Barclays Bank Plc v Unicredit Bank Ag and Another: CA 20 Mar 2014

This appeal raises the question of what is ‘commercially reasonable’ in the context of determinations made by parties to financial instruments.

Longmore, Patten, Christopher Clarke LJJ
[2014] EWCA Civ 302, [2014] Bus LR D15, [2014] 2 Lloyd’s Rep 59, [2014] 1 BCLC 417
Bailii
England and Wales

Financial Services, Contract

Updated: 01 December 2021; Ref: scu.522626

Pegler Ltd v Wang (UK) Ltd: TCC 25 Feb 2000

Standard Conract – Wide Exclusions, Apply 1977 Act

The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or two of its standard terms and conditions, the remaining conditions were incorporated wholesale into the contract and therefore the contract fell within s3 of the 1977 Act. It was unreasonable to impose the standard terms on Pegler, who had no choice but to accept them. The exclusion of liability clauses relied on by Wang are unenforceable. As to damages, Pegler had failed to keep records of the time taken to deal with the issues which arose. The court considered in detail and at length the different heads of recovery including for lost management time. Rectification was awarded and damages assessed.

Bowsher QC J
[2000] EWHC Technology 137, 1997 TCC No 219
Bailii
Unfair Contract Terms Act 1977 3
England and Wales
Citing:
CitedSuisse Atlantique Societe d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale HL 1966
No magic in the words “fundamental breach”
There is no rule of law which prevents parties to a contract agreeing to limit their respective liabilities. It is a question of the construction of the particular clause as to whether it applies to a fundamental breach or not. The court doubted the . .
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
CitedCroudace Construction Limited v Cawoods CA 1978
A clause in a contract provided that: ‘We are not under any circumstances to be liable for any consequential loss or damage caused or arising by reason of late supply or any fault, failure or defect in any material or goods supplied by us or by . .
CitedHadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
CitedThe Glendarroch CA 9-Feb-1894
The plaintiffs brought an action against the defendants for non-delivery of goods shipped under a bill of lading containing the usual exceptions, but not excepting negligence. The goods had been damaged by sea water through the stranding of the . .
CitedMillar’s Machinery Co Ltd v David Way and Son CA 1935
The contract provided that the seller would make good certain defects in workmanship, but the sellers stated: ‘We do not give any other guarantee and we do not accept responsibility for consequential damages.’
Held: The purchaser recovered the . .
CitedBritish Sugar Plc v NEI Power Projects Limited and Anr CA 8-Oct-1997
The plaintiffs contracted for the delivery and installation of equipment by the defendant. After delays and defects the claimants sought damages. The defendants said that the contract provided that any liabiity for consequential losses was to be . .
CitedWraight Limited v PH and T (Holdings) Limited 1968
. .
CitedSaint Line Limited v Richardsons Westgarth and Co. 1940
A clause excluding liability for ‘any indirect or consequential damages or claims whatsoever’. A claim was made for for loss of profit.
Held: ‘What does one mean by ‘direct damage’? Direct damage is that which flows naturally from the breach . .
CitedVictoria Laundry (Windsor) Ltd v Newman Industries CA 1949
The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses . .
CitedMidland GW Railway of Ireland v Johnson 1858
Rectification is not available where the mistake is one of law as to the legal effect of particular terms, rather than a mistake of fact. . .
CitedBritish Fermentation Products Limited v Compair Reavell Limited TCC 8-Jun-1999
The terms ”on the other’s written standard terms of business’ in the Act was not defined in the Act after a deliberate decision by the Law Commission. . .
CitedThe Ypatia Halcoussi 1985
Rectification is not available where the written agreement fails to deal with an issue because the parties have overlooked it. . .
CitedJohnson v Agnew HL 1979
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
CitedFrederick E Rose (London) Limited v William H Pim Junior and Co Limited 1953
The plaintiffs, who were London merchants, had been asked by Egyptian buyers to supply ‘feveroles’. Not knowing what this term meant, they asked the defendants’ representative, who responded that ‘feveroles’ meant horsebeans. Relying on this . .
CitedMcCrone v Boots Farm Sales Limited 1981
The court considered the meaning of ‘standard form contract’ as it applied in Scotland under the 1977 Act: ‘The Act does not define ‘standard form contract’, but its meaning is not difficult to comprehend. In some cases there may be difficulty . .
CitedJoscelyne v Nissen CA 1970
A father entered into a written contract with his daughter by which he transferred to her his car hire business in return for her agreement to pay him a pension and discharge certain expenses. In their discussions it had been agreed between them . .
CitedStewart Gill Ltd v Horatio Myer and Co Ltd CA 1992
The ‘guidelines’ in Schedule 2 are usually regarded as of general application to the question of reasonableness under the 1977 Act. The effect of s13 which deals with exemption clauses, is to apply s3 inter alia to ‘no set off’ clauses. The . .
CitedCustomglass Boats Limited v Salthouse Brothers Limited 1976
(New Zealand) The court examined the question of whether market resarch was admissible as expert evidence as to damages.
Held: ‘So far as I can see, public opinion or survey evidence is not now in practice treated as hearsay in trade mark or . .
CitedReckitt and Coleman Properties Ltd v Borden Inc 1987
Evidence as to the results of market research surveys was not admissible as expert evidence. . .
CitedRobinson v Harman 18-Jan-1848
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where . .
CitedDarlington Borough Council v Wiltshier Northern Ltd and Others CA 29-Jun-1994
The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance . .
CitedRuxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
CitedHarbutt’s Plasticine Ltd v Wayne Tank and Pump Co Ltd CA 1970
The plaintiffs’ factory in an old mill, burned down because Wayne Tank had installed a pipeline made of unsuitable and dangerous plastic material and wrapped in heating tape attached to a useless thermostat. It had been switched on and the plant . .
CitedEast Ham Corporation v Bernard Sunley and Sons Ltd HL 1965
In cases in which the plaintiff is seeking damages for the defective performance of a building contract, which is a contract for labour and materials, the normal measure of his damages is the cost of carrying out remedial work, or re-instatement. . .
CitedGeneral Electric Co v General Electric Co Ltd ChD 1969
A form of co-branding was held to be non-deceptive. Grahame J said: ‘The registered use provisions are permissive only and not a compulsory prerequisite for retention of validity of the mark and that, provided the conditions of control are adequate, . .
CitedC R Taylor (Wholesale) Ltd v Hepworths Ltd 1977
May J referred with approval to a statement in McGregor On Damages (13th edn, 1972) paras 1059-1061 that in deciding between diminution in value and cost of reinstatement the appropriate test was the reasonableness of the plaintiffs desire to . .
CitedGeneral Electric Co v General Electric Co Limited; GE TM; Re GE Trade Mark CA 1970
. .
CitedVictoria Laundry (Windsor) Ltd v Newman Industries CA 1949
The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses . .
CitedSealce Shipping Company Limited v Oceanvoice Limited CA 1991
The parties contracted for the sale of a ship, including a spare propeller. When the ship was delivered there was no spare propeller. It was common ground that there was no market for second-hand propellers. So the only way of providing a spare . .
CitedSkandia Property (Uk) Limited Vala Properties Bv v Thames Water Utilities Limited 1997
The burden of proof in establishing betterment to reduce a damages award is on the defendant. . .
CitedOswald v Countrywide Surveyors Ltd 1996
The evidential burden of establishing betterment is on the defendant. . .
CitedH Cousins and Co Ltd v D and C Carriers 1971
. .
CitedMoore v DER Ltd 1971
Where there is no ready second hand market for goods, or where there might be uncertainty as to the reliability of such goods, no credit need be given for the fact that a new and up-to-date replacement has been purchased. . .
CitedBacon v Cooper (Metals) Ltd 1982
A machine, a fragmentiser was broken. The defendant had supplied unsuitable scrap to be fed into the machine in breach of contract. The rotor had broken which would normally have had a life of 7 years of which it had nearly four years to run. The . .
CitedTate and Lyle Food Distribution Ltd v Greater London Council 1981
Forbes J considered the principles to be applied when considering the award of interest on damages between the date of the loss and the judgment: ‘Despite the way in which Lord Herschell LC in London, Chatham and Dover Railway Co v South Eastern . .
CitedDominion Mosaics Limited v Trafalgar Trucking Co Limited CA 1990
The claimant’s building was destroyed by fire as a result of the defendant’s negligence. It was impracticable to rebuild and so, to keep its business going the claimant bought a 36 year lease of another building with 20% more floor space. In the . .
CitedMetal Box Co Ltd v Curreys 1988
. .
CitedEmpresso Cubana v Octainer 1986
. .

Cited by:
Appeal fromPegler Ltd v Wang (Uk) Ltd and Another CA 18-Jun-2001
Costs had been awarded against the third party, the parent company of the defendant. Leave to appeal was sought.
Held: It was arguable that the judge had not taken into account properly the interest of the company in protecting the interests . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 01 December 2021; Ref: scu.201800

J Spurling Ltd v Bradshaw: CA 26 Mar 1956

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

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

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 01 December 2021; Ref: scu.670139

Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’): HL 13 Mar 2003

Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific terms added prevailed over the standard terms printed on the bill of lading. The bill was drafted to express a contract between the shipper and the owner of the vessel. Did the terms protect the shipowner from liability to the cargo owners? Clause 5 could not be construed as a covenant not to sue. The second part did not restrict the operation of the first. The cause of action was perfected not on each occasion when the damage to the cargo worsened, but was complete as soon as more than insignificant damage had occurred. At that time only one of the parties had established ownership. ‘the court should not interpolate words into a written instrument, of whatever nature, unless it is clear both that words have been omitted and what those omitted words were’ Where there is a conflict between printed and handwritten clauses, the handwritten clauses will usually prevail. (Lord Steyn dissenting) If a party, otherwise liable, is to exclude or limit his liability or to rely on an exemption, he must do so in clear words; unclear words do not suffice; any ambiguity or lack of clarity must be resolved against that party.
Otherwise: Owners of cargo lately laden on board the ship or vessel ‘Starsin’ and others (Original Respondents and Cross-appellants) v. Owners and/or demise charterers of the ship or vessel ‘Starsin’ (Original Appellants and Cross-respondents) and two other actions

Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Millett
[2003] UKHL 12, Times 17-Mar-2003, Gazette 15-May-2003, [2003] 2 WLR 711, [2004] 1 AC 715, [2003] 1 CLC 921, 2003 AMC 913, [2003] 1 Lloyds Rep 571, [2003] 1 All ER (Comm) 625, [2003] 2 All ER 785, [2003] 1 LLR 571
House of Lords, Bailii
Carriage of Goods by Sea Act 1971, Hague-Visby Rules 5
England and Wales
Citing:
Appeal fromThe Owners And/Or Demise Charterer Of The Ship Or Vessel ‘Starsin’ v The Owners Of The Cargo Lately Laden Aboard The Ship Or Vessel ‘Starsin’ CA 23-Jan-2001
. .
CitedGlynn v Margetson and Co HL 1893
A printed form of bill of lading contained general words of obligation referring to the goods being shipped ‘in and upon the .. Zena, now lying in the port of Malaga, and bound for Liverpool’. Those words were followed by printed words intended ‘to . .
CitedUniversal Steam Navigation Company Ltd v James McKelvie and Company HL 1923
If there was inconsistency between a term added to a pre-printed form and general descriptions elsewhere in the text, the former should be regarded as the ‘dominating factor’ and as of ‘preponderant importance’. . .
CitedHamilton v Mendes 8-Jun-1761
The daily negotiations and property of merchants ought not to depend upon subtleties and niceties; but upon rules, easily learned and easily retained, because they are the dictates of common sense, drawn from the truth of the case. . .
CitedSimond v Boydell 1779
To seek perfect consistency and economy of draftsmanship in a complex form of contract which has evolved over many years is to pursue a chimera. . .
CitedThe Mahkutai PC 24-Apr-1996
(Hong Kong) The question was whether shipowners, who were not parties to the bill of lading contract between the charterers and carriers on the one part, and the cargo-owners, the bill of lading being a charterer’s bill, could enforce against the . .
CitedLeigh and Sillavan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) HL 24-Apr-1985
The plaintiff contracted to buy a cargo to be shipped on the defendant’s vessel. Because of poor stowage, the cargo was damaged. At the time of the damage the claimant was neither the owner nor possessor of the cargo, but under the terms of the . .
Appeal fromHomburg Houtimport BV v Agrosin Private Ltd (The Starsin) CA 23-Jan-2001
Cargo had been negligently stowed on a ship so that condensation caused damage during the subsequent voyage. The claimant only acquired a title to the cargo after the voyage had commenced. The defendants contended that no duty of care could be owed . .
CitedAdler v Dickson; ‘the Himalaya’ CA 29-Oct-1954
The defendants were the master and boatswain of the P and O passenger liner Himalaya. The plaintiff was a passenger who was injured when an insecure gangway slipped and he fell 16ft to the wharf. The plaintiff had a contract with P and O which . .
At First InstanceThe Owners And/Or Demise Charterer Of The Ship Or Vessel ‘Starsin’ v The Owners Of The Cargo Lately Laden Aboard The Ship Or Vessel ‘Starsin’ ComC 2000
. .

