate categories under the Act, so that section 18(1)(b) applied. Thus seen, the total loan exceeded the maximum, and the whole agreement was not a regulated agreement.
Lloyd, Dyson, Waller VP CA LJJ
Times 19-Nov-2009, [2009] EWCA Civ 1135, [2010] 2 WLR 1081, [2010] Ch 254, [2009] 45 EG 104, [2010] 1 All ER 748, [2010] 6 EG 116
Bailii
Consumer Credit Act 1974 18
England and Wales
Citing:
Cited – McGinn 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 . .
Cited – Burdis v Livsey QBD 2001
The several cases claimed the cost of provision by credit hire companies of car hire and repair services to the innocent victims of road accidents. The transactions were ‘res inter alios acta’ – collateral to the commission of the tort. . .
Cited – 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.
Cited – National Westminster Bank Plc v Story and Another CA 7-May-1999
The court asked whether a series of smaller loans were governed by the 1974 Act. Three facilities had been provided under one loan agreement. 2 loans were held to be for unrestricted-use credit.
Held: Three credit agreements separately signed, . .
Cited – London North Securities Ltd v Meadows, and Meadows CA 27-Jul-2005
. .
Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.377552
Claim for compensation due to a delayed flight, in circumstances where the respondent carrier asserts that the delay was due to the impact of an air traffic management decision and therefore amounted to ‘extraordinary circumstances’ within the meaning of the relevant European Regulation, namely Regulation (EC) No. 261/2004
[2019] EWCA Civ 69
Bailii
Regulation (EC) 261/2004
England and Wales
Updated: 25 September 2021; Ref: scu.633096
The defendant estate agent was prosecuted for misdescribing the ability of his client to convey good title to the land offered. The seller did not initially have a registered possessory title to part of the land.
Held: The agent’s appeal succeeded: ‘In advertising a property for sale the estate agent is making no representation as to title. No reasonable person reading the particulars of the house and garden offered for sale could infer that any representation as to title was being made, still less as to the nature of the title. After all, these particulars, as is the almost invariable practice of such advertisements, were headed ‘subject to contract.’ A reasonable person would have appreciated that issues as to title would be dealt with during the process of conveyance.’
and ‘No reasonable person would have inferred any representation as to the nature or quality of the title to be conveyed. No reasonable person would have suspected that Mr Watson could not convey good title to the garden to the purchaser. The District Judge was correct in concluding that there were no reasonable grounds for suspicion and that accordingly the respondent was not guilty. I would dismiss this appeal.’
Moses LJ, Jackson J
[2007] EWHC 3194 (Admin)
Bailii
Property Misdescriptions Act 1991, Property Misdescriptions (Specified Matters) Order 1992
England and Wales
Citing:
Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – J A Pye (Oxford) Ltd v The United Kingdom ECHR 30-Aug-2007
UK Advers Possession Law – Not Compliant
The claimant had said that the UK law which allowed it to lose land by virtue of twelve year’s occupation by a squatter, interfered with its right to ownership of property.
Held: The UK law on adverse possession did comply with the Convention. . .
Cited – Beaulane Properties Ltd v Palmer ChD 23-Mar-2005
The paper owner sought possession of land. The defendant said he had acquired a possessory title. The land was registered.
