Category: Contract

Baker v Black Sea and Baltic General Insurance Co Ltd: HL 20 May 1998

The question agreed to be before the court was ‘Where an insurer incurs costs in investigating settling or defending claims by his insured, can the insurer recover a proportion of these costs under a quota share or other form of proportional re-insurance?’ the syndicate argued that it was in the nature of a proportional re-insurance contract that the re-insurer takes a part in the entire risk, and that should include the investigation costs.
Held: A Court may not a import clause into a re-insurance clause to give business efficiency as regards the costs incurred by the insurer, of investigating the underlying claim. Though clauses may be added where they reflect undisputed standard commercial practice, the evidence here did not establish such a concensus.

Judges:

Lord Browne-Wilkinson, Lord Woolf, Lord Lloyd of Berwick, Lord Hoffmann, Lord Hutton

Citations:

Gazette 10-Jun-1998, Times 21-May-1998, [1998] UKHL 18, [1998] 2 All ER 833, [1996] LRLR 353

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Liverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .
Cited – Scottish Metropolitan Assurance Co Ltd v Groom CA 1924
Reinsurance – claim by owner on original policy – failure by reason of scuttling – judgments against owner for costs – impossibility of recovery – claim on reinsurance policy – sue and labour clause
A ship was reinsured under a marine policy . .
Cited – Insurance Co of Africa v SCOR (UK) Reinsurance Co Ltd CA 1985
An underlying insurance policy covered a warehouse in Liberia against fire, including $500,000 for buildings and $3 million for contents. The warehouse became a total loss. The owners of the warehouse brought proceedings in the Liberian courts. The . .
At first instance – Colin Baker v Black Sea and Baltic General Insurance Co Ltd 1995
Insurance and the reinsurance policies were back to back.
Held: Potter J. said ‘the reinsurer is not liable if the claim settled does not fall within the risks covered by the policy of reinsurance as a matter of law’.
Potter J. accepted . .
At CA – Colin Baker v Black Sea and Baltic General Insurance Co Ltd CA 1996
Otton LJ explained the standard commercial rate of interest: ‘The practice whereby interest is normally awarded at 1 per cent over base rate amounts to a presumption which can be displaced if its application would be substantially unfair to either . .

Cited by:

Cited – Tryg Baltic International (UK) Ltd v Boston Compania De Seguros Sa and others ComC 28-May-2004
Four defendants from Argentina sought to have set aside an order for them to be served, saying the appropriate jursidiction, if there was a triable issue, would be Argentina.
Held: The agreements were to be construed according to English Law. . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 15 September 2022; Ref: scu.78096

British Columbia, etc. Saw Mills Co. Ltd v Nettleship: 1868

Willes J said: ‘the mere fact of knowledge cannot increase the liability. The knowledge must be brought home to the party sought to be charged under such circumstances that he must know that the person he contracts with reasonably believes that he accepts the contract with the special condition attached to it . . Knowledge on the part of the carrier is only important if it forms part of the contract. It may be that the knowledge is acquired casually from a stranger, the person to whom the goods belong not knowing or caring whether he had such knowledge or not’.

Judges:

Willes J

Citations:

[1868] LR 3 CP 499

Jurisdiction:

England and Wales

Cited by:

Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 14 September 2022; Ref: scu.246865

Ineos Vinyls Ltd and Others v Huntsman Petrochemicals (UK) Ltd: ChD 26 May 2006

Judges:

Blackburne J

Citations:

[2006] EWHC 1241 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Chester City Council and Another v Arriva Plc and others ChD 15-Jun-2007
The claimant council alleged that the defendant had acted to abuse its dominant market position in the provision of bus services in the city.
Held: It was for the claimant to show that the defendant had a dominant position. It had not done so, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 14 September 2022; Ref: scu.242304

Associated Japanese Bank (International) Ltd v Credit du Nord SA: 1988

A contract of guarantee was made, but based upon a term of fundamental importance which was mistaken as to the existence of certain machines.
Held: The court must first look to the nature of the purported agreement. Steyn J said: ‘Logically, before one can turn to the rules as to mistake, whether at common law or in equity, one must first determine whether the contract itself, by express or implied condition precedent or otherwise, provides who bears the risk of the relevant mistake. It is at this hurdle that many pleas of mistake will either fail or prove to have been unnecessary. Only if the contract is silent on the point, is there scope for invoking mistake. That brings me to the relationship between common law mistake and mistake in equity. Where common law mistake has been pleaded, the court must first consider this plea. If the contract is held to be void, no question of mistake in equity arises. But, if the contract is held to be valid, a plea of mistake in equity may still have to be considered.’

A contract could be rescinded for mutual mistake. ‘The first imperative must be that the law ought to uphold rather than destroy apparent contracts. Secondly, the common law rules as to a mistake regarding the quality of the subject matter, like the common law rules regarding commercial frustration, are designed to cope with the impact of unexpected and wholly exceptional circumstances on apparent contracts. Thirdly, such a mistake in order to attract legal consequences must substantially be shared by both parties, and must relate to facts as they existed at the time the contract was made. Fourthly, the mistake must render the subject matter of the contract essentially and radically different from the subject matter which the parties believed to exist.’

Judges:

Steyn J

Citations:

[1989] 1 WLR 255, [1988] 3 All ER 902

Jurisdiction:

England and Wales

Citing:

Cited – Bell v Lever Brothers Ltd HL 15-Dec-1931
Contract – Mutual Mistake Test
Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying pounds 30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could have . .

Cited by:

Cited – William Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Cited – Margaret Brennan v Bolt Burdon, London Borough of Islington, Leigh Day and Co QBD 30-Oct-2003
The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was . .
Cited – EIC Services Ltd European Internet Capital Ltd v Phipps, Paul, Barber CA 30-Jul-2004
Whether issue of additional shares had been properly authorised . .
Cited – Halpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
Approved – Graves v Graves and others CA 3-Jul-2007
The parties had divorced and settled financial provision, but the former wife and her children came to need a house and one of the claimant’s properties became vacant, and she was allowed to occupy it as a tenant, with the majority of the rent being . .
Cited – Butters and Others v BBC Worldwide Ltd and Others ChD 20-Aug-2009
In the insolvency of Woolworths plc, a subsidiary sought to have valued its shareholding in a company in which the defendants were co-shareholders. It was argued that an earlier agreement between them had not be fully superceded by a subsequent one. . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 14 September 2022; Ref: scu.185668

County Securities Pty Ltd v Challenger Group Holdings Pty Ltd: 14 Aug 2008

(Supreme Court of New South Wales – Court of Appeal) The court considered a transaction with two parts, one of which (for the transfer of certain Equity Swaps) was wholly in writing; and the other part of which (a hedge involving the acquisition of certain shares and the assumption of certain margin obligations) was not in writing, and there was no evidence of any conversation which might have established the terms: the second part of the transaction was sought to be inferred from conduct alone.
Held: The Court emphasised that (a) the surrounding circumstances to which the court’s attention was invited had regard only to that part of the transaction that was not in writing and (b) ‘The issue is not one of interpretation, because there are no words to interpret. The issue is one of fact: what terms did the parties agree?’

Chief Justice Spigelman said: ‘Even in the case of a written contract, the words identifying the subject matter being bought and sold may be susceptible to more than one meaning. This is one well established category of ambiguity, so that extrinsic evidence is admissible to identify the subject matter, even on a restrictive approach to the use of extrinsic evidence in the course of contractual interpretation.’

Judges:

Spigelman CJ Beazley JA McColl JA

Citations:

2008] NSWCA 193

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 13 September 2022; Ref: scu.645465

Barton v Gwyn-Jones and Others: CA 21 Nov 2019

The court was asked whether a contract for a specified introduction fee, payable to an agent if a property is sold at a particular price, leaves no room for remuneration to be payable, nevertheless, where the property is sold for a lesser sum to the party who has been introduced.

Citations:

[2019] EWCA Civ 1999

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Agency

Updated: 13 September 2022; Ref: scu.644121

Marley v Rawlings and Another: SC 22 Jan 2014

A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties disputed whether the will have been validly executed, and in particular whether a rectification could be ordered under the 1982 Act where the original document did not itself meet the requirements of the 1837 Act.
Held: The wife’s appeal succeeded. A rectification could be and was ordered. The solicitor’s error in handing over the wrong will for execution was a ‘clerical error’ within section 20(1)(a).
‘save where section 21(1) applies, a will is to be interpreted in the same way as any other document, but, in addition, in relation to a will, or a provision in a will, to which section 21(1) applies, it is possible to assist its interpretation by reference to evidence of the testator’s actual intention (eg by reference to what he told the drafter of the will, or another person, or by what was in any notes he made or earlier drafts of the will which he may have approved or caused to be prepared). ‘
As to wholesale rectification: ‘As a general proposition, there may be force in the point that the greater the extent of the correction sought, the steeper the task for a claimant who is seeking rectification. However, I can see no reason in principle why a wholesale correction should be ruled out as a permissible exercise of the court’s power to rectify, as a matter of principle. On the contrary: to impose such a restriction on the power of rectification would be unprincipled – and it would also lead to uncertainty. ‘
Lord Neuberger of Abbotsbury PSC said: ‘During the past 40 years, the House of Lords and Supreme Court have laid down the correct approach to the interpretation, or construction, of commercial contracts in a number of cases . .
When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions. In this connection, see Prenn, at pp 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen (trading as H E Hansen-Tangen) [1976] 1 WLR 989 , per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, para 8, per Lord Bingham of Cornhill, and the survey of more recent authorities in Rainy Sky, per Lord Clarke of Stone-cum-Ebony JSC, at paras 21-30.’