Cited by:
CitedJIS (1974) Ltd v MCP Investment Nominees I Ltd CA 9-Apr-2003
The parties agreed for a lease to be granted of a new building. Part had been intended to be excluded for shops, but permission was not obtained, the shops area was included and leased back. When the tenants sought to determine the lease, the . .
CitedDairy Containers Ltd v Tasman Orient Line Cv PC 20-May-2004
PC (New Zealand) The appeal concerned the correct interpretation of a damage limitation clause in a contract for the carriage of goods by sea.
Held: Clause 6(B)(b)(i) must be construed in the context of the . .
CitedTaylor v Rive Droite Music Ltd ChD 6-Jul-2004
The claimant music producer and songwriter had entered into a publishers agreement with the defendant, agreeing to work for it. He now sought to be free to work for another company. The factual background was unclear, and the contract documentation . .
CitedPhonographic Performance Limited v Department of Trade and Industry HM Attorney General ChD 23-Jul-2004
The claimant represented the interests of copyright holders, and complained that the defendant had failed to implement the Directive properly, leaving them unable properly to collect royalties in the music rental market. The respondent argued that . .
CitedPhonographic Performance Limited v Department of Trade and Industry HM Attorney General ChD 23-Jul-2004
The claimant represented the interests of copyright holders, and complained that the defendant had failed to implement the Directive properly, leaving them unable properly to collect royalties in the music rental market. The respondent argued that . .
CitedJindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
CitedJ I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
CitedTelewest Communications Plc Telewest (Publications) Limited v Commissioners of Customs and Excise CA 10-Feb-2005
The taxpayers sold cable services which were liable to VAT through 28 subsidiaries, and supplied by a third party as part of the same service a listings magazine. They sought exemption from VAT for that part of the consideration related to the . .
CitedIqbal v Legal Services Commission CA 10-May-2005
The claimant had been a partner in a firm of solicitors. They came to be suspected by the respondent of overclaiming legal aid payments and sums were withheld. For this and other reasons the practice folded, and the claimant became insolvent. He . .
CitedGolden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
CitedAlchemy Estates Ltd v Astor and Another ChD 5-Nov-2008
The parties disputed the effect of a contract between them for the sale of a leasehold property. After exchange the solicitors failed to obtain the landlord’s consent to the proposed assignment as required by the lease. In the meantime the proposed . .
CitedChartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
CitedRainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
CitedBNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc and Another SC 16-Jun-2016
The Court was asked whether Lloyds Banking Group was entitled to redeem 3.3 billion pounds of loan notes which would otherwise carry a relatively high rate of interest, namely over 10% per annum. The loan notes are contingent convertible securities . .
CitedVolcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract

Leading Case

Updated: 01 December 2021; Ref: scu.179802

Cosco Bulk Carrier Co Ltd and Another v M/V ‘Saldanha’ C/P Dated 25/06/08: ComC 11 Jun 2010

The court considered the effect of a ship being taken by pirates at sea on the obligations in the charterparty contract. The insurers said that a claim for ‘average accident’ must include an element of physical damage – absent in this case.
Held: The appeal failed. ‘Average accident’ need not include physical damage, but nor could seizure by pirates amount to an accident. As a matter of indelible impression seizure by pirates is a ‘classic example’ of a totally extraneous cause.

Gross J
[2010] EWHC 1340 (Comm), [2010] 1 CLC 919, [2011] 1 Lloyd’s Rep 187
Bailii
England and Wales
Citing:
See AlsoMasefield Ag v Amlin Corporate Member Ltd; The Bunga Melati Dua ComC 18-Feb-2010
. .
Not FollowedThe Mareva AS 1977
The wording ‘average accident’ in the policy: ‘merely means an accident which causes damage.’ . .
CitedKidston v Empire Insurance Co 1866
The court was asked whether shipowners could recover under a sue and labour clause in a freight policy for the costs of transhipment expended in order to avoid the loss of the freight. There had been no abandonment and underwriters argued that this . .
DistinguishedThe Laconian Confidence 1997
Charterers appealed against the decision of the arbitrator on the meaning of the phrase ‘any other cause’. The performance of the contract had been interrupted by the intervention of the authorities in Chittagong.
Held: The appeal failed. The . .
CitedThe Alfred Trigon 1981
The court considered the wording, in the context of a second-hand ship sale and purchase market, ‘average damage’.
Held: ‘Average’ here could not mean ‘damage’ simpliciter and was understandably construed to mean a particular kind of damage – . .
CitedKelman v Livanos 1955
. .
CitedChandris v Isbrandtsen-Moller Co Inc CA 1950
Although section 3(1) of the 1934 Act expressly empowered only courts of record to include interest in sums for which judgment was given for damages or debt, arbitrators were nevertheless empowered by the agreement of reference to apply English law, . .
CitedThomas Wilson Sons and Co v Owners of Cargo per the ‘Xantho’ HL 14-Jul-1887
A cause of damage otherwise satisfying the established definition may be a peril of the sea even though caused by a shipowner’s negligence. Lord Herschell said: ‘If that which immediately caused the loss was a peril of the sea, it matters not how it . .
CitedRoyal Greek Government v Minister of Transport CA 2-Jan-1949
The charterers had ordered the vessel to sail but her crew refused to do so, except in convoy, because of the war. A dispute arose as to whether, the charterers’ order to sail having been disobeyed, the vessel was off-hire.
Held: The appeal . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract, Insurance

Updated: 01 December 2021; Ref: scu.416635

The Glendarroch: CA 9 Feb 1894

The plaintiffs brought an action against the defendants for non-delivery of goods shipped under a bill of lading containing the usual exceptions, but not excepting negligence. The goods had been damaged by sea water through the stranding of the vessel, and the defendants claimed exemption from liability on the ground that the loss was occasioned by perils of the sea; but the President (Sir F. H. Jeune) ruled that in order to excuse themselves for the damage to the goods it lay on the defendants to shew, not only a peril of the sea, but a peril of the sea not occasioned by their negligence.
Held: that as the loss apparently fell within the exception, the burden of shewing that the defendants were not entitled to the benefit of the exception, by reason of negligence, lay upon the plaintiffs.

Lord Esher Mr, Lopes and Davey, LJ j
[1894] P 226, [1894] UKLawRpPro 9
Commonlii
England and Wales
Cited by:
CitedPegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Not good lawVolcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 01 December 2021; Ref: scu.238571

Ahuja Investments Ltd v Victorygame Ltd and Another (2nd consequential judgment): ChD 16 Sep 2021

[2021] EWHC 2730 (Ch)
Bailii
England and Wales
Citing:
See AlsoAhuja Investments Ltd v Victorygame Ltd and Another (Consequential judgment) ChD 16-Sep-2021
Allegation of fraudulent misrepresentation and breach of contract . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 December 2021; Ref: scu.668623

Primus International Holding Company and Others v Triumph Controls – Uk Ltd and Another: CA 22 Sep 2020

The issue in this appeal is whether the claims brought by the claimants/respondents were claims ‘in respect of lost goodwill’ and therefore excluded by a clause in the relevant share purchase agreement. O’Farrell J concluded that the exclusion clause did not apply to the claims brought by Triumph. The defendants/appellants (‘Primus’) challenge that conclusion.

Coulson LJ
[2020] EWCA Civ 1228
Bailii
England and Wales

Contract, Company

Updated: 30 November 2021; Ref: scu.654038

Griffiths v TUI UK Ltd: QBD 20 Aug 2020

‘This appeal raises a fundamental question concerning the proper approach of a court towards expert evidence which is ‘uncontroverted’. . Where such evidence is uncontroverted, is it open to the court nevertheless to examine the contents of the report and the reasoning leading to the expert’s conclusions and reject those conclusions if the court is dissatisfied with the reasoning? Or is the court obliged, subject to exceptional circumstances, to accept the expert’s conclusions?’

[2020] EWHC 2268 (QB)
Bailii
England and Wales

Contract, Evidence

Updated: 30 November 2021; Ref: scu.653387

Sutters v Briggs: HL 25 Oct 1921

The Gaming Act 1835 by section 1 enacted that bills, and co., given in respect of gaming transactions should be deemed to have been given for illegal consideration; by section 2 that ‘in case any person shall . . execute any note, bill, or mortgage for any consideration on account of which the same is’ (by the Gaming Acts) ‘declared to be void, and such person shall actually pay to any indorsee, holder, or assignee of such note’ (and co.) ‘the amount of the debt thereby secured or any part thereof, such money so paid shall be deemed to have been taken to have been paid for and on account of the person to whom such note’ (and co.) ‘was originally given upon such illegal consideration as aforesaid . . and shall accordingly be recoverable by action at law.’ B sued S to recover pounds 50 paid by cheque in settlement of a bet. The cheque was crossed ‘not negotiable’ and ‘account payee only’ and was paid by S to his account with his bankers, who as agents for collection presented it to B’s bankers and received payment. Held that B was entitled to judgment on the grounds (1) that ‘holder’ in section 2 should be given its natural meaning, and (2) that bankers are ‘holders or indorsees’ even when they are mere agents for collection.

Lord Chancellor (Birkenhead), Lords Buckmaster, Sumner, Wrenbury, and Carson
[1921] UKHL 588, 59 SLR 588
Bailii
England and Wales

Contract

Updated: 30 November 2021; Ref: scu.632642

Albert v Motor Insurers Bureau: HL 1971

The plaintiff suffered injury as a passenger when getting a lift to work from a co-worker. The driver was uninsured and had given lift to several co-workers over a period of time, mking a charge.
Held: The lift arrangement was in the nature of a contract, and therefore under the MIB scheme, the MIB were obliged to pay compensation.
Viscount Dilhorne said: ‘To constitute carriage for hire or reward, it is not, of course, necessary that payment is made before the journey. If there is an arrangement that payment will be made for that it matters not when the payment is in fact made.’

Viscount Dilhorne
[1971] 3 WLR 291
England and Wales

Road Traffic, Insurance, Personal Injury, Contract

Updated: 30 November 2021; Ref: scu.565344

Jivraj v Hashwani: ComC 26 Jun 2009

The claimant said that the requirement in an arbitration clause for all the arbitrators to be members of the Ismaili community was unlawful under the 2003 Regulations.
Held: The appointment was not discriminatory. An arbitrator’s employment was not within the Regulations, and was not a worker under the case law. He was instead an independent provider of services who was not in a relationship of subordination with the person who received the services. The purpose of the contract was not the only test for determining employment, though it can be relevant in arriving at the correct conclusion in particular cases. An arbitrator was a quasi-judicial adjudicator whose duty was not to act in the particular interests of either party. The main purpose of the appointment, where relevant, was the impartial resolution of the dispute.

