Category: Contract

Cornelius v Phillips: HL 29 Nov 1917

Contract – Validity – Moneylender – Transaction of Business Elsewhere than his Registered Address – Moneylenders Act 1900 (63 and 64 Vict. cap. 51), sec. 2 – Moneylenders Act 1911 (1 and 2 Geo. V, cap. 38), sec. 1 (1).
The respondent was a registered moneylender in Liverpool. The appellant was introduced to him at an hotel in Formby as a friend of S. who wished to borrow pounds 200. The respondent produced a promissory-note for pounds 300, which the appellant signed in return for a cheque for pounds 200, which the appellant indorsed and handed to S. Held that the Moneylenders Act 1900, section 2 1 ( b), struck at the transaction as business carried on at other than the moneylender’s registered address and rendered it void. The appellant was therefore entitled to indemnification against his liability under an action brought against him by the bona fide holder for value of the bill.
Kirkwood v. Gadd, [1910] A.C. 422, explained. Whiteman v. Sadler, [1910] A.C. 514, distinguished.
Decision of the Court of Appeal ( dis. Phillimore, L.J.), sub. nom. Finegold v. Cornelius, [1916] 2 K.B. 719, reversed.

Judges:

Lord Chancellor (Finlay), Viscount Haldane, Lords Dunedin, Atkinson, and Parmoor

Citations:

[1917] UKHL 545, 55 SLR 545

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 03 August 2022; Ref: scu.631010

Sere Holdings Ltd v Volkswagen Group United Kingdom Ltd: ChD 5 Jul 2004

Citations:

[2004] EWHC 1551 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Contract

Updated: 03 August 2022; Ref: scu.346728

Dimskal Shipping Co SA v International Transport Workers Federation (“The Evia Luck”): HL 1991

The Plaintiff shipowners had been induced by industrial action against a vessel in Sweden, which actions would be lawful under Swedish law, to undertake to enter into written agreements with the ITF under which, inter alia, more generous agreements were to be entered into for payment of the crew, back-dated and back pay was to be paid under these. One of the documents signed provided that the undertaking was to be governed by English law. The Plaintiffs purported to avoid the agreements for duress and to recover the monies that they had paid under them.
Held: The House considered the developing law of economic duress. The contract had to be avoided before a claim for restitution could be maintained. The question of whether economic pressure constituted duress of such a kind as to entitle the innocent party to avoid the contract is to be determined by reference to the proper law of the contract. In order to justify avoidance of a contract, the economic pressure must be such as to be called illegitimate.
Lord Goff said: ‘I start from the generally accepted proposition, embodied in rule 184 set out in Dicey and Morris, The Conflict of Laws, 11th ed. (1987), vol.2, p.1213, that the material or essential validity of a contract is governed by the proper law of the contract, which in the present case is English law. Rule 184 is one of a ground of rules (rules 181-187) concerned with the scope of application of the proper law of a contract. It is expressed to be subject to two exceptions. The first exception asserts that a contract is generally invalid in so far as its performance is unlawful by the law of the place of performance; with that exception we are not, in my opinion, here concerned. The second (which is not strictly an exception to rule 184) concerns the primacy of what used to be called the distinctive policy of English law over any provision of foreign law, in so far as such provision might be relevant to the validity or invalidity of a contract; to that topic, I will briefly return in a moment.
Accordingly in the present case we look to English law, as the proper law, to discover whether the contract may, as a matter of principle, be affected by duress and, if so, what constitutes duress for this purpose; what impact such duress must have exercised upon the formation of the contract; and what remedial action is available to the innocent party. We know, of course, that by English law a contract induced by duress is voidable by the innocent party; and that one form of duress is illegitimate economic pressure, including the blacking or the threat of blacking of a ship. I can see no reason in principle why, prima facie at least, blacking or the threat of blacking a ship should not constitute duress for this purpose, wherever it is committed – whether within the English jurisdiction or overseas; for in point of fact its impact upon the contract does not depend upon the place where the relevant conduct occurs.
It follows therefore that, prima facie at least, whether or not economic pressure amounts to duress sufficient to justify avoidance of the relevant contract by the innocent party is a matter for the proper law of the contract, wherever that pressure has been exerted. Here, of course, the proper law is English law. Moreover in the present case there was at the relevant time no applicable statutory provision of English law which required that blacking or the threat of blacking should not be regarded as duress. So, unencumbered by any such provision, we are left simply with an English contract which is voidable by the innocent party if the formation of the contract has been induced by duress in the form of blacking or the threat of blacking a vessel. The question then arises whether there is any basis in law for rejecting this simple approach, on the ground that the conduct in question was lawful by the law of the place where it occurred, viz. Swedish law.
Before your Lordships, it was the primary submission of Mr. Burton on behalf of the I.T.F. that in relation to any duress abroad, in English law the court should, subject to overriding questions of public policy, look to the law of the place of duress to test its lawfulness or legitimacy. I of course accept that, if Mr. Burton’s submission is correct, it must be subject to the qualification that, if it was inconsistent with the distinctive policy of English law to treat the relevant conduct as lawful, the English courts (consistently with the second exception to rule 184 in Dicey and Morris, The Conflict of Laws) would refuse to do so. But the question is whether Mr. Burton’s submission is correct. I have to say that I know of no authority which supports his submission which, if correct, would require the recognition and formulation of a fresh exception to rule 184 in Dicey and Morris.’

