Shropshire County Council (David Walker) v Simon Dudley Limited: Admn 17 Dec 1996

A customer’s description of the goods he required was a trade description for the future supply of those goods by the seller claiming to fulfil that specification. The trading standards officer appealed dismissal of his prosecution of the defendant on four informations alleging an unlawful supply of goods. The defendant had tendered successfully to a specification to supply a fire engine. Modifications of the specification were agreed, but the engine supplied matched neither specification.
Held: The supplier could be taken to have accepted a duty to supply the goods as described, and the representation as to his ability to make the supply continued at the time of supply.

Judges:

Hooper J

Citations:

Times 03-Jan-1997, [1996] EWHC Admin 376

Links:

Bailii

Statutes:

Trade Descriptions Act 1968 1(1)(b) 4(3)

Citing:

CitedCavendish Woodhouse Ltd v Wright 8-Mar-1985
If a salesman in a shop makes representations to say that he could supply goods identical to a sort described, the description becomes attached to the goods delivered for the purposes of the Act, and if it is false, it is a false description. The . .
CitedBeckett v Cohen QBD 1972
. .
CitedBritish Airways Board v Taylor HL 1976
Lord Wilberforce said: ‘My Lords, the distinction in law between a promise as to future action, which may be broken or kept, and a statement as to existing fact, which may be true or false, is clear enough. There may be inherent in a promise an . .
CitedRegina v Ford Motor Company Limited QBD 1974
The alleged false trade description was that a car supplied to a garage was ‘new’, as ordered from Fords.
Held: (Appeal allowed on other grounds) The effect of the order was that Parkway was seeking the supply from Fords of a ‘new vehicle’. . .
CitedLouis C Edwards (Manchester) Limited v Charles Miller CA 1981
A local County Council asked for tenders for meat. It specified the maximum depth of subcutaneous fat of pork. A school cook ordered pork without making any reference to the depth of the fat. A quantity of pork was thereafter delivered. The pork did . .
CitedDenard v Smith and Dixons QBD 1991
A Christmas Dixons were offering, both in their brochures and by a placard in the store, a computer, joystick and four software packages, including Nintendo games, all for andpound;149.95. A Mrs Grover decided to buy this from Dixons, her son being . .
Lists of cited by and citing cases may be incomplete.

Crime, Consumer, Contract

Updated: 25 May 2022; Ref: scu.136924

Jones v Morgan: CA 28 Jun 2001

The claimant appealed against an order refusing him enforcement an agreement for the purchase of a one half share in a property. The judge had found the agreement to be unconscionable.
Held: The appeal was dismissed. The judge had wrongly attributed to the claimant an understanding of the amendments to the standard document for which there had been no evidence given. The doctrine that a mortgagee could not extract, under his charge, any collateral contract to purchase or stipulate for an option to purchase, any part of an interest in the mortgaged property, survived in English law but, that doctrine, against allowing anything to act as a clog on the equity of redemption, no longer serves a useful purpose in English law, and would be better if excised.
As to the former rule against a clog on the equity of a redemption, Chadwick LJ summarised the principles: ‘ (i) there is a rule that a mortgagee cannot as a term of the mortgage enter into a contract to purchase, or stipulate for an option to purchase, any part of or interest in the mortgaged property; (ii) the foundation of the rule is that a contract to purchase, or an option to purchase, any part of or interest in the mortgaged property, is repugnant to or inconsistent with the transaction of mortgage of which it forms part, and so must be rejected; (iii) the reason why the contract or option to purchase is repugnant to or inconsistent with the mortgage transaction is that it cannot stand with the contractual proviso for redemption or with the equitable right to redeem – the proviso for redemption (and, where the contractual date for redemption is past, the equitable right to redeem) requires the mortgagee to reconvey the mortgaged property to the mortgagor in the state in which it had been conveyed to him at the time of the mortgage; and (iv) it is essential, in any case to which the rule is said to apply, to consider whether or not the transaction is, in substance, a transaction of mortgage.’
Lord Phillips MR said: ‘the doctrine of a clog on the equity of redemption is, so it seems to me, an appendix to our law which no longer serves a useful purpose and would be better excised.’

Judges:

Lord Phillips of Worth Matravers MR, Pill LJ, Chadwick LJ

Citations:

Times 24-Jul-2001, [2001] EWCA Civ 995, (2001) 82 P and CR DG20, [2001] NPC 104, [2001] Lloyds Rep Bank 323, [2002] 1 EGLR 125

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedPao On and Others v Lau Yiu Long and Others PC 9-Apr-1979
(Hong Kong) The board was asked whether a contract of guarantee had been obtained by duress.
Held: Lord Scarman said: ‘Duress, whatever form it takes, is a coercion of the will so as to vitiate consent. Their Lordships agree with the . .
CitedUniverse Tankships Inc of Monrovia v International Transport Workers Federation HL 1-Apr-1981
A ship belonging to the appellants had been blacked by the defendant union. Negotiations to clear the threat resulted in payment by the appellants to a welfare fund of the defendant. The company sought its refund saying that it had been paid under . .
CitedG and C Kreglinger v The New Patagonian Meat and Cold Storage Company HL 20-Nov-1913
Mortgagor’s collateral dvantage is not a clog
The appellant woolbrokers had lent the respondent andpound;10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The . .
CitedCredit Lyonnais Bank Nederland Nv v Burch CA 20-Jun-1996
The defendant had charged her property to secure her employer’s debt. When the bank sought repossession, she said that the charge had been affected by the undue influence and that the terms of the charge were so harsh and inconscionable that a court . .
CitedCTN Cash and Carry v Gallaher CA 15-Feb-1993
The buyer paid a sum demanded by the seller who threatened otherwise to withdraw the credit facilities it provided to the buyer. The sum was not in fact due, but the demand had been made honestly. The buyer said the agreement was voidable for . .
CitedAlec Lobb (Garages) Ltd v Total Oil Ltd QBD 1983
To establish that a contract was unconscionable, a party had to have made an unconscientious use of its superior position or superior bargaining power to the detriment of someone suffering from some special disability or disadvantage. This weakness . .
CitedNoakes and Co Ltd v Rice HL 17-Dec-1901
Rule Against Clog on equity of Redemption
A mortgage of a leasehold public house contained a covenant with the mortgagee, a brewery, that the mortgagor and his successors in title would not, during the continuance of the leasehold term and whether or not any money should be owing on the . .
CitedReeve v Lisle and others CA 1902
The parties had entered into a series of agreements for loans, and partnerships. The defendants resisted a request by the plaintiff to be allowed, under the agreement, into partnership on a failure to repay the loan.
Held: The appeal . .
CitedReeve v Lisle and others HL 1902
In 1896 the plaintiffs agreed to lend andpound;5,000 to the defendant to be secured by a ship mortgage (executed later), requiring that if at any time during the period of two years the plaintiffs should elect to enter into partnership with the . .
CitedBradley v Carritt HL 11-May-1903
Shares in a tea company had been mortgaged to secure a loan from a broker on terms that the mortgagor would seek to ensure that the mortgagee should thereafter have sale of the company’s teas. The mortgage contained a covenant that, if the company . .
Lists of cited by and citing cases may be incomplete.

Land, Equity, Contract, Banking

Updated: 25 May 2022; Ref: scu.136162

Courage Limited v Crehan: ChD 25 Nov 1998

Citations:

[1998] EWHC Ch 281

Links:

Bailii

Cited by:

Appeal fromCrehan v Courage Limited and Byrne and Inntrepreneur Beer Supply Co Ltd and Langton v Inntrepreneur Beer Supply Co Ltd CA 27-May-1999
The court considered the validity of beer ties affecting public houses. . .
Appeal fromCourage Ltd v Crehan; The Inntrepreneur Beer Supply Co Ltd v Byrne; Same v Langton; Greenalls Management Ltd v Smith; Walker Cain Ltd v McCaughey CA 14-Jun-1999
There is not to be read into a beer tie term any implied provision that the beer to be supplied under the term was to be supplied at any kind of advantageous price. A tenant seeking damages for failure to supply under such a term was not entitled to . .
See AlsoCourage Ltd and Crehan v Crehan and Courage Ltd and Others ECJ 20-Sep-2001
The company had leased a public house to the respondent. The lease was subject to a tie, under which the respondent had to purchase supplies from the company. The company came to sue for the price of beer supplied. The respondent asserted that the . .
See AlsoCourage Ltd v Crehan CA 12-Nov-2001
. .
See AlsoCrehan v Inntrepreneur Pub Company (Cpc), Brewman Group Limited ChD 26-Jun-2003
The landlord had signed agreements tieing him to sales of beers. After falling into debt, he challnged the prices he had been obliged to pay as contravening the Treaty. The European Court had held that there was a possible claim under the Treaty. . .
See AlsoCrehan v Inntrepreneur Pub Company (CPC) CA 21-May-2004
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .
See AlsoInntrepreneur Pub Company (CPC) and others v Crehan HL 19-Jul-2006
The tenant had taken on pub leases with ties requiring him to buy beer from companies associated with the landlords. The European Commission had issued a decision and the House was asked whether this was binding on the parties.
Held: . .
Lists of cited by and citing cases may be incomplete.

Contract, Commercial, European

Updated: 23 May 2022; Ref: scu.135872

Stent Foundations Ltd v M J Gleeson Group Plc: TCC 9 Aug 2000

The defendant company sought to rely upon an exemption clause.
Held: Applying standard rules for contract interpretation, the exemption clause was to be construed against the one proposing it. At best the clause was ambiguous, and the defendants claim for exemption failed. The clause did not satisfy the first two tests set down in the Canada Steamship case, and the controversial third test could be ignored.

Citations:

[2000] EWHC Technology 66

Links:

Bailii

Statutes:

Unfair Contract Terms Act 1977

Jurisdiction:

England and Wales

Citing:

CitedGillespie Bros and Co Ltd v Roy Bowles Transport Ltd CA 1973
The court looked at how it should construe the Canada Steamship guidelines with regard to an exemption clause absolving one party of responsibility for negligence. There was a express reference to negligence by the words ‘save harmless and keep . . . .
CitedLamport and Holt Lines v Coubro, The Raphael CA 1982
The court considered how it should treat the construction of a contractual clause claiming that one party should be exempt from liability for its own negligence: ‘Thus, if an exemption clause of the kind we are considering excludes liability for . .
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 . .
CitedE E Caledonia Ltd v Orbit Valve Plc CA 30-May-1994
A clause providing for an indemnity against any claim arising from the manner of performance was not to be construed to cover negligence. ‘The printed conditions in the agreement in this case were plainly drafted by a lawyer. Why was an express . .
CitedE E Caledonia Ltd v Orbit Valve Plc QBD 1994
A clause which gave an indemnity against any claim arising from the manner of performance of the contract by one party was not to be construed to exempt negligence: ‘The principle is that in the absence of clear words the parties to a contract are . .
CitedIndustrie Chimiche v Nea Ninemia Shipping 1983
Construction of exemption clause in time charterparty: ‘Since it is inherently improbable that one party to a contract should intend to absolve the other party from the consequences of the latter’s own negligence, the court will presume a clause not . .
CitedSmith v UMB Chrysler (Scotland) Ltd HL 9-Nov-1977
The principles set out in Canada Steamship apply to ‘clauses which purport to exempt one party to a contract from liability’. The principles should be applied without ‘mechanistic construction’.
Lord Keith of Kinkel said: The tests were . .
CitedWalters v Whessoe CA 1968
The court looked at clauses exempting a party from liability for negligence.
Sellers LJ said: ‘It is well established that indemnity will not lie in respect of loss due to a person’s negligence or that of his servants unless adequate or clear . .
LimitedCanada Steamship Lines Ltd v The King PC 21-Jan-1952
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .
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 . .
MentionedLamport and Holt Lines v Coubro and Scrutton (M and I) Ltd, (The Raphael) 1982
. .
Lists of cited by and citing cases may be incomplete.

Contract, Construction, Consumer

Updated: 23 May 2022; Ref: scu.135712

The 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

Citations:

[2001] 1 Lloyd’s Rep 437, [2001] EWCA Civ 56

Links:

Bailii

Jurisdiction:

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’ ComC 2000
. .

Cited by:

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

Transport, Contract

Updated: 23 May 2022; Ref: scu.135610

LHS Holding Ltd v Laporte Plc: CA 21 Jan 2001

Citations:

[2001] EWCA Civ 278, [2001] 2 All ER (Comm) 563

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedThomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 23 May 2022; Ref: scu.135611

Bim Kemi v Blackburn Chemicals Ltd: CA 3 Apr 2001

The question was the degree of connection which must be shown between (1) a claim for unliquidated damages for breach of a contract and (2) a cross-claim for unliquidated damages for breach of a different contract between the same parties, in order to permit the latter claim to be the subject of an equitable set-off against the former claim.
Held: The degree of closeness required for an equitable or transaction set-off was that of an ‘inseparable connection’, but it was not necessary that the cross-claim should arise out of the same contract. All that was required was that it should flow from the dealings and transactions which gave rise to the subject of the claim.
Potter LJ said: ‘Like the Judge, I consider that Mr. Turner’s submissions for Blackburn are correct. In so holding, again like the Judge, I regard it as appropriate to apply the test propounded by Lord Brandon in the Bank of Boston case unconstrained by the former concept, difficult to define and apply, of ‘impeachment of title’, which has since been replaced, or at least redefined, in terms of a cross-claim which ‘flows out of and is inseparably connected with the dealings and transactions giving rise to the subject in the claim’. While the circumstances of every case call for individual consideration, it seems to be that the Dole Fruit case provides a useful parallel with the situation in this case. There, the Court was satisfied there was a sufficiently close connection in the case of a claim for the price of goods sold and delivered pursuant to a contract made under the ‘umbrella’ of a distributorship agreement which had been repudiated.’