David Steel J
[2009] EWHC 1364 (Comm), [2009] 1 CLC 962, [2010] 1 All ER 302, [2009] 2 All ER (Comm) 778
Bailii
Employment Equality (Religion or Belief) Regulations 2003
England and Wales
Cited by:
At first instanceJivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Appeal fromJivraj v Hashwani (Rev 2) CA 22-Jun-2010
The court was asked whether parties to an arbitration agreement in a commercial contract can stipulate that the tribunal is to be drawn from members of a particular religious group, in this case the Ismaili community.
Held: The defendant’s . .
CitedClyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Contract, Arbitration, European

Updated: 30 November 2021; Ref: scu.347273

Chaplin v Hicks: CA 1911

A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have happened if the claimant had been duly notified of her interview. A contract to provide a chance can be enforced, and damages can be given for a failure to fulfil that contract if the chance has some real value. Vaughan Williams LJ said that whilst ‘the presence of all the contingencies on which the gaining of the prize might depend makes the calculation not only difficult but incapable of being carried out with certainty or precision’ damages for the lost opportunity are assessable.

Vaughan Williams LJ
(1911) 27 TLR 244, [1911] 2 KB 786, [1911-13] All ER 224, 80 LJKB 1292
England and Wales
Citing:
CitedCarlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Unilateral Contract Liability
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘pounds 100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .

Cited by:
CitedCoudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited) CA 27-Feb-2004
The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a . .
CitedGregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
CitedBarker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
CitedNestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
CitedLes Laboratoires Servier and Another v Apotex Inc and others ChD 9-Oct-2008
The claimant had alleged that the defendant was producing generic drugs which infringed its rights in a new drug. The patentee had given a cross-undertaking in damages, but the patent was later ruled invalid. The court had to assess the damages to . .
CitedParabola Investments Ltd and Others v Browallia Cal Ltd and Others CA 5-May-2010
The second defendant appealed against the level of damages awarded against him after he was found guilty of a fraud on the claimant, saying that the loss of profits element was unproven.
Held: The appeal failed. Where a claimant’s investment . .
CitedPickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 30 November 2021; Ref: scu.183113

Philco Radio v Spurling: 1949

[1949] All ER 882
England and Wales
Cited by:
CitedTotal Transport Corporation v Arcadia Petroleum Ltd (‘the Eurus’) CA 18-Nov-1997
Arcadia chartered the Eurus, and had succeeded in their application for an award in arbitration proceedings against Total. The award had been reversed, and they now appealed against that order. The parties disputed whether the amount was an award of . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 30 November 2021; Ref: scu.462287

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.

Sellers J
(1947) 64 TLR 150
Sale of Goods Act 1893 13
England and Wales
Cited by:
CitedHarlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd CA 15-Dec-1989
The defendant auctioneer sold a painting to the plaintiff which turned out to be a forgery. The plaintiff appealed against a finding that it had not relied upon the attribution, saying that there had been a breach of the requirement that the paintig . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 30 November 2021; Ref: scu.561153

Joseph Travers and Sons Ltd v Cooper: CA 1915

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

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

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

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 30 November 2021; Ref: scu.670131

Burntcopper Ltd (T/A Contemporary Design Unit) v International Travel Catering Association Ltd: ComC 6 Feb 2014

Dispute about the meaning of a contract in the exhibition business which the parties have complicated by claims of implied term, collateral contract, rectification, estoppel, waiver, misrepresentation and quantum meruit. The Claimant provided management services to a business which the Defendant sold. The Claimant says that this was a breach of contract and claims damages.

MacKie QC J
[2014] EWHC 148 (Comm)
Bailii
England and Wales

Contract, Damages

Updated: 29 November 2021; Ref: scu.521086

SC Compania Nationala De Transporturi Aeriene Romane Tarom Sa v Jet2Com Litd: CA 6 Feb 2014

Appeals against a judgment (following an earlier judgment by which judgment was given in favour of Jet2.com Ltd for damages for breach of contract. The essential issue is as to the assumptions, if any, that ought to be made for the purposes of assessing Jet2’s damages in respect of Tarom’s repudiation of the relevant contract.

[2014] EWCA Civ 87
Bailii
England and Wales

Damages, Contract

Updated: 29 November 2021; Ref: scu.521050

Aster Healthcare Ltd v Shafi (Estate of): QBD 24 Jan 2014

The defendant executor appealed from summary judgment in favour of the claimant in respect of outstanding care home fees.

Andrews DBE J
[2014] EWHC 77 (QB), [2014] PTSR 888, [2014] WLR(D) 42
Bailii, WLRD
Mental Capacity Act 2005, National Assistance Act 1948, National Health Service and Community Care Act 1990
England and Wales

Contract, Health, Local Government

Updated: 29 November 2021; Ref: scu.520897

Warlow v Harrison: CExC 26 Nov 1859

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

Baron Martin, Willes, Bramwell JJ
[1859] EngR 1046, (1859) 1 El and El 309, (1859) 120 ER 925
Commonlii
England and Wales
Citing:
Appeal fromWarlow v Harrison QBD 25-Nov-1858
Whether Auctioneer liable to bidder – vendor’s bid
Three following horses were advertised for sale at auction being the property of a gentleman and sold without reserve. The auctioneer had knocked one down as sold for 61 guineas, but the bid was from the owner. The plaintiff sued the auctioneer, . .
CitedThornett v Haines 28-Apr-1846
Where a sale by auction is advertised or stated by the auctioneer to be ‘without reserve’, the employment by the vendor of a puffer to bid for him, without notice, renders the sale void, and entitles the purchaser to recover back his deposit from . .

Cited by:
CitedJohnston v Boyes 1899
There is no custom that a purchaser at an auction can expect to have his personal cheque for a ten per cent deposit accepted. This applies even to those with a good credit standing as much as (here) for an apparent pauper.
Cozens Hardy J said . .
CitedDahlia Ltd v Four Millbank Nominees Ltd and Another CA 24-Nov-1977
Appeal against strike out of statement of claim. They had negotiated with the defendants for the purchase of several properties. Though formal contracts were never exchanged, the plaintiffs said that they had the benefit of a unilateral contract to . .
CitedDahlia Ltd v Four Millbank Nominees Ltd and Another CA 24-Nov-1977
Appeal against strike out of statement of claim. They had negotiated with the defendants for the purchase of several properties. Though formal contracts were never exchanged, the plaintiffs said that they had the benefit of a unilateral contract to . .
CitedBarry v Davies (T/A Heathcote Ball and Co) and Others CA 27-Jul-2000
The claimant sought damages from an auctioneer who had failed to accept his bid, and withdrawn the items from the sale.
Held: In an auction without reserve the auctioneer was not entitled to withdraw an item on the basis that the highest or . .
CitedMainprice v Westley 4-Jul-1865
Liability of auctioneer. Sale without reserve. Undisclosed principal – 1. A declaration alleged that the defendant, an auctioneer, published handbills representing that at a certain day and place he would offer certain premises for peremptory sale . .
CitedHarris v Nickerson QBD 25-Apr-1873
The defendant auctioneer advertised in the London papers that certain brewing materials, plant, and office furniture would be sold by him at Bury St Edmunds on a certain day and two following days. The plaintiff, a commission broker in London, . .

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 29 November 2021; Ref: scu.288398

Robertson v The Balmain New Ferry Company Ltd: PC 10 Dec 1909

High Court of Australia – The Plaintiff paid a penny on entering the wharf to stay there till the boat should start and then be taken by the boat to the other side. The Defendants were admittedly always ready and willing to carry out their part of this contract. Then the Plaintiff changed his mind, and wished to go back. The rules as to the exit from the wharf by the turnstile required a penny for any person who went though. This the Plaintiff refused to pay, and he was by force prevented from going through the turnstile. He then claimed damages for assault and false imprisonment,
Otherwise: Robinson v Balmain New Ferry Co Ltd

[1909] UKPC 1, [1909] UKPC 58, [1910] AC 295, [1909] UKLawRpAC 62
Bailii, Bailii, Commonlii
Australia
Cited by:
CitedSecretary of State for Justice v MM SC 28-Nov-2018
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract, Torts – Other

Updated: 29 November 2021; Ref: scu.245719

White v Blackmore: CA 15 Jun 1972

The plaintiff attended a jalopy car race and was injured. It was a condition of his entry that he agreed that motor racing was dangerous and that he would not hold the organisers or others responsible if injured. He was injured when a safety rope, snagged by a car, caught and then threw him some distance. He later died from his injuries. The rope had been set up negligently. The organisers relied on the exclusion clause.
Held: The appeal was dismissed. ‘The Courts are very reluctant to hold a person bound by any exemption or condition unless it forms part of the contract between them. If there is a contractual document (as here the programme) the organisers must incorporate it into the document. If there is no contractual document, they must draw the condition specifically to the attention of the plaintiff and get his assent to it’

Lord Denning MR, Buckley, Roskill LJJ
[1972] EWCA Civ 11, [1972] 2 QB 651, [1972] 3 All ER 158, [1972] 3 WLR 296
Bailii
Occupiers Liability Act 1957 2(1)(2)
England and Wales
Citing:
CitedMcCutcheon v David MacBrayne Ltd HL 21-Jan-1964
The appellant had asked his brother-in-law to have a car shipped from Islay to the mainland. The appellant had personally consigned goods on four previous occasions. On three of them he was acting on behalf of his employer; on the other occasion he . .
CitedHenderson v Stevenson HL 1875
Proper Notice of Exemption Clause Required
A ticket, having on its face only the words ‘Dublin and Whitehaven’, was given to a passenger who, without looking at it, paid for it and went on board. Having lost all his luggage he brought an action against the company. The company pleaded that, . .
CitedHall v Brooklands Auto Racing Club CA 1933
The organisers of a racing circuit were not liable for personal injuries suffered when a racing car leapt the barriers and crashed into the crowd, having taken reasonable precautions to prevent such events.
Lord Justice Scrutton said: ‘What is . .
CitedHornsell v Smyth 1860
When a person took a short cut across a piece of land: ‘He must take the permission with its concomitant conditions, and, it may be, perils’ . .
CitedLatham v R Johnson and Nephew Ltd CA 12-Dec-1912
The defendants were owners of a plot of unfenced waste land from which old houses had been cleared. It did not adjoin any public highway, but was accessible by a path leading from the back of the house in which the plaintiff, a child between two and . .
CitedHood v Anchor Line (Henderson Bros) Ltd HL 1-Jul-1918
An English court may exercise its jurisdiction in personam over the liquidator to enforce the contract between the chargee and the company, and may require the liquidator to pay the proceeds to the chargee, The Scottish courts did not recognise the . .
CitedSlater v Clay Cross Co Ltd 1956
The plaintiff was injured walking down a narrow railway tunnel. The tunnel had been regularly used by locals as a short cut.
Held: Though there was a risk in doing so, that did not mean that she had accepted also the risk that the train driver . .
CrticisedAsdown v Williams 1957
People regularly took a short cut over the defendants’ land. There was no contract by which they entered. They just walked across the land. The defendants put up notices which were clearly visible to all of them. The notices told these bare . .
CitedHollier v Rambler Motors (AMC) Ltd CA 19-Nov-1971
The plaintiff left his car with the defendant garage for repair. Whilst there it was substantially damaged by fire. The defendant sought to rely upon their terms which would negative liability, saying that the terms had been incorporated by . .
CitedWooldridge v Sumner and Another CA 4-Jun-1962
The plaintiff photographer was injured when attending a show jumping competition at the White City Stadium. A horse caught him as it passed.
Held: The defendant’s appeal against the finding of negligence succeeded: ‘a competitor or player . .
CitedNettleship v Weston CA 30-Jun-1971
The plaintiff gave a friend’s wife driving lessons. An experienced driver himself, he checked her insurance first. The learner crashed into a lamp-post, and he was injured. She was convicted of careless driving, and he sought damages. The judge held . .
CitedRoles v Nathan CA 15-May-1963
Two chimney sweeps were overcome by fumes, and died in the basement of the Manchester Assembly Rooms. Whilst occupied working in flues (against advice), a boiler had been lit.
Held: (Majority – Pearson LJ dissenting) The land-owner’s appeal . .
CitedDann v Hamilton 1939
The maxim volenti non fit injuria, which originates from Roman law, is a notorious source of confusion. The court doubted whether the maxim ever could apply to license in advance a subsequent act of negligence, for if the consent precedes the act of . .
CitedLetang v Ottawa Electric Railway Co 1926
To accept a plea of non fit injuria, there has to be a finding that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it. . .
CitedOsborne v London and North Western Railway 1888
Wills J said: ‘If the defendants desire to succeed on the ground that the maxim volenti non fit injuria is applicable, they must obtain a finding of fact that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the . .
CitedWinter Garden Theatre (London) Ltd v Millennium Productions Ltd HL 1947
The appellant owner had granted licences to the respondent to use the theatre for productions. After the initial six month’s period, the respondent was to have an option for further licences. The contract made no mention of a termination of that . .
CitedAshdown v Samuel Williams and Sons Ltd CA 1957
Employees used a short cut to reach premises occupied by their employer, the second defendants. The short cut crossed various railway lines, on premises belonging to the first defendants. While she was using the short cut, the plaintiff was struck . .
CitedThe Canadian Pacific Railway Company v The King PC 19-Feb-1931
(Canada) ‘Whether any and what restrictions exist on the power of a licensor to determine a revocable licence must, there Lordships think, depend upon the circumstances of each case.’
A licencee whose licence is revocable is entitled to . .
CitedImperial Chemical Industries Ltd v Shatwell HL 6-Jul-1964
The respondent was employed as a shot firer in a quarry, and was to test the electric wiring connecting explosive charges. Contrary to instructions that testing must be done from a shelter, the respondent and another shot firer carried out a test in . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Contract