Held: The claimant’s human rights under article 1 were engaged. To be justifiable, the interference in that right had to . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 September 2021; Ref: scu.271177
Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court – Consumer protection – Directive 93/13 / EEC – Unfair terms in contracts concluded with consumers – Promise of sale and purchase contract drawn up by the property developer and authenticated by a notary – Article 3 (2) and Article 4 (1) – Proof of the negotiated nature of the clauses – Presumption – Signature of the contract by the consumer – Article 3 (3) – Annex, point 1, sub (d) to f ) and i) – Express termination clause – Penal clause – Abusive nature – Articles 6 and 7 – Possibility for the national court to modify the clause which has been found to be abusive
C-211/17, [2019] EUECJ C-211/17_CO, ECLI:EU:C:2019:906
Bailii
European
Updated: 18 September 2021; Ref: scu.665379
Reference for a preliminary ruling – Rules of Procedure of the Court of Justice – Article 99 – Air transport – Regulation (EC) No 261/2004 – Long delay of a flight – Passengers’ right to compensation – Proof of the passenger’s presence for check-in – Reservation confirmed by the air carrier
C-756/18, [2019] EUECJ C-756/18_CO
Bailii
European
Updated: 15 September 2021; Ref: scu.665342
The several claimants had hired motor vehicles following accidents, being re-assured that the costs would be recovered from defendant insurers. The agreements would not comply with the requirements of the Consumer Credit Act. They each envisaged short periods of hire, but with repayment rather later. The insurers argued that the term was that defined by the expected repayment period, and that they therefore were consumer credit agreements, and, since they lacked the appropriate form, they were void, and unenforceable. As unenforceable agreements, they were not obliged to pay out the drivers who had entered into the agreements. The claimants asserted that the terms were the terms of the hire itself, and that accordingly they were not subject to the Consumer Credit provisions, and were therefore valid, and the insurers could be called on to pay them.
Held: The agreements were for the actual hire period, rather than the credit term, and therefore they were valid.
Judge Charles Harris QC
[2002] Lloyds Rep IR 138
England and Wales
Cited by:
Appeal from – Lagden 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 . .
Appeal from – Clark v Tull (T/A Ardington Electrical Services) CA 1-May-2002
. .
Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.166179
The pursuers and defenders disagreed over which of their respective terms and conditions controlled the sale of equipment, under which the pursuers sought damages for faults in the goods. Both quotation, and order purported to include the respective company’s terms and conditions. The parties differed as to which documents constituted the offer and which the acceptance. In this case, the defenders quotations were invitations to treat rather than offers capable of acceptance, and accordingly the pursuers terms applied.
Lord MacFadyen
[2001] ScotHC 97, [2001] ScotCS 215
Bailii, Bailii
Contracts (Applicable Law) Act 1990
Scotland
Citing:
Cited – Pagnan SpA v Feed Products Ltd ChD 1987
An agreement can be enforceable as an agreement on main terms only, with the detailed terms to be agreed later. Bingham J said: ‘The Court’s task is to review what the parties said and did and from that material to infer whether the parties’ . .
Cited – Pagnan SpA v Feed Products Ltd CA 2-Jan-1987
Contractually Bound – but Further Terms to Agree
The parties had gone ahead with performance of the arrangement between them, but without a formal agreement being in place.
Held: Parties may intend to be bound forthwith even though there are further terms still to be agreed. If they then . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.166512
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 sought to rely upon the 1964 Act to protect his purchase of the vehicles after the bank called in its loan. The defendant did not usually trade in cars but intended to sell them for profit.
Held: It was not necessary for the defendant to be regularly buying and selling vehicles to lose the protection of the 1964 Act. At the time he bought the vehicles Mr. Rushton was a trade purchaser and not a private purchaser within the meaning of the Act. It was a one-off adventure in the nature of trade, carried through with a view to profit.
Sir Anthony Clarke MR, Rix, Moore-Bick LJJ
[2005] EWCA Civ 1556, Times 21-Dec-2005, [2006] 1 WLR 899
Bailii
Hire Purchase Act 1964 27
England and Wales
Citing:
Cited – Litchfield v Dreyfus 1906
The plaintiff carried on business as an antique dealer, giving credit to customers and took bills from them in payment of amounts they owed for purchases, some of which he discounted and renewed from time to time. When he ceased business he sold his . .
Cited – Kirkwood v Gadd HL 1910
Under the 1900 Act, a moneylender was required to carry on his business only in his registered name and at his registered address.
Held: (Lord Atkinson) the words ‘carries on business’ implied a repetition of acts, and ‘Whether one isolated . .
Cited – Kenny v Conroy and Another CA 27-Jan-1999
A court need only first see whether at the time of the loan, the party’s business was that of moneylender. If not, the court then investigates if the person held themselves out as carrying on such a business. Kennedy L.J: ‘. . . a licensed . .