Judges:

Potter LJ, Sedley LJ, Jonathan Parker LJ

Citations:

[2001] 2 Ll Rep 93, [2001] EWCA Civ 457, [2001] CLC 1166, [2001] 2 Lloyd’s Rep 93

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See alsoBim Kemi Ab v Blackburn Chemicals Ltd ComC 30-Jan-2002
. .
See alsoBim Kemi Ab v Blackburn Chemicals Ltd CA 13-Feb-2003
. .
See alsoBim Kemi Ab v Blackburn Chemicals Ltd CA 24-Jun-2003
It had been argued by the claimant in written submissions (although not maintained orally) that an order for payment of pre-judgment interest on costs should never be made. As to an award of interest on costs:- ‘In any event in principle there seems . .
See alsoBim Kemi Ab v Blackburn Chemicals Limited ComC 6-Feb-2004
. .
CitedBenford Ltd and Another v Lopecan Sl QBD 30-Jul-2004
The parties disputed the coverage agreed under a distribution agreement.
Held: ‘The counterclaim operated as a defence by way of set off. In order to establish that defence the defendant will have to prove the losses pleaded . . . Until the . .
CitedInveresk Plc v Tullis Russell Papermakers Ltd SC 5-May-2010
The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that . .
See AlsoBim Kemi Ab v Blackburn Chemicals Ltd SCCO 24-Jun-2003
. .
See AlsoBlackburn Chemicals Ltd v Bim Kemi Ab CA 10-Nov-2004
The parties entered into exclusive cross marketing agreements. The defendant resisted enforcement of the contract saying it was void under European law, being contrary to Article 81. The parties were alleged to have agreed to make cross purchases. . .
CitedGeldof Metaalconstructie Nv v Simon Carves Ltd CA 11-Jun-2010
The parties contracted for the supply and installation of pressure vessels by Geldof (G) for a building constructed by Simon Carves (SC). The contract contained a clause denying the remedy of set-off. G sued for the sale price, and SC now sought an . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 23 May 2022; Ref: scu.135513

Scottish and Newcastle Plc v G D Construction (St Albans) Ltd: TCC 29 Mar 2001

The defendant contracted to refurbish premises belonging to the claimant. A fire caused by a sub-contractor caused damage, and the cost was sought from the defendant. He claimed that the standard form contract excluded its liability, including damages for interruption of business. The contract required the employer to take out joint names insurance in respect of such risks, but did that obligation include an obligation to insure against business interruption. Where a party sought to be excused from his own negligence under the contract, he should show some consideration for that excuse. The reference to damage did not include damages for interruption to business, and the defendant was not excused liability.

Judges:

udge Richard Seymour Q.C.

Citations:

[2001] EWHC Technology 444

Links:

Bailii

Citing:

CitedCo-operative Retail Services Ltd v Taylor Young Partnership, Hoare Lea and Partners (a Firm) and Others CA 4-Jul-2000
A building owner entered into a standard form of building contract for the construction of office premises. Under its terms the contractor was required to take out and maintain a policy in the names of the owner, the contractor and specialist . .
Lists of cited by and citing cases may be incomplete.

Construction, Contract

Updated: 23 May 2022; Ref: scu.135520

Stocznia Gdanska S A v Latvian Shipping Co and Others: HL 22 Jan 1998

The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: ‘In both actions the yard should now be allowed to amend its pleadings to set out the basis or bases on which it claims damages, and the buyers will, of course, be free to respond in the normal way. ‘

Judges:

Lord Goff of Chieveley, Lord Lloyd of Berwick, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton

Citations:

Times 27-Feb-1998, Gazette 16-Apr-1998, [1998] UKHL 9, [1998] 1 WLR 574, [1998] 1 All ER 883

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoStocznia Gdanska SA v Latreefers Inc; In re Latrefeers Inc; Stocznia Gdanska SA v Latvian Shipping Co and others (No 2) CA 15-Mar-2000
Possible claims against a foreign company for misfeasance, or wrongful or fraudulent trading might be sufficient to justify proceedings here to wind up a foreign registered company. A second requirement is that some person within this jurisdiction . .
CitedLatreefers Inc and others v Hobson and others ChD 25-Jul-2002
. .
CitedHyundai Heavy Industries Co Ltd v Papadopoulos HL 1980
A shipbuilding contract provided that the second instalment of the contract price should be payable on a day certain. It gave the builders the right to rescind the contract in the event of non-payment. The buyers failed to pay the second instalment, . .
CitedDies v British and International Mining and Finance Corporation Ltd 1939
Deposit forfeit requires Readiness to Complete
A seller’s title to retain a deposit or instalment is conditional upon his completing the contract. Rights of restitution for failure of consideration do not depend on the absence of fault of the plaintiff.
A party who commits a repudiatory . .
CitedModern Engineering (Bristol) Ltd v Gilbert Ash (Northern) Ltd HL 1974
The court considered how to construe a clause in a contract which excluded a remedy provided by law. Lord Diplock said: ‘It is, of course, open to parties to a contract . . to exclude by express agreement a remedy for its breach which would . .
CitedWhite and Carter (Councils) Ltd v McGregor HL 6-Dec-1961
Contractor not bound to accept Renunciation
Mr McGregor contracted with the appellants for them to display advertisements for three years on litter bins. The contract was made on his behalf by an employee, without specific authority. On the day it was made, he sought to cancel the contract. . .
CitedBP Exploration Co (Libya) Ltd v Hunt 1976
The fact that the contract was governed by English law was the predominating factor to be borne in mind when deciding jurisdiction.
The court should be careful before describing as non-disclosure as material not included in an affidavit in . .
CitedBP Exploration Co (Libya) Ltd v Hunt (No 2) 1979
The contract between the parties relating to an oil concession in Libya had been frustrated by the nationalisation of the field.
Held: The court considered the setting of damages where the plaintiff had delayed in notifying the defendant of . .

Cited by:

See AlsoStocznia Gdanska SA v Latreefers Inc; In re Latrefeers Inc; Stocznia Gdanska SA v Latvian Shipping Co and others (No 2) CA 15-Mar-2000
Possible claims against a foreign company for misfeasance, or wrongful or fraudulent trading might be sufficient to justify proceedings here to wind up a foreign registered company. A second requirement is that some person within this jurisdiction . .
CitedPersimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 May 2022; Ref: scu.135189

Sandoz Prodotti Farmaceutici v Commission: ECJ 11 Jan 1990

ECJ 1. The systematic dispatching by a supplier to his customers of invoices bearing the words ‘Export prohibited’ constitutes an agreement prohibited by Article 85(1 ) of the Treaty, and not unilateral conduct, when it forms part of a set of continuous business relations governed by a general agreement drawn up in advance, based on the consent of the supplier to the establishment of business relations with each customer prior to any delivery and the tacit acceptance by the customers of the conduct adopted by the supplier in their regard, which is attested by renewed orders placed without protest on the same conditions.
2. In order to constitute an agreement within the meaning of Article 85 of the Treaty it is sufficient that a provision is the expression of the intention of the parties (see judgment of 29 October 1980 in Joined Cases 209 to 215, and 218/78 Van Landewyck v Commission ((1980)) ECR 3125 ), without its being necessary for it to constitute a valid and binding contract under national law.
3. For the purpose of the application of Article 85(1 ) there is no need to take account of the concrete effects of an agreement when it has as its object the prevention, restriction or distortion of competition within the common market ( see judgment of 13 July 1966 in Joined Cases 56 and 58/64 Consten and Grundig v Commission ((1966)) ECR 299 ). In such a case the absence in the Commission’ s decision of any analysis of the effects of the agreement from the point of view of competition does not constitute a defect capable of justifying a declaration that it is void.
In the same way, the fact that a supplier may not have taken steps to ensure the observance by his customers of a contractual clause intended to restrict competition is not sufficient to remove that clause from the prohibition of Article 85(1 ) of the Treaty ( see judgment of 21 February 1984 in Case 86/82 Hasselblad v Commission (( 1984 )) ECR 883 ).
4. In determining the amount of fines to be imposed pursuant to Article 15(2 ) of Regulation No 17, it is necessary to take account of all matters relevant to an assessment of the seriousness of the infringement, as well as the conduct of the undertaking during the course of the administrative proceeding.

Judges:

C N Kakouris, P

Citations:

C-277/87, [1990] EUECJ C-277/87

Links:

Bailii

Jurisdiction:

European

Contract

Updated: 23 May 2022; Ref: scu.134713

Crawford and Law v Allan Line Steamship Co Ltd: HL 19 Dec 1911

Where a through bill of lading has been signed, inter alios, on behalf of the last carriers, the shipowners, providing that each carrier is only to be liable for damage occurring on his portion of the route, and acknowledging that the goods have been received in good order at the beginning of the transit, and the last carriers have taken no exception to the condition of the goods when handed over to them, they are liable for any damage discovered unless they prove it occurred previously.

Judges:

Lord Chancellor (Loreburn), Earl of Halsbury, Lord Atkinson, Lord Gorell, and Lord Shaw

Citations:

[1911] UKHL 117, 49 SLR 117

Links:

Bailii

Jurisdiction:

Scotland

Contract, Transport

Updated: 23 May 2022; Ref: scu.619221

Brown v Turner Brightman and Co: HL 30 Oct 1911

A time-charter of a ship contained the following exceptions -‘The owners and charterers shall be mutually absolved from liability in carrying out this contract in so far as they may be hindered or prevented by . . strikes.’ The charterers ordered the ship to the port of N. at a time when to their knowledge a strike was there in operation. Owing to the strike the ship could not obtain a cargo at N. Under the charter-party the charterers could have withdrawn the vessel from the area of the strike and traded with it elsewhere. The charterers refused to pay hire for the period of the ship’s stay at N.
Held that the charterers were not protected by the exception, and were bound to pay the hire.

Judges:

Lord Chancellor (Loreburn), Lords Atkinson, Shaw, and Mersey

Citations:

[1911] UKHL 679

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 23 May 2022; Ref: scu.619213

Laird and Son v Bank of Scotland and Others: HL 1 Dec 1911

Circumstances in which their Lordships held, following the judgment of the Lord Ordinary who had taken a proof, that certain logs of timber lying in a store had been sufficiently identified and appropriated as belonging to a transferee so as to transfer the property to him.

Judges:

Lord Chancellor (Loreburn), Lord Alverstone, Lord Atkinson, and Lord Shaw

Citations:

[1911] UKHL 95

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 23 May 2022; Ref: scu.619225

Bruner v Moore: 1904

The seller had granted to the buyer a option in return for the payment of a sum of money. The option contract gave the grantee the right to require the grantor to sell if the grantee exercised the option within the stipulated period. The court considered the application of the rule as to actual acceptance in the postal rule in contract law in an option context.
Held: The parties must have contemplated that the post might be used as a means of communicating the exercise of the option and that therefore the option was exercised when the grantee sent a telegram to that effect addressed to the grantor.
Despite the option not being formally exercised, there was nothing to prevent the parties from coming to a subsequent agreement extending the period of the option.

Judges:

Farwell J

Citations:

[1904] 1 Ch 305

Jurisdiction:

England and Wales

Cited by:

CitedHolwell Securities Ltd v Hughes CA 5-Nov-1973
An option was to be exercised ‘by notice in writing’ before a certain date. The solicitors’ letter doing so was addressed to the defendant at his residence and place of work, the house which was the subject of the option to purchase, was posted by . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 22 May 2022; Ref: scu.276448

Nirah Holdings Ltd v British Agricultural Services Ltd and Another: ComC 11 Sep 2009

The parties entered into an option agreement giving the claimant a right to purchase the defendant’s land. The consideration would be affected by the costs of complying with a section 106 agreement to construct local ancillary services. The parties disputed whether the land owners were obliged to agree to the agreement requested.
Held: The claim succeeded, and the land-owners were obliged to proceed. The defendants had sufficient information to be able to decide their response, and the agreement required them to give the appropriate consent, and the claimants were not required to show which of several access routes would be chosen. The claimants had not wrongfully varied the planning application.

Judges:

Beatson J

Citations:

[2009] EWHC 2282 (Comm)

Links:

Bailii

Statutes:

Town and Country Planning Act 1990 106

Jurisdiction:

England and Wales

Citing:

CitedGrampian Regional Council v City of Aberdeen District Council 1984
The extinguishment of a private right is not a proper matter for a condition attached to a planning permission, even though a negative condition preventing development until a highway has been stopped up is unobjectionable. . .
CitedTesco Stores Ltd v Secretary of State for the Environment and Others HL 11-May-1995
Three companies had applied for permission to build retail food superstores in Witney. The Inspector had recommended Tesco’s proposal, but the respondent rejected it. Tesco’s had offered to provide by way of a section 106 agreement full funding for . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 22 May 2022; Ref: scu.374711

Richard Pool v Council of the European Communities (Rec 1980,P 569) (Gr80-I 0295) (Judgment): ECJ 4 Mar 1980

Europa 1. Non-contractual liability – conditions – illegality – damage – chain of causality (EEC Treaty, art. 215, second paragraph)
2. Agriculture – common organization of the markets – beef and veal – price system – right of producers to precise price levels of community rules – none (regulation no 805/68 of the council)
1. The non-contractual liability of the community under the second paragraph of article 215 of the EEC Treaty depends on the coincidence of a set of conditions as regards the unlawfulness of the acts alleged against the institution, the fact of damage, and the existence of a direct link in the chain of causality between the wrongful act and the damage complained of.
2. The price system which is an integral part of the common organization of the market in beef and veal – established by regulation no 805/68 – does not have the effect of guaranteeing to individual traders that their produce will be disposed of at the precise price level determined by community rules. That level, expressed in units of account, does not therefore constitute a value which could be used as a basis for comparison with the prices obtained by a producer on the market with a view to demonstrating that certain damage has been caused.