Judges:

Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge

Citations:

[2014] UKSC 2, [2014] 2 WLR 213, [2014] WTLR 299, 16 ITELR 642, [2014] 1 All ER 807, [2014] WLR(D) 18, [2014] Fam Law 466, UKSC 2012/0057

Links:

Bailii, Bailii Summary, WLRD, SC Summary, SC

Statutes:

Wills Act 1837 9, Administration of Justice Act 1982 2091)(a)

Jurisdiction:

England and Wales

Citing:

At First Instance – Marley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Appeal from – Marley v Rawlings and Another CA 2-Feb-2012
Mr and Mrs Rawlings had made wills in substantially similar format, but, mistakenly, they each executed the will intended for the other. After Mr Rawling died, the family disputed whether he had made a will. Mrs Rawling applied for rectification of . .
Cited – Boyes v Cook CA 1880
When construing a will, , extrinsic evidence is admissible not only to remove ambiguity in the language used, but to establish the testator’s situation at the time of the will and the context in which he expressed his testamentary intention. James . .
Cited – Catnic Components Ltd and Another v Hill and Smith Ltd HL 1982
The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The patent was for a novel type of galvanised steel lintel, which . .
Cited – Arbuthnott v Fagan CA 30-Jul-1993
The court considered the proper approach to construction of the terms in a contract. Sir Thomas Bingham MR said: ‘Courts will never construe words in a vacuum. To a greater or lesser extent, depending on the subject matter, they will wish to be . .
Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Cited – Harter v Harter 1873
. .
Cited – In the Goods of Oswald 17-Feb-1874
The deceased made a will with two codicils and a later will with a clause of revocation. Probate was sought in respect of all four of the documents ‘as together containing the will of the deceased, excluding from the last the clause of revocation.’ . .
Cited – In the Goods of Hunt 1875
Two sisters had made similar, but not mirror, wills and by mistake each executed that of the other.
Held: The will was invalid. Sir J Hannen said ‘A paper has been signed as this lady’s will, which, as it happens, if treated as her will, would . .
Cited – In the Goods of Boehm 1891
It was proved that a mistake had occurred in a clause giving a pecuniary legacy. The testator had intended one person to be named as the legatee, and by a mistake the draftsman had substituted the name of another. The testator was led to execute the . .
Cited – Re Meyer 1908
Two sisters made mirror codicils to their wills but each then executed that of the other sister.
Held: The dispositions contained in them were invalid.
Sir Gorell Barnes P said: ‘But it is quite clear that this lady, though her . .
Cited – In re Hawksley’s Settlement; Black v Tidy 1934
A second will was described as the last will and moreover referred to the first will as the cancelled will, the testatrix having written on a copy of it the word ‘cancelled’.
Held: Neither feature was sufficient to effect a complete revocation . .
Cited – Re Resch’s Will Trusts; Vera Caroline Le Crasv Perpetual Trustee Company Limited PC 19-Oct-1967
(New South Wales) The testator left a series of testamentary provisions including gifts which worked cumulatively. Lord Wilberforce discussed the breadth of evidence admissible in the probate court: ‘The principles which ought to be applied on such . .
Cited – In re Reynette-James dec’d, Wightman v ChD 1976
A court does not have power to rectify a will. . .
Cited – Re Butlin’s Settlement Trusts 1976
Sir Billy Butlin had executed a voluntary settlement to allow a majority of trustees to exercise a power under the settlement. By a drafting error the settlement did not give effect to this intention.
Held: The court could rectify the . .
Cited – Britoil plc v Hunt Overseas Oil Inc CA 1994
After the failure of the attempt by the Texan oil tycoon, Nelson Bunker Hunt, in the 1970s to corner the world silver market, his fortune collapsed and his companies were forced to sell off assets. In 1979 two of those companies (the defendants in . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Re Williams Deceased, Wiles v Madgin ChD 1985
A testator writing out his own will can make a clerical error just as much as someone else writing out a will for him. ‘In passing, I note that there is no claim for rectification in the present case. It was suggested in the course of argument that . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Bell v Georgiou and Another ChD 28-May-2002
Blackburne J discussed what would amount to a clerical error so as to allow rectification: ‘The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes . .

Cited by:

Cited – Rawstron and Another (Executrices of The Estate of Lucian Freud) v Freud ChD 30-Jul-2014
The court considered the construction of a point in the deceased’s will. The clause said: ‘I GIVE all the residue of my estate (out of which shall be paid my funeral and testamentary expenses and my debts) and any property over which I have a . .
Cited – Richards v Wood CA 27-Feb-2014
The defendants had purchased their council house with financial asistance from their son, the claimant. He now asserted that a trust existed in the property in his favour.
Held: ‘unless there is a secure tenancy the statutory right to buy . .
Main Judgment – Marley v Rawlings and Another (2) SC 18-Sep-2014
The parties had disputed the validity of a will, and the successful wife of the deceased argued that her costs should be paid by those challenging the will rather than from the estate.
Held: The solicitors (or their insurers) who had made the . .
Cited – Guthrie v Morel and Others ChD 5-Nov-2015
The will had failed clearly to identify a property in Spain the subject of a bequest.
Held: Summary judgment was given. ‘It seems to me to be clear that the deceased intended by his Will to deal with his entire estate and that he intended the . .
Cited – Jump and Another v Lister and Another ChD 12-Aug-2016
Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Contract

Updated: 13 September 2022; Ref: scu.520062

Hamid (T/A Hamid Properties) v Francis Bradshaw Partnership: CA 2 May 2013

Citations:

[2013] EWCA Civ 470

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 13 September 2022; Ref: scu.509253

Gladman Commercial Properties v Fisher Hargreaves Proctor and Others: ChD 18 Jan 2013

Judges:

Arnold J

Citations:

[2013] EWHC 25 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others ChD 13-Feb-2013
Unresolved issues. . .
At ChD – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 13 September 2022; Ref: scu.470368

Future Publishing Ltd v The Edge Interactive Media Inc and Others: ChD 13 Jun 2011

The claimant said that the defendant had infriged its rights by the use of its logo on their publications.

Judges:

Proudman J

Citations:

[2011] EWHC 1489 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ladbroke (Football) Ltd v William Hill (Football) Ltd HL 1964
What is substantial copying
The plaintiff alleged copying of their football pools coupons and copyright infringement. The issues were as to the extent of copying required to establish infringement, and whether it was proper to look at the several parts of the work separately. . .
Applied – MCA Records Inc and Another v Charly Records Ltd and others (No 5) CA 5-Oct-2001
The court discussed the personal liability of a director for torts committed by his company: ‘i) a director will not be treated as liable with the company as a joint tortfeasor if he does no more than carry out his constitutional role in the . .
Cited – Ross T Smyth and Co Ltd v Bailey Son and Co HL 1940
The court looked to what had to be shown for one party to a contract to take the actions of the other as a repudiation.
Lord Wright said that: ‘repudiation of a contract is a serious matter, not to be lightly found or inferred’ and ‘I do not . .
Cited – Decro-Wall International SA v Practitioners in Marketing Limited CA 1971
Once the court has concluded that a ‘reasonable notice’ requirement was to be implied into a contract, the question of what notice period was reasonable must be judged as at the time the notice was given.
Buckley LJ also set out the test for . .
Cited – British Telecommunications Plc; Virgin Enterprises Ltd; J Sainsbury Plc; Marks and Spencer Plc and Ladbroke Group Plc v One In a Million Ltd and others CA 23-Jul-1998
Registration of a distinctive Internet domain name using registered trade marks and company names could be an infringement of a registered Trade Mark, and also passing off. It was proper to grant quia timet injunctions where necessary to stop . .
Cited – Federal Commerce Ltd v Molena Alpha Inc (The Nanfri) HL 1979
The charterers of three ships on time charter had made deductions from time charter hire payments which the shipowners regarded as unjustified. In retaliation the shipowners purported to revoke the authority of the Charterers (to be implied under . .
Cited – Gibaud v Great Eastern Railway Co CA 1921
Scrutton LJ said: ‘If you undertake to do a thing in a certain way, or to keep a thing in a certain place, with certain conditions protecting it, and have broken the contract by not doing the thing contracted for in the way contracted for, or not . .
Cited – Suisse Atlantique Societe d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale HL 1966
No magic in the words “fundamental breach”
There is no rule of law which prevents parties to a contract agreeing to limit their respective liabilities. It is a question of the construction of the particular clause as to whether it applies to a fundamental breach or not. The court doubted the . .
Cited – Re Trade Marks Act 1994 Trade Marks Nos 1338514 (in Class 5) and 1402537 (in Class 3) in the name of Laboratories Goemar SA and Applications for Revocation thereof Nos 10073 and 10074 by La Mer Technology Inc ChD 20-Jun-2003
A case had been referred to the court as to the interpetation of the articles in the Directive. The court replied asking whether the subsequent Ansul judgement answered the questions raised.
Held: By agreement with the parties, only one of the . .
Cited – La Mer Technology Inc v Laboratoires Goemar SA (Order) ECJ 27-Jan-2004
ECJ Article 104(3) of the Rules of Procedure – Trade marks – Directive 89/104/EEC – Articles 10(1) and 12(1) – Revocation of a trade mark – Notion of genuine use of a trade mark.
‘use of the mark may in some . .
Cited – Irvine, Tidswell Ltd v Talksport Ltd ChD 13-Mar-2002
The defendants used a distorted image of the claimant, a famous racing driver, to endorse its product. He claimed damages in passing off.
Held: On the facts, the famous racing driver Eddie Irvine had a property right in his goodwill which he . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract

Updated: 13 September 2022; Ref: scu.440703

Sigma Finance Corporation, Re; (in administrative receivership): SC 29 Oct 2009

The court considered how the losses of the insolvent company were to be distributed as between secured creditors and preferential creditors, given the terms of the applicable trust deed.
Held: The court considered the interpretations of the deed, looking at the ‘landscape of the instrument as a whole’ and interpretations given. The Court emphasised the need, when looking at a complex series of agreements, to construe an agreement which was part of a series of agreements by taking into account the overall scheme of the agreements and reading sentences and phrases in the context of that overall scheme.’ The appeal was allowed (Lord Walker dissenting).
Lord Mance said: ‘In my opinion, the conclusion reached below attaches too much weight to what the courts perceived as the natural meaning of the words of the third sentence of cl 7.6, and too little weight to the context in which that sentence appears and to the scheme of the STD as a whole. Lord Neuberger was right to observe that the resolution of an issue of interpretation in a case like the present is an iterative process, involving ‘checking each of the rival meanings against the other provisions of the document and investigating its commercial consequences’ . . Like him, I also think that caution is appropriate about the weight capable of being placed on the consideration that this was a long and carefully drafted document, containing sentences or phrases which it can, with hindsight, be seen could have been made clearer, had the meaning now sought to be attached to them been specifically in mind . . Even the most skilled drafters sometimes fail to see the wood for the trees, and the present document on any view contains certain infelicities, as those in the majority below acknowledged (see Sales J ([2009] All ER (D) 204 (Apr) at [37]-[40]), Lloyd LJ ([2008] EWCA Civ 1303 at [44], [49]-[52], [53]), and Rimer LJ (at [90])). Of much greater importance in my view, in the ascertainment of the meaning that the STD would convey to a reasonable person with the relevant background knowledge, is an understanding of its overall scheme and a reading of its individual sentences and phrases which places them in the context of that overall scheme. Ultimately, that is where I differ from the conclusion reached by the courts below. In my opinion, their conclusion elevates a subsidiary provision for the interim discharge of debts ‘so far as possible’ to a level of pre-dominance which it was not designed to have in a context where, if given that pre-dominance, it conflicts with the basic scheme of the STD’.
Lord Collins pointed out that the trust deed in that case concerned ‘debt securities’ issued to ‘a variety of creditors, who hold different instruments, issued at different times, and in different circumstances’ and said: ‘Where a security document secures a number of creditors who have advanced funds over a long period it would be quite wrong to take account of circumstances which are not known to all of them. In this type of case it is the wording of the instrument which is paramount. The instrument must be interpreted as a whole in the light of the commercial intention which may be inferred from the face of the instrument and from the nature of the debtor’s business’.

Judges:

Lord Hope Deputy President, Lord Scott, Lord Walker, Lord Mance, Lord Collins

Citations:

[2010] 1 All ER 571, [2010] BCC 40, UKSC 2009/0143, [2009] UKSC 2

Links:

Bailii Summary, SC Summary, SC, Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

At First Instance – Sigma Finance Corporation, Re Insolvency Act 1986 ChD 7-Nov-2008
. .
Appeal From – Re Sigma Finance Corp CA 25-Nov-2008
. .
Cited – Charter Reinsurance Co Ltd v Fagan and Others HL 24-May-1996
The re-insurers appealed against a finding that they were liable to make payment under a contract which required them to pay ‘sums actually paid.’ They said that the company having become insolvent, no payment would in fact be made.
Held: The . .
Cited – Miramar Maritime Corporation v Holborn Oil Trading Limited (‘The Miramar’) HL 1984
A bill of lading incorporated a charterparty. The question was whether clauses in the charterparty or bill of lading prevailed. The charter clause incorporated a demurrage clause making the charterer’s laible for demurrage, and the owners asserted . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – West Bromwich Building Society v Wilkinson HL 30-Jun-2005
The Society had taken possession of a property in 1989. It located the defendants many years later and sought payment of the excess after deduction of the proceeds of sale, and for interest. The borrowers claimed the debt was expired by limitation . .

Cited by:

Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – LBG Capital No 1 Plc and Another v BNY Mellon Corporate Trustee Services Ltd CA 10-Dec-2015
The court was asked whether Issuers were entitled to redeem, pursuant to their terms, certain contingent convertible securities.
Held:
The reference to ‘the Consolidated Core Tier 1’ in para (2) of the Definition should, in the events . .
Cited – BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc and Another SC 16-Jun-2016
The Court was asked whether Lloyds Banking Group was entitled to redeem 3.3 billion pounds of loan notes which would otherwise carry a relatively high rate of interest, namely over 10% per annum. The loan notes are contingent convertible securities . .
Cited – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
Cited – MT Hojgaard As v EON Climate and Renewables UK Robin Rigg East Ltd and Another SC 3-Aug-2017
The defendants had requested tenders for the design and construction of an offshore wind farm. The court now considered the situation arising because of inconsistencies between documents in the tender request. The successful tender was based upon an . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 13 September 2022; Ref: scu.377320

Crema 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 clause sought. Aikens LJ said that when deciding whether a contractual term should be implied, the relevant factual matrix to be taken into account in ascertaining the objective intentions of thosee agreeing it, may include current market practice. This can be so even though such practices may not constitute ‘trade usage or custom’, and the contracts in question were not entirely reduced to writing, and ‘If the reasonable addressee would understand the instrument against the other terms and the relevant background to mean something more ie that something is to happen in that particular event which is not expressly dealt with in the instruments terms then it is said that the court implies a term as to what will happen if the event in question occurs.’

Judges:

Aikens LJ, Hughes LJ, Sir Andrew Morritt

Citations:

[2010] EWCA Civ 1444, [2011] 1 WLR 2066, [2011] Bus LR 943, [2010] 2 CLC 963, [2011] CILL 2980

Links:

Bailii

Statutes:

Late Payment of Commercial Debts (Interest) Act 1998

Jurisdiction:

England and Wales

Citing:

Appeal from – Crema v Cenkos Securities Plc ComC 16-Mar-2010
. .
Applied – Attorney 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 . .
Mentioned – Mediterranean Salvage and Towage Ltd v Seamar Trading and Commerce Inc (‘The Reborn’) CA 10-Jun-2009
The court confirmed that the necessity to give business efficacy to a contract was still required for the implication of a term into a contract. . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – 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’. . .
Cited – Equitas Ltd v R&Q Reinsurance Company (UK) Ltd ComC 11-Nov-2009
The court was asked as to the correct construction of 26 Excess Loss (‘XL’) retrocession insurance contracts in the London market. . .
Cited – MGN Ltd and Others v Grisbrook CA 9-Dec-2010
. .

Cited by:

See Also – Crema v Cenkos Securities Plc CA 20-Jan-2011
(Supplementary judgment) . .
Cited – Graiseley Properties Ltd and Others v Barclays Bank Plc ComC 29-Oct-2012
The claimant sought damages alleging that the wrongful manipulation of the LIBOR interest rate by the defendants had caused them losses. Loan facilities which they had taken out had been subject to interest rates set by reference to LIBOR. The . .
Cited – Marks 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 . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 13 September 2022; Ref: scu.427208

The Nottinghamshire and City of Nottingham Fire Authority v Gladman Commercial Properties: ChD 20 Apr 2011

The claimants sought directions in the course of a claima for specific performance of contract for the sale of former fire service premises.

Judges:

Peter Smith J

Citations:

[2011] EWHC 1918 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Land

Updated: 13 September 2022; Ref: scu.434884

Hollis and Wife, Executrix of Davies, Deceased v Palmer: 29 Apr 1836

Declaration, that the Defendant, sixteen years before, delivered his promissory note, payable on demand with interest, to the Plaintiff, but neglected to pay, except interest, which he paid up to a day within six years. Plea, that the cause of action did not accrue within six years :-Held, sufficient.

Citations:

[1836] EngR 646, (1836) 2 Bing NC 713, (1836) 132 ER 275

Links:

Commonlii

Jurisdiction:

England and Wales

Contract, Limitation

Updated: 13 September 2022; Ref: scu.314978

Irani v Irani and others: ChD 24 Jul 2006

The deceased had effectively settled his divorce ancillary relief proceedings by promising to leave a property by will to to his former wife, the claimant. He signed a document which appeared to be intended to give effect to his undertaking, but the document was not executed as a will. The respondents said that the agreement did not satisfy s40.
Held: The document showed a desire to give effect to the transaction, and was effective. There had been a written offer with an oral acceptance, and ‘it is quite clear as a matter of law that, if an offer is made in writing and is accepted orally, that contract is in law a contract in writing and accordingly there can be no question of any unenforceability of the contract made in this case by reason of the absence of a necessary memorandum.’

Judges:

Lightman J

Citations:

[2006] EWHC 1811 (Ch)

Links:

Bailii

Statutes:

Law of Property act 1925 40

Jurisdiction:

England and Wales

Citing:

Cited – Tiverton Estates Ltd v Wearwell Ltd CA 1975
“Subject to Contract” not to be diluted
‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Contract, Land

Updated: 12 September 2022; Ref: scu.243393

Bank of Boston Connecticut v European Grain and Shipping Ltd (‘The Dominique’): HL 1989

A shipping company and a shipper responsible for the freight disputed the effect of their contract. The ship was duly loaded with its cargo and set out for the voyage from India to Europe. The bills of lading were signed. When the ship called at Colombo it was arrested for debt. The signed bills of lading had not yet been delivered to the shippers. The question for decision was whether the shipping company was entitled to be paid the freight, in spite of the fact that the arrest of the ship brought the voyage to a halt and the shippers were forced to incur the expense of unloading the cargo and shipping it to Europe by another vessel.
Held: The contract term meant that the right to receive the freight accrued upon the signing of the bills of lading, but that the right to receive payment was postponed until 5 days after delivery of the bills of lading to the shippers. An equitable set-off may occur if there is a cross-claim ‘flowing out of and inseparably connected with the dealings and transactions which also give rise’ to the claim. The historical rule of no set-off against voyage-charter freight extended to a counterclaim for damages for repudiation of the charterparty. There was no good reason to distinguish between the case of a counterclaim for mere breach and the case of a counterclaim for repudiatory breach, and the historical rule prevailed.
Lord Brandon of Oakbrook cites the Dennys Lascelles case and said: ‘Applying those principles to the facts of the present case it is necessary to consider whether the owner’s right to the freight had been ‘unconditionally acquired’ by them before the termination of the charterparty. The circumstance that, by reason of the first phrase of clause 16, the (shipper’s) obligation to pay the freight was postponed until after the termination of the charterparty does not, in my view, mean that the owner’s prior acquisition of the right to the freight was conditional only. The postponement of payment was an incident attaching to the right acquired, but it was not a condition of its acquisition. It follows that, in accordance with the principles of law referred to above, the owner’s right to the freight, having been unconditionally acquired before the termination . . was not divested or discharged by such termination.’