Updated: 29 November 2021; Ref: scu.262753

Warlow v Harrison: QBD 25 Nov 1858

Whether Auctioneer liable to bidder – vendor’s bid

Three following horses were advertised for sale at auction being the property of a gentleman and sold without reserve. The auctioneer had knocked one down as sold for 61 guineas, but the bid was from the owner. The plaintiff sued the auctioneer, (not the vendor). He had been the highest independent bidder at 60 guineas. He said that the auctioneer was his agent acting to complete the contract on his behalf. The auctioneer now appealed against a finding against him.
Held: The auctioneer’s appeal succeeded. There was no contract because the vendor had revoked the auctioneer’s authority to accept the plaintiff’s bid, and therefore no question of the impact of Section 17 of the Statute of Frauds arose.

Lord Campbell
[1858] EngR 1193, (1858) 1 El and El 295, (1858) 120 ER 920
Commonlii
England and Wales
Citing:
CitedBexwell v Christie 3-Feb-1776
Action does not lie against an auctioneer for selling a horse at the highest price bid for him, contrary to the owner’s express directions not to let him go under a larger sum named. Otherwise, if the owner had directed the auctioneer to set the . .

Cited by:
Appeal fromWarlow v Harrison CExC 26-Nov-1859
Unless public notice of this was given, a bid from the seller himself was fraudulent. He appealed against rejection of his claim against the auctioneer.
Held: The appeal failed on the existing pleadings, but said that the plaintiff might . .
CitedBarry v Davies (T/A Heathcote Ball and Co) and Others CA 27-Jul-2000
The claimant sought damages from an auctioneer who had failed to accept his bid, and withdrawn the items from the sale.
Held: In an auction without reserve the auctioneer was not entitled to withdraw an item on the basis that the highest or . .

Lists of cited by and citing cases may be incomplete.

Contract

Leading Case

Updated: 29 November 2021; Ref: scu.289664

Bell v Lever Brothers Ltd: HL 15 Dec 1931

Contract – Mutual Mistake Test

Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying pounds 30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could have been summarily dismissed. Lever sought repayment of the pounds 30,000 and claimed rescission of the agreement for fraud. The jury found that there was no fraud, but if Lever had known of the dealings giving rise to the secret profits, it would not have paid compensation. Before the trial, Bell admitted his liability to account to Niger for his secret profits, and made a payment into court.
Held: The court laid down the test for identifying a mutual mistake in contract allowing the contract to be declared void.
The mistake must render the subject matter of the contract essentially and radically different from the subject matter which the parties believed to exist. Was it the common assumption or pre-condition upon which the compromise agreement was made? The House asked whether there was a positive duty on the part of Bell and Snelling to disclose the breaches of contract they made. Lord Atkin concluded they had no such duty, saying of Healey: ‘It will be notice that Bell was not a director of Levers and with respect I cannot accept the view of Greer LJ that if he was in a fiduciary relationship with the Niger Company he was in a similar fiduciary relationship with the share holders’.
Lord Thankerton: ‘in the absence of fraud . . I am of the opinion that neither a servant nor a director of a company is legally bound forthwith to disclose any breach of the obligations arising out of the relationship so as to give the master or the company the opportunity of dismissal . . ‘ However, he also said, ‘there may well be case where the concealment of the misconduct amounts to a fraud on the master or company . . ‘
Lord Atkin considered the possible duty of disclosure of an intending partner: ‘Fraudulent concealment has been negatived by the jury; this claim is based upon the contention that Bell owed a duty to Levers to disclose his misconduct, and that in default of disclosure the contract was voidable. Ordinarily the failure to disclose a material fact which might influence the mind of a prudent contractor does not give the right to avoid the contract. The principle of caveat emptor applies outside contracts of sale. There are certain contracts expressed by the law to be contracts of the utmost good faith, where material facts must be disclosed; if not, the contract is voidable. Apart from special fiduciary relationships, contracts for partnership and contracts of insurance are the leading instances. In such cases the duty does not arise out of contract; the duty of a person proposing an insurance arises before a contract is made, so of an intending purchaser.’

Atkin L, Lord Thankerton, Lord Blanesburgh
[1932] AC 161, [1931] UKHL 2
Bailii
England and Wales
Citing:
Dictum approvedHealey v Societe Anonyme Francais Rubastic 1917
A director of the company claimed arrears of salary for work done notwithstanding that he had been summarily dismissed for misconduct. There was no question of a claim for damages for breach of duty. . .
Appeal fromBell v Lever Brothers Ltd CA 1931
The court was asked as to the duties of a company director: ‘It does not seem to me open to question that the directors of a company occupy a fiduciary position towards the company, with the result that they cannot retain a benefit they have . .
ApprovedLondon and Mashonaland Exploration Co Ltd v New Mashonaland Exploration Co Ltd 1891
There is nothing inherently objectionable in the position of a company director (and chairman) who, without breaching any express restrictive agreement or disclosing any confidential information, becomes engaged, whether personally or as a director . .

Cited by:
ConfirmedGreat 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: . .
CitedWilliam Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
CitedAssociated Japanese Bank (International) Ltd v Credit du Nord SA 1988
A contract of guarantee was made, but based upon a term of fundamental importance which was mistaken as to the existence of certain machines.
Held: The court must first look to the nature of the purported agreement. Steyn J said: ‘Logically, . .
DistinguishedHorcal Ltd v Gatland ChD 1983
Directors have a positive duty to disclose breaches of fiduciary duty. A failure by a director of a company, as opposed to an employee, to disclose an earlier breach of fiduciary duty would render an agreement terminating his contract of service (on . .
CitedHorcal Ltd v Gatland CA 1984
The court considered the arguments presented as to the duty of a director of a company to disclose his own breach of fiduciary duty: ‘Counsel . . submitted, as a general proposition, that, putting fraud on one side, there is no general duty on . .
CitedEIC Services Ltd European Internet Capital Ltd v Phipps, Paul, Barber CA 30-Jul-2004
Whether issue of additional shares had been properly authorised . .
CitedItem Software (UK) Ltd v Fassihi and Others ChD 5-Dec-2002
Enforcement of confidentiality clause in contract of employment on termination. . .
CitedFassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
MentionedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedHalpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
mentionedIslington v Uckac and Another CA 30-Mar-2006
The council’s tenant had unlawfully secured assignment of a secure tenancy to the defendant. The council sought possession.
Held: A secure tenancy granted by an authority pursuant to a misrepresentation by the tenant is nonetheless valid. The . .
CitedSimms v Conlon and Another CA 20-Dec-2006
Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .
CitedGraves v Graves and others CA 3-Jul-2007
The parties had divorced and settled financial provision, but the former wife and her children came to need a house and one of the claimant’s properties became vacant, and she was allowed to occupy it as a tenant, with the majority of the rent being . .
CitedButters and Others v BBC Worldwide Ltd and Others ChD 20-Aug-2009
In the insolvency of Woolworths plc, a subsidiary sought to have valued its shareholding in a company in which the defendants were co-shareholders. It was argued that an earlier agreement between them had not be fully superceded by a subsequent one. . .
CitedHelmet Integrated Systems Ltd v Tunnard and others CA 15-Dec-2006
Whilst employed by the claimants as a salesman, the defendant came to want to develop his idea for a modular helmet suitable for fire-fighters and others. He took certain steps including showing the proposal confidentially to a competitor, and then . .
CitedBalston Ltd v Headline Filters Ltd and Another ChD 1990
The claimant, a manufacturer of filter tubes, employed the defendant as a director. He gave notice to leave, but during his notice period, he was contacted by a customer who informed him of a meeting between that customer and the company at which . .
CitedLehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .

Lists of cited by and citing cases may be incomplete.

Contract, Company

Leading Case

Updated: 29 November 2021; Ref: scu.181343

Topland Portfolio No 1 Ltd v Smiths News Trading Ltd: CA 21 Jan 2014

The claimant landlord sought to recover arrears of its tenant’s rent after the tenant’s insolvency from the defendant under the defendant’s guarantee of the rent. The defendant had argued successfully at first instance that the guarantee had been avoided after the grant of a licence to alter the property.
Held: The appeal failed. The Licence had the clear potential to increase the obligations on the Lessee, and hence on the Surety in the event of the Lessee’s default. Nor had there been forbearance by the landlord

Hallett, Sullivan LJJ, Arnold J
[2014] EWCA Civ 18
Bailii
England and Wales
Citing:
CitedHolme v Brunskill CA 1877
The plaintiff had let his farm in Cumberland to a tenant farmer, along with a flock of sheep. When let, the farm extended to 234 acres and there were 700 sheep. The surety guaranteed the tenant’s obligation to re-deliver the flock of sheep in good . .
CitedSelous Street Properties v Oronel ChD 1984
The tenant had made unauthorised alterations to the premises by the construction of some toilets, in breach of covenant. The position was later regularised with a licence from the landlord, reciting that the lessee had made alterations to the . .
CitedAnkar Pty Ltd v National Westminster Finance (Australia) Ltd 1987
(High Court of Australia) The court consdered the situation where a surety was called after alteration of the contract secured: ‘to hold the surety to its bargain, the creditor must show that the nature of the alteration can be beneficial to the . .
CitedUnicomp Inc v Eurodis Electron Plc ChD 7-May-2004
The tenant (CEM) fell into financial difficulties. In breach of covenant the premises were occupied by a related company (Unibol) which started paying the rent. The landlord (Fortwilliam) accepted the rent for nearly two years after having been put . .
CitedHoward de Walden Estates Ltd v Pasta Place Ltd ChD 1995
The demised premises were originally used by the tenant as a delicatessen. The landlord granted the tenant successive licences permitting the installation of eight tables for the consumption of food and non-alcoholic beverages, permitting the . .

Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Updated: 28 November 2021; Ref: scu.520006

British Fermentation Products Limited v Compair Reavell Limited: TCC 8 Jun 1999

The terms ”on the other’s written standard terms of business’ in the Act was not defined in the Act after a deliberate decision by the Law Commission.