Citations:

C-49/79, [1980] EUECJ C-49/79

Links:

Bailii

European, Contract, Agriculture

Updated: 21 May 2022; Ref: scu.132844

Brennan v National Westminster Bank Plc: QBD 27 Nov 2007

The claimant, a customer of the defendant had been charged sums when he went overdrawn beyond his limit. He claimed that the sums were unlawful penalties under the Regulations. The bank said that it had refunded the charges. The claimant sought exemplary and aggravated damages.
Held: The claim should not proceed. The claimant had deliberately sought to prevent the bank repaying the charges, but the bank had repaid the sums deducted with additional sums. There was nothing in the bank’s behaviour to suggest a claim in tort which might found a claim for additional damages.
Pitchford J said: ‘The overriding objective requires the court to deal with a case proportionately, expeditiously and fairly and to allot to it an appropriate share of the court’s resources. It would be disproportionate, in my view, to permit this action to proceed to trial simply for the purpose of placing the bank and the claimant under the spotlight of publicity.’

Judges:

Pitchford J

Citations:

[2007] EWHC 2759 (QB)

Links:

Bailii

Statutes:

Unfair Terms in Consumer Contracts Regulations 1999, Council Directive 93/13

Jurisdiction:

England and Wales

Citing:

CitedHM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
CitedDouglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
CitedGarden Cottage Foods Ltd v Milk Marketing Board HL 1984
In English law a breach of statutory duty, is actionable as such by a private individual to whom loss or damage is caused by a breach of that duty. Lord Diplock said that it was quite unarguable: ‘that if such a contravention of Article 86 gives . .
CitedVerein fur Konsumenteninformation v Karl Heinz Henkel ECJ 1-Oct-2002
Europa Brussels Convention – Article 5(3) – Jurisdiction in matters relating to tort, delict or quasi-delict – Preventive action by associations – Consumer protection organisation seeking an injunction to prevent . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract, Consumer, Damages

Updated: 21 May 2022; Ref: scu.261576

Jani-King (GB) Ltd v Pula Enterprises Ltd and others: QBD 23 Oct 2007

Judges:

Peter Coulson QC J

Citations:

[2007] EWHC 2433 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

ApprovedMartin v David Wilson Homes Ltd CA 28-Jun-2004
The court considered the construction of a restrictive covenant, and was asked whether an indefinite article ‘a private dwellinghouse’ was to be construed as a limitation of number or whether it was to be construed as being as to the manner of use. . .
AdoptedBedfordshire County Council v Fitzpatrick Contractors Ltd TCC 16-Oct-1998
Dyson J refused to imply a term of trust and confidence into a highway maintenance contract, stating: ‘the court should in any event be very slow to imply into a contract a term, especially one which is couched in rather general terms, where the . .

Cited by:

CitedMr H TV Ltd v ITV2 Ltd ComC 8-Oct-2015
The claimant had contracted with the defendant for the production of a series of reality TV shows featuring celebrities. After severe personal clashes between the people involved on the claimants side, the contract was terminated. The claim was that . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 21 May 2022; Ref: scu.261567

Mullins v Mcfarlane and the Jockey Club: QBD 5 May 2006

Whether horse had been wrongly disqualified in a race.

Judges:

Stanley Burnton J

Citations:

[2006] EWHC 986 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoMullins, Regina (on the Application of) v The Jockey Club Admn 17-Oct-2005
The claimant’s horse had been found after a race to have morphine in his system. It was not thought that the claimant was at fault, but the horse was disqualifed. He sought judicial review of the decision.
Held: The decision was a disciplinary . .

Cited by:

CitedStretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 21 May 2022; Ref: scu.241503

In re Southern Livestock Producers Ltd: 1964

In the absence of special agreement the agister has no lien upon the livestock as he merely takes care of them and supplies them with food. Pennycuick J referred to the distinction between improvement and repair. An obligation to take care of pigs was held to be no more than maintaining them and insufficient to found a worker’s lien.

Judges:

Pennycuick J

Citations:

[1964] 1 WLR 24

Jurisdiction:

England and Wales

Cited by:

CitedYour Response Ltd v Datateam Business Media Ltd CA 14-Mar-2014
The claimant employed the defendant to manage subscription lists for the claimant’s magazines. The claimant came to seek damages, and the defendant for non-payment of its invoices. The court was now asked whether it was possible to assert a common . .
Lists of cited by and citing cases may be incomplete.

Contract, Animals

Updated: 20 May 2022; Ref: scu.559376

Howard v Shirlstar Container Transport Ltd: CA 1990

The parties contracted for the recovery from Nigeria of an aircraft owned by the defendants which was being detained by the Nigerian authorities at Lagos. Under the contract, the plaintiff was entitled to recover a fee of andpound;25,000 if he ‘successfully’ removed the aircraft from Nigerian airspace. He succeeded in so doing, in so far as he, at some risk to his life, flew the aircraft out of Lagos as far as the Ivory Coast, where however the aircraft was impounded by the authorities and returned by them to Nigeria. The plaintiffs claim for the balance of his fee was met by the defence of illegality, on the ground that he took off without obtaining the necessary clearance in breach of air traffic control regulations at Lagos; in fact he had left in a hurry, without obtaining clearance, because he had been warned that his and his wireless operator’s lives were in danger and that he would not be given permission to take off.
Held: The defence of illegality failed. The Court relied explicitly on the public conscience test, holding that the conscience of the court would not be affronted by enforcing the plaintiffs claim under the contract for the balance of his fee.
The presumption against surplusage is of little weight in the interpretation of commercial contracts.

Judges:

Staughton LJ

Citations:

[1990] 1 WLR 1292, [1990] 3 All ER 366

Jurisdiction:

England and Wales

Cited by:

CitedHounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 20 May 2022; Ref: scu.553658

Zenziper Grains and Feed Stuffs v Bulk Trading Corporation Ltd: CA 23 Jan 2001

Where a standard form free-on-truck (FOT) delivery contract provided for several possible destinations for delivery, the responsibility for specifying the place of delivery fell on the seller. There was no proper analogy with an FOB contract. The vessel would be chartered by the seller, and delivered to a port agreed between the seller and the ship-owner, and the characteristics of the ship itself could restrict and control the port of delivery. There would be likely to be other goods consigned also, and it would not make commercial sense for the buyer to specify the port of delivery.

Citations:

Times 23-Jan-2001, [2000] EWCA Civ 307

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Commercial, Transport

Updated: 20 May 2022; Ref: scu.90687

Watford Electronics Ltd v Sanderson CFL Ltd: CA 23 Feb 2001

The plaintiff had contracted to purchase software from the respondent. The system failed to perform, and the defendant sought to rely upon its exclusion and limitation of liability clauses.
Held: It is for the party claiming that a contract term satisfies the requirement of reasonableness to show that it does. To decide whether term was fair and reasonable having regard to the circumstances known to parties when the contract was made it is necessary to determine its scope and effect of that term as a matter of construction. The fact that the plaintiff had similar clauses in its own terms did not prevent them challenging the reasonableness of the defendant’s terms, but it did show that it was commercially aware of the nature and purpose of such provisions. The entire agreement clause coloured the intent to be ascribed to the limitation of liability clause, particularly when the parties had had the benefit professional help in negotiations. Because the judge had failed to allow for the effect of the entire agreement clause, his decision to strike down the limit of liability clause was flawed, and a declaration was made accordingly.
Chadwick LJ said that where experienced business men, representing substantial companies of equal bargaining power negotiate an agreement, they may be taken to have had regard to the matters known to them and to be the best judges of the commercial fairness and reasonableness of the agreement which they have reached including the fairness of each of the terms of the agreement.
Chadwick LJ said: ‘Where experienced businessmen representing substantial companies of equal bargaining power negotiate an agreement, they may be taken to have had regard to the matters known to them. They should, in my view be taken to be the best judge of the commercial fairness of the agreement which they have made; including the fairness of each of the terms in that agreement.’ In this case, a term excluding indirect loss, applicable in the circumstances described, was a fair and reasonable one to include in the contract.

Judges:

Lord Justice Peter Gibson, Lord Justice Chadwick And Mr Justice Buckley

Citations:

Gazette 03-May-2001, [2001] EWCA Civ 317, [2001] 1 All ER (Comm) 696, [2001] BLR 143, [2002] FSR 19, (2001) 3 TCLR 14, [2001] Masons CLR 57

Links:

Bailii

Statutes:

Misrepresentation Act 1967, Unfair Contract Terms Act 1977 3

Jurisdiction:

England and Wales

Citing:

CitedGeorge Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd HL 1983
A seedsman sought to rely upon an exclusion clause preventing any claim by a purchaser by way of set off against its sales invoices. The House was asked whether a contractual term was ‘fair and reasonable’ within the meaning of section 55 of the . .
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 . .
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 . .
CitedCullinane v British ‘Rema’ Manufacturing Co Ltd CA 1954
The court considered the possibility of a claim in breach of contract for damages for both capital loss and loss of profit.
Lord Evershed MR said: ‘It seems to me, as a matter of principle, that the full claim of damages in the form in which . .
CitedE A Grimstead and Son Limited v McGarrigan CA 13-Oct-1998
. .
CitedLowe v Lombank Ltd CA 1960
A false statement made about a matter of past fact could not operate either as an estoppel by representation or (where the fact is expressed as an agreement) a contractual estoppel. The court set out three criteria for an evidential estoppel: it . .
CitedThomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .

Cited by:

CitedKingsway Hall Hotel Ltd v Red Sky IT (Hounslow) Ltd TCC 6-May-2010
The claimant said that the software supplied to it was not fit for purpose. The defendant said that the company had relied on its own inspections of what was a standard package, and had not made known its desire to use it in a specific context. The . .
CitedMorgan and Another v Pooley and Another QBD 7-Oct-2010
The claimants had bought a property from the defendants and now sought damages in misrepresentation saying that the defendants had failed to disclose a planning application for an adjacent farm as regards a track bordering the property.
Held: . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 20 May 2022; Ref: scu.90319

Total Gas Marketing Ltd v Arco British Ltd and Others: HL 20 May 1998

A contract to purchase supplies over a long period of time, with a condition precedent that a particular facility would be provided was terminable when the facility had not been provided.

Judges:

Lord Slynn of Hadley, Lord Nolan, Lord Steyn, Lord Hope of Craighead, Lord Hutton

Citations:

Times 08-Jun-1998, [1998] UKHL 22

Links:

House of Lords, Bailii

Contract

Updated: 20 May 2022; Ref: scu.89925

Lambert v Lewis: HL 1981

A farmer was sued when a towing hitch on his Landrover came loose, releasing the trailer which then caused a serious accident. When sued for the damage, the farmer brought proceedings against the garage proprietor who supplied the towing hitch, relying on the warranty. By the time the accident occurred, the farmer had been aware that the locking mechanism on the towing hitch was faulty, but he had continued to use it.
Held: The farmer’s claim against the garage was rejected.
Lord Diplock said: ‘I would accept that in the case of the coupling the warranty was still continuing up to the date, some three to six months before the accident, when it first became known to the farmer that the handle of the locking mechanism was missing. Up to that time the farmer would have had a right to rely upon the dealers warranty as excusing him from making his own examination of the coupling to see if it were safe . . After it had become apparent to the farmer that the locking mechanism of the coupling was broken, and consequently that it was no longer in the same state as when it was delivered, the only implied warranty which could justify his failure to take the precaution either to get it mended or at least to find out whether it was safe to continue to use it in that condition, would be a warranty that the coupling could continue to be safely used to tow a trailer on a public highway notwithstanding that it was in an obviously damaged state. My Lords, any implication of a warranty in these terms needs only to be stated, to be rejected . . In the state in which the farmer knew the coupling to be at the time of the accident, there was no longer any warranty by the dealers of its continued safety in use on which the farmer was entitled to rely.
. . The farmer’s liability arose, not from the defective design of the coupling but from his own negligence in failing, when he knew that the coupling was damaged, to have it repaired or to ascertain if it was still safe to use. The issue of causation, therefore, on which the farmer’s claim against the dealers depended, was whether his negligence resulted directly and naturally, in the ordinary course of events from the dealer’s breach of warranty. Manifestly it did not.’

Judges:

Lord Diplock

Citations:

[1982] AC 225, [1981] 1 All ER 1185, [1981] RTR 346, [1981] 2 Lloyds Rep 17, [1981] 2 WLR 713

Jurisdiction:

England and Wales

Cited by:

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

Damages, Contract

Updated: 20 May 2022; Ref: scu.425893

Vyse v Wakefield: 1840

The declaration stated, that, by indenture, the defendant covenanted that he would, at any time or times thereafter, appear at an office or offices for the insurance of lives within London, or the bills of mortality, and answer such questions as might be asked respecting his age, and, in order to enable the plaintiff to ensure his life, and would riot afterward do or permit to be done any act whereby such insurance should be avoided or prejudiced. It then alleged, that the defendant, in part performance of his covenant, did, at the plaintiff’s request, appear at the office of the Rock Life Insurance Company, and did answer certain questions asked of him ; and that the plaintiff insured the defendant’s life with that Company, by a policy containing a proviso, that if the defendant went beyond the limits of Europe, the policy should be null and void : – Breach, that the defendant went beyond the limits of Europe, to wit, to the province of Canada, in North America :- Held, on special demurrer, that the declaration was bad, for not averririg that the defendant had notice that the policy was effective.
Lord Abinger CB said: ‘The rule to be collected from the cases seems to be this, that where a party stipulates to do a certain thing in a certain specific event which may become known to him, or with which he can make himself acquainted, he is not entitled to any notice, unless he stipulates for it; but when it is to do a thing which lies within the peculiar knowledge of the opposite party, this notice ought to be given.’