Judges:

Lord Goff of Chievely

Citations:

[1991] 4 All ER 871, [1992] 2 AC 152, [1992] 1 Lloyds Rep 115, [1992] IRLR 78, [1992] ICR 37, [1991] 3 WLR 875

Jurisdiction:

England and Wales

Cited by:

Cited – Progress Bulk Carriers Ltd v Tube City IMS Llc ComC 17-Feb-2012
The claimant sought to set aside an arbitration saying that the arbitrator had misapplied the test for economic duress. . .
Cited – Adam Opel Gmbh and Another v Mitras Automotive (UK) Ltd QBD 18-Dec-2007
The parties had agreed for the supply of automotive parts by the defendant to the claimant under a sole supply arrangement. None were in fact ordered for the first few years. The manufacturer then changed its design and made a new arrangement with a . .
Cited – DSND Subsea Ltd v Petroleum Geo Services Asa TCC 28-Jul-2000
Dyson J set out the principles applicable in establishing a pleading of commercial duress:
(i) Economic pressure can amount to duress, provided it may be characterised as illegitimate and has constituted a ‘but for’ cause inducing the claimant . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 03 August 2022; Ref: scu.372855

De Lasalle v Guildford: CA 1901

When looking at a statement to see if a warranty was given: ‘In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment.’
A statement purporting to be a contractual promise in a collateral contract must be promissory in nature or effect rather than representational: ‘In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment.’

Judges:

A L Smith MR

Citations:

[1900-3] All ER 495, [1901] 2 KB 215

Jurisdiction:

England and Wales

Cited by:

Cited – Heilbut Symons and Co v Buckleton HL 11-Nov-1912
In an action of damages for fraudulent misrepresentation and breach of warranty, the plaintiff founded on a conversation between himself and the defendants’ representative. In this conversation the plaintiff said-‘I understand that you are bringing . .
Lists of cited by and citing cases may be incomplete.

Contract, Negligence

Updated: 03 August 2022; Ref: scu.216361

Hyde v Pimley: CA 1952

The court drew a distinction between prior consent to a breach of contract and waiver or forbearance. Sir Raymond Evershed MR said: ‘The learned judge was of opinion that consent to the commission of a particular act was not the same thing as forgiveness of the act after it had been committed and so far we agree with him.’

Judges:

Sir Raymond Evershed MR

Citations:

[1952] 2 All ER 102

Jurisdiction:

England and Wales

Cited by:

Cited – Rhodia International Holdings Ltd. Rhodia UK Ltd v Huntsman International Llc ComC 21-Feb-2007
The parties contracted for the sale of a chemical surfactants business.The claimant had contracted to use reasonable endeavours to obtain the consent of a third party for the assignment a a contract to supply energy to the business. The defendant . .
Cited – Rhodia International Holdings Ltd and Another v Huntsman International CA 11-Jun-2007
There was a challenge to the validity of a sale and purchase agreement which included an assignment of a contract which would require novation.
Held: A long standing acquiesecence in one breach of the contract did not amount to a grant pf . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 31 July 2022; Ref: scu.251423

White v Bijou Mansions: CA 1938

The court heard an rejected an argument that s56 worked to allow a third party to sue under a covenant to which he had not been party: ‘before he can enforce it he must be a person who falls within the scope and benefit of the covenant according to the true construction of the document in question.’ (Sir W Greene MR)

Judges:

Sir W Greene MR

Citations:

[1938] Ch 351

Statutes:

Law of Property Act 1925 56

Jurisdiction:

England and Wales

Citing:

Appeal from – White v Bijou Mansions ChD 1937
The court heard an argument that section 56 of the 1925 Act had not changed the law to allow a third party to sue under a covenant to which he had not been party.
Held: Simonds J rejected an argument that section 56 enabled anyone to take . .

Cited by:

Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 31 July 2022; Ref: scu.251041

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 keeping the article in the place in which you have contracted to keep it, you cannot rely on the conditions which were only intended to protect you if you carried out the contract in the way which you had contracted to do it.’