Judges:

Lord Brandon of Oakbrook

Citations:

[1989] AC 1056

Jurisdiction:

England and Wales

Citing:

Restated – McDonald v Dennys Lascelles Ltd 1-Mar-1933
(High Court of Australia) ‘When a party to a simple contract, upon breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded as from the beginning. . .
Appeal from – Bank of Boston Connecticut v European Grain and Shipping Ltd (‘The Dominique’) CA 1987
. .

Cited by:

Cited – Astea (UK) Ltd v Time Group Ltd TCC 9-Apr-2003
The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
Cited – Celestial Aviation Trading 71 Ltd v Paramount Airways Private Ltd ComC 4-Dec-2009
The claimant sought summary judgment for recovery of three aircraft (valued at US$36m each) leased to the defendant after non-payment of instalments. The defendant said that the default was based on a demand for supplementary rents which had not . .
Cited – Inveresk 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 . .
Cited – Dole Dried Fruit and Nut Co v Trustin Kerwood Ltd CA 1990
The defendant had an exclusive distributorship agency for the plaintiff in England. Under that agreement, the plaintiff sold its prunes and raisins to the defendant under separate contracts of sale. The plaintiff claimed the price of goods sold . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 12 September 2022; Ref: scu.223524

Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd: HL 1903

Tolhurst had contracted to sell a quantity of chalk from his quarries to the Imperial Company for fifty years. The Imperial Company afterwards assigned the Contract and sold its land, works and business to the Associated Company, and went into voluntary liquidation and was wound up. The Associated Company nevertheless sought to enforce the contract.
Held: The company succeeded. It is possible, with the agreement of the promisee, to transfer the obligations under a contract to a third party.

Citations:

[1903] AC 414

Jurisdiction:

England and Wales

Citing:

Appeal from – Tolhurst v Associated Portland Cement Manufacturers Ltd 1902
. .

Cited by:

Cited – Telewest Communications Plc Telewest (Publications) Limited v Commissioners of Customs and Excise CA 10-Feb-2005
The taxpayers sold cable services which were liable to VAT through 28 subsidiaries, and supplied by a third party as part of the same service a listings magazine. They sought exemption from VAT for that part of the consideration related to the . .
Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 12 September 2022; Ref: scu.223208

Bell v Lever Brothers Ltd: CA 1931

The court was asked as to the duties of a company director: ‘It does not seem to me open to question that the directors of a company occupy a fiduciary position towards the company, with the result that they cannot retain a benefit they have obtained by an agreement with the company unless they have made full disclosure of all material facts known to them.’

Judges:

Greer LJ, Lawrence LJ

Citations:

[1931] 1 KB 557

Jurisdiction:

England and Wales

Cited by:

Appeal from – Bell v Lever Brothers Ltd HL 15-Dec-1931
Contract – Mutual Mistake Test
Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying pounds 30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could have . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 12 September 2022; Ref: scu.215863

Savino v Oates: CA 18 Jun 1997

The applicant had employed the defendant. He paid them in cash, and they were also paid by the Legal Aid Board. The defendant counter-claimed for other unpaid fees. The district judge had, as arbitrator, found for the defendant.
Held: despite misgivings, the issues were ones of fact on which the appeal court could not rule.

Judges:

Lord Justice Auld Lord Justice Pill

Citations:

[1997] EWCA Civ 1895

Statutes:

County Court Rules 1981 Order 19, rule 9

Jurisdiction:

England and Wales

Contract, Litigation Practice

Updated: 12 September 2022; Ref: scu.142291

Samsoondar v Capital Insurance Company Ltd: PC 14 Dec 2020

(From the Court of Appeal of the Republic of Trinidad and Tobago) ‘retrospectivity of a judicial interpretation of a statute, which overturned a previous judicial interpretation, and, in the light of that, there are questions on contractual interpretation and on the compulsory or mistaken discharge of another’s legal liability in the law of unjust enrichment.’

Judges:

Lord Lloyd-Jones, Lord Briggs, Lady Arden, Lord Leggatt, Lord Burrows

Citations:

[2020] UKPC 33

Links:

Bailii

Jurisdiction:

England and Wales

Insurance, Equity, Contract

Updated: 12 September 2022; Ref: scu.659463

Delta Petroleum (Caribbean) Ltd v British Virgin Islands Electricity Corporation: PC 12 Oct 2020

(From the Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands)) Whether a party with a right to claim relief from further performance of its obligations under a contract had in law to make an election between exercising the right and continuing to perform the contract such that, if the latter choice was made, the right to claim ‘performance relief’ was lost.

Judges:

Lord Kerr, Lord Briggs, Lord Sales, Lord Hamblen, Lord Leggatt

Citations:

[2020] UKPC 23

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 12 September 2022; Ref: scu.659454

Antony Gibbs and Sons v La Societe Industrielle et Commerciale des Metaux: CA 1 Jul 1890

The defendant had agreed to buy copper to be delivered in England by the plaintiff. The defendant refused to accept the copper and so was liable in damages to the plaintiff. The defendant, a French company, was placed in judicial liquidation in France and it was assumed that as a matter of French law, the defendant was discharged from its liability in damages.
Held: Lord Esher MR said that French law was irrelevant because it was ‘not a law of the country to which the contract belongs, or one by which the contracting parties can be taken to have agreed to be bound; it is the law of another country by which they have not agreed to be bound.’

Judges:

Lord Esher MR, Lindley and Lopes LJJ

Citations:

(1890) 25 QBD 399, [1890] UKLawRpKQB 117

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Approved – Adams v National Bank of Greece HL 1961
Questions of interpretation and enforcement of contracts are resolved by reference to the proper law. Although debt under a contract whose proper law is the law of another jurisdiction may, for the purposes of Scots law, be discharged by insolvency . .
Applied – New Zealand Loan and Mercantile Agency Company Limited v Christina Morrison PC 15-Dec-1897
(Victoria) . .
Cited – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Lists of cited by and citing cases may be incomplete.

Contract, International

Updated: 12 September 2022; Ref: scu.512187

Stena Line Ltd v Merchant Navy Ratings Pension Fund Trustees Ltd and Another: CA 12 May 2011

The court heard a proposed arrangement for the remedying of a deficit in the pension scheme.

Judges:

Arden, Toulson, Rimer LJJ

Citations:

[2011] EWCA Civ 543, [2011] Pens LR 223

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

At ChD (Approved) – Stena Line Ltd v Merchant Navy Ratings Pension Fund Trustees Ltd and Another ChD 27-Jul-2010
. .

Cited by:

Cited – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
Cited – Marks 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.

Financial Services, Contract

Updated: 12 September 2022; Ref: scu.439737

Spettabile Consorzio Veneziano di Armamento e Navigazione v Northumberland Shipping Co Ltd: CA 1919

Purchasers had claimed rescission of contracts for the construction of ships and ‘alternatively, a declaration that the contract was null and void, or had been frustrated, or was at an end’.
Held: What the purchaser wanted, in substance, was to have the Court determine the parties’ rights. There had been no repudiation.
Atkin LJ said: ‘A repudiation has been defined in different terms – by Lord Selborne as an absolute refusal to perform a contract; by Lord Esher as a total refusal to perform it; by Bowen, L.J. in Johnstone v Milling as a declaration of an intention not to carry out a contract when the time arrives, and by Lord Haldane in Bradley v H. Newsom, Sons, and Co. Limited as an intention to treat the obligation as altogether at an end. They all come to the same thing, and they all amount, at any rate to this, that it must be shown that the party to the contract made quite plain his own intention not to perform the contract.’

Judges:

Atkin LJ

Citations:

(1919) 121 LT 628

Jurisdiction:

England and Wales

Cited by:

Cited – Eminence Property Developments Ltd v Heaney CA 21-Oct-2010
The court was asked whether a vendor of land, who served a notice to complete making the time for completion of the essence of the sale contract, and then, mistakenly, treated the contract as at an end prior to the expiry of the notice, was thereby . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 September 2022; Ref: scu.425464

Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo: ComC 17 Feb 2011

Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due.

Judges:

Teare J

Citations:

[2011] EWHC 256 (Comm), [2011] 2 All ER (Comm) 385, [2011] BPIR 644, [2011] 2 BCLC 275, [2011] Bus LR 970, [2011] 1 WLR 2038

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Antony Gibbs and Sons v La Societe Industrielle et Commerciale des Metaux CA 1-Jul-1890
The defendant had agreed to buy copper to be delivered in England by the plaintiff. The defendant refused to accept the copper and so was liable in damages to the plaintiff. The defendant, a French company, was placed in judicial liquidation in . .
Cited – New Zealand Loan and Mercantile Agency Company Limited v Christina Morrison PC 15-Dec-1897
(Victoria) . .
Cited – Moody and Another v Condor Insurance Ltd and Another ChD 3-Feb-2006
The claimants sought to enforce a deed of guarantee. The defendants argued that the claimant had no entitlement to enforce the deed, not being parties to it, and that they would be able to set aside the deed as against the company whose debts they . .
Cited – National Bank of Greece and Athens v Metliss HL 1957
The National Bank of Greece had been created under the law of Greece. By a Greek decree, the bank was dissolved and, by the same decree, amalgamated with another bank into a new banking corporation under the name of ‘National Bank of Greece and . .
Cited – In re United Railways of Havana and Regla Warehouses Ltd; Tomkinson v First Pennsylvania Banking and Trust Co HL 1960
A sum was held to be due from that company in US dollars under a lease and another agreement which were both governed by the law of Pennsylvania.
Held: The sum provable in the liquidation of the company was to be converted at the rates of . .
Cited – In re United Railways of the Havana v Regla Warehouses Ltd CA 1960
There had been a financing transaction by way of a lease by a Pennsylvania corporation, as trustee for foreign bondholders, to an English company carrying on business in Cuba, of assets in Cuba. By a Cuban decree the assets were transferred to the . .
Cited – Adams v National Bank of Greece HL 1961
Questions of interpretation and enforcement of contracts are resolved by reference to the proper law. Although debt under a contract whose proper law is the law of another jurisdiction may, for the purposes of Scots law, be discharged by insolvency . .
Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Cited – Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors (of Navigator Holdings Plc and Others) PC 16-May-2006
(Isle of Man) A scheme of arrangement was proposed for a company with involvement in several jurisdictions. An order in New York sought assistance in the vesting of shares and assets in the Isle of Man in the creditors committee. Cambridge was a . .
Cited – Rubin and Another v Eurofinance Sa and Others CA 20-Jul-2010
The Court considered whether the principle of universality in insolvency proceedings enabled the court to enforce a judgment in personam which had been given in New York against the defendants in and for the purposes of bankruptcy proceedings in New . .
Cited – McGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Lists of cited by and citing cases may be incomplete.