Judges:

Lord Abinger CB

Citations:

[1840] EngR 276, (1840) 6 M and W 442, (1840) 151 ER 485

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See AlsoVyse v Wakefield CExC 1840
A writ of error having been brought an the judgment of the Court of Exchequer in this case (6 M. and W 442), it now came on for argument. The Court, however, on reading the record, were unanimously of opinion, that an averment of notice to the . .

Cited by:

CitedEdwards v Kumarasamy SC 13-Jul-2016
The claimant sub-tenant had been injured entering the block of apartments. He said that the freeholder was responsible despite no report of the disrepair having been made. The lease excused the landlord from unnotified liability. The parties . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 20 May 2022; Ref: scu.309702

Vyse v Wakefield: CExC 1840

A writ of error having been brought an the judgment of the Court of Exchequer in this case (6 M. and W 442), it now came on for argument. The Court, however, on reading the record, were unanimously of opinion, that an averment of notice to the defendant that the policy had been affected was necessary to make the declaration good, arid that the judgment must he affirmed.
Judgment affirmed.

Citations:

[1840] EngR 277, (1840) 7 M and W 126, (1840) 151 ER 706 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See AlsoVyse v Wakefield 1840
The declaration stated, that, by indenture, the defendant covenanted that he would, at any time or times thereafter, appear at an office or offices for the insurance of lives within London, or the bills of mortality, and answer such questions as . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 20 May 2022; Ref: scu.309703

Raffety v Schofield: 1897

Duty of vendor of land between exchange and completion to keep property in reasonable state of repair and as it was when contract was made.

Citations:

[1897] 1 Ch 937

Jurisdiction:

England and Wales

Cited by:

CitedEnglewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 May 2022; Ref: scu.223745

Bensaude v Thames and Mersey Marine Insurance Co Ltd: HL 1897

Citations:

[1897] AC 609

Jurisdiction:

England and Wales

Cited by:

CitedLimit (No 3) Ltd and others v PDV Insurance Company CA 11-Apr-2005
There had been substantial oil leaks in Venezuela, which had been insured and then re-insured in London. Permission had been given to serve the defendant out of the jurisdiction, but that permission had been set aside. The claimant now appealed.
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 19 May 2022; Ref: scu.225891

Davis and Jordan v James: 1770

Citations:

(1770) 5 Burr 2680

Jurisdiction:

England and Wales

Cited by:

CitedAlfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 May 2022; Ref: scu.218903

Hector v Lyons: 1988

The appellant contracted to buy a house but used his under-aged son’s name. He sought specific performance when the vendor failed to complete.
Held: Since he was neither the purchaser nor the purchaser’s agent, specific performance was refused. In unilateral mistake case goods are sold by V, to P, believing P to be X. P may fraudulently represent that he is X. In a face to face sale, the fact that V mistakes the identity of X does not render the contract void for mistake. It is a unilateral mistake as to a quality of the purchaser; only in cases where the identity of the purchaser is of direct and important materiality in inducing the vendor to enter into the contract is a mistake of that kind capable of avoiding the contract. Those principles have no application where the contract is wholly in writing. The identity of the parties is established by the names put in the contract. Once there, the court’s only task is to identify who they are. ‘In the present case the deputy judge has found as a fact that the party named in the written contract was Mr. Hector junior. It follows, in my judgment, that in the absence of rectification, which has not been claimed, or Mr. Cogley’s alternative argument based on agency the only person who can enforce that contract is the party to it, namely Mr. Hector junior.’

Judges:

Sir Nicolas Browne-Wilkinson V-C

Citations:

(1988) 58 PandCR 156

Jurisdiction:

England and Wales

Citing:

CitedLewis v Averay CA 22-Jul-1971
A private seller had parted with his car in return for a worthless cheque to a rogue who persuaded him that he was the well-known actor who played Robin Hood on television, and who sold it on to the defendant.
Held: ‘When two parties have come . .
CitedKing’s Norton Metal Co Ltd v Edridge Merrett and Co Ltd CA 1879
A crook ordered some brass rivet wire from a metal manufacturer. On his stationery he represented falsely that he was in business in a big way, running a large factory and having several depots and agencies. The manufacturer supplied the goods but . .

Cited by:

CitedNorman Hudson v Shogun Finance Ltd CA 28-Jun-2001
A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
Held: The dealer had not taken all the steps he might have done to check the identity of the . .
CitedShogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Lists of cited by and citing cases may be incomplete.

Land, Equity, Contract

Updated: 19 May 2022; Ref: scu.188421

Toepfer v Continental Grain Co: CA 1974

Cairns LJ said: ‘When parties enter into a contract on terms that the certificate of some independent person is to be binding as between them, it is important that the Court should not lightly relieve one of them from being bound by a certificate which was honestly obtained and not vitiated by fraud or fundamental mistake on the part of the certifier. When, for instance, as in this case, the certificate called for by the contract is one relating to the quality of the goods sold, the business purpose is to avoid disputes about quality, and that purpose is defeated unless it is made difficult for a party to go behind a valid certificate.’

Judges:

Lord Justice Cairns

Citations:

[1974] 1 Lloyds Reports 11

Jurisdiction:

England and Wales

Cited by:

CitedVeba Oil Supply and Trading Gmbh v Petrotrade Inc CA 6-Dec-2001
A dispute between parties to a contract was to be determined by an independent expert. It was claimed that his report was not binding on the parties, since he had departed from his instructions in a material way. In this context, what constituted a . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 May 2022; Ref: scu.183018

Jewson Ltd v Kelly: QBD 2 Aug 2002

The claimant sought payment for some boilers. The defendant argued that they were not of a satisfactory quality. The boilers were bought to be installed in new dwellings, but could not be shown to meet the standards advertised.
Held: The goods having been sold in the course of a business, there was a term as to satisfactory quality. That was to be judged according to the standards of a reasonable person viewing the goods in the hands of an individual buyer with the individual’s characteristics and with the background of his particular needs. In this case the goods failed to meet that standard.

Judges:

David Foskett QC

Citations:

Times 03-Oct-2002

Statutes:

Sale of Goods Act 1979 14(2), Sale and Supply of Goods Act 1994 1(1)

Jurisdiction:

England and Wales

Cited by:

Appeal fromJewson Limited v Boyhan as Personal Representative of the Estate of Thomas Michael Kelly CA 28-Jul-2003
The company appealed a finding that it was in breach of the 1979 Act. The deceased had bought boilers from the appellant. They were said not to be satisfactory, in that they were not as energy efficient as they had been described to be.
Held: . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 May 2022; Ref: scu.177315

O Palomo Sa v Turner and Co; Turner and Co v O Palomo Sa: CA 28 Jul 1999

A solicitor’s bill could only be taxed within one year of its delivery, but the common law right to challenge a bill on the grounds that the amount charged was unreasonable could continue after that time limit. The common law right to object to paying more than was reasonable was not displaced by the Act, and could allow a court to tax a bill outside the one year limit.
Evans LJ said: ‘the position apart from the Act is broadly as follows. If the solicitor wishes to be paid and is not in funds he will need to sue and prove that his charges were either expressly agreed or are reasonable charges. If he is in funds and purports to deduct the amount of his bill but the client challenges the deduction, the solicitor will still need to prove that the charges were either expressly agreed or were reasonable charges. The question is whether the client loses these rights to challenge the amount of the bill after the period for taxation has passed . . a client who is sued by his solicitor for the amount of his charges is entitled to challenge the reasonableness of the sum claimed, notwithstanding that the period during which he may apply for an order for taxation under what is now s. 70 of the 1974 Act has expired. .
Nor do we consider that the solicitor is disadvantaged by the possibility that the client is entitled to have the reasonableness of the charges assessed by the court after the statutory periods for taxation have expired. He can himself claim an order for taxation under s. 70(2), without any time limit, and obtain a form of summary judgment when the taxation certificate is issued . .
We do not see any difficulty in holding that the solicitor’s claim is for a reasonable sum, whether by statute or at common law, and not for a liquidated sum. Again in accordance with general principles, the burden of proving that the sum is reasonable rests upon him. This is supported, if authority is needed, by the judgments in Re Park [Re Park, Cole v. Park (1889) 41 Ch D 326] and Jones and Son v. Whitehouse [[1918] 2 KB 61] . . ‘

Judges:

Evans LJ

Citations:

Times 30-Aug-1999, Gazette 08-Sep-1999, [1999] EWCA Civ 2007, [2000] 1 WLR 37

Links:

Bailii

Statutes:

Solicitors Act 1974 70

Jurisdiction:

England and Wales

Citing:

ApprovedThomas Watts and Co (a Firm) v Smith CA 16-Mar-1998
The court considered the status of an untaxed solicitor’s bill of costs against a client for whom he had acted in defamation proceedings. Sir Richard Scott V-C said: ‘It is a fact that [the client] never entered into any contract to pay the sums as . .

Cited by:

CitedTruex v Toll ChD 6-Mar-2009
The bankrupt appealed against an order in bankruptcy made against her on application by her former solicitors in respect of their unpaid costs. The bankrupt said that since the bill was yet untaxed, it might be altered and could not base a statutory . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 19 May 2022; Ref: scu.84402

Mohammed v Alaga and Co (A Firm): CA 2 Nov 1998

(Application for Leave) An agreement between solicitors and non-solicitors for the payment of a fee for introductions was illegal and unenforceable. Where however the non-solicitor provided services as part of the arrangement, a claim against the solicitors for a quantum meruit rather than in restitution would stand.

Judges:

Lord Justice Simon Brown, Lord Justice Mantell

Citations:

Times 29-Jul-1999, [1998] EWCA Civ 1654

Statutes:

Solicitors Practice Rules 1990

Jurisdiction:

England and Wales

Citing:

Appeal fromMohammed v Alaga and Co (A Firm) ChD 2-Apr-1998
A party to an agreement to share in solicitors’ fees contrary to professional rules was unable to enforce it in any way. . .

Cited by:

Leave to AppealMohammed v Alaga and Co (A Firm) CA 30-Jun-1999
A party appealed against a finding that an agreement as to fee sharing with a solicitors’ firm, being in breach of the Solicitors Practice Rules, was unenforceable and void.
Held: The appeal failed as to illegality, but succeeded on a quantum . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 19 May 2022; Ref: scu.83793

Modahl v British Athletics Federation: HL 23 Jul 1999

An athlete’s governing body was not in breach of contract to a member athlete by suspending her in accordance with its rules after a positive drug test. It was accepted that the faults in the registration of the drug testing centre with another governing body were not known to the defendants, and would not directly affect the suspension under this contract.

Judges:

Lord Chancellor Lord Nicholls of Birjkenhead Lord Hoffmann Lord Clyde Lord Millett

Citations:

Times 23-Jul-1999, [1999] UKHL 37

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromModahl v British Athletic Federation Limited CA 28-Jul-1997
Lord Woolf MR said: ‘The question of whether a complaint about the conduct of a disciplinary committee gives rise to a remedy in public law or private law or is often difficult to determine. However the complaint in both cases would be based on an . .
Lists of cited by and citing cases may be incomplete.

Contract, Administrative

Updated: 19 May 2022; Ref: scu.83781

Hichens v General Guarantee Corporation Ltd: CA 20 Feb 2001

The customer signed a hire-purchase contract and obtained confirmation of the leasing company’s agreement by telephone. She took delivery of the car, and sold it on immediately, and before the contract was signed by the finance company six days later. It was held that the company had completed the contract in the telephone call, and the signing was by way of confirmation. This was so particularly where the contract did not provide that it could only be created on the signing.

Judges:

Peter Gibson, Mummery, Rix LJJ

Citations:

Times 13-Mar-2001, [2001] EWCA Civ 359

Links:

Bailii

Statutes:

Hire Purchase Act 1964 24

Jurisdiction:

England and Wales

Consumer, Contract

Updated: 19 May 2022; Ref: scu.81398

HM Attorney-General v Associated Newspapers Ltd and Others: HL 4 Feb 1994

Following the acquittal of a prominent politician on a charge of conspiracy to murder, the New Statesman magazine published an article, based on an interview with one of the jurors, which gave an account of significant parts of the jury’s deliberations. It was submitted on behalf of the publisher, the editor and the journalist that the subsection was intended to apply to direct contact by or with the jury, and that three types of conduct only were prohibited: obtaining information from a member of the jury, disclosing the information as a member of the jury and soliciting information from a member of the jury. The issue was whether it also prohibited publication of the information in a newspaper. The argument that the word ‘disclose’ had a narrower and more restricted meaning than that was rejected.
Held: The appeal failed. The restriction on disclosure of information about the deliberations of a jury applies to and includes information innocently received, and its publication is an offence. The House sought to identify the mischief which the Act was designed to remedy, drawing attention to the Report of the Departmental Committee on Jury Service ‘we agree with those of our witnesses who argued that if such disclosures were to be made, particularly to the Press, jurors would no longer feel free to express their opinions frankly when the verdict was under discussion, for fear that what they said later might be made public.’

Lord Widgery LCJ: ‘The evidence before us shows that for a number of years the publication of jury room secrets has occurred on numerous occasions. To many of those disclosures no exception could be taken because from a study of them it would not be possible to identify the persons concerned in the trials. In these cases, jury secrets were revealed in the main for the laudable purpose of informing would-be jurors what to expect when summoned for jury service. Thus, it is not possible to contend that every case of post-trial activity of the kind with which we are concerned must necessarily amount to a contempt.
Looking at this case as a whole, we have come to the conclusion that the article in the ‘New Statesman’ does not justify the title of contempt of court. That does not mean that we would not wish to see restrictions on the publication of such an article because we would. But our duty is to say what the law is today and to see whether today the activity in question is a contempt of court. We are unable to say that it is and we would therefore refuse the application.’
Lord Lowry discussed the 1981 Act: ‘the mischief which was thought to need a remedy is seen to have included publication of the forbidden particulars as well as their disclosure by individual jurors, which confirms the plain and ordinary meaning of ‘disclosure’ as the correct meaning in section 8.’