[1999] EWHC Technology 227, (1999) 66 Con LR, [1999] BLR
Bailii
Unfair Contract Terms Act 1977 3(1)
England and Wales
Cited by:
CitedPegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 28 November 2021; Ref: scu.136033

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 railway company obtained benefits over and above their contractual entitlement. The arbitrator stated a special case as to whether the plaintiffs were bound to give credit against the claim for the cost of the Parsons machines for the savings due to their superior efficiency over what the defendants had contracted to supply.
Held: They did. Additional benefits obtained as a result of taking reasonable steps to mitigate loss were to be brought into account in the calculation of damages. It was necessary to balance loss against gain when the amount of the damages was being calculated. The House distinguished cases in which the plaintiff had received benefits which ‘did not arise out of the transactions the subject-matter of the contract.’ These were res inter alios acta. But where ‘the person whose contract was broken took a reasonable and prudent course quite naturally arising out of the circumstances in which he was placed by the breach’ it was necessary to look at any additional benefits which he thereby acquired and to ‘balance loss and gain.’
Viscount Haldane LC said: ‘i) The fundamental basis of damages is compensation for the pecuniary loss to a party naturally flowing from the breach.
ii) This principle is qualified by the duty of a plaintiff to take all reasonable steps to mitigate the loss consequent on the breach.
iii) Where in the course of business a party has taken action arising out of the transaction which has mitigated his loss, the effect in actual diminution of the loss he has suffered may be taken into account even if he had no duty to act.
iv) Where the subsequent arrangement was not between those parties, but between a claimant and a third party, the court should look at what actually happened and balance loss and gain.’
and ‘The quantum of damage is a question of fact, and the only guidance the law can give is to lay down general principles which afford at times but scanty assistance in dealing with particular cases . . Subject to these observations I think that there are certain broad principles which are quite well settled. The first is that, as far as possible, he who has proved a breach of a bargain to supply what he contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed. The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach . .’
Having referred to Staniforth v Lyall he continued: ‘I think that this decision illustrates a principle which has been recognized in other cases, that, provided the course taken to protect himself by the plaintiff in such an action was one which a reasonable and prudent person might in the ordinary conduct of business properly have taken, and in fact did take whether bound to or not, a jury or an arbitrator may properly look at the whole of the facts and ascertain the result in estimating the quantum of damage.
Recent illustrations of the way in which this principle has been applied, and the facts have been allowed to speak for themselves, are to be found in the decisions of the Judicial Committee of the Privy Council in Erie County Natural Gas and Fuel Co. v. Carroll [1911] AC 105 and Wertheim v. Chicoutimi Pulp Co. [1911] AC 301. The subsequent transaction, if to be taken into account, must be one arising out of the consequences of the breach and in the ordinary course of business. This distinguishes such cases from a quite different class illustrated by Bradburn v Great Western Ry. Co. (1874) LR 10 Ex 1, where it was held that, in an action for injuries caused by the defendants’ negligence, a sum received by the plaintiff on a policy for insurance against accident could not be taken into account in reduction of damages. The reason of the decision was that it was not the accident, but a contract wholly independent of the relation between the plaintiff and the defendant, which gave the plaintiff his advantage. Again, it has been held that, in an action for delay in discharging a ship of the plaintiffs’ whereby they lost their passengers whom they had contracted to carry, the damages ought not to be reduced by reason of the same persons taking passage on another vessel belonging to the plaintiffs: Jebsen v East and West India Dock Co. (1874) LR 10 CP 300, a case in which what was relied on as mitigation did not arise out of the transactions the subject-matter of the contract . . I think the principle which applies here is that which makes it right for the jury or arbitrator to look at what actually happened, and to balance loss and gain. The transaction was not res inter alios acta but one in which the person whose contract was broken took a reasonable and prudent course quite naturally arising out of the circumstances in which he was placed by the breach.’

Viscount Haldane LC, Lords Ashbourne, Macnaghten, and Atkinson
[1912] AC 673, [1911-13] All ER Rep 63, 81 LJKB 1132, [1912] UKHL 617
Bailii
England and Wales
Citing:
ApprovedBradburn v Great Western Rail Co CEC 1874
The plaintiff had received a sum of money from a private insurer to compensate him for lost income as a result of an accident caused by the negligence of the defendant.
Held: He was entitled to full damages as well as the payment from the . .
CitedStaniforth v Lyall And Others 27-Nov-1830
Defendants chartered a ship to New Zealand, where they were to load her, or by an agent there to give Plaintiff, the owner, notice that they abandoned the adventure; in which case they were to pay him 5001. The ship went to New Zealand, but found . .
CitedWertheim v The Chicoutimi Pulp Company PC 18-Mar-1910
(Quebec) The buyer sought damages for late delivery of goods calculated on the difference between the market price at the place of delivery when the goods should have been delivered and the market price there when the goods were in fact delivered. . .
CitedThe Erie County Natural Gas and Fuel Company Limited and Others v Samuel S Carroll and Another PC 14-Dec-1910
(Ontario) The defendant was found to have breached its obligations to supply natural gas to the plaintiff. The plaintiff spent money on works to procure its own supply, and subsequently sold those works at a profit.
Held: Their Lordships . .
CitedJebsen v East and West India Dock Co CCP 25-Feb-1875
Delay caused by a charterer in discharging cargo caused the shipowner to lose passengers whom he had contracted to carry but he was able to take the same passengers in another of his vessels.
Held: The shipowners’ damages were not to be . .

Cited by:
CitedPrimavera v Allied Dunbar Assurance Plc CA 4-Oct-2002
The claimant purchased a pension plan relying upon advice from the defendant. Since discovering the error, the plan had in fact prospered. The respondent appealed the judges failure to allow fully for the improvement when assessing damages.
CitedLagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
CitedDimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
CitedParry v Cleaver CA 9-May-1967
The plaintiff policeman was hit by a car whilst he was on traffic duty. When he claimed damages in negligence the defendant sought to have deducted from his award an amount received by way of additional pension payments received which had been . .
CitedParry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
CitedOmak Maritime Ltd v Mamola Challenger Shipping Co Ltd ComC 4-Aug-2010
Lost Expenses as Damages for Contract Breach
The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .
CitedSotiros Shipping Inc v Sameiet; The Solholt CA 1983
The seller had failed to deliver the vessel he had sold by the delivery date. The buyer cancelled and requested return of his deposit, also claiming damages because the vessel was worth $500,000 more on the delivery date than she had been when the . .
CitedBorealis Ab v Geogas Trading Sa ComC 9-Nov-2010
The parties had contracted for sale and purchase of butane for processing. It was said to have been contaminated. The parties now disputed the effect on damages for breach including on causation, remoteness, mitigation and quantum.
Held: The . .
CitedRuxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
CitedGardner v Marsh and Parsons (a Firm), Dyson CA 2-Dec-1996
Damages awarded against a surveyor for a negligent survey which had missed certain defects, were not to be reduced for repairs later carried out by the landlord at his own expense. The trial judge decided to award damages reflecting the difference . .
CitedBacciottini and Another v Gotelee and Goldsmith (A Firm) CA 18-Mar-2016
A property subject to a planning condition was purchased by the appellant under the advice of the respondent, who failed to notify him of the existence of a planning condition. The judge had awarded the claimant pounds 250 being the cost of the . .
CitedFulton Shipping Inc of Panama v Globalia Business Travel SAU (Formerly Travelplan SAU) of Spain ComC 21-May-2014
The former owners of the ‘New Flameno’ appealed from an arbitration award. A charter of the vessel had been repudiated with two years left to run. The owners chose to sell. They made a substantial profit over the price they would have received after . .
CitedFulton Shipping Inc of Panama v Globalia Business Travel Sau CA 21-Dec-2015
The charter of the ship ‘New Flameno’ was repudiated two years early. The owners sold it, making rather more profit than they would have if sold after the end of the term. The court was now asked how the profit should affect the loss claim on the . .
CitedGlobalia Business Travel Sau of Spain v Fulton Shipping Inc of Panama SC 28-Jun-2017
The court was asked how to assess damages arising out of the repudiation of a charterparty by charterers of a cruise ship, the ‘New Flameno’. The charter ending two years early, the owners chose to sell, and in the result got a much better price . .
CitedLowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
CitedSS (Sri Lanka), Regina (on The Application of) v The Secretary of State for The Home Department CA 15-Jun-2018
The court was asked whether, in cases heard by the First-tier Tribunal (Immigration and Asylum Chamber) where the credibility of the appellant is in issue, there is a rule that a delay of more than three months between the hearing of oral evidence . .
CitedMorris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 28 November 2021; Ref: scu.181348

David MacDonald v Geoffrey Myerson, John Callaghan, Derek A H Law: CA 26 Jan 2001

The claimant had been involved in mortgage frauds, using the defendant firm of solicitors. He claimed an account following sales of the properties. At the time of the sales, the first defendant knew of the false identities used. The defendants claimed that the money had been paid out, and that the claim was for the proceeds of illegal acts, and he was not entitled to any equitable relief.
Held: The houses had in fact been acquired by the claimant because of the use of powers of attorney, even though under a deceitful name. As to illegality, the documents were not executory, and as complete agreements were valid provided the claimant did not have to rely upon an illegal act. Defendants’ appeal dismissed.

Lord Justice Aldous Lord Justice Mance And Mr Justice Charles
[2001] EWCA Civ 1220, [2002] 1 P and CR DG3
Bailii
England and Wales
Citing:
CitedIn re Mahmoud and Ispahami 1921
A failure to plead an allegation in a later appeal where the facts at issue had been covered in the trial need not be fatal to that ground being added. . .
CitedBirkett v Acorn Business Machines Limited CA 16-Jul-1999
The parties had entered into a contract, which both knew was to be used to defraud a third party finance company. When one sued the other for breach, the court refused to order the contract to be enforced when he became aware of the fraud.
CitedHalifax Building Society v Thomas and Another CA 29-Jun-1995
Defrauded Mortgagee cannot take surplus on sale
A Building Society cannot keep any excess proceeds of sale of a house mortgaged to it by fraud. Policy was against unjust enrichment and will not allow a lender to take a profit from a fraudulent borrower.
Peter Gibson LJ said: ‘I remain wholly . .
CitedTinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Registered Land, Contract

Updated: 28 November 2021; Ref: scu.147407

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

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

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

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 27 November 2021; Ref: scu.136053

Excalibur Ventures Llc v Texas Keystone Inc and Others: ComC 10 Sep 2013

Excalibur claimed to be entitled to an interest in a number of oil fields in Kurdistan, which are potentially extremely profitable, and of which the Shaikan field is the most important. The claim was for specific performance of a ‘Collaboration Agreement’ pursuant to which Excalibur claimed its entitlement to an interest in the fields or to damages which, as finally put, were said to be of the order of US $ 1.6 billion.
Held: The claim failed on every point, whether put in contract, which was the primary claim, or in tort, where five causes of action were pursued: interference with contract, interference with business relations, breach of fiduciary duty, fraud by misrepresentation and fraud by concealment. The claim did not fail narrowly or on the basis of abstruse legal doctrine upon which two views might be possible. It failed because Excalibur had failed to establish any contract with Gulf.

Christopher Clarke LJ
[2013] EWHC 2767 (Comm)
Bailii
England and Wales
Citing:
See AlsoExcalibur Ventures Llc v Texas Keystone Inc and Others ComC 28-Jun-2011
The court gave its reasons for the grant of an order restraining the claimant from also pursuing arbitration proceedings at the International Court of Arbitration.
Held: Gloster J was, found on the evidence then before her a strong arguable . .

Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 27 November 2021; Ref: scu.518979

Ahuja Investments Ltd v Victorygame Ltd and Another (Contract – Purchase of Commercial Investment Property): ChD 26 Aug 2021

CONTRACT – Purchase of commercial investment property – Fraudulent misrepresentation – Inducement – Breach of contract – Rectification – Penalties – Damages
EVIDENCE – Effect of failure to call relevant witnesses – Adverse inferences – Proper approach to evidence

[2021] EWHC 2382 (Ch)
Bailii
England and Wales

Contract, Evidence

Updated: 27 November 2021; Ref: scu.667363

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 that if a seller became a defaulting shareholder he would not be entitled to receive any further payment in respect of the price. Clause 11.2 of the sale agreement contained various restrictive covenants and a shareholder who acted in breach of those covenants became a defaulting shareholder. Moreover, by clause 5.6 each seller granted the purchaser a right to buy his remaining shareholding at a price calculated by reference to the net asset value of the group if he became a defaulting shareholder. A question arose whether clause 11.2 or 5.6 was unenforceable as a penalty.
Held: The principles under which penalties are unenforceable apply to clauses which disentitle a party in breach of contract from receiving a sum of money otherwise due to him or which require a transfer of property for nothing or at an undervalue and so were potentially applicable. However, a clause might not be a penalty, even though it did not contain a genuine pre-estimate of loss, if its dominant purpose was not to deter breach and the fact that there was a good commercial justification for it might lead to the conclusion that that was not the case. The clause would be a penalty only if the sum stipulated was extravagant and unconscionable.
Christopher Clarke LJ explained: ‘The underlying rationale of the doctrine of penalties is that the Court will grant relief against the enforcement of provisions for payment (or the loss of rights or the compulsory transfer of property at nil or an undervalue) in the event of breach, where the amount to be paid or lost is out of all proportion to the loss attributable to the breach. If that is so, the provisions are likely to be regarded as penal because their function is to act as a deterrent.’
Applying that approach, he concluded that the clauses were penal in nature and said: ‘I am conscious that the approach I have adopted may be viewed as similar to that of Arden LJ in Murray, with which Buxton LJ disagreed and which Clarke LJ did not prefer. It is however difficult to address any question of penalty without considering whether the provision is extravagant, and, if it is, whether there is a commercial justification. I venture to think that the difference in approach may not be as marked as it might appear provided that (a) undue significance is not given to the discrepancy between the amount payable under the clause and the loss that might be sustained on breach – the significance of the discrepancy may depend on how closely the justification relates to the nature or extent of the loss; (b) no presumptions are treated as irrebuttable; (c) proper account is taken of the desirability of upholding bargains freely entered into and of any commercial justification for allegedly penal clauses, before deciding that the predominant function of the clause is deterrent and that it is penal. That seems to me to be the case here, not least because the relevant clauses fall foul of Lord Dunedin’s Proposition 4 (a) as well as having several other indicia of their penal nature.
I am also conscious that there is a degree of ambiguity as to what is meant by the terms ‘extravagant’ and ‘unconscionable’ and how such descriptions fit with the concept of deterrence. ‘Extravagant’ and ‘unconscionable’ were terms originally used to characterise a provision which required far too high a payment in the event of breach. That it did so offended the conscience of equity, which treated it as penal – because its function was not to compensate but to deter breaches of obligations – and unenforceable (save as to the amount of the proved damage). Nowadays, when a term which provides for excessive payment on breach may be valid if it has a proper commercial justification, the term ‘unconscionable’ would, perhaps more appropriately be used for a clause which provides for extravagant payment without sufficient commercial justification. Such a clause is likely to be regarded as penal and deterrence its predominate function, on the basis that if it requires excessive payment and lacks commercial justification for doing so, there is little room for any conclusion other than its function is to deter breach or, to put it positively, to secure performance.’

Patten, Tomlinson, Christopher Clarke LJJ
[2013] 2 CLC 968, [2013] EWCA Civ 1539
Bailii
England and Wales
Citing:
CitedDunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
CitedCavendish Square Holdings Bv and Another v El Makdessi ComC 14-Dec-2012
The parties disputed whether clauses in a share sale agreement between them amounted to a penalty and as such were rendered unenforeable.
Held: Burton J felt able to escape those constraints, and concluded that the two provisions were valid . .
CitedLordsvale Finance Plc v Bank of Zambia QBD 20-Mar-1996
The court looked at a facility agreement opened by a bank in favour of the defendant which provided that in the event of default the defendant should pay interest during the period of default at an aggregate rate equal to the cost to the bank of . .
See AlsoCavendish 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 . .
See AlsoMakdessi v Cavendish Square Holdings Bv and Another (Commital) CA 26-Nov-2013
Appeal against permission to apply to commit the applicant for alleged contempt. . .

Cited by:
CitedParkingeye Ltd v Beavis CA 23-Apr-2015
The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of 85.00 pounds. The judge had found that the appellant was in breach of a . .
Appeal fromCavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 26 November 2021; Ref: scu.518421

Allendale Ltd v Moualem: CA 6 Jul 2004

A promissory note executed on 30 June 1988, payable on demand. The promissory note was executed as a deed and therefore was a speciality falling under section 8 of the Limitation Act 1980, with a limitation period of 12 years. No demand was made for payment under the note within the period of 12 years. It is, and has been recognised for nearly 200 years as the law, that a promissory note payable on demand is enforceable from the date of its execution, and not from the date of any demand.

Waller, Buxton LJJ
[2004] EWCA Civ 915
Bailii
England and Wales
Citing:
CitedNorton v Ellam 1837
Baron Parke said: ‘It is quite clear that a promissory note, payable on demand, is a present debt, and is payable without any demand, and the statute begins to run from the date of it.’ . .

Lists of cited by and citing cases may be incomplete.

Contract, Limitation

Updated: 23 November 2021; Ref: scu.517237

Arnold v Britton and Others: ChD 3 Dec 2012

The parties disputed the effect of 5 versions of a clause in lease by the appellant to various lessees on a chalet park.

Morgan J
[2012] EWHC 3451 (Ch)
Bailii
England and Wales
Cited by:
At ChDArnold v Britton and Others CA 22-Jul-2013
The court examined provisions in leases creating service charges. The disputed provision increased the service charge by 10% every year.
Held: Davis LJ discussed the thinking behind the clause: ‘Lack of correspondence between outlay and . .
At ChDArnold v Britton and Others SC 10-Jun-2015
Absurdity did not defeat a clear clause
A standard lease of plots on a caravan park, contained a provision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: The tenants’ appeal failed . .

Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Updated: 23 November 2021; Ref: scu.466447