Contract, Financial Services

Updated: 11 September 2022; Ref: scu.429634

Red River and Another v Sheikh and Another: ChD 21 May 2008

Judges:

Henderson J

Citations:

[2008] EWHC 1380 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Red River UK Ltd and Another v Sheikh and Another ChD 15-Nov-2007
Applications for an order requiring actions to give effect to earlier judgments . .
See Also – Red River UK Ltd and Another v Sheikh and Another ChD 25-Apr-2008
. .

Cited by:

See also – Red River UK Ltd v Sheikh and Another CA 15-Dec-2008
. .
See Also – Red River (UK) Ltd and Another v Sheikh and Another ChD 9-Mar-2009
. .
See Also – Red River (UK) Ltd and Another v Sheikh and Another CA 28-Apr-2009
The parties had compromised their litigation reaching a settlement, but had not adequately informed the court. The one remaining issue had been conceded.
Held: The appeal against the costs award failed. The court should have been forewarned of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 11 September 2022; Ref: scu.270215

Van Der Merwe and Another v IIG Capital Llc: ChD 13 Nov 2007

The parties had entered into a debt factoring agreement, under which repayment was sought of some $30m, and the claimants were said to have guaranteed the loan by the factor to their company. The court was asked whether the guarantors had the same defences to an action as the original debtor. The factor said that the guarantee agreement provided for liability independent of any proof of the undelying debt. The master had decided that the factor had established that it was to be treated on a commercial basis as ‘a performance bond or on demand guarantee issued by a bank’.
Held: The guarantors’ appeal was dismissed. The document was to be construed by the words in it, not the name given to it. It provided for the bank’s certificate to be binding. What was certified was the amount ‘expressed be due’ by the bank, and accordingly was not dependent upon actual liability. Defences which the appellants’ company might have did not affect this liability.

Judges:

Lewison J

Citations:

[2007] EWHC 2631 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Agnew and Kevin James Bearsley v The Commissioner of Inland Revenue, and Official Assignee for the Estate In Bankruptcy of Bruce William Birtwhistle and Mark Leslie Birtwhistle PC 5-Jun-2001
(New Zealand) A charge had been given by a company over its book debts. The charge was expressed to create a fixed charge over debts uncollected when a receiver was appointed, so that on collection they became payable to the bank. Until the receiver . .
Cited – Gold Coast Ltd v Caja De Ahorros Del Mediterraneo and others CA 6-Dec-2001
The banks appealed findings as to their liability to pay out under on-demand guarantees they had given in respect of stage payments for the construction of a ship. It was claimed that the delivery times had not been met, and the builder was in . .
Cited – Heald v O’Connor 1971
A surety for a company’s obligations under a debenture promised: ‘if and whenever the company makes default in payment of any such principal money [to] pay the amount thereof on demand provided that the liability hereunder of the guarantor shall be . .
Cited – General Produce Co v United Bank Ltd 1979
Lloyd J considered a term in a guarantee agreement as follows ‘if and whenever the company makes default in payment of any such principal money [to] pay the amount thereof on demand provided that the liability hereunder of the guarantor shall be as . .
Cited – Marubeni Hong Kong and South China Ltd v Ministry of Finance of Mongolia CA 13-Apr-2005
A letter was written by the Mongolian Ministry of Finance guaranteeing payment for textile plant and machinery to be supplied to a Mongolian company. A letter from the justice minister confirmed the authority of the finance minister to sign the . .
Cited – Bache and Co (London) Ltd v Banque Vernes et Commerciale de Paris SA CA 1973
London Commodity Exchange brokers demanded a bank guarantee before entering into buying and selling transactions on behalf of their customer, a French trading company. The defendants, the trading company’s bankers, gave the guarantee which contained . .
Cited – Trafalgar House Construction (Regions) Ltd v General Surety and Guarantee Co Ltd HL 4-Jul-1995
The main contractors for the construction of a new leisure complex for a borough council entered into a subcontract for the groundworks. The subcontractor and the appellants provided a Bond for 10 percent of the value of the subcontract on condition . .
Cited – Comdel Commodities Limited v Siporex Trade S a CA 5-Feb-1997
Comdel sought recovery of sums due under a performance bond.
Held: Potter LJ discussed the authorities and said: ‘Those authorities are to the effect that it is implicit in the nature of a performance bond that, in the absence of some clear . .
Cited – Balfour Beatty Civil Engineering Ltd v Technical and General Guarantee Co Ltd CA 1999
A guarantor undertook to pay on first demand on receipt of a certificate: ‘Stating that the Sub-Contractor has failed to fulfil its obligations under the said Sub-Contract and that the sum demanded is due and payable and such demand shall be . .
Cited – Invensys Plc and others v Automotive Sealing Systems Ltd. ComC 8-Nov-2001
The contract provided that a certificate made by an expert was to be conclusive save in the case of manifest error.
Held: The expert’s reasons could be examined in order to determine whether he had made a manifest error. The contract provided . .

Cited by:

Appeal from – IIG Capital llc v Van der Merwe CA 22-May-2008
The directors and holders of the entire share capital of the company appealed against a summary judgement making them personally liable under guarantees given to support a debt factoring arrangement for the company.
Held: The appeal failed. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 September 2022; Ref: scu.260355

Econet Wireless Ltd v Vee Networks Ltd and others: ComC 28 Jun 2006

Judges:

Morison J

Citations:

[2006] EWHC 1568 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Vee Networks Limited v Econet Wireless International Limited QBD 14-Dec-2004
The court considered a complaint that the arbitration award was faulty or lack of jurisdiction under the agreement founding it. . .

Cited by:

See Also – Econet Satellite Services Ltd v Vee Networks Ltd ComC 13-Jul-2006
. .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 11 September 2022; Ref: scu.242910

Adams v National Bank of Greece: HL 1961

Questions of interpretation and enforcement of contracts are resolved by reference to the proper law. Although debt under a contract whose proper law is the law of another jurisdiction may, for the purposes of Scots law, be discharged by insolvency proceedings in that other jurisdiction, such proceedings will not, for the purposes of Scots law, discharge a debt where the proper law of the contract is not the law of the jurisdiction in which the proceedings are taking place.

Judges:

Lord Reid, Lord Denning

Citations:

[1961] AC 255

Jurisdiction:

England and Wales

Citing:

Approved – Antony Gibbs and Sons v La Societe Industrielle et Commerciale des Metaux CA 1-Jul-1890
The defendant had agreed to buy copper to be delivered in England by the plaintiff. The defendant refused to accept the copper and so was liable in damages to the plaintiff. The defendant, a French company, was placed in judicial liquidation in . .

Cited by:

Cited – OT Africa Line Ltd v Magic Sportswear Corporation and others CA 13-Jun-2005
The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .
Cited – The Winding Up Board of Landsbanki Islands Hf v Mills and Others OHCS 20-Jul-2010
The claimants had made claims in the insolvency of Landsbanki in Iceland. There had been a ruling by Landsbanki’s winding-up board in those Icelandic winding-up proceedings that to the extent that it was final and binding in Iceland, it must also be . .
Cited – Heritable Bank Plc (Administrators of) v The Winding Up Board of Landsbanki Islands Hf SCS 28-Sep-2011
The appellant (H) had claimed in the responder’s (L) insolvency proceedings in Iceland. Their claim had been rejected by L’s winding-up board, and then withdrawn. L then claimed in H’s own insolvency in Scotland, saying that within the EEA, and . .
Cited – Heritable Bank Plc, Administrators of v The Winding-Up Board of Landsbanki Islands Hf SC 27-Feb-2013
A claim by Heritable (H) in Landsbanki’s (L) insolvency had been rejected and then withdrawn before the Icelandic court, and L now appealed against rejection of its own assertion that that Icelandic decision was binding also within its own claim . .
Cited – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract, Scotland

Updated: 11 September 2022; Ref: scu.228195

Moody and Another v Condor Insurance Ltd and Another: ChD 3 Feb 2006

The claimants sought to enforce a deed of guarantee. The defendants argued that the claimant had no entitlement to enforce the deed, not being parties to it, and that they would be able to set aside the deed as against the company whose debts they guaranteed.
Held: ‘although not all deeds can confer rights on a non-party so that the rights are enforceable by the non-party against the party who executes the deed, some deeds can do that. Such deeds are commonly described by the old expression ‘deeds poll’. ‘ and ‘it is common (indeed usual) for guarantees of indebtedness under loan stocks and similar debt instruments to be provided for in deeds executed solely by the guarantor, without the investors in whose favour the guarantees are given having to be signing parties to them.’ It was not necessary to rely upon the 1999 Act. ‘it is quite wrong, and inconsistent with the inherent nature of a guarantee, that the guarantor should be freed from liability to the third party creditor if the guarantor can, after the event, establish that he was deceived by the debtor ‘
‘It is necessary to examine what the parties who execute a document, saying that they are executing it ‘as a deed’ (the modern equivalent of affixing a wax seal), set out to do by it. Does one or more of them in fact make promises to the other or others (as one would expect of a deed inter partes), or do they rather seek to use the document as a means for each of them to make unilateral promises to a person who is not a party to it (or to persons who are not parties to it)? When the conventional word ‘between’ appears, is it an appropriate word given the content of what appears in the document that follows? ‘

Judges:

Park J

Citations:

[2006] EWHC 100 (Ch), Times 27-Feb-2006, [2006] 1 WLR 1847

Links:

Bailii

Statutes:

Contracts (Rights of Third Parties) Act 1999 3(2)

Jurisdiction:

England and Wales

Citing:

Cited – Arnold v National Westminster Bank Plc HL 1991
Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
Cited – Chelsea and Walham Green Building Society v Armstrong 1951
Mrs Brooks and Mr Armstrong entered into a deed transferring property from her to him, with provisions about a mortgage in favour of the building society to which the property was subject. The building society was not a party to the deed. Mr Brooks . .
Cited – in re A and K Holdings Pty Ltd 1964
(Supreme Court of Victoria) A company (‘Castley Brothers’) in a group was in financial difficulties, and ten other companies in the group, one of which was A and K Holdings, executed a deed of guarantee which was expressed to be in favour of . .