Cited – Newman v Oughton 1911
The plaintiff sought to execute a judgment against goods in the possession of a judgment debtor. The goods were claimed by a firm of pawnbrokers who said that they were included in a bill of sale granted to them. At the trial of the resulting . .
Cited – Marshall v Goulston Discount (Northern) Ltd 1967
. .
Cited – Smith v Anderson CA 16-Jul-1880
Investors subscribed for shares in telegraph companies which they vested in trustees to manage the investment on certain terms. A question arose whether this arrangement contravened section 4 of the 1862 Act which prohibited the formation of an . .
Cited – R 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 . .
Cited – 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’, . .
Cited – Commissioners of Inland Revenue v Marine Steam Turbine Co. Ltd 1920
The respondent taxpayer company, had transferred to a third party its licence to exploit various patents for the manufacture of a marine steam turbine engine in return for the payment of a royalty on every engine sold by the third party and whose . .
Cited – In re Gomersall 1867
Bills with a face value of pounds 1,700 were purchased for pounds 200.
Held: Proof that the goods were purchased at a much lower price than the ordinary trade price is not absolute proof of bad faith but is very strong evidence of fraudulent . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.236377
The Sale of Food and Drugs Act, 1875, s. 6, enacts that no person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance, and quality of the article demanded by such purchaser, under a penalty not exceeding 201. Held, that a joint stock company incorporated under the Companies Acts can be convicted of an offence under s. 6. Held, also, that a sale may be to the prejudice of the purchaser within s. 6, although the purchaser had special knowledge, not derived from information given by the seller, that the article sold was not of the nature, substance, and quality demanded by him. The test is whether the sale would have been to the prejudice of a purchaser who had not that special knowledge.
Channell J said: ‘ . . the Legislature has thought it so important to prevent the particular act from being committed that it absolutely forbids it to be done; and if it is done the offender is liable to a penalty whether he had any mens rea or not, and whether or not he intended to commit a breach of the law.’
Channell J
[1902] 2 KB 1, [1902] UKLawRpKQB 66, (1902) 87 LT 51, (1902) 20 Cox CC 279, (1902) 71 LJKB 656
Commonlii
England and Wales
Cited by:
Cited – Sweet v Parsley HL 23-Jan-1969
Mens Rea essential element of statutory Offence
The appellant had been convicted under the Act 1965 of having been concerned in the management of premises used for smoking cannabis. This was a farmhouse which she visited infrequently. The prosecutor had conceded that she was unaware that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.653247
[2019] NICh 16
Bailii
Consumer Credit Act 1974
Northern Ireland
Updated: 07 September 2021; Ref: scu.667463
The claimant’s product was made from drawings. The drawings were protected as copyright artistic works. They were reproduced in a three dimensional form by the claimant’s own products. Someone who copied the claimant’s products indirectly copied the copyright drawings. Therefore there was infringement.
Held: The appeal succeeded. Copyright could not be used to prevent the manufacture or sale of spares for industrial items. Lord Bridge said that the owner of a car: ‘must be entitled to do whatever is necessary to keep it in running order and to effect whatever repairs may be necessary in the most economical way possible.’ This was a right ‘inherent in the ownership of the car itself’. In the case of an exhaust pipe, he could exercise this right by producing a copy himself or instructing someone else (‘the local blacksmith’) to do so. The owners ‘right to repair’ could be of value only if other people could manufacture copy exhausts which the motorist could acquire ‘in an unrestricted market’. There was a ‘clear conflict of legal rights’ between the owner’s right of repair and the manufacturer’s copyright. The question was which right ‘should prevail over the other’. It was the right of the owner.
Lord Templeman saw the right to repair as inalienable:- ‘Every owner of a car has the right to repair it. That right would be useless if suppliers of spare parts were not entitled to anticipate the need for repair. The right cannot, in my view, be withheld by the manufacturer of the car by contract with the first purchaser and cannot be withheld from any subsequent owner.’