Fielding and Platt Ltd v Selim Najjar: CA 17 Jan 1969

The plaintiff company had contracted to make and export to the defendant an aluminium extrusion press. The defendant re-assured the plaintiff that it would be lawful for him to import the plant, but asked that the plant be described falsely on the invoice as ‘parts for rolling mill’. Payment was made by promissory notes. After the first two promissory notes had not been met, the plaintiff ceased production, and sued on the notes and succeeded summarily. The defendant appealed.
Held: The plaintiff was entitled to payment under the first note, because it had performed its obligations under the contract, and there was no failure of consideration. However there was no such completed consideration for the second promissory note, and the defendant should be allowed to defend.
The request to mis-invoice the goods, if illegal, was severable, and did not undermine the contract as a whole. To succeed in their defence of illegality, the defendant had to show that the plaintiff was aware that performance by importing the plant would be illegal, and had agreed to go ahead notwithstanding that illegality. That had not been demonstrated in this case.
An innocent party who is ignorant of the facts or circumstances that would make performance of a contract illegal may be allowed to recover money paid by him under the illegal contract.
Only in exceptional circumstances should a court deprive a claimant of judgment on a claim based on a promissory note.
Lord Denning MR said: ‘The plaintiffs, Fielding and Platt Ltd are manufacturers of machinery. Their business is in Gloucester. In the middle of 1965 they entered into a contract with a Lebanese company called SCIALE Aluminium of Lebanon. They agreed to make and sell to the Lebanese company an aluminium extrusion press for a total sum of andpound;235,000. The plant and equipment was to be delivered free on board at a British port. The time for delivery was 10 1/2 months from 19 June 1965. Payment was to be made by six promissory notes given by the defendant, the managing director of the Lebanese company, Mr Selim Najjar, personally; and he deposited shares, of his own, as security for the due payment of the promissory notes. The promissory notes were payable at intervals during the progress of the work. The first four were payable whilst the plaintiffs were making the machinery in England. Thus the first note was payable on 4 October 1965, for andpound;23,500; the second on 4 December 1965, for andpound;47,000, the third on 4 February 1966, for andpound;47,000; and the fourth on 4 April 1966, for another andpound;47,000. The fifth note was payable on 4 June 1966, for andpound;47,000, which was just about the time when the machinery was to be delivered to the port. The sixth note, the final one, for andpound;23,500, was payable on 4 August 1966.
On 4 October 1965, the first promissory note, for andpound;23,500, fell due. It was not paid. The defendant apologised for not paying it. He asked for a few days’ grace. He said that had been agreed. So be it. He was given a few days-indeed more than a few days. Still he did not pay. When the note was a fortnight overdue he wrote on 18 October 1965: ‘It is my estimate that by the middle of next month all will be arranged and I will be able to proceed with the payments.’ He realised that his non-payment might result in delays on the English side, for he added: ‘Please remember that any delays on your part due to delayed payments will be acceptable.’ When the note was more than three weeks overdue, the plaintiffs decided to suspend work on the contract. On 27 October 1965, they cabled to the Lebanese company:
‘We have today suspended all work on your contract with us and this includes notification to all our material suppliers that they must do no further work on this contract. We have been forced to take this action to comply with the requirements of our authorities. Our current financial commitment to material and equipment suppliers plus design and stock material and labour charges, is extremely heavy. We trust you appreciate that this is your liability. As a result of suspending all work you will appreciate that our delivery date will be considerably extended and the amount of the delay will depend on the time taken for you to resolve your difficulties.’
The defendant never paid the first promissory note or any of the others. He never paid anything. In consequence, the plaintiffs suspended work on the contract, and it remained suspended. No further work was done on it. There were negotiations for a revival of the contract, but they came to nothing.
Stopping there, it is quite plain to me that the defendant was liable to pay the first of the promissory notes. We have repeatedly said in this court that a bill of exchange or a promissory note is to be treated as cash. It is to be honoured unless there is some good reason to the contrary. It is suggested that, on the first note, there was a failure of consideration. That suggestion is quite unfounded. The plaintiffs were getting on with their part of the contract. They were, they say, ordering goods from their suppliers and getting on with the work. At any rate, there is no evidence to the contrary; and, unless they were themselves in default, they were clearly entitled to payment of the first note. The position as to the second note is different. Before it fell due, the defendant said: ‘I cannot pay’; and the plaintiffs replied: ‘We, therefore, suspend work.’ Seeing that the plaintiffs had suspended work, they could not claim payment in full, but at most damages. They could not sue on each note as it fell due-each of the six-when they had suspended all work on the contract. So there is an available defence on the second note. But not on the first note.
This brings me to the second point. In answer to the claim in both notes, the defendant raises a defence of illegality. He says that it was his intention to break the laws of the Lebanon and that the plaintiffs were parties to it. In order to import the extrusion press into the Lebanon, he had to get an import licence from the Lebanon authorities. He had already got a licence to import a two million pound rolling mill, but he had not got a licence to bring in an extrusion press. His intention was to import it without a licence, and he says that the plaintiffs agreed to help him to do so. The plaintiffs agreed, he says, to put in a false invoice. He says: ‘I asked you to invoice the press as part of a rolling mill, and you agreed to it, and, therefore, you cannot recover anything.’ That defence does not commend itself to me. Here is a man who prays in aid his own illegality-he admits he was trying to evade the laws of his own country-and he seeks to implicate the plaintiffs in it.
In order for this to be any kind of defence, he must show first of all that the contract contained a term that the plaintiffs were to give a false invoice; so that it could not lawfully be performed. For if it would be lawfully performed (by giving a correct invoice) the plaintiffs can certainly sue on it. I do not think there was any such term. During the negotiations the Lebanese company did ask the plaintiffs to invoice the press as ‘parts for rolling mill’. But this request did not, as I read the correspondence, become a term of the contract. The contract was concluded on 13 July 1965. And the only subsequent reference was contained later in the confirmation which the plaintiffs sent to the Lebanese company. There was a long detailed description of the goods covering many pages and then, in brackets, were the words (‘to be invoiced as ‘parts for rolling mill”). That was a mere notification by the Lebanese company of the way they wanted an invoice made out. It was not a term of the contract itself. The plaintiffs would therefore quite justifiably refuse to give such invoice, and insist on the contract being lawfully performed.
In the second place, even if it were a term, the defendant would have to show that the plaintiffs were implicated in this illegality, that is that they had knowledge of it and were actively participating in it, see Foster v Driscoll, Lindsay v Attfield, Lindsay v Driscoll ([1929] 1 KB 470 at p 518; [1928] All ER Rep 130 at pp 146, 147) per Sankey LJ. I can see no evidence worthy of the name to suggest that the plaintiffs knew of this illegality. The only evidence is contained in a cable about the import licence. On 16 June 19658 the plaintiffs stated that they were agreeable to the proposed contract ‘subject to evidence of satisfactory importing licence arrangements’. The Lebanese company replied:
‘Concerning our import licence, we have a regular import licence for a total amount of two million sterling, for a complete aluminium plant. This licence is more than what we require for an extrusion press, and since we don’t want to lose our right for the remaining amount, we want the material to be invoiced as ‘parts for rolling mill’. This of course is for local consumption. We discussed these details with your representative here, and will make sure that you do the correct thing when the time comes. Please bear in mind that few items (just any thing) of the total order should be in Beirut the first week of October the latest, because our licence is valid until October 24, 1965, and before that date something should have arrived.’
I do not think that cable was enough to give the plaintiffs knowledge of the illegality. It only shows that the Lebanese company thought it convenient, for local consumption, to have the machines invoiced as parts for a rolling mill, instead of the more accurate description of an aluminium extrusion press.
I cannot help remarking that the defendant seems to have a special fondness for false invoices. At a later stage he suggested that the plaintiffs should give an invoice for only half the cost, instead of the whole; so as to save customs duties. He also suggested that the plaintiffs should write a false letter (which he drafted) to show the Lebanese customs authorities. The plaintiffs very properly did not agree to those suggestions. And when the matter finally came to a head, the plaintiffs firmly said: ‘We must invoice the goods correctly.’ I know there is a suggestion in the affidavit of the defendant that the plaintiffs were implicated, but, in the face of the documents, I see no substance in this suggestion.
There is another point: even if there was a term that these goods should be invoiced falsely in order to deceive the Lebanese authorities, I do not think it would render the whole contract void. That term would be void for illegality. But it can clearly be severed from the rest of the contract. It can be rejected, leaving the rest of the contract good and enforceable. The plaintiffs would be entitled, despite the illegal term, to deliver the goods FOB English port, and send a true and accurate invoice to the Lebanese buyer. The Lebanese buyer could not refuse the goods by saying ‘I stipulated for a false invoice’. He could not rely on his own iniquity so as to refuse payment.
In my opinion, therefore, the defence of illegality is clearly bad. I would allow judgment to be entered on the first note and for the interest thereon; and give leave to defend as to the second.’
Davies LJ said: ‘I agree with the result reached by Lord Denning MR and I do not propose to add anything.’
Widgery LJ said: ‘I also agree. I find each of the main issues in this case one of some difficulty and I am much indebted to counsel for the defendant for his argument; but in the end I have concluded that they are sufficiently determined to justify judgment under RSC, Ord 14 in respect of the amount of the earlier promissory note. So far as the allegation of illegality is concerned, there are I think two independent and sufficient answers to it. First, in order to succeed on this question, the defendant must show that the plaintiffs were aware of the illegal purpose in the falsification of the invoice and that they agreed actively to participate in that purpose so that goods could be illegally imported into the Lebanon which would not otherwise be allowed to enter. The only basis on which it is said that the plaintiffs at any material time had knowledge of that illegal purpose is the telex message of 18 June from the Lebanese company, to which Lord Denning MR has referred. If I may just repeat again the essential words, they were replying to an enquiry from the plaintiffs as to their import licence, and they stated:
‘We have a regular import licence for a total amount of two million sterling, and for a complete aluminium plant. This licence is more than what we require for an extrusion press and since we don’t want to lose our right for the remaining amount, we want the material to be invoiced as’ parts for rolling mill’. This, of course, is for local consumption . . ‘
When that was first read to us, for my part I found it quite incomprehensible, and it is not until one gets further in the correspondence that the real point of it becomes clear. The plaintiffs, of course, had to judge the legality or illegality of what was proposed, without the benefit of the correspondence which developed months later as to the terms of that telex message. I can see no reason whatever to suppose that the plaintiffs should see more in that message than that the invoice was to indicate that the goods were part of a larger matter, which in itself would not involve any illegality that I can see. It is only later that one appreciates that the character of the goods may be of some relevance, and if the plaintiffs did agree to invoice the goods as part of a larger whole, I cannot for my part see that that would involve them in any illegality sufficient to excuse the defendant from liability in this case. Alternatively, as Lord Denning MR has said, I am of the opinion that there was no term in this contract requiring the plaintiffs to invoice the goods as part of a rolling mill. The chief contractual document is a formal and lengthy quotation which the plaintiffs submitted to the defendant setting out details of the machine to be supplied; and on 13 July the Lebanese company accepted that quotation in these words:
‘please consider this letter as an official order based on your quotation of July 5, 1965 and our different telexes to which you have given your agreement.’
At that point there was nothing in the contractual documents to imply an obligation on the plaintiffs to invoice the goods as part of a rolling mill. Counsel for the defendant has referred to the telexes mentioned in that letter, but there was no agreement by the plaintiffs to any telex involving a special form of invoicing. When the plaintiffs received that acceptance of their offer, they sent a formal and detailed confirmation; and it is to be observed that under the terms of their agreement no contract was to be binding on them until that confirmation had been given. In my judgment, that was no more than a confirmation of that which was already agreed, and it would be quite unreal to regard it as a counter-offer containing a new term whereby the goods were to be invoiced as part of a rolling mill.
On the second issue, namely, the failure of consideration, for which the notes were given, my opinion is that these notes were given by the defendant in consideration of the plaintiffs entering into the agreement with the Lebanese company and carrying out that agreement. It is arguable that if counsel for the defendant can sustain his contention that the plaintiffs repudiated the contract in November and that that repudiation was accepted by the Lebanese company, then perhaps it can be shown that liability on bills maturing after the date of the repudiation had itself been determined; but, like Lord Denning MR I can see no possible ground on which it can be said that the consideration for the first bill, which would mature in October 1965, at a time when the plaintiffs were in no way in default, can have been rendered wholly ineffective by virtue of that which followed.
I also would accordingly allow the appeal to the extent that judgment should be entered only in respect of the amount of the first bill and interest thereon.’

Lord Denning MR, Davies, Widgery LJJ
(1969) 113 Sol Jo 160, [1969] 1 WLR 357, [1969] 2 All ER 150
England and Wales
Citing:
CitedScott v Gillmore 6-Jul-1810
A bill of exchange, part of the consideration for which is spirituous liquor sold in less quantities than of 20s. value, is totally void, though part of the consideration was money lent -The statute 24 G. 2, c. 40, s. 12, making illegal the sale of . .
CitedRegazzoni v KC Sethia (1994) Ltd CA 1956
The rule against enforcing foreign political laws did not require it to enforce a contract that violated Indian laws against export to South Africa. The court permitted recognition but not enforcement of foreign revenue laws.
Denning LJ said: . .

Lists of cited by and citing cases may be incomplete.

Contract, Banking

Updated: 23 November 2021; Ref: scu.459793

Simon Carves Ltd v Ensus UK Ltd: TCC 23 Mar 2011

The court heard interim applications. ‘This case relates to an ‘on demand’ performance bond and raises issues, rarely addressed in the past, as to the extent to which, if at all, a party may be prevented from seeking payment under the bond by the terms of the very contract in respect of which the bond is provided by way of security.’

Akenhead J
[2011] EWHC 657 (TCC), [2011] BLR 340, 135 Con LR 96
Bailii
England and Wales

Contract

Updated: 23 November 2021; Ref: scu.431620

State Trading Corporation of India Ltd v M Golodetz Ltd: CA 1989

Kerr LJ said: ‘What is commonly referred to as an acceptance of a repudiation must be communicated to the party in breach or at least overtly evinced. . An unequivocal act which is inconsistent with the subsistence of the contract may be sufficient, without any concurrent manifestation of intent directed to the other party. But saying and doing nothing at all, other than a continuing failure to perform, cannot constitute an acceptance of a repudiation even if the grounds for such an acceptance then exist. Such conduct would be equivocal and equally consistent with a decision not to exercise the right to treat the contract as repudiated.’ and
‘Thus, the correct analysis of a breach of warranty in the insurance contract may be that, upon the true construction of the contract, the consequence of the breach is that the cover ceases to be applicable unless the insurer subsequently affirms the contract, rather than to treat the occurrence of a breach of the contract by the insured which the insurer subsequently accepts as a wrongful repudiation.’

Kerr, LLoyd, Butler Sloss LJJ
[1989] 2 Lloyd’s Rep 277
Cited by:
CitedVitol Sa v Norelf Ltd (‘the Santa Cara’) CA 26-May-1995
The parties agreed to buy and sell molasses to be delivered on the Santa Clara which was set to leave on a certain date. The market was falling, and when the buyer saw that the ship would not be ready in time, it sent a telex saying that this was a . .
Went too farVitol Sa v Norelf Ltd HL 10-Jul-1996
(The Santa Clara) The seller was to deliver propane by a ship set to leave on a certain date. The market was falling. The buyer, when it was clear that the ship would be unable to leave on the day fixed, sent a telex to say that the contract was . .
CitedBank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) HL 1992
The effect of breach of an insurance warranty is automatic, rather than dependant on any acceptance or election.
Lord Goff of Chieveley said: ‘So it is laid down in section 33(3) that, subject to any express provision in the policy, the insurer . .
CitedGold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
CitedGisda Cyf v Barratt SC 13-Oct-2010
The parties disputed the effective date of termination of the claimant’s employment. Was it the date on which the letter notifying her was sent, or was it on the day she received it. She had been dimissed without notice, and the date was the date on . .
CitedLidl UK Gmbh v Hertford Foods Ltd and Another CA 20-Jun-2001
The respondent had contracted to supply tinned corned beef to the appellant, but had become unable to fulfil the orders because of industrial action in Brazil. The appellant had purchased supplies elsewhere and set off the cost of that against the . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 November 2021; Ref: scu.266198

Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck): CA 1990

When a contract is to be construed purposively, the court must look to the purposes of both parties, not just one of them. No apportionment was to be applied under the 1945 Act: ‘Similarly, we think that the facts and circumstances of the present case are such that it can and should be easily distinguished from those in [the Tennant case]. We merely add respectfully our view that the scope and extent of this last mentioned case would have to be a matter of substantial argument if the principle there applied were to arise for consideration in another case.’

May, Ralph Gibson and Bingham LJJ
[1990] 1 QB 818
Law Reform (Contributory Negligence) Act 1945
England and Wales
Citing:
DoubtedTennant Radiant Heat Ltd v Warrington Development Corporation 1988
A property comprised a large building let on fully repairing leases of 22 units. The many rain outlets were allowed to become blocked, and water accumulated above one unit before that part of the roof collapsed. The landlord appealed a finding that . .