Cited by:

Cited – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 September 2022; Ref: scu.238542

McMillan Williams (a Firm) v Range: CA 17 Mar 2004

The respondent was employed as a solicitor to be paid commission on fees paid. She received advances against those payments. She was dismissed after failing to reach the targets. The employer sought repayment of the excess advances. She replied that the payments were Credit, and void under the Act.
Held: The agreement did not provide credit. The solicitor was earning the money, not repaying the advance. At the time of the contract no debt could be said to be created. The contract was essentially a means for payment of remuneration. When entered into either party might owe the other sums, and it could not be predicted which way it would be. It was not a credit agreement, and so was not unenforceable.

Judges:

Ward LJ, Mantell LJ, Jonathan Parker LJ

Citations:

[2004] EWCA Civ 294, Times 16-Apr-2004, [2005] ECC 8, [2004] 1 WLR 1858

Links:

Bailii

Statutes:

Consumer Credit Act 1974 8

Jurisdiction:

England and Wales

Citing:

Cited – Fattah Nejad v City Index Limited CA 12-Jul-1999
. .
Cited – Dimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
Lists of cited by and citing cases may be incomplete.

Employment, Contract, Torts – Other

Updated: 11 September 2022; Ref: scu.194684

Bride Hall Estates Limited, Openboard Limited v St George North London Limited: CA 18 Feb 2004

A contract contained an overage clause which would come into effect according to whether car parking spaces were included when calculatiing the average values.
Held: The contracts indicated that the parking spaces were to be included. Reference to ‘net internal area’ within the document at one point indicated that the parking spaces were to be included in other parts of the document.

Judges:

Lord Justice Keene Lord Justice Kay Lord Justice Carnwath

Citations:

[2004] EWCA Civ 141, Times 04-Mar-2004

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Bride Hall Estates Ltd and another v St George North London Ltd ChD 30-Apr-2003
Land was sold with an overage clause, requiring further payments after deduction of incentives. The parties disputed whether car parking facilities given to the purchasers were incentives, or part of the consideration.
Held: The clause itself . .

Cited by:

Appealed to – Bride Hall Estates Ltd and another v St George North London Ltd ChD 30-Apr-2003
Land was sold with an overage clause, requiring further payments after deduction of incentives. The parties disputed whether car parking facilities given to the purchasers were incentives, or part of the consideration.
Held: The clause itself . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 11 September 2022; Ref: scu.193922

In re United Railways of the Havana v Regla Warehouses Ltd: CA 1960

There had been a financing transaction by way of a lease by a Pennsylvania corporation, as trustee for foreign bondholders, to an English company carrying on business in Cuba, of assets in Cuba. By a Cuban decree the assets were transferred to the Cuban government and the company was put into liquidation in England. The liquidators rejected a proof by the trustees for the payments due under the lease on the ground that the Cuban decree had transferred liability to the Cuban government. The court did not accept that the decree had this effect, but, for argument considered whether it would have been effective to discharge the company’s liability. This depended on whether one applied the lex situs of the debt (Cuba) or the proper law of the lease (Pennsylvania).
Held: The transaction was a statutory novation; the extinction of the liability of one debtor and its replacement by the liability of another. These two aspects of the transaction were not necessarily governed by the same law and that the question of whether the one debtor was discharged was governed by the proper law of the debt. The court rejected an analogy with the question of whether the benefit of a debt had been transferred to another person. ‘The contractual right to receive payment of a debt is an item of property, that is to say, a chose in action. It can be transferred by the creditor to a third party, but the validity of the transfer necessarily depends upon the lex situs, because the courts of the country where the debt is have jurisdiction over the title to it. Novation, on the other hand, does not involve the transfer of any property at all, for, as we have already pointed out, it comprises the annulment of one debt and the creation of another. Moreover, in novation a creditor may be vitally prejudiced, whereas it is immaterial to a debtor to whom he pays his debt provided that he gets a good discharge for it.’

Judges:

Jenkins LJ

Citations:

[1960] Ch 52

Jurisdiction:

England and Wales

Cited by:

Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Appeal from – In re United Railways of Havana and Regla Warehouses Ltd; Tomkinson v First Pennsylvania Banking and Trust Co HL 1960
A sum was held to be due from that company in US dollars under a lease and another agreement which were both governed by the law of Pennsylvania.
Held: The sum provable in the liquidation of the company was to be converted at the rates of . .
Cited – Lesotho Highlands Development Authority v Impregilo Spa and others HL 30-Jun-2005
The House had to consider whether the arbitrator had acted in excess of his powers under s38, saying the arbitrator had misconstrued the contract. The arbitrator had made his award in different currencies.
Held: The question remained whether . .
Cited – Gomez and others v Vives CA 3-Oct-2008
The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from . .
Cited – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Lists of cited by and citing cases may be incomplete.

Banking, Insolvency, Contract

Updated: 11 September 2022; Ref: scu.183832

Fleetwood Wanderers Ltd (T/A Fleetwood Town Football Club) v AFC Fylde Ltd: ComC 30 Nov 2018

Challenge to an arbitration award in respect of a dispute arising from the termination of a professional footballer’s contract of employment.

Judges:

His Honour Judge Halliwell sitting as a Judge of the High Court

Citations:

[2018] EWHC 3318 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 11 September 2022; Ref: scu.631322

Forstater and Another v Python (Monty) Pictures Ltd and Another: ChD 5 Jul 2013

Claim to share of profits from Monty Python films.

Citations:

[2013] EWHC 1873 (Ch)

Links:

Bailii, Gazette

Jurisdiction:

England and Wales

Cited by:

See Also – Forstater and Another v Python (Monty) Pictures Ltd and Another ChD 29-Nov-2013
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 September 2022; Ref: scu.512275

Credico Marketing Ltd and Another v Lambert and Another: QBD 5 Feb 2021

Application by the claimants seeking orders (i) adding persons to the proceedings as defendants; (ii) amending the Claim Form to include claims against the proposed additional defendants for damages for tortiously inducing the defendants’ breach of covenants and/or contractual undertakings; (iii) amending the Claim Form to include claims for damages and an account of profits against the defendants; and (iv) varying the directions to trial.

Judges:

Geraint Webb QC (sitting as a deputy High Court Judge)

Citations:

[2021] EWHC 204 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Torts – Other

Updated: 10 September 2022; Ref: scu.658656

Chapman v Honig: CA 1963

A landlord’s notice to quit was held valid notwithstanding that the landlord seeking to uphold its validity had himself given it in contempt of court.
A contractual right may be exercised for any reason good, bad or indifferent and the motive with which it is exercised is irrelevant to its validity.
Pearson LJ: ‘There is a special difficulty in the present case. The act complained of, the service of the notice to quit, was on the face of it a lawful exercise of a contractual right, duly implemented in accordance with the provisions of the tenancy agreement and effective to terminate the tenant’s estate and to convert the landlord’s interest from an estate in reversion to an estate in possession. Common experience is that, when the validity of an act done in purported exercise of a right under a contract or other instrument is disputed, the inquiry is limited to ascertaining whether the act has been done in accordance with the provisions of the contract or other instrument. I cannot think of any case in which such an act might be invalidated by proof that it was prompted by some vindictive or other wrong motive. Motive is disregarded as irrelevant. A person who has a right under a contract or other instrument is entitled to exercise it and can effectively exercise it for a good reason or a bad reason or no reason at all. If the rule were different, if the exercise of such a right were liable to be overthrown, in an action brought at any time within the limitation period, by proof that the act was done with a wrong motive, there would be a great unsettlement of property titles and commercial transactions and relationships.’

Judges:

Pearson LJ, Davies LJ

Citations:

[1963] 2 QB 502

Jurisdiction:

England and Wales

Cited by:

Cited – Fitzroy House Epworth Street (No. 1) Ltd and Another v Financial Times Ltd CA 31-Mar-2006
The defendant tenant sought to exercise a break clause in the lease. The landlord said that the notice was deficient because the tenant had failed ‘materially to comply with’ its repairing obligations. The judge found the cost of repairs were . .
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Cited – London Borough of Harrow v Johnstone HL 13-Mar-1997
A possession action was lawful against a remaining joint tenant after a notice to terminate the tenancy had been given by the other tenant. An order against interference with possession of property did not extend to matters of the duration of the . .
Cited – JSC BTA Bank v Khrapunov SC 21-Mar-2018
A had been chairman of the claimant bank. After removal, A fled to the UK, obtaining asylum. The bank then claimed embezzlement, and was sentenced for contempt after failing to disclose assets when ordered, but fled the UK. The Appellant, K, was A’s . .
Cited – N v Agrawal CA 9-Jun-1999
A doctor examining a victim of a rape, but who failed to give evidence at court was not liable to the victim for further psychiatric damages caused by the resultant collapse of the prosecution. There was no doctor/patient relationship to give rise . .
Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Updated: 09 September 2022; Ref: scu.240012

Parsons Plastics (Research and Development) Ltd v Purac Ltd: CA 12 Apr 2002

The claimants were main contractors on a construction project. The respondents were sub-contractors. After difficulties, the sub-contractor was ejected from the site. The issue was as to the jurisdiction of the adjudicator. Was the project, to create a sewage station, a ‘construction operation’ within the Act?
Held: The sum was due under the contract irrespective of whether an adjudicator also found it to be due. The contract could not be re-read to exclude the arbitration requirement. In this case the contractors were unlikely to succeed in any attempt to deny the sub-contractors their right to payment for works done, and payment should not be delayed for a set off claim. The judge was entitled, in her discretion, to make an interim award.