Lord Bridge, Lord Templeman
[1986] AC 577, [1986] 2 WLR 400, [1986] 1 All ER 850, [1986] UKHL 7
Bailii
Copyright Act 1911
England and Wales
Citing:
Cited – Birmingham, Dudley and District Banking Co v Ross CA 1888
Birmingham Corporation secured development of a large area by building agreements which granted leases on completion of the buildings to their builders. One builder, Daniell, erected a building to a height of 48 feet, and assigned his interest under . .
Appeal from – British Leyland Motor Corporation Ltd v Armstrong Patents Co Ltd CA 1984
. .
Cited by:
Cited – In Re Smith Kline and French Laboratories Ltd HL 9-Feb-1989
The plaintiffs had applied for a product licence for a patented drug. To support its application, it supplied the authority with confidential information which the authority now sought to make use of the confidential information when considering . .
Cited – Ultraframe UK Limited v Clayton, Fielding and Others ChD 3-Oct-2002
The claimants asserted infringement of their registered design rights in parts used in their double glazing and conservatory units. ‘Therefore it is possible for design right to subsist in the design of the part of the article which is not excluded . .
Cited – Newspaper Licensing Agency Ltd v Marks and Spencer Plc HL 12-Jul-2001
The respondent company subscribed to a cuttings service, but redistributed the cuttings within its offices. The cuttings agency claimed that the re-distribution infringed their rights in the typographical arrangement. The cuttings did not give any . .
Cited – Kaisha v Green Cartridge Company (Hong Kong) Limited PC 30-Apr-1997
(Hong Kong) The claimants complained of the sale by the defendants of refilled cartridges for use with their printers.
Held: The spare cartridge manufacturer’s appeal failed: ‘repair is by definition something which does not amount to the . .
Cited – Stone and Another (T/A Tyre 20) v Fleet Mobile Tyres Ltd CA 31-Aug-2006
The defendants appealed an injunction which prevented them soliciting business from any customer of the claimant for one year, granted pursuant to a restrictive covenant contained in a franchise agreement.
Held: The injunction was discharged. . .
Appeal from – Merlet and Another v Mothercare Public Ltd CA 4-Nov-1985
The plaintiff asserted copyright in a ‘raincosy’ which she said had been copied by the defendants. . .
Cited – Lucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
Cited – Rees and Another v Windsor-Clive and Others CA 1-Jul-2020
Reservation Derogation construed normally
Construction of tenancy agreement – correct approach to reservations made in favour of the landlord. The landlord required access to the tenanted farm to allow survey work anticipating development of his adjoining land. The tenant now appealed . .
Cited – Interlego AG v Tyco Industries Inc PC 5-May-1988
How much new material for new copyright
(Hong Kong) Toy building bricks were manufactured by Lego in accordance with engineering drawings made for that purpose. One issue was whether new drawings made since 1972, altering the original drawings in various minor respects but added new . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.181097
A contract for a time-share sold away from the registered office of the vendor was subject to the doorstep selling directive, and a right of cancellation applies. This may be so even if it had been signed at the time-share complex, if that was not the registered office of the company. The consumer can renounce the contract without proof of any duress and may not suffer any penalty for this.
Gazette 11-Aug-1999, C-423/97, [1999] EUECJ C-423/97
Bailii
Council Directive 85/577/EEC Doorstep Selling; ands 94/47 Time-Shares
European
Updated: 01 September 2021; Ref: scu.162288
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.
Lord President, Lord Eassie, Lord Mackay of Drumadoon
[2010] ScotCS CSIH – 49, 2010 SC 662, 2011 SLT 114, [2010] CSIH 4, 2010 GWD 28-574, 2010 SCLR 692
Bailii
Consumer Credit Act 1974 75(1)
Scotland
Citing:
Cited – United Dominions Trust Ltd v Taylor ScSf 1980
. .