Cited by:
CitedSpring House (Freehold) Ltd v Mount Cook Land Ltd CA 12-Dec-2001
A lease provided against the tenant leaving his goods outside the premises, and the landlords objected to motor vehicles being parked there.
Held: The words had to be interpreted in the light of the intentions of the parties at the time. Motor . .
Appeal fromBank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) HL 1992
The effect of breach of an insurance warranty is automatic, rather than dependant on any acceptance or election.
Lord Goff of Chieveley said: ‘So it is laid down in section 33(3) that, subject to any express provision in the policy, the insurer . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 23 November 2021; Ref: scu.184139

Tekem Sea Abyss Ltd v Brandston Ltd; ‘The Ocean Enterprise’: AdCt 9 Jan 1997

ComC Shipping – registration of ships – – no statutory power to expunge the register – inherent – sale of ship to company in which seller held interest – fiduciary duty – breach – voidable contract – classification as ‘goods’ – Sale of Goods Act 1979 – goods – passing of voidable title – good faith – knowledge of company Company – power of director to bind company – agency – actual and ostensible authority Company – goods – passing of voidable title – Sale of Goods Act 1979 section 23 – good faith – knowledge of company

Geoffrey Brice QC
Unreported, 9 January 1997
Sale of Goods Act 1979 23, Merchant Shipping Act 1995 10(2)(I)
England and Wales

Transport, Company, Contract

Updated: 23 November 2021; Ref: scu.186612

Secretary of State for Employment v ASLEF (No 2): CA 1972

Railway employees had been instructed by their unions to ‘work to rule’ and more specifically to ban overtime, Sunday and rest day working. ‘Working to rule’ meant giving an unreasonably literal construction to certain requirements of the railway rule book (such as satisfying oneself that the engine is in order) and ignoring others, such as the rule that one should make every effort to facilitate the working of the trains and prevent avoidable delay. And this course of conduct was pursued with the intention of bringing the system to a halt. The question was whether the conduct of the union amounted to industrial action.
Held: The employees were not obliged to work on Sundays and rest days and refusing to do so, even for the purpose of being obstructive, was not a breach of contract. On the other hand, there was a limited obligation upon individual employees to work 9 hour shifts instead of 8 when rostered to do so and the ban on this overtime was a breach of contract. In addition, the ‘work to rule’ was in breach of a reasonable construction of the rules. So the instructions involved breaches of contract by the employees.
Lord Denning MR said that what made the action a breach of contract was the motive with which it was done: ‘So much for the case when a man is employed singly. It is equally the case when he is employed, as one of many, to work in an undertaking which needs the service of all. If he, with the others, takes steps wilfully to disrupt the undertaking, to produce chaos so that it will not run as it should, then each one who is a party to those steps is guilty of a breach of his contract. It is no answer for any one of them to say ‘I am only obeying the rule book,’ or ‘I am not bound to do more than a 40-hour week.’ That would be all very well if done in good faith without any wilful disruption of services; but what makes it wrong is the object with which it is done. There are many branches of our law when an act which would otherwise be lawful is rendered unlawful by the motive or object with which it is done. So here it is the wilful disruption which is the breach. It means that the work of each man goes for naught. It is made of no effect. I ask: Is a man to be entitled to wages for his work when he, with others, is doing his best to make it useless? Surely not. Wages are to be paid for services rendered, not for producing deliberate chaos.”
As to the words ‘if it appears to the Secretary of State’ used in the statute there in question: ‘If the Minister did not act in good faith or he acts on extraneous considerations which ought not to influence him or if he plainly misdirects himself in fact or in law it may well be that a court would interfere.’
Lord Denning’s analysis was that there was a breach of the implied obligation to act in good faith: ‘Those rules are to be construed reasonably. They must be fitted in sensibly the one with the other. They must be construed according to the usual course of dealing and to the way they have been applied in practice. When the rules are so construed the railway system, as we all know, works efficiently and safely. But if some of those rules are construed unreasonably, as, for instance, the driver takes too long examining his engine or seeing that all is in order, the system may be in danger of being disrupted. It is only when they are construed unreasonably that the railway system grinds to a halt. It is, I should think, clearly a breach of contract first to construe the rules unreasonably, and then to put that unreasonable construction into practice.’
Roskill LJ said: ‘In legal theory, performance or non-performance of a contract does not depend upon goodwill or lack of goodwill; a contractual obligation can be properly performed albeit without goodwill, it can equally be broken notwithstanding honest if unavailing and well intentioned attempts at performance. But I venture to doubt whether the dichotomy between mere withdrawal of goodwill and the non-performance of a contract is in practice as complete as Mr Pain eloquently urged upon us. Purported performance accompanied by lack of goodwill may all too easily cross the borderline between lawful performance without breach and purported performance in breach either of some express or some implied term in the contract.’
Buckley LJ said: ‘With regard to the direction to the men to work strictly in accordance with the rules, the contracts of employment between the board and the railwaymen are entered into as part of the board’s commercial activity. Such contracts have commercial objectives and are based on commercial considerations. Just as, where a contract is entered into the performance of which requires the continued existence of a particular state of affairs, the wilful act of one party in bringing that state of affairs to an end so as to render the performance of the contract impossible constitutes a breach of an implied term of the contract, so, in my judgment, in the case of a contract of a commercial character the wilful act of one party which, although not, maybe, departing from the literal letter of the agreement, nevertheless defeats the commercial intention of the parties in entering into the contract, constitutes a breach of an implied term of the contract to perform the contract in such a way as not to frustrate that commercial objective.
Assuming in the appellants’ favour that the direction to work to rule avoided any specific direction to commit a breach of any express term of the contract, the instruction was, nevertheless, directed, and is acknowledged to have been directed, to rendering it impossible, or contributing to the impossibility, to carry on the board’s commercial activity upon a sound commercial basis, if at all. The object of the instruction was to frustrate the very commercial object for which the contracts of employment were made. It struck at the foundation of the consensual intentions of the parties to those contracts, and amounted, in my judgment, to an instruction to commit what were clearly breaches or abrogations of those contracts. These are or would be, in my judgment, breaches of an implied term to serve the employer faithfully within the requirements of the contract. It does not mean that the employer could require a man to do anything which lay outside his obligations under the contract, such as to work excess hours of work or to work an unsafe system of work or anything of that kind, but it does mean that within the terms of the contract the employee must serve the employer faithfully with a view to promoting those commercial interests for which he is employed.’

Lord Denning MR, Buckley, Roskill LJJ
[1972] ICR 19, [1972] 2 QB 455
England and Wales
Cited by:
CitedDerrick Burgess, Chris Furbert, Sinclair Smith and Orin Simmons v Stevedoring Services Limited PC 15-Jul-2002
PC (Bermuda) An injunction had been granted requiring the trade union to cease industrial action. The action was settled, but the injunction was not released. Later, there were furthe rdisputes, and committal was . .
CitedEastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
CitedLassman and Others v Secretary of State for Trade and Industry CA 19-Apr-2000
The claimants worked for Rotaprint when it went into receivership in 1988, and then for the receiver before being transferred to Pan Graphics. Statutory redundany payments were made on the receivership of Rotaprint. The claimants sought further . .
CitedPhillips v Brown QBD 20-Jun-1980
DONALDSON LJ: Mr. Phillips appeals by case stated against his conviction and a fine of andpound;5 imposed by Mr Loy, the Leeds Stipendiary Magistrates, in September 1978 for failure to comply with a School Attendance Order. It is not the conviction . .

Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 23 November 2021; Ref: scu.187524

Doosan Babcock Ltd and Another v Comercializadora De Equipos Y Materiales Mabe Limitada: TCC 24 Oct 2013

Edwards-Stuart J
[2013] EWHC 3201 (TCC)
Bailii
Citing:
See AlsoDoosan Babcock Ltd v Comercializadora De Equipos Y Materiales Mabe Limitada TCC 11-Oct-2013
Application to suspend demands for payment under on-demand guarantees. . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 25 November 2021; Ref: scu.517359

Arts and Antiques Ltd v Richards and Others: ComC 5 Nov 2013

The court was asked whether the findings of a private arbitration could be relied upon as between other parties in an abuse of process argument.

Hamblen J
[2013] EWHC 3361 (Comm)
Bailii
England and Wales
Citing:
CitedRust v Abbey Life Assurance Co ltd CA 1979
Delay in objection indicated assent to contract
The court was asked whether a binding contract had been concluded between an applicant for an investment in property bonds and the insurance company offering such bonds when, in response to an application form submitted by the applicant, accompanied . .

Cited by:
CitedOMV Petrom Sa v Glencore International Ag ComC 7-Feb-2014
The claimant sought to have struck out as abuse of process parts of the defence, saying that the factual issues raised had already been resolved in arbitration proceedings, but as against a different oarty. The defendant replied that the arbitration . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice, Contract

Updated: 25 November 2021; Ref: scu.517383

Thevarajah v Riordan and Others: ChD 10 Oct 2013

The court allowed the application of the first, second and fourth respondents for relief from sanction under CPR 3.9.

Andrew Sutcliffe QC
[2013] EWHC 3179 (Ch)
Bailii
Civil Procedure Rules 3.9
England and Wales
Citing:
See AlsoThevarajah v Riordan and Others ChD 9-Aug-2013
The court was asked first whether the defendants had complied with an unless order made with respect to the disclosure of information required to be provided in aid and in order to ensure the proper release of a freezing order which had previously . .
CitedTarn Insurance Services Ltd v Kirby and others CA 27-Jan-2009
Claim by company in administration against former directors for excess payments alleged to have been taken by them. There was now alleged a wilful failure to comply wih court orders for disclosure..
Held: Once non-compliance with an unless . .

Cited by:
Appeal fromThevarajah v Riordan and Others CA 16-Jan-2014
Defendants appealed against an order allowing the application of the first, second and fourth respondents for relief from sanction under CPR 3.9. The relief sought had previously been refused by Hildyard J, so this was the respondents’ second . .
See AlsoThevarajah and Another v Riordan and Others ChD 21-Mar-2014
The parties disputed the arrangements for the intended acquisition by the Claimant of three properties, or more accurately of all or part of the shares in their owning companies. Following a failure to comply with ‘unless’ orders fr disclsure of . .
See AlsoThevarajah v Riordan and Others CA 4-Feb-2015
The court was asked whether the judge at first instance had been right to attribute an agreement which he had not made to the defendants.
Held: The defendants were liable to pay 2.205 million pounds. . .
At first Instance (No 2)Thevarajah v Riordan and Others SC 16-Dec-2015
The defendants had failed to comply with an ‘unless’ order requiring disclosure, and had been first debarred from defending the cases as to liability. They applied to a second judge who granted relief from sanctions after new solicitors had complied . .

Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 22 November 2021; Ref: scu.516972

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

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

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

European, Contract, Agency

Updated: 22 November 2021; Ref: scu.516584

Margaret, Agnes, Mary, Marion, and Janet Kennedies, Heirs Portioners of The Deceased Alexander Kennedy, of Glenour, Their Brother, and Their Respective Husbands for Their Interests v Alexander Macdowall, of Garthland: HL 13 Apr 1724

Writ – A bond reduced as vitiated, where after the sum the word ‘Pounds’ was written upon an erazure, and the penalty was in merks, effeiring to a fifth part of the principal if it had been merks, but not if pounds, as it stood on the bond as claimed on. This bond had been allowed, as it then stood, for a compensation in an action, between the father of the persons founding on it, and a third party, upwards of thirty years before, but was not then produced.

[1724] UKHL Robertson – 488, (1724) Robertson 488
Bailii
Scotland

Contract

Updated: 22 November 2021; Ref: scu.553905

Autoweld Systems Ltd v Kito Enterprises Llc: CA 17 Dec 2010

In the civil sphere a claim for security for costs is invariably made in a costs-follow-the-event regime. Black LJ stated: ‘it must be borne in mind that the design of the rules is to protect a defendant (or a claimant placed in a similar position by a counterclaim) who is forced into litigation at the election of someone else against adverse costs consequences of that litigation’

Sedley, Rimer, Black LLJ
[2010] EWCA Civ 1469
Bailii
England and Wales
Cited by:
CitedMG v AR FD 16-Nov-2021
Family Case: Costs Security depends on Case Merits
Application for security for costs in family cases.
Held: In contrast to civil cases generally, in a family case the merits of the application and the strength of the defence necessarily have to be carefully considered. It is only by . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 22 November 2021; Ref: scu.427267