Judges:

The Hon Mr Justice Latham

Citations:

[2002] EWCA Civ 459, (2002) 93 Con LR 26

Links:

Bailii

Statutes:

Housing Grants, Construction and Regeneration Act 1996

Jurisdiction:

England and Wales

Citing:

Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Lists of cited by and citing cases may be incomplete.

Construction, Contract, Arbitration

Updated: 09 September 2022; Ref: scu.171203

James Lawson, Merchant, Glasgow v John Tait, W S, Trustee for The Creditors and Representatives of John Hamilton, Deceased: HL 28 Apr 1779

Circumstances in which letters and other documents held not to prove that certain bills were granted merely as agent for a third party, and only to vouch the extent of the creditor’s advances to that party until a certain share in his trade in Virginia was given to him; notwithstanding it was admitted that the money so received, and for which the bills were given, was appropriated for that third party’s use, and he had agreed to give the creditor in the bills the share in the concern he desired.

Citations:

[1779] UKHL 2 – Paton – 505

Links:

Bailii

Jurisdiction:

Scotland

Agency, Contract

Updated: 08 September 2022; Ref: scu.562038

Grizel Lady Sempill, Widow of Colonel Richard Cuninghame Deceased v Alexander Murray of Broughton, Esq; Et e Contra: HL 4 Mar 1720

Presumption – In 1691, a Colonel gives his Lieutenant Colonel a draft on his agent for 250 l. and also pays him 50 l. in cash, for which a receipt is granted: in a statement of all the officers’ accounts in 1692, the Lieut. Col. takes no notice of the transaction in 1691, but mentions that he had received 75 l. 112 s. 8 d. on account of his pay, without stating from whom: in an action, after the death of the parties, in 1719, it is held that the draft for 250 l. was not presumed to have been paid by the drawee, unless it was otherwise instructed; but that the 50 l paid by the Colonel was not included in the 75 l. 12 s. 8 d. acknowledged to have been received by the Lieut. Col.
Writ – An objection made to a receipt between officers, that it was void, being neither holograph, nor having the solemnities required by the acts of parliament relative to the testing of writings, is not sustained.
Was a deed written and executed at Dublin valid, which bore to be ‘written by Edward Dudgeon, Gentleman?’ see note at the end of this case.

Citations:

[1720] UKHL Robertson – 282, (1720) Robertson 282

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 08 September 2022; Ref: scu.553645

Ing Bank Nv v Ros Roca Sa: CA 31 Mar 2011

The court was asked to construe a clause governing the calculation of an ‘additional fee’ for financial services provided by ING Bank NV (‘ING’) to Ros Roca SA (‘Ros Roca’). In monetary terms ING claims 6,700,000 Euros; on Ros Roca’s interpretation, upheld by the judge, the correct amount is 943,922.44 euros. The cross-appeal is based on the contention that, even if ING succeeds on the construction issue, it is precluded by estoppel from relying on that construction.
‘Construction cannot be pushed beyond its proper limits in pursuit of remedying what is perceived to be a flaw in the working of a contract. It is now clear, in a less literalist era, that where a contract makes commercial nonsense on its own terms, it should be interpreted if possible in a way which avoids the absurdity.’

Judges:

Rix, Carnwath, Stanley Burnton LJJ

Citations:

[2011] EWCA Civ 353, [2012] Bus LR 266, [2012] 1 WLR 472

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Estoppel

Updated: 08 September 2022; Ref: scu.431608

Wiseman v Virgin Atlantic Airways Ltd: QBD 29 Jun 2006

The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, he could not do so for the expenses of his girlfriend who had been unable to meet him for the delay in his return. Various other heads of claim failed as too remote.

Judges:

Eady J

Citations:

[2006] EWHC 1566 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hadley 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 . .
Cited – Victoria 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 . .
Cited – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Cited – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
Cited – Hobbs v London and South Western Railway Co 1875
The court considered an application for damages for inconvenience in a breach of contract case: ‘for the mere inconvenience, such as annoyance and loss of temper, or vexation, or for being disappointed in a particular thing which you have set your . .
Cited – Burton v Pinkerton 1867
The Plaintiff agreed to serve on the defendant’s ship for twelve months, but left it when the Defendant berthed in a Peruvian port with a cargo which included ammunition, even though Peru was at war with Spain (”two powers at peace with England’). . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Jarvis v Swans Tours Ltd CA 16-Oct-1972
The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .
Cited – Addis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
Cited – Cook v Swinfen CA 1967
The plaintiff could not recover damages for the mental distress of conducting litigation. The court found it difficult to draw the line as to where such damage could be identified. In this case the damage could not reasonably be said to have flowed . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 07 September 2022; Ref: scu.243164

Department for Environment, Food and Rural Affairs v Feakins and Another: ChD 26 Nov 2004

The farmer complained that the department had, during the foot and mouth outbreak destroyed animals which did not belong to the owner of the land. The department said that the farmer had disposed of his land at an undervalue to defeat his creditors.
Held: The department did not have power under the Act to bury slaughtered animals on land which was not occupied by their owner, and the counterclaim succeeded. However the defendant had displayed a readiness to dissemble in order to get his bank which had taken possession of the farm to resell it to the lady who was soon to be his wife without disclosing his relationship. The legislation was operative against someone who took part in a transaction at an undervalue. Mr Feakins knew that she would immediately resell the land for twice the amount once purchased when he, by arrangement, had already agreed to surrender his agricultural tenancy. Accordingly the transaction could be set aside.

Judges:

Hart J

Citations:

Times 29-Dec-2004

Statutes:

Insolvency Act 1985 423, Animal Health Act 1981 34

Jurisdiction:

England and Wales

Citing:

See Also – Regina on the Application of Feakins v Secretary of State for Environment, Food and Rural Affairs CA 4-Nov-2003
The applicant farmer had substantial volumes of potentially contaminated carcasses on his land. The respondent derogated from the European regulations which would have arranged for the disposal of the carcasses. The respondent challenged the . .
Cited – Re Brabon 2001
The debtor had contracted to sell his land to a third party developer, Silver. Between contract and completion, the debtor was made bankrupt. His wife, who already held legal charges over part of the land, took a transfer of a charge over the . .
See Also – Department for Environment Food and Rural Affairs v Feakins and Another ChD 26-Nov-2004
. .

Cited by:

See Also – Regina on the Application of Feakins v Secretary of State for Environment, Food and Rural Affairs CA 4-Nov-2003
The applicant farmer had substantial volumes of potentially contaminated carcasses on his land. The respondent derogated from the European regulations which would have arranged for the disposal of the carcasses. The respondent challenged the . .
Appeal from – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other, Agriculture

Updated: 07 September 2022; Ref: scu.220647

Cookson and Clegg Ltd, Regina (on the Application of) v Ministry of Defence and Another: CA 22 Apr 2005

Renewed application for leave to appeal granted.
Held: For an economic operator, if a claim under the Public Contracts Regulations may be brought, a claim for judicial review may not

Judges:

Sir William Aldous

Citations:

[2005] EWCA Civ 577

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Good Law Project Ltd and Others, Regina (on Application of) v Secretary of State for Health and Social Care Admn 18-Feb-2021
Failure to Publish Contracts awards details
Challenge to alleged failures by the Secretary of State to comply with procurement law and policy in relation to contracts for goods and services awarded following the onset of the COVID-19 pandemic.
Held: The contracts had been awarded under . .
Lists of cited by and citing cases may be incomplete.

Contract, Judicial Review, Administrative

Updated: 07 September 2022; Ref: scu.226048

Padden v Arbuthnot Pensions and Investments Ltd: CA 14 May 2004

Judges:

Lord Justice Buxton Lord Justice Kennedy Lord Justice May

Citations:

[2004] EWCA Civ 582

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Approved – Financial Services Authority v Rourke ChD 19-Oct-2001
The applicant sought a declaration that the defendant had acted in breach of the Act, in accepting sums by way of deposit, without being authorised, and had made prohibited statements to attract such deposits. Could a civil court make such a finding . .

Cited by:

Cited – Office of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Contract

Updated: 07 September 2022; Ref: scu.197003

Sunrule Ltd v Avinue Ltd: CA 26 Nov 2003

The defendant company sought to appear by a lay representative in a small claims track case in a county court. The court did not allow that, and the only representative was a director with limited English. The company appealed.
Held: The normal rule as to representation of companies did not apply in cases allocated in this way. A corporate party was entitled, as of right, to be represented by a lay representative at the trial of a small claim in a county court, whether or not the representative was an officer or an employee of the company.

Citations:

[2003] EWCA Civ 1942, Gazette 15-Jan-2004, [2004] 1 WLR 634

Links:

Bailii

Statutes:

Civil Procedure Rules 27.2(1)(h)

Jurisdiction:

England and Wales

Contract, Civil Procedure Rules, Company

Updated: 07 September 2022; Ref: scu.193653

AMEC 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. They said the defenders should have issued a variation to allow them to claim the costs. The defenders said it could have been claimed as a quantum meruit.
Held: Quantum meruit was not normally claimable where there was a contract. There was a discretion to issue an instruction to vary and that had to be exercised reasonably. The pursuers averred that the defenders were under an obligation to ensure that their site manager operated the contract properly by issuing the instruction. No such term could be implied.