Judges:

Lord Lowry, Lord Widgery LCJ

Citations:

Gazette 02-Mar-1994, Independent 09-Feb-1994, Times 04-Feb-1994, [1994] 2 AC 238, [1994] UKHL 1, [1994] 1 All ER 556, [1994] COD 275, [1994] 2 WLR 277, (1994) 99 Cr App R 131

Links:

Bailii

Statutes:

Contempt of Court Act 1981 8

Citing:

Appeal fromHM Attorney General v Associated Newspapers Ltd and Others QBD 9-Dec-1992
A newspaper was held to have been in contempt of court for publishing details of the deliberations of a jury, even though it had not solicited the information. Beldam LJ said of the word ‘disclosure’: ‘It is a word wide enough to encompass the . .

Cited by:

Appealed toHM Attorney General v Associated Newspapers Ltd and Others QBD 9-Dec-1992
A newspaper was held to have been in contempt of court for publishing details of the deliberations of a jury, even though it had not solicited the information. Beldam LJ said of the word ‘disclosure’: ‘It is a word wide enough to encompass the . .
CitedRegina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
CitedAttorney General v Scotcher HL 19-May-2005
Following a trial, a juror wrote to the defendant’s mother to say that other jury members had not considered the case in a proper manner. He had been given written advice that he was not free to discuss a case with anyone. He appealed his conviction . .
CitedHM Attorney General v Seckerson and Times Newspapers Ltd Admn 13-May-2009
The first defendant had been foreman of a jury in a criminal trial. He was accused of disclosing details of the jury’s votes and their considerations with concerns about the expert witnesses to the second defendant. The parties disputed the extent . .
Appeal fromAssociated Newspapers Ltd v United Kingdom ECHR 30-Nov-1994
The newspaper said that a finding against it of contempt of court for publishing material derived from a jury’s deliberations infringed its rights of free speech.
Held: The complaint was declared inadmissible. ‘The Commission agrees with the . .
CitedSeckerson and Times Newspapers Ltd v The United Kingdom ECHR 24-Jan-2012
The first applicant had been chairman of a jury and had expressed his concerns about their behaviour to the second applicant who published them. They were prosecuted under the 1981 Act. They had said that no details of the deliberations had been . .
Lists of cited by and citing cases may be incomplete.

Contract, Media, Contempt of Court

Updated: 19 May 2022; Ref: scu.81404

Depositors Protection Board v Dalia and Another: ChD 18 Nov 1992

Equitable assignees of deposits in a bank where those deposits were protected under the scheme, were entitled to the compensation which would have been paid to the beneficial owners.

Citations:

Gazette 18-Nov-1992

Statutes:

Banking Act 1987 59(1)(a)

Cited by:

Appeal fromDepositors’ Protection Board v Dalia and Another CA 11-May-1993
The Board was liable to pay compensation claims from equitable assignees of depositors with a failed bank. They were not to be excluded from making claims. . .
At First InstanceDepositors’ Protection Board v Dalia HL 20-May-1994
The House was asked as to the meaning of the word ‘depositor’. Regulations were prayed in aid which were made four years after the date of the enactment.
Held: The protection given by the Depositor Protection Scheme does not extend to . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking, Financial Services

Updated: 19 May 2022; Ref: scu.79917

Crantrave Ltd (In Liquidation) v Lloyd’s Bank Plc: CA 18 May 2000

The bank received a garnishee order nisi, but acted before it was made absolute to pay the judgment creditor.
Held: The bank had no defence against the customer claiming restitution relying on the equitable doctrine that one person paying the debts of another without authority was allowed the benefit of the payment. To establish that, the bank would have to show that the act had been subsequently ratified, or that it had been made on his behalf. The mere absence of loss to the customer is insufficient.
‘ in the absence of authorisation or ratification by the company of the bank’s payment to the third party, the ‘mere fact’ that the bank’s payment enured to the benefit of the company does not establish an equity in favour of the bank against the company.’

Citations:

Times 24-Apr-2000, Gazette 18-May-2000, [2000] EWCA Civ 127, [2000] QB 917, [2000] 4 All ER 473, [2000] 3 WLR 877

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

LimitedCB Liggett (Liverpool) Limited v Barclays Bank Limited 1928
The defendant bank had paid cheques drawn on the plaintiff’s account in breach of a mandate requiring two signatories. The plaintiff brought an action for money had and received.
Held: The action failed. The bank was entitled to the benefit of . .

Cited by:

See AlsoCrantrave Ltd (In Liquidation) v Lloyd’s Bank Plc CA 2002
A payment made by a person without compulsion, intending to discharge another’s debt, will not discharge that debt unless he acted with that other’s authority or if that other subsequently ratifies the payment. . .
CitedEarles v Barclays Bank plc Merc 8-Oct-2009
earles_barclaysQBD2009
The claimant had lost his claim against the bank, but resisted the amount of costs claimed.
Held: The trial had been of a simple factual dispute, and the bank had failed adequately to disclose electronically held material in its possession. . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking, Equity

Updated: 19 May 2022; Ref: scu.79598

Courage Ltd v Crehan; The Inntrepreneur Beer Supply Co Ltd v Byrne; Same v Langton; Greenalls Management Ltd v Smith; Walker Cain Ltd v McCaughey: CA 14 Jun 1999

There is not to be read into a beer tie term any implied provision that the beer to be supplied under the term was to be supplied at any kind of advantageous price. A tenant seeking damages for failure to supply under such a term was not entitled to set of his claim against rent due. The claim for damages on the basis that the tie contravened the Treaty was referred to the European Court.

Citations:

Gazette 27-Jun-1999, Times 14-Jun-1999, [1999] EWCA Civ 1500, [2001] 3 WLR 1646, [1999] EuLR 834

Links:

Bailii

Statutes:

EC Treaty Art 81

Jurisdiction:

England and Wales

Citing:

See AlsoCrehan v Courage Limited and Byrne and Inntrepreneur Beer Supply Co Ltd and Langton v Inntrepreneur Beer Supply Co Ltd CA 27-May-1999
The court considered the validity of beer ties affecting public houses. . .
Appeal fromCourage Limited v Crehan ChD 25-Nov-1998
. .

Cited by:

Appeal fromCourage Ltd and Crehan v Crehan and Courage Ltd and Others ECJ 20-Sep-2001
The company had leased a public house to the respondent. The lease was subject to a tie, under which the respondent had to purchase supplies from the company. The company came to sue for the price of beer supplied. The respondent asserted that the . .
See AlsoCrehan v Inntrepreneur Pub Company (CPC) CA 21-May-2004
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .
See AlsoInntrepreneur Pub Company (CPC) and others v Crehan HL 19-Jul-2006
The tenant had taken on pub leases with ties requiring him to buy beer from companies associated with the landlords. The European Commission had issued a decision and the House was asked whether this was binding on the parties.
Held: . .
See AlsoCourage Ltd v Crehan CA 12-Nov-2001
. .
See AlsoCrehan v Inntrepreneur Pub Company (Cpc), Brewman Group Limited ChD 26-Jun-2003
The landlord had signed agreements tieing him to sales of beers. After falling into debt, he challnged the prices he had been obliged to pay as contravening the Treaty. The European Court had held that there was a possible claim under the Treaty. . .
Lists of cited by and citing cases may be incomplete.

Commercial, Contract, European

Updated: 19 May 2022; Ref: scu.79562

British Gas Trading Ltd v Eastern Electricity and Others: QBD 29 Nov 1996

It was not unreasonable to refuse an assignment of a contract where there was a new purpose.

Citations:

Times 29-Nov-1996

Citing:

Appealed toBritish Gas Trading Limited v Eastern Electricity Plc and others CA 18-Dec-1996
. .

Cited by:

Appeal fromBritish Gas Trading Limited v Eastern Electricity Plc and others CA 18-Dec-1996
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.78628

Boyter v Thomson: HL 15 Jun 1995

The parties bought and sold a boat. It proved defective. The pursuer sought to rely on the 1979 Act to imply a covenant for fitness. The defender denied that the pursuer thought it a business purchase.
Held: A purchaser can rely on implied covenants against a vendor in business despite the vendor’s non-disclosure. A private seller is liable as if in business when goods were sold through a professional agent.

Judges:

Lord Jauncey of Tullichettle, Lord Lloyd of Berwick, Lord Nolan, Lord Nicholls of Birkenhead and Lord Hoffman

Citations:

Gazette 06-Sep-1995, Times 16-Jun-1995, [1995] UKHL 20, [1995] 3 WLR 36, [1995] 2 AC 628, [1995] 3 All ER 135, 1995 SC (HL) 15, 1995 SLT 875, 1995 SCLR 1009

Links:

Bailii

Statutes:

Sale of Goods Act 1979 14(2) 14(3) 14(5)

Jurisdiction:

Scotland

Contract, Consumer

Updated: 18 May 2022; Ref: scu.78532

Bank of Scotland v Dunedin Property Investment Co Ltd: OHCS 16 May 1997

The cost of an interest rate swap brokerage agreement was not covered by an indemnity against ‘all costs charges and expenses incurred’.

Citations:

Times 16-May-1997, 1998 SC 657

Citing:

Appealed toBank of Scotland v Dunedin Property Investment Co Ltd IHCS 24-Sep-1998
Issue of loan stock supported by charge for ‘all costs charges and expenses incurred’ this included the breakage cost of the bank in setting up interest-rate swap arrangements to protect itself against swings in costs. . .

Cited by:

Appeal fromBank of Scotland v Dunedin Property Investment Co Ltd IHCS 24-Sep-1998
Issue of loan stock supported by charge for ‘all costs charges and expenses incurred’ this included the breakage cost of the bank in setting up interest-rate swap arrangements to protect itself against swings in costs. . .
See AlsoThe Governor and Company of the Bank of Scotland v Dunedin Property Investment Company Ltd OHCS 8-Jun-1999
. .
Lists of cited by and citing cases may be incomplete.

Financial Services, Contract, Scotland

Updated: 18 May 2022; Ref: scu.78161

Bank of Scotland v Dunedin Property Investment Co Ltd: IHCS 24 Sep 1998

Issue of loan stock supported by charge for ‘all costs charges and expenses incurred’ this included the breakage cost of the bank in setting up interest-rate swap arrangements to protect itself against swings in costs.

Judges:

Lord President (Rodger

Citations:

Times 24-Sep-1998, 1998 SC 658

Citing:

Appeal fromBank of Scotland v Dunedin Property Investment Co Ltd OHCS 16-May-1997
The cost of an interest rate swap brokerage agreement was not covered by an indemnity against ‘all costs charges and expenses incurred’. . .

Cited by:

Appealed toBank of Scotland v Dunedin Property Investment Co Ltd OHCS 16-May-1997
The cost of an interest rate swap brokerage agreement was not covered by an indemnity against ‘all costs charges and expenses incurred’. . .
CitedAMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
See AlsoThe Governor and Company of the Bank of Scotland v Dunedin Property Investment Company Ltd OHCS 8-Jun-1999
. .
CitedProfile Software Ltd v Becogent Ltd OHCS 16-Feb-2005
The pursuers claimed for breach of copyright and of a software licence. The defendants disputed the title or right of the pursuers to claim.
Held: The assignation of the rights in the software carried with it the rights to enforce intellectual . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract, Scotland

Updated: 18 May 2022; Ref: scu.78162

77M Ltd v Ordnance Survey Ltd: PatC 14 Dec 2018

The defendant applied for partial summary judgment as to the interpretation of its contract with the claimant. OS argued that the contract provided for a one off supply. The claimant argued for a continuing obligation.
Held: The terms clearly envisaged the possibility of a continuing service. Other terms envisaged a one off supply. The contract was badly drafted. In view of the conflicting provisions, summary judgment was inappropriate and was refused.

Judges:

Arnold J

Citations:

[2018] EWHC 3524 (Pat)

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property, Contract

Updated: 18 May 2022; Ref: scu.634536

Hamlyn and Co v Talisker Distillery and Others: HL 10 May 1894

When two parties, living under different systems of law, enter into a personal contract, which of these systems must be applied to its construction depends upon their mutual intention, either expressed or implied.
By contract executed in London, an English firm agreed to buy from distillers in Skye all grains made by them at a specified price, and to erect a grain-drying machine at the distillery. The distillers agreed to maintain the machine and to bag up their grains in the sacks of the English firm, and deliver them free at a port in Skye. The contract further provided-‘Should any dispute arise out of this contract, the same to be settled by arbitration by two members of the London Corn Exchange or their umpire in the usual way.’
Held (rev. the decision of the First Division) that the language of the reference clause indicated that the parties intended it to be interpreted and governed by English law, and being valid by that law the Scottish Court must give effect to it.

Citations:

[1894] UKHL 642

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 18 May 2022; Ref: scu.634086

And So To Bed Ltd v Dixon: 2001

The defendants, Mr and Mrs Dixon, were franchisees of an ‘And So To Bed’ shop. The franchise was terminated by the claimant, purportedly under a clause of the franchise agreement which entitled the claimant summarily to terminate the agreement for breach unless rectified within 14 days of notification or for failure to pay franchise licence fees, amongst other grounds. The claimant sued for loss of bargain damages consequent upon its termination, alleging that the agreement had been repudiated by the defendants.
Held: That part of the claim succeeded.
(a) one of the three breaches of contract cited in the termination letter was by nature repudiatory and (b) loss of bargain damages were therefore recoverable although termination was expressed to be under the express contractual term. At [35], Mr Donaldson QC stated, obiter, that on the Boston Deep Sea Fishing principle there was no reason why a termination letter should not be treated as an ‘acceptance’ of a repudiatory breach other than any such breach as was inherent in the factual basis on which the contractual power was stated to be exercised.