Judges:

Scrutton LJ

Citations:

[1921] 2 KB 426

Jurisdiction:

England and Wales

Cited by:

Cited – Daewoo Heavy Industries Ltd and Another v Klipriver Shipping Ltd and Another CA 3-Apr-2003
The carrier had loaded the cargo on the ship’s deck, despite a clause requiring it to be stowed in a hold. The charterparty sought to use the breach to remove the carrier’s limit of liability. The older form of Hague rules applied.
Held: It . .
Cited – 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. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 31 July 2022; Ref: scu.181084

Galbraith and Grant Ltd v Block: CA 1924

A case of champagne was sold and delivered by wine merchants to a licensee. It was a term of the contract that the champagne should be delivered to the licensee’s premises.
Held: The claim was lost. The champagne was signed for at the licensee’s premises by a rogue. Good delivery had been effected when it was made to a person at the buyer’s premises apparently authorised to receive the goods.

Judges:

Lush and Greer LJJ

Citations:

[1924] 2 KB 155

Jurisdiction:

England and Wales

Contract

Updated: 31 July 2022; Ref: scu.259333

Hollingsworth v Humphrey: CA 10 Dec 1987

The parties disputed the effect of a Tomlin order, an order made by the court that stayed the proceedings on the terms of a compromise ‘except for the purpose of carrying the said terms into effect’. The defendant had failed to honour the contract and the judge awarded damages against him.
Held: The defendant’s appel succeeded. Fox LJ: ‘It was not open to the judge to make an award of damages
It seems to me that under the terms of the Tomlin order the only jurisdiction that he had in this action to make an order for the purpose of carrying into effect the terms of the compromise. An award of damages is not carrying the terms into effect. It is granting a remedy for breach of contract. In my view any claim by Mrs Hollingsworth for breach of contract must be pursued in a separate action.’

Judges:

Fox LJ

Citations:

Unreported, 10-Dec-87

Jurisdiction:

England and Wales

Cited by:

Cited – Orton v Collins and others ChD 23-Apr-2007
The court considered how a Part 36 offer could be treated as accepted when it involved an agreement to transfer land, because the offer and its acceptance would not operate under the 1989 Act.
Held: The agreement was enforceable. The Civil . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 31 July 2022; Ref: scu.251428

Whitbread and Co Ltd v Watt: CA 1902

The buyer agreed to buy a house when the developer had finished 300 houses on the site, but now sought return of his deposit.
Held: The developer’s appeal against an order for the return of the deposit failed.
Williams LJ said: ‘The lien which a purchaser has for his deposit is not the result of any express contract: it is a right which may be said to have been invented for the purpose of doing justice. It is fiction of a kind which is sometimes resorted to at law as well as in equity. For instance, when an action is brought for money had and received to the use of the plaintiff, it is not true that the money has been so received, but that is the way in which the law states the case in order to do justice. When Lord Westbury in Rose v. Watson speaks of a ‘transfer to the purchaser of the ownership of a part of the estate corresponding to the purchase-money paid,’ and Lord Cranworth speaks of the purchaser being exactly in the same position of a mortgagee of the estate to the extent of the purchase-money which he has paid, those expressions are merely verbal vehicles to carry the right which justice demands that the purchaser should have. Having read the report of Rose v. Watson, I must say that, speaking for myself, I agree with Mr. Brinton to this extent, that the decision does not expressly carry the purchaser’s lien beyond a case in which the contract has gone off through the default of the vendor.’
Stirling LJ said: ‘It is, I think, quite true, as Mr. Brinton has contended, that the question of the existence of the purchaser’s lien for his deposit arises in the present case in circumstances which differ from those of all previous reported cases. The contract has here been brought to an end, not by any act or default of the vendor, but by reason of the purchaser’s exercising a power of rescinding it which is reserved to him by the contract itself. This does not seem to have occurred in any previous case. Nevertheless, in the judgments in the two leading cases on the subject, Wythes v. Lee and Rose v. Watson, the rule is stated in terms which cover the present case. And, if we look at that which is really the foundation of the doctrine, namely the desire to do justice as between vendor and purchaser, it appears to me that reason applies no less forcibly in the present case than in the ordinary case in which the rescission of the contract takes place by reason of some default on the part of the vendor. In a case in which the vendor had rescinded under a power reserved to him, it would, I think, be absolute injustice if the purchaser were not allowed to have a lien for the purchase-money which he had paid, and by which was the security on his part for the performance by him of the contract. I think also the justice of the case requires that the purchaser should have a lien when the contract reserves to him a power to rescind.’