Judges:

Lord Carloway

Citations:

[2003] ScotCS 223

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – Downs v Chappell; Downs v Stephenson Smart (a Firm) CA 1996
The plaintiff purchased a book shop. He claimed that in doing so he had relied upon the accounts prepared and signed off by the respective defendants.
Held: The judge had been wrong by testing what would have been the true figures as against . .
Cited – Tharsis Sulpur v McElroy and Sons HL 1878
A contractor asked to carry out works was entitled to be paid on a quantum meruit basis if no price appeared to have been set under the contract. . .
Cited – Leyland and Co v Cia Panamena Europea Navigacion CA 1943
Goddard LJ said: ‘He, therefore, was unwilling to carry out the duty assigned by the contract to him. The defendants either were of the same opinion or adopted his view; for this purpose, it matters not which. Consequently, they neither required him . .
Cited – Panamena Europea Navigacion v Frederick Leyland and Co HL 1947
The parties had entered into an agreement providing for arbitration of any disputes. Lord Thankerton said: ‘By entering into the contract the respondents agreed that the appellant’s surveyor should discharge both these duties and therefore they . .
Cited – Esso Petroleum Company Ltd v Mardon CA 6-Feb-1976
Statements had been made by employees of Esso in the course of pre-contractual negotiations with Mr Mardon, the prospective tenant of a petrol station. The statements related to the potential throughput of the station. Mr Mardon was persuaded by the . .
Cited – Thorn v Mayor and Commonality of London HL 1876
The contractor successfully tendered for work involving the replacement of the existing Blackfriars Bridge pursuant to an employer’s invitation, which stated that the work was to be carried out pursuant to a specification. The specification included . .
Cited – Boyd and Forrest v Glasgow and South-Western Railway Co HL 11-Jan-1915
The issuing of an instruction was not a condition precedent to entitlement to payment in a construction contract. . .
Cited – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .
Cited – Barry and Barry v Sutherland SCS 23-Nov-2001
The pursuers alleged that the defender had made fraudulent misrepresentations to them when selling them his bar business. On entry they had found a set of accounts showing a lower turnover, and exercised an option to break their lease.
Held: . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – 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. . .
Lists of cited by and citing cases may be incomplete.

Construction, Contract

Updated: 07 September 2022; Ref: scu.185400

Aubergine Enterprises Limited v Lakewood International Limited: CA 26 Feb 2002

A sought confirmation that it had successfully rescinded a contract for the purchase of a leasehold property from L. Either party was to be able to rescind, if consent to the assignment had not obtained before three days before completion. There appeared to be confusion as to whether consent had been indicated between the solicitors.
Held: Words in a letter ‘subject to licence’ had different effect where there was an existing legal relationship between the parties. The consent had been given sufficiently to comply with the contract, even though informal and conditional. The seller was not in breach, and the buyer was not free to rescind.

Judges:

Lord Justice Auld, Lord Justice Ward, And, Lord Justice Robert Walker

Citations:

Gazette 11-Apr-2002, [2002] EWCA Civ 177, [2002] 1 WLR 2149

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bickel v Courtenay Investments (Nominees) Limited ChD 1984
. .
Cited – Norwich Union Life Insurance Society v Shopmoor Ltd ChD 1999
Shopmoor’s predecessors demised premises for 150 years at a yearly rent of andpound;100 on payment of a premium. A covenant provided that the tenant was not to assign or sublet without the landlord’s consent, not to be unreasonably withheld or . .
Cited – Footwear Corporation Ltd v Amplight Properties Ltd ChD 1-Apr-1998
The plaintiff was tenant of premises under a lease granted by the defendant’s predecessor in title. He vacated the premises in July 1996, and on 17 November 1997 wrote asking the defendant for a licence to sublet them to a pet shop business. The . .
Cited – City Hotels Group Ltd v Total Property Investments Ltd 6-Jul-1984
The landlords had received a request for a consent to a proposed assignment of the lease. They did not, in terms, refused consent, but had not given it notwithstanding a considerable passage of time and lengthy correspondence. The court was asked . .
Cited – Mount Eden Land Ltd v Prudential Assurance Co Ltd CA 12-Nov-1996
The Court warned against extending the ‘magic’ of the ‘subject to contract’ label into the realm of unilateral licences. The question was whether a landlord had granted licence to the tenant to carry out alterations. The letter relied on as . .
Cited – Venetian Glass Gallery Ltd v Next Properties Ltd. 1989
The court considered the significance of a reservation that a letter was sent ‘subject to licence’. After considering case law: ‘All three go to show that there is a distinction recognised by the law between the relationships, such as those between . .

Cited by:

Cited – Alchemy Estates Ltd v Astor and Another ChD 5-Nov-2008
The parties disputed the effect of a contract between them for the sale of a leasehold property. After exchange the solicitors failed to obtain the landlord’s consent to the proposed assignment as required by the lease. In the meantime the proposed . .
Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant, Land

Updated: 07 September 2022; Ref: scu.167704

Active Media Services Inc v Burmester, Duncker and Joly Gmbh and Co Kg and Others: ComC 9 Feb 2021

This dispute concerns the financing, completion and delivery of an animated Christmas film entitled ‘Elliot: the Littlest Reindeer’

Judges:

Mr Justice Calver

Citations:

[2021] EWHC 232 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Media, Contract, Intellectual Property

Updated: 07 September 2022; Ref: scu.658133

Kawasaki Kisen Kaisha Ltd v James Kemball Ltd: CA 18 Jan 2021

Whether the case of inducing breach of contract which the claimant (‘JKL’) has pleaded against the second defendant (‘KKK’), or should be permitted to plead by amendment, has a real prospect of success.

Judges:

Lord Justice Popplewell

Citations:

[2021] EWCA Civ 33

Links:

Bailii, Judiciary

Jurisdiction:

England and Wales

Contract

Updated: 07 September 2022; Ref: scu.657293

The Financial Conduct Authority and Others v Arch Insurance (UK) Ltd and Others: SC 15 Jan 2021

Many businesses, having been ordered to suspend business during the Covid-19 epidemic, sought to claim under business interruption insurance. The claims were rejected by the insurers and the insurers now appealed from a finding that they had been liable under a variety of clauses.
Held: The appeal failed.
‘ A disease that spreads is not something that occurs at a particular time and place and in a particular way: it occurs at a multiplicity of different times and places and may occur in different ways involving differing symptoms of greater or less severity. Nor for that matter could an ‘outbreak’ of disease be regarded as one occurrence, unless the individual cases of disease described as an ‘outbreak’ have a sufficient degree of unity in relation to time, locality and cause. If several members of a household were all infected with COVID-19 when a carrier of the disease visited their home on a particular day, that might arguably be described as one occurrence. But the same could not be said of the contraction of the disease by different individuals on different days in different towns and from different sources. Still less could it be said that all the cases of COVID-19 in England (or in the United Kingdom or throughout the world) which had arisen by any given date in March 2020 constituted one occurrence. On any reasonable or realistic view, those cases comprised thousands of separate occurrences of COVID-19. Some of those occurrences of the disease may have been within a radius of 25 miles of the insured premises whereas others undoubtedly will not have been. The interpretation which makes best sense of the clause, in our view, is to regard each case of illness sustained by an individual as a separate occurrence. On this basis there is no difficulty in principle and unlikely in most instances to be difficulty in practice in determining whether a particular occurrence was within or outside the specified geographical area.’

Judges:

Lord Reed, President, Lord Hodge, Deputy President, Lord Briggs, Lord Hamblen, Lord Leggatt

Citations:

[2021] UKSC 1, UKSC 2020/0177, [2021] 2 WLR 123

Links:

Bailii, Bailii Summary, Bailii Issues and Facts, SC, SC Summary, SC Video 16 Nov 2020 am, SC Video 16 Nov 2020 pm, SC Video 17 Nov 2020 am, SC Video 17 Nov 2020 pm, SC Video 18 Nov 2020 am, SC Video 18 Nov 2020 pm, SC Video 19 Nov 2020 am, SC Video 19 Nov 2020 pm

Statutes:

Health Protection (Coronavirus, Business Closure) (England) Regulations 2020, Health Protection (Coronavirus, Restrictions) (No 2) (England) Regulations 2020

Jurisdiction:

England and Wales

Citing:

Appeal from – The Financial Conduct Authority (FCA) v Arch Insurance (UK) Ltd and Others ComC 15-Sep-2020
Test case to determine issues of principle in relation to policy coverage under various specimen wordings underwritten by the defendants in respect of claims by policyholders to be indemnified for business interruption losses arising in the context . .
Cited – Orient-Express Hotels Ltd v Assicurazioni General Sa (UK Branch) (T/A Generali Global Risk) ComC 27-May-2010
Appeal from an arbitration award. . .
Cited – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
Cited – Regina v Investors Compensation Scheme Ltd, ex Parte Bowden and Another HL 18-Jul-1995
A regulated firm, Fisher Prew-Smith, ran a scheme whereby elderly homeowners were persuaded to invest money in equity-linked funds by mortgaging their homes on terms that the interest would roll up unless and until the total mortgage debt reached a . .
Cited – Charter Reinsurance Co Ltd v Fagan and Others HL 24-May-1996
The re-insurers appealed against a finding that they were liable to make payment under a contract which required them to pay ‘sums actually paid.’ They said that the company having become insolvent, no payment would in fact be made.
Held: The . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Orient-Express Hotels Ltd v Assicurazioni General Sa (UK Branch) (T/A Generali Global Risk) ComC 27-May-2010
Appeal from an arbitration award. . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 07 September 2022; Ref: scu.657248

New York Laser Clinic Ltd v Naturastudios Ltd: QBD 30 Oct 2019

Claim by the Claimant against the Defendant for damages for breach of collateral warranty, and/or negligent misstatement, arising out of statements made on behalf of the Defendant which the Claimant alleges induced the Claimant to take delivery of six laser diode devices

Judges:

Mr Justice Cavanagh

Citations:

[2019] EWHC 2892 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 07 September 2022; Ref: scu.643124