Judges:

Donaldson QC

Citations:

[2001] FSR 47

Jurisdiction:

England and Wales

Cited by:

CitedPhones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.621647

Yeoman Credit Ltd v Waragowski: CA 1961

The defendant had paid the initial deposit for and took delivery on hire-purchase terms of a van, but made no monthly hire-purchase instalments. The plaintiff terminated, took possession of the van and sued for hire-purchase arrears and damages. Loss of bargain damages were awarded,
Held: The appeal failed. There was not a mere failure of an obligation to pay money but a wholesale failure by the defendant to perform his contract. Plainly, the plaintiff had terminated for breach and clause 7 of the hire-purchase contract, as to remedies, obliged the defendant inter alia to pay damages for breach where the plaintiff terminated the hiring.

Citations:

[1961] 1 WLR 1124

Jurisdiction:

England and Wales

Cited by:

CitedPhones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.621646

Clough Mill Ltd v Martin: 1984

Citations:

[1984] 1 WLR 1067, (1984) 128 SJ 564, [1984] 1 All ER 721, (1984) LS Gaz 2375

Jurisdiction:

England and Wales

Cited by:

Appeal fromClough Mill Ltd v Martin CA 1984
The plaintiff had supplied yarn to a company H on terms that the goods were to remain its property until paid for in full, although H was granted the power to sell the goods or use them for the purpose of manufacturing products. The terms also . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.617859

Borden (UK) Ltd v Scottish Timber Products Ltd: CA 1979

The plaintiff sold a quantity of resin to the defendant for use in the manufacture of chipboard. The contract contained a reservation of title clause, but both parties contemplated that the resin would be used in the process of production before it had been paid for, as indeed occurred. All those involved in that case treated the contract as one for the sale of goods and therefore as governed by the Sale of Goods Act.
Held: Bridge LJ described the contract as ‘essentially one of sale and purchase, subject only to the reservation of title clause, whatever its effect may have been.’ However, he rejected the sellers’ argument that the contract was simply one of bailment. The only question for decision was whether the supplier had obtained title to the chipboard into which the resin had been incorporated. The court held that it had not.
The resin ceased to exist when it was incorporated into the new product and property in it ceased to exist at the same time, because it is not possible to own something that does not exist

Citations:

[1981] 1 Ch 25, [1979] 3 WLR 672, (1979) 123 SJ 688, [1979] 3 All ER 961, [1980] 1 Lloyds Rep 160

Statutes:

Sale of Goods Act 1979 2

Jurisdiction:

England and Wales

Cited by:

CitedPST Energy 7 Shipping Llc Product Shipping and Trading SA v OW Bunker Malta Ltd and Others CA 22-Oct-2015
The oil owners had contracted for its transport with OWBM aboard Res Cogitans under standard terms which would allow the captain to use the oil for navigation before transfer of the title in the oil. The court was now asked whether the agreement . .
CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.617853

Muller, Maclean and Co v Leslie and Anderson: 1921

Citations:

(1921) 8 Lloyd’s List Law Rep 328

Jurisdiction:

England and Wales

Cited by:

CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.618131

Armour v Thyssen Edelstahlwerke AG: HL 1990

The defendant supplied steel to a manufacturing company under a contract which contained a retention of title clause. The contract was governed by German law. The plaintiffs, who had been appointed as receivers, brought proceedings against the supplier seeking a declaration that property in the steel had passed to the company, despite the fact that payment had not been made. The suppliers argued that the retention of title clause, which was valid under German law, was effective to prevent title passing, either because the steel in question had been in Germany when the contract had been entered into so that German law was the lex situs, or because the passing of title was governed by German law as the proper law of the contract. The receivers agreed that the passing of property was governed by the lex situs, but argued that, once the goods reached Scotland, Scots law governed the question and that the retention of title clause was ineffective under Scots law. They also argued that cutting the steel into strips in preparation for use in manufacture had created a new species of goods, title to which vested in the company.

The House considered a retention of title clause in the context of whether a stock of steel was held as a security.
Held: Clauses which provide that title to goods supplied does not pass to a buyer until monies on all account have been paid are effective to retain title. The decision was made despite the fact that such clauses do in a sense give the sell security for unpaid debts.
Lord Jauncey said: ‘a right in security is a right over property given by a debtor to a creditor whereby the latter in the event of the debtor’s failure, acquires priority over the property against the general body of creditors of the debtor . . which right must be retransferred to him upon payment of the debt.’

Judges:

Lord Jauncey

Citations:

[1991] 2 AC 339, [1990] 3 WLR 810, [1990] 3 All ER 481, [1990] SLT 891

Jurisdiction:

Scotland

Citing:

At OHCSArmour v Thyssen Edelstahlwerke AG OHCS 1986
. .
At IHCSArmour v Thyssen Edelstahlwerke AG 1989
. .

Cited by:

CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.617939

Minister for Supply and Development v Servicemen’s Co-operative Joinery Manufacturers Ltd: 26 Apr 1951

High Court of Australia – Sale of Goods – Passing of property – Specific goods in deliverable condition – Purchaser in possession of goods as bailee – Contract of sale requiring ‘net cash before delivery’ – Seller’s right of action for price though property has not passed – Sale of Goods Act 1895-1943 (No. 630 of 1895 – No. 36 of 1943) (S.A.), ss. 17,* 18,* 28, 49.
The Court rejected a submission that until property had passed to a buyer the seller could not sue for the purchase money and only had a remedy for damages for breach of contract. The Court noted that the parties to a sale of goods contract can make any contract they please with respect to the payment of the purchase price of the goods. If the parties provide that the price is to be paid before property passes the seller can sue for the price as soon as it becomes payable because the payment of the price is a condition precedent of the passing of property in the goods to the purchaser.

Citations:

(1951) 82 CLR 621, [1951] HCA 15

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.618136

Stein Forbes and Co v County Tailoring Co: 1916

Atkin J said: ‘I doubt whether goods are appropriated unconditionally if the seller does not mean the buyer to have them unless he pays for them.’ The overriding question is whether the intention of the parties appears in the course of the making and fulfilment of the contract.

Judges:

Atkin J

Citations:

(1916) 115 LT 215, (1917) 86 LJKB 448

Jurisdiction:

England and Wales

Cited by:

CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.618130

Plaimar Ltd v Waters Trading Co Ltd: 23 Nov 1945

(High Court of Australia) it was wrong for judgment to be given for the price because ‘[t]he contract did not provide for payment for the goods on a day certain.’

Judges:

Rich, Dixon and McTiernan JJ

Citations:

(1945) 72 CLR 304, [1945] HCA 34

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.618132

Armour v Thyssen Edelstahlwerke AG: 1989

Citations:

1989 SLT 182

Jurisdiction:

Scotland

Citing:

Appeal from OHCSArmour v Thyssen Edelstahlwerke AG OHCS 1986
. .

Cited by:

At IHCSArmour v Thyssen Edelstahlwerke AG HL 1990
The defendant supplied steel to a manufacturing company under a contract which contained a retention of title clause. The contract was governed by German law. The plaintiffs, who had been appointed as receivers, brought proceedings against the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.617940

Harry and Garry Ltd v Jariwalla: CA 1988

English buyers, Harry and Garry, had under contracts of sale received a quantity of sarees which they found defective and in respect of which they had not yet accepted the relevant bills of exchange, by reference to which, it appeared, the Indian sellers, the Jariwallas, had however already succeeded in raising some monies in India. Harry and Garry agreed to accept the bills, so acquiring property in the sarees, while the Jariwallas agreed either to arrange the cancellation of the bills or to take back and pay for the sarees. Under this agreement, 2,494 sarees were then selected as sarees which the Jariwallas would, as they did, take back physically, and it was agreed that the Jariwallas would pay pounds 46,763.45 for such sarees, with property being retained by Harry and Garry until this full amount was paid. Through a Mr Shah, the Jariwallas sold some 411 of these sarees, evidently with the consent of Harry and Garry despite the reservation of title. Harry and Garry sued for the full pounds 46,763.45 agreed to be paid.
In the court below, Judge Harris had seen the contract as being one of sale, and on that basis held that, since the circumstances did not fall within section 49(2), a claim for the price was precluded.
Held: Harry and Garry’s appeal was allowed. Kerr LJ noted that section 49(1) was in terms inapplicable, because of the reservation of title, but the judge’s approach: ”It would be ironical if that were the correct analysis. One would be driven to the conclusion that although these goods had been delivered and had been accepted, the only remedy open to the plaintiffs, if indeed they were sellers of these goods, would apparently have been a claim for damages for non-acceptance under section 50, there being no other provision of the Act which would have given the plaintiffs any remedy. With all due respect to the judge, no doubt influenced as he was by the complexity of this case and the arguments which were addressed to him, I cannot agree with that analysis for two reasons. First, in my view this was not a contract for the sale of goods within the terms of the 1979 Act. It was not, to quote section 2(1) of the Act, ‘a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price’. Like many other contracts in complex situations, this was a sui generis transaction. In effect, what the Jariwallas agreed was that if the bills of exchange were accepted, which was their great concern, they would either have them cancelled or they would take the goods back and pay for them.

When it then came to the specific agreement about the 2,494 selected sarees, I think the nature of the agreement was that in consideration of the plaintiffs’ allowing them to take that consignment away and seeking to dispose of it as agents for the plaintiffs, who remained the owners of it, they agreed again either to perform the first part of the option, to have the bills of exchange cancelled at any rate to the extent of the value of those selected goods, or to pay the sum of pounds 46,763.45p. That was the nature of the agreement. Taking it on its own or taking it, as I think one should, as part of the agreement made on 23 December, I do not think it was a contract for the sale of goods to which the Act applied.’

Judges:

Kerr LJ

Citations:

[1988] WL 1608652

Jurisdiction:

England and Wales

Cited by:

CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.618129

Chaigley Farms Ltd v Crawford, Kaye and Grayshire Ltd: 1996

The Court was asked as to the title to livestock delivered by the plaintiff farmers to an abattoir under a contract containing a retention of title clause and title to the carcasses following slaughter. One question which arose was whether the slaughter of the animals and dressing of the carcasses extinguished the plaintiffs’ title because it created a new commodity.
Held: Garland J. considered that there was an essential difference between a live animal and a dead one, particularly one from which all the parts which were not to be sold on as butchers’ meat had been removed.

Judges:

Garland J

Citations:

[1996] BCC 957

Jurisdiction:

England and Wales

Cited by:

CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.617942

Woolf v Collis Removal Service: CA 1947

Claims in tort with a nexus to the contract can be within phrases such as ‘in connection with’ in the context of arbitration clauses

Judges:

Ackner LJ

Citations:

[1948] 1 KB 11, [1947] 2 All ER 260

Cited by:

CitedAspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.567849

Foo Jong Peng and others v Phua Kiah Mai and another: 8 Oct 2012

Supreme Court of Singapore – Court of Appeal) The court refused to follow the reasoning in Belize at least in so far as ‘it suggest[ed] that the traditional ‘business efficacy’ and ‘officious bystander’ tests are not central to the implication of terms’

Citations:

[2012] SGCA 55

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

RephrasedAttorney General of Belize and others v Belize Telecom Ltd and Another PC 18-Mar-2009
(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was . .

Cited by:

CitedMarks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.616752

Varley v Whipp: QBD 1900

The defendant agreed to buy from the plaintiff a self binder reaping machine, which the defendant had not seen, but which the plaintiff told him had been new the previous year and was represented to have only been used to cut 50 or 60 acres. On delivery the machine was rejected by the defendant, who complained that it was very old and had been mended. He returned the machine and the plaintiff sued to recover the price.
Held: There had been a contract for the sale of goods by description and, there having been no acceptance of the machine by the defendant, that the property had not passed to him, so that the plaintiff could not recover the price.
Specific or ascertained goods may be ‘bought by description’ within the meaning of this provision; it is not limited to unascertained goods.
Channell J said: ‘The term ‘sale of goods by description’ must apply to all cases where the purchaser has not seen the goods, but is relying on the description alone. It applies in a case like the present, where the buyer has never seen the article sold, but has bought by the description. In that case, by the Sale of Goods Act, 1893, s.13, there is an implied condition that the goods shall correspond with the description, which is a different thing from a warranty. The most usual application of that section no doubt is to the case of unascertained goods, but I think it must also be applied to cases such as this where there is no identification otherwise than by description.’

Judges:

Channell, Bucknill JJ

Citations:

[1900] 1 QB 513

Statutes:

Sale of Goods Act 1893 13

Jurisdiction:

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: 18 May 2022; Ref: scu.561150

Potters v Loppert: ChD 1973

The court was asked as to the liability of an estate agent to account for interest earned upon a pre-contract deposit paid to him expressly as a stakeholder. No contract was made.
Held: A stakeholder is not a trustee or agent; he is a principal who owes contractual obligations to the depositors. A pre-contract deposit paid by a prospective purchaser was received subject to an obligation to repay the money on request unless and until a contract was concluded. Material considerations included that until the event was known the recipient was to keep the money in his own hands, but if the recipient employed the money he was entitled to any profit and answerable for any loss.
Sir John Pennycuick V-C said: ‘I propose, in the first place, to consider the law in relation to contract deposits. Looking at the position apart from authority, one might perhaps at first sight rather expect that where any property is placed in medio in the hands of a third party to await an event as between two other parties the third party receives that property as trustee, and that the property and the investments for the time being representing it represent the trust estate. Where the property is something other than money – for example, an investment – that must, in the nature of things, almost certainly be the position. But where the property is money – that is, cash or a cheque resulting in a bank credit – this is by no means necessarily so. Certainly the money may be paid to the third party as trustee, but equally it may be paid to him as principal upon a contractual or quasi-contractual obligation to pay the like sum to one or other of the parties according to the event. It must depend upon the intention of the parties, to be derived from all the circumstances, including any written documents, in which capacity the third party receives the money.’