Cited by:
Appeal from – 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, . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.416774
The defendant, a waterman in the Port of London, entered into a hire-purchase contract with the claimant finance company in respect of a motor car. After the first instalment, his wages were reduced by a dock strike. He wrote with the keys and log book saying he wished to terminate the agreement because he could not fulfil its terms. He returned the car to the dealer which had supplied it and the company later took possession of it. Clause 8 of the agreement gave the company the right to terminate the agreement if the hirer failed to pay any instalment. Clause 10 gave the hirer the right to terminate the agreement at any time by returning the car to the company. Clause 11 provided that, if the agreement should be terminated under either provision, the hirer should pay the company such an amount as together with the instalments already paid should amount to two-thirds of the total hiring cost as agreed compensation for depreciation. The company issued a writ claiming the amount provided for in clause 11 on the grounds that the hirer had terminated the contract under clause 10. Later, during the course of the proceedings, it was amended to add an alternative claim for damages for repudiation. The matter was remitted to the county court where the judge held that the hirer had terminated the agreement and gave judgment for the company.
Held: The company must be taken to have terminated the agreement under clause 8 and that, since the sum provided for by clause 11 was a penalty (not being a genuine pre-estimate of loss), it could not be recovered. There being no claim by the company for any identified loss, the court directed that the appeal be allowed and that judgment be entered for the hirer.
Lord Denning MR said: ‘In the absence of a consensual termination, I think the finance company must be taken to have terminated the hiring under the powers given to them by clause 8 of the agreement. That clause says that ‘should the hirer fail to pay . . any subsequent instalment . . the owner may forthwith and without any notice terminate the hiring.’ That is how this agreement came to an end. The owners exercised their right to terminate the hiring: and the hirer was content that they should do so. On such a termination the owners cannot rely on the minimum payment clause: for the simple reason that they are terminating for a breach; and in that case the minimum payment clause is a penalty and unenforceable under the decision of the House of Lords in Campbell Discount Co. Ltd v Bridge . . .
There remains the alternative claim for repudiation. It is said that Mr. Ennis repudiated the contract. I very much doubt myself whether his letters and his conduct should be considered as repudiation. He was simply asking for the agreement to be terminated. He was not repudiating it. But even if it be treated as a repudiation, it is clear that the repudiation was never accepted by the finance company. After receiving his letter, they treated the contract as being still continuing. They claimed under the minimum payment clause, which is a thing they could not possibly have done if there had been an acceptance of repudiation. By so doing, they elected to treat it as continuing. Mr. Goodenday said they accepted the repudiation by retaking possession of the car. But that was not pleaded. Nor has it ever been suggested hitherto. The county court judge said they accepted the repudiation in November, 1963, when they amended their pleading. That was far too late. They had already evinced their intention to treat the agreement as continuing. I do not think they can rely on the alleged repudiation.’
Harman LJ said that the hirer had not exercised his option to terminate the agreement: ‘As to the other point, I think it may be said that the letter was the expression of a determination not to be bound any further by the agreement. If there had been a prompt acceptance of that, I am not sure I should not have held that there was a repudiation, because a repudiation needs both the expression of such an intention and its acceptance on the other side. There clearly was no acceptance on the other side. The plaintiffs elected not to accept repudiation: they elected to treat the agreement as binding and to sue him under it and not to sue him for damages for its breach. Therefore, they cannot rely on repudiation.’
Salmon LJ said that the company had terminated the contract under clause 8: ‘I think that the finance house must be taken to have repossessed the goods under clause 8, as they were entitled to do, since the hirer was in arrear with the first instalment. As I have already stated, this would give the finance house no right to recover any part of what would then clearly be a penalty under clause 11.’
Lord Denning MR, Harman LJ, Salmon LJ
[1968] 1 QB 54
England and Wales
Cited by:
Distinguished – Stocznia Gdynia Sa v Gearbulk Holdings Ltd CA 13-Feb-2009
Orders were placed for the construction of ships. They were not delivered. The buyer, the defendant, cancelled the orders. The defendants sought the loss of profit. The claimants said they were entitled only to the repayment of instalments. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.282634