Judges:

Sir John Pennycuick V-C

Citations:

[1973] Ch 399, [1973] 1 All ER 658

Cited by:

CitedRockeagle Ltd v Alsop Wilkinson CA 1991
The position of a stakeholder and the two potential claimants to a stake is the subject of a tripartite contract. The relationship between the stakeholder and the two potential claimants is contractual, not fiduciary. The money is not trust money. . .
CitedManzanilla Limited v Corton Property and Investments Limited; John MacIver (Southport) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 13-Nov-1996
Millett LJ set out the principles applicable to a deposit paid on a land transaction being held by a stakeholder: ”Where a stakeholder is involved, there are normally two separate contracts to be considered. There is first the bilateral contract . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 18 May 2022; Ref: scu.550154

Stour Valley Builders (a Firm) v Stuart and Another: CA 21 Dec 1992

The plaintiff builders had invoiced and pursued a revised account of andpound;10,163 after the defendants had disputed a number of items. The defendants ultimately offered a cheque in the sum of andpound;8,471 in full and final settlement of all charges, which the plaintiff cashed upon receipt and which cleared after five days. The plaintiff then pursued the balance, calling the defendants to inform them of their intentions two days after the cheque had cleared.
Held: Retaining the cheque was not conclusive of acceptance and it was a question of fact as to what terms the cheque was kept on. Although both the cashing of the cheque and a delay before rejection of the offer was evidence of acceptance they were not conclusive. The matter was one of fact.
In this case, the delay before rejection was brief and it was concluded that the plaintiff had not caused the defendants to think that the money was taken in satisfaction of the claim.
Lloyd LJ said: ‘As with any other bilateral contract what matters is not what the creditor himself intends but what by his words and conduct he has led the other party as a reasonable person . . to believe’ and ‘Cashing the cheque is always strong evidence of acceptance, especially if not accompanied by immediate rejection of the offer. Retention of the cheque without rejection is also strong evidence of acceptance depending on the length of the delay. But neither of these factors are conclusive, and it would, I think, be artificial to draw a hard and fast line between the cases where the payment is accompanied by immediate rejection of the offer and cases where objection comes within a day or within a few days.’

Judges:

Lloyd LJ

Citations:

Times 22-Feb-1993, (1994) 2 Lloyds Reports 13, Independent 09-Feb-1993, [2003] TCLR 8

Jurisdiction:

England and Wales

Citing:

CitedHirachand Punamchand v Temple CA 1911
The defendant, a British army officer in India, had given a promissory note to the plaintiff moneylenders. Unable to pay, he suggested they apply to his father, Sir Richard Temple. In reply, Sir Richard Temple’s solicitors wrote saying they were . .
CitedDay v McLea CA 1889
The fact alone that a person receives and accepts a cheque offered in full and final settlement of the person’s claim for a higher sum does not create an accord and satisfaction. There is only an accord if there is an agreement whereby the person . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.521152

Chantrey Martin v Martin: CA 1953

The professional working papers of a firm of accountants were held not to be the property of the client, but letters and other papers created by accountants as agent for client were the client’s property: ‘Working accounts and other papers which were brought into existence by chartered accountants in the preparation of a final audit of a client”s books are the property of the accountants and not of the client’

Citations:

[1953] 2 QB 286

Cited by:

CitedFairstar Heavy Transport Nv v Adkins and Another CA 19-Jul-2013
The court was asked whether the appellant company was entitled to an order requiring its former Chief Executive Officer, after the termination of his appointment, to give it access to the content of emails relating to its business affairs, and . .
CitedPepper (UK) Ltd (T/A Engage Credit) v Fox (P/A Barry Fox, Solicitors) ChNI 14-Jan-2016
Application by Pepper (UK) Ltd t/a Engage Credit against Emma Jane Fox practising as Barry Fox, Solicitors for the delivery up of all papers, documents and title deeds in the possession and custody of the Solicitors and belonging to the plaintiff . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.515261

Gamer’s Motor Centre (Newcastle) Proprietary Limited v Natwest Wholesale Australia Proprietary Limited: 24 Jul 1987

Austlii (High Court of Australia) Sale of Goods – Sale by buyer obtaining possession with sellers consent – Delivery under sale, pledge or other disposition to third party receiving goods or documents of title in good faith – Delivery – Whether physical delivery required – Sale of Goods Act 1923 (NSW), ss. 5(1) ‘delivery’,28 – Factors (Mercantile Agents) Act 1923 (N.S.W.), s. 5(1).

Judges:

Mason CJ

Citations:

(1987) 163 CLR 236, [1987] HCA 30

Links:

Austlii

Cited by:

AppliedForsythe International (UK) Limited v Silver Shipping Co Limited and Others 1993
Delivery under section 24 requires a voluntary act by the person in possession because by section 61(1) of the 1979 Act, unless the context or subject matter otherwise requires, `delivery’ means `voluntary transfer from one person to another’. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract

Updated: 18 May 2022; Ref: scu.470091

Financings Ltd v Baldock: CA 1963

The hirer took delivery of a vehicle under an HP contract. he plaintiff exercised a contractual right to terminate the hiring and take possession of the vehicle when the defendant failed to pay the first two monthly instalments.
Held: Where an owner determines a hire purchase agreement in exercise of a right so to do given him by the agreement, in the absence of repudiation he can recover damages for any breaches up to the date of termination but not thereafter, and a ‘minimum payment’ clause which purports to oblige the hirer to pay larger sums than this is unenforceable as a penalty.
Lord Denning MR said: ‘Undoubtedly the cases in the past give rise to some conflict, and therefore I will try to state the matter on principle. It seems to me that when an agreement of hiring is terminated by virtue of a power contained in it, and the owner retakes the vehicle, he can recover damages for any breach up to the date of termination but not for any breach thereafter, for the simple reason that there are no breaches thereafter’. And ‘Seeing that they can no longer rely with any confidence on the ‘minimum payment’ clause, the owners have reverted recently to a claim for damages under the general law. But they can only do so, it seems to me, subject to the general principle which I have already stated, namely, that when they terminate the hiring and retake the vehicle, they can only get damages for any breaches up to the date of termination but not thereafter’.
Diplock L.J said: ‘In the present contract clause 8 itself merely defines a number of events, the occurrence of any one of which gives the owners an option to bring the contract to an end. Clause 11 purports to confer upon the owners other rights upon exercising their option to bring the contract to an end, but this clause is void as a penalty clause, at any rate in so far as it purports to confer rights upon the owners in the events which in fact gave rise to their right to bring the contract to an end, namely the hirer’s breach of contract in failing to pay two instalments of hire. The owners are, therefore, in my opinion, forced to rely upon their ordinary remedies for those breaches of contract which had accrued at the date when the contract was determined, viz., April 7, 1960.
I have already expressed my opinion that on that date the only causes of action which had accrued to the owners were for the two instalments due on February 25 and March 22, I960, then in arrear. There had on April 7, 1960, been no repudiation by the hirer of his contract and no fresh breach by him which went to the root of the contract so as to evince his intention no longer to be bound by it. The owners’ remedy is accordingly limited to recovery of the two instalments, together with interest thereon at the agreed rate of 10 per cent per annum from the dates they respectively fell due’.

Judges:

Lord denning MR, Diplock LJ

Citations:

[1963] 2 QBD 104, [1963] 1 All ER 443, [1963] 2 WLR 359

Jurisdiction:

England and Wales

Cited by:

DistinguishedLombard North Central v Butterworth CA 31-Jul-1986
The defendant entered into a hire-purchase contract for a computer, time being stipulated to be ‘of the essence’ in relation to the payment obligations. He defendant defaulted, and the plaintiff took possession of the goods, and and sought payment . .
CitedPhones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .
CitedPhones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .
Lists of cited by and citing cases may be incomplete.

Contract, Consumer

Updated: 18 May 2022; Ref: scu.458601

Kingscroft Insurance Company Limited, Walbrook Insurance Company Limited etc v The Nissan Fire and Marine Insurance Company Limited (No 2): 1999

An expert witness: ‘can, and indeed should inform the court of any aspects of the commercial background which have a bearing on the construction of the contract and explain their relevance’.

Citations:

[1999] Lloyds Insurance and Reinsurance Law Reports 603

Cited by:

CitedCrema v Cenkos Securities Plc CA 16-Dec-2010
C sought payment of broker fees after assisting in raising funds for a venture capital company. The parties disputed the terms as to when payment was to be made.
Held: The appeal was allowed. The evidence did not allow the inference of the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 18 May 2022; Ref: scu.430073

Slade’s Case: 1598

The parties had ageed for the sale of wheat and rye crops. Slade complained as to the breach, seeking to bring an action in assumpsit. The defendant denied the existence of a contract.
Held: A jury returned a special verdict, finding Defendant paid Plaintiff for the wheat and the rye and that there was no other promises made between Plaintiff and Defendant other than the bargain in question. The issue was presented to the Justices and Barons to resolve differences between the courts regarding the issue. Where the parties has agreed for a thing, provided one had carried his duties, the other could be compelled by an action in assumpsit without formal requirements for actions on the contract

Citations:

[1598] EngR 39, (1598) 4 Co Rep 92, (1598) 76 ER 1074, [1598] EngR 40, (1598) 4 Co Rep 91, (1598) 76 ER 1072

Links:

Commonlii, Commonlii

Contract, Litigation Practice

Updated: 18 May 2022; Ref: scu.427556

Forsythe International (UK) Limited v Silver Shipping Co Limited and Others: 1993

Delivery under section 24 requires a voluntary act by the person in possession because by section 61(1) of the 1979 Act, unless the context or subject matter otherwise requires, `delivery’ means `voluntary transfer from one person to another’.

Judges:

Clarke J

Citations:

[1994] 1 WLR 1334, [1993] 2 Lloyds Rep 268, [1994] 1 All ER 851

Statutes:

Sale of Goods Act 1979 24 61(1)

Jurisdiction:

England and Wales

Citing:

AppliedGamer’s Motor Centre (Newcastle) Proprietary Limited v Natwest Wholesale Australia Proprietary Limited 24-Jul-1987
Austlii (High Court of Australia) Sale of Goods – Sale by buyer obtaining possession with sellers consent – Delivery under sale, pledge or other disposition to third party receiving goods or documents of title in . .

Cited by:

CitedAngara Maritime Ltd v Oceanconnect UK Ltd and Another QBD 29-Mar-2010
The court was asked as to the application of Section 25(1) of the Sale of Goods Act 1979 when an unpaid supplier of bunkers to a time charterer claims against the owner of the vessel.
Held: The issue was whether as a matter of fact there was a . .
CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.421767

Lee and others v GEC Plessey Telecommunications: 1993

The court was asked whether consideration had been given for a change in the employees’ terms and conditions.
Held: Where improvements in employee contracts are announced by an employer in the context of pay negotiations, the employees’ continuing to work was consideration for the change.
Connell J said: ‘the plaintiffs assert that where an improvement in the employees’ terms and conditions is announced by the employer, the employee gives consideration by continuing to work on the basis of the improved terms and without seeking a larger or more significant improvement. Otherwise, say the plaintiffs, the result would be ludicrous because any employer who announced a pay increase in the context of a pay claim which is then paid by the employer and accepted by the employee could thereafter withdraw the pay increase at will and without being liable to a damages claim for the difference on the basis that there was no consideration for the increased payment.
The consideration is, they say: (a) the employee continuing to work; and (b) not continuing with his pay claim, so that the employer avoids industrial action and benefits from the continued services of a known employee . .
The situation is similar with an increase in the severance payments made to those who lose their employment due to redundancy, for a redundancy payment is part of the remuneration package. The employee continues to work for the employer, thereby abandoning any argument that the increase should have been even greater and removing a potential area of dispute between employer and employee. The employer has both secured a benefit and avoided a detriment (see Williams v Roffey Bros and Nicholls (Contractors) Ltd [1991] 1 QB 1).
The case of Price v Rhondda Urban Council [1923] 2 Ch 372 is plainly distinguishable from the instant case, since in Price there was no negotiation between the employer and the employee as to whether married women should be employed or not, so that there was no extra value to the employer in women teachers continuing in their employment.
Further, in the instant case, if in each individual contract of employment there were incorporated the provisions of relevant collective agreements agreed from time to time, as well as general instructions and notices, the contention that each improvement in the employees’ terms requires fresh consideration fails to give proper recognition to the value to be attributed by the employer to the continuation of the same workforce in his employ and/or to the possibility of making adjustments from time to time to the detail of the contracts of employment without having to issue new contracts whenever adjustments are put into effect.’

Judges:

Connell J

Citations:

[1993] IRLR 383

Jurisdiction:

England and Wales

Cited by:

CitedParties Named In Schedule A v Dresdner Kleinwort Ltd and Another QBD 28-May-2010
The defendant merchant banks resisted two group claims for annual bonuses for 2008 made by the employee claimants. They now sought summary judgment against the claims. The employer had declared a guaranteed minimum bonus pool available to make the . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 18 May 2022; Ref: scu.416728

In re Standard Manufacturing Co: CA 1891

Company debentures were expressly excepted from the operation of the Bills of Sales Act (1878) Amendment Act 1882 by section 17 of that Act because they were debentures ‘issued by any mortgage, loan, or other incorporated company’. Nor were debentures bills of sale to which the Act of 1878 applied and company debentures themselves were not within the 1878 Act. The avowed design of the legislature had been to strike at frauds perpetrated upon creditors by secret bills of sale as the preamble to the Bills of Sale Act 1854 made plain: ‘Whereas frauds are frequently committed upon creditors by secret bills of sale of personal chattels, whereby persons are enabled to keep up the appearance of being in good circumstances and possessed of property, and the grantees or holders of such bills of sale have the power of taking possession of the property of such persons, to the exclusion of the rest of their creditors.’
The 1862 Act provided for the registration by companies of the mortgages and charges specifically affecting their property and accordingly company debentures could hardly be described as ‘secret documents’.
The court concluded: ‘mortgages or charges of any incorporated company for the registration of which a statutory provision had already been made by the Companies Clauses Act 1845 or the Companies Act 1862 are not bills of sale within the Bills of Sale Act 1878.’

Citations:

[1891] 1 Ch 627

Statutes:

Bills of Sales Act (1878) Amendment Act 1882, Bills of Sales Act 1878, Bills of Sale Act 1854, Companies Act 1862, Companies Clauses Act 1845

Citing:

AppliedRead v Joannon 1890
The court considered the application of the 1878 Act.
Held: Where there are a series of Acts dealing with a topic and with similar names, the words ‘this Act’ in expressions such as ‘in this Act’ or ‘under this Act’ must be construed to mean . .

Cited by:

CitedClark v Balm, Hill and Co 1908
A company registered in Guernsey issued debentures creating floating charges over real and personal property in England. The court was asked whether the debentures ought to be deemed to be within the Bills of Sales Acts and so ought to have been . .
CitedOnline Catering Ltd v Acton and Another CA 10-Feb-2010
The claimant agreed for the defendant to repair its fleet of vehicles. The defendant, having fees outstanding, entered the claimants’ premises and removed vehicles saying falsely that they were to be repaired, and then refused to return them. The . .
DistinguishedGreat Northern Railway Co v Cole Co-Operative Society 1896
A business created under the Industrial and Provident Societies Acts is not a company in any standard legal sense. Vaughan Williams J distinguished Standard Manufacturing on the basis that the Court of Appeal was not excluding companies generally . .
CitedN V Slavenburg’s Bank v Intercontinental Natural Resources Ltd ChD 1980
The Bermudan company defendant had assigned stocks as a security. The security was not registered, and nor did the company have any registration within the UK. It was not the practice of the Registrar of Companies to accept particulars of charges . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 18 May 2022; Ref: scu.414890

Pigot’s Case: 1614

A written contact may be avoided if somebody makes a material alteration to it after it has been signed and without his consent.

Citations:

[1614] 11 Co Rep 266, [1572] EngR 180, (1572-1616) 11 Co Rep 26, (1572) 77 ER 1177

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedRaiffeisen Zentralbank Osterreich A G v Crossseas Shipping Ltd and Others ComC 19-Mar-1999
ComC The rule in Pigot’s case. Whether alteration to a guarantee by the insertion of the name and address of a service agent was material so as to render the guarantee unenforceable. . .
CitedRaiffeisen Zentralbank Osterreich A G v Crossseas Shipping Ltd and Others CA 2000
The claimant creditor bank made changes to the guarantee executed by the guarantee without its approval and after it had been signed and duly executed, by inserting the details of a service agent.
Held: The insertion did not work to alter the . .
CitedPickenham Romford Ltd v Deville ChD 31-Jul-2013
The claimant company’s administrators sought an order to have vacated unilateral notices entered against land titles registered to the claimant. The court now gave its reasons for making the order as requested by way of summary relief. The notices . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.415074

Fallon v Horseracing Regulatory Authority: QBD 2006

The jockey claimant challenged a decision of the defendant’s predecessor as the body responsible for regulating horse racing.
Held: Davis J said: ‘it is well established that a decision of a body such as the HRA cannot be challenged by judicial review proceedings. But it is equally well established that the High Court retains a supervisory jurisdiction over such decisions, and the approach to be adopted is essentially that which the Administrative Court would adopt in public law cases.’

Judges:

Davis J

Citations:

[2006] EWHC 2030 (QB)

Jurisdiction:

England and Wales

Contract, Administrative

Updated: 18 May 2022; Ref: scu.402642

British Commonwealth Holdings plc v Quadrex Holdings Inc: 1989

In considering the reasonableness of a time set in a notice to complete for construction works, the time it would actually take to complete the work is not the only consideration.

Citations:

[1989] 1 QB 842

Jurisdiction:

England and Wales

Cited by:

CitedNorth Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 18 May 2022; Ref: scu.403476

– And Clatch: 1685

Debt on obligation of 600l. The defendant pleads that condition was to pay a less sum by a day, and that before the day he paied in satisfaction, which per Curiam is an ill plea, having not demanded oyer of the condition.
The plaintiff replied, demanding oyer that the condition was to pay a less sum by a day, and the defendant demurs without shewing that the money was paied at the day, which per Curiam is ill; and judgment must be against the plaintiff. Sed adjornatur.

Citations:

[1685] EngR 81, (1685) 3 Keb 708, (1685) 84 ER 965 (D)

Links:

Commonlii

Litigation Practice, Contract

Updated: 18 May 2022; Ref: scu.396856

Theobald Butler v Sir Thomas Prendergast And Others: PC 13 May 1720

A. agreed with B. for the purchase of timber, and together with C. entered
into a bond, that A. his executors and administrators, should not cut any
timber under a particular size; but, A.’s name was only made use of in this
agreement for C. C. cuts down timber under the size stipulated; but as
there could be no remedy against C. upon the bond, it was held to be a
fraud upon B. the selleir, and therefore relievable in equity.

Citations:

[1720] EngR 49, (1720) 4 Bro PC 174, (1720) 2 ER 119

Links:

Commonlii

Jurisdiction:

Commonwealth

Equity, Contract

Updated: 18 May 2022; Ref: scu.390475

Beaumont v Weldon: 1726

In an assumpsit the plaintiff declared upon several promises, three whereof were for finding of lodging for so many mouths for the wife of the plaintiff at his request, and the last promise was an indebitat. for goods and wares sold to the defendant himself.

Citations:

[1726] EngR 248, (1726) 2 Vent 155, (1726) 86 ER 364 (C)

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 18 May 2022; Ref: scu.378828

Carswell v Collard: HL 1893

Lord Herschell discussed the test for whether a contract had been renounced, and said: ‘Of course the question was not what actually influenced [the innocent party], but what effect the conduct of the [other party] would be reasonably calculated to have upon a reasonable person.’

Judges:

Lord Herschell

Citations:

(1893) 20 R (HL) 47

Jurisdiction:

England and Wales

Cited by:

CitedSK Shipping (S) Pte Ltd v Petroexport Ltd ComC 24-Nov-2009
The parties disputed the termination of a charterparty for anticipatory repudiatory breach.
Held: To the extent that the dispute relied on disputes of fact, the court preferred the evidence of the claimant. The defendant had displayed an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.381490

Edwards v Carter: HL 1893

If an infant choses to repudiate a disposition, he must do so within a reasonable time after coming of age.

Citations:

[1893] AC 361

Jurisdiction:

England and Wales

Cited by:

CitedFisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .
Lists of cited by and citing cases may be incomplete.

Children, Contract

Updated: 18 May 2022; Ref: scu.373857

Prendergast and Another v Devey And Others: 6 Dec 1821

This was a bill by sureties to restrain an action against them upon a surety bond, and to have the bond delivered up, upon the ground that the creditors had given time to the principal debtors without the sureties’ consent. Upon the cause coming on in Hilary term last, it was suggested that the merits would be tried at law, upon a demurrer to the plea of the Defendants there (the Plaintiffs in equity), who had, amongst other pleas in bar, pleaded the instrument alleged to be a discharge of their liability, and the cause stood over.
The demurrer at law being allowed, and the plea overruled by the Court of KB, the cause was now put again in the paper.
The facts appearing in the pleading and by further statement agreed upon between the parties at the request of the Court, were these:-
In September 1818 the Plaintiffs, as sureties for two persons of the name of Prendergast, coal merchants, became bound to the Defendants, who supplied the Prendergasts with coals wholesale, in a penalty, conditioned to be void if the Plaintiffs should, within one month after demand on them, pay such balance or sum of money, not exceeding 2500, as should become due to the Defendants upon settlement of accounts between them and the Preridergasts.

Citations:

[1821] EngR 646, (1821) 6 Madd 124, (1821) 56 ER 1039 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 18 May 2022; Ref: scu.330232

Avon Insurance v Swire Fraser Ltd: 2000

The claimant sought damages, alleging misrepresentation.
Held: Damages under section 2(1) of the 1967 Act are assessed on the fraud measure. The court drew a distinction between a factor which is observed or considered by a plaintiff, or even supports or encourages his decision, and a factor which is sufficiently important to be called a real and substantial part of what induced him to enter into a transaction. The latter can establish a causative link between a negligent misstatement and loss, but the former will not do so. Rix J said: ‘a representation may be true without being entirely correct, provided it is substantially correct and the difference between what is represented and what is actually correct would not have been likely to induce a reasonable person in the position of the claimants to enter into the contracts.’ The answer only needs to have been given in good faith i.e. honestly.

Judges:

Rix J

Citations:

[2000] Lloyd’s LR IR 535, [2000] 1 ALL ER Comm 573

Statutes:

Misrepresentation Act 1967 2(1)

Jurisdiction:

England and Wales

Cited by:

CitedCheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.346905

Bromage And Another v Prosser: 2 Jun 1825

Thls case having been again argued, by J L Adolphus, for the plaintiffs, and Campbell, for the defendants, the Court now gave Judgment on the motion for a new trial.
Abbot CJ (after stating the nature of the case) — On the general question, whether on a sale of goods for a specific purpose, a warranty is to be implied that they are resonably fit and proper for that purpose, I continue to be of the same opinion that was expressed by me at the trial, although some of my Brother Judges are as strongly of a contrary opinion We do not, however, feel ourselves called upon to decide that question , for, allowing that a person who sells a commodity fora specific shall be taken, by law, to undertake that it was reasonably fit and proper for that purpose, yet the plaintiffs have not, in this case, declared on that implied warranty, as the declaration states, in general terms, that the defendants undertaok that the copper in question should be good, substantial, and serviceable. Now we are all of opinion, that a warranty to that extent, and in those unqualified terms, could not be implied by law out of the circumstances attending the sale of an article like this, of which the defects were equally unknown to both parties at the time of the sale. The rule must therefore be made absolute.
Rule absolute for a new trial.

Citations:

[1825] EngR 609, (1825) 1 Car and P 673, (1825) 171 ER 1362 (B)

Links:

Commonlii

Citing:

See AlsoBromage and Another v Prosser 20-Aug-1824
Semble, that malice is necessary to ground an action for words ; and that if words be proved to be spoken bona fide and without malice, no action lies for the speaking of them, though they be false and actionable in themselves; and though injury . .
See AlsoBromage And Another v Prosser 1825
Bayley J distinguished ‘malice in law’, inferred from the defendant’s intentional interference with the plaintiff’s rights, from ‘malice in fact’ and Malice in common acceptation of the term means ill-will against a person, but in its legal sense it . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.326700

Bromage and Another v Prosser: 20 Aug 1824

Semble, that malice is necessary to ground an action for words ; and that if words be proved to be spoken bona fide and without malice, no action lies for the speaking of them, though they be false and actionable in themselves; and though injury result to the party from the speaking of them – and, semble, that the defendant may, under the general issue, go into evidence to shew that he spoke the words bona fide and without rnalice

Citations:

[1824] EngR 822, (1824) 1 Car and P 475, (1824) 171 ER 1280

Links:

Commonlii

Cited by:

See AlsoBromage And Another v Prosser 1825
Bayley J distinguished ‘malice in law’, inferred from the defendant’s intentional interference with the plaintiff’s rights, from ‘malice in fact’ and Malice in common acceptation of the term means ill-will against a person, but in its legal sense it . .
See AlsoBromage And Another v Prosser 2-Jun-1825
Thls case having been again argued, by J L Adolphus, for the plaintiffs, and Campbell, for the defendants, the Court now gave Judgment on the motion for a new trial.
Abbot CJ (after stating the nature of the case) — On the general question, . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 18 May 2022; Ref: scu.327813

Schaefer v Schuman: PC 1972

(New South Wales – Australia) A promise to leave the property had been performed, and the issue was as to the relevance, if any, and the effect of an earier promise when the value of the devise was sought to be reduced by an order by way of financial provision under the New South Wales Family Provision on Inheritance legislation. The rights of the devisee were properly founded in contract. Held (majority, Lord Simon of Glaisdale dissenting on this as on the major point in the case). The case was indeed properly founded in contract, and, that being so, it was immune from the effect of an order under the family provision legislation.

Judges:

Lord Simon of Glaisdale

Citations:

[1972] AC 572

Jurisdiction:

Australia

Cited by:

CitedThorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Wills and Probate, Contract, Commonwealth

Updated: 18 May 2022; Ref: scu.324695

Small v Attwood: 1 Jun 1838

The purchasers of certain mines having paid part of their purchase money, and having been let into possession, agreed to pay the residue of the purchase money by instalments, and in the meantime to pay to the vendor half-yearly interest on what should remain due. Having paid one half-year’s interest, but no portion of the remaining purchase money, they filed their bill to set aside the contract.

Citations:

[1838] EngR 690, (1838) 3 Y and C Ex 105, (1838) 160 ER 633

Links:

Commonlii

Contract

Updated: 18 May 2022; Ref: scu.312696