Judges:

Williams LJ, Stirling LJ

Citations:

[1902] 1 Ch 835

Jurisdiction:

England and Wales

Citing:

Appeal from – Whitbread and Co Ltd v Watt ChD 1901
The purchaser contracted to purchase a plot on a building estate belonging to the vendor. The contract provided that ‘the purchase is to be completed as soon as 300 houses shall have been erected on the said estate’. Thus the contract was one under . .

Cited by:

Cited – Chattey and Another v Farndale Holdings Inc and others CA 11-Oct-1996
The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 31 July 2022; Ref: scu.259718

IBM v Rockware Glass Ltd: CA 1980

The court considered the meaning on a promise by one party to use its best endeavours to obtain a relevant planning permission.
Held: The obligation included an obligation to appeal from an initial refusal of permission so long as the circumstances were such as to indicate that there was a reasonable chance of success.
Buckley LJ said: ‘I can feel no doubt that, in the absence of any context indicating the contrary, this should be understood to mean that the purchaser is to do all he reasonably can to ensure that the planning permission is granted. If it were refused by the Local Planning Authority, and if an appeal to the Secretary of State would have a reasonable chance of success, it could not, in my opinion, be said that he had ‘used his best endeavours’ . . I find it difficult to see how it could be said that to fail to appeal, if the circumstances were such as to indicate that an appeal from a refusal of planning permission had a reasonable chance of success, could be said to be using ‘best endeavours’ to obtain the planning permission. ‘ and ‘In my judgment the test must be: what would an owner of the property with which we are concerned in this case, who was anxious to obtain planning permission, do to achieve that end. The formula which has been suggested and which would commend itself to me is that the plaintiffs as covenantors are bound to take all those steps in their power which are capable of producing the desired results, namely, the obtaining of planning permission, being steps which a prudent, determined and reasonable owner, acting in his own interests and desiring to achieve that result, would take.’
Geoffrey Lane LJ described the duty accepted as to ‘take all those reasonable steps which a prudent and determined man, acting in his own interests and anxious to obtain planning permission, would have taken’. An obligation to use best endeavours is sufficiently certain to be enforceable so long as the object to be achieved is clear.
Goff LJ said that an agreement to use best endeavours to agree a mutually acceptable price is unenforceable.

Judges:

Buckley LJ, Geoffrey Lane LJ, Goff LJ

Citations:

[1980] FSR 335

Jurisdiction:

England and Wales

Cited by:

Cited – Overseas Buyers v Granadex 1980
The court considered the meaning of a promise by one party to use its best endeavours.
Held: Mustill J said: ‘it was argued that the arbitrators can be seen to have misdirected themselves as to the law to be applied, for they have found that . .
Cited – Rhodia International Holdings Ltd. Rhodia UK Ltd v Huntsman International Llc ComC 21-Feb-2007
The parties contracted for the sale of a chemical surfactants business.The claimant had contracted to use reasonable endeavours to obtain the consent of a third party for the assignment a a contract to supply energy to the business. The defendant . .
Cited – EDI Central Ltd v National Car Parks Ltd SCS 27-Oct-2010
. .
Cited – R and D Construction Group Ltd v Hallam Land Management Ltd SCS 10-Dec-2010
. .
Cited – Dhanani v Crasnianski ComC 15-Apr-2011
The parties disputed the terms of a contract between them under which the defendant was to provide substantial sums for the claimant to invest. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 31 July 2022; Ref: scu.251417

Cory (Wm) and Son Ltd v Inland Revenue Commissioners: CA 1964

Diplock LJ discussed the status of a deed delivered in escrow: ‘So long as it remains an escrow it is not yet executed as a deed; for delivery again as a deed is required before it becomes one. While an escrow it conveys nothing, it transfers nothing.’

Judges:

Diplock LJ

Citations:

[1964] 1 WLR 1332

Jurisdiction:

England and Wales

Cited by:

Cited – Terrapin International Ltd v Inland Revenue Commissioners 1976
A deed had been delivered in escrow, but, before the condition was fulfilled, the rates of stamp duty changed. The parties disputed the effective date of the transaction.
Held: Walton J considered what was the effect of a deed being held in . .
Cited – Alan Estates Ltd v WG Stores Ltd and Another CA 1-Jul-1981
The proposed tenant wanted to get into possession, and was given a key and paid a quarter’s rent to the lessor’s solicitors to be held as stakeholders, before the lease had been formally granted. An undated lease and counterpart were executed and . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 31 July 2022; Ref: scu.252349

29 Equities Ltd v- Bank Leumi (UK) Ltd: CA 1986

The court considered a clause requiring a party to use reasonable endeavours.
Held: Dillon LJ: ‘As Goff J pointed out in Lipmnas Wallpaper Ltd v Mason and Hodghton Ltd [1969] 1 Ch. 20, the vendor could not escape the clause by rescinding on the ground that consent was not obtainable without first using the vendor’s best endeavours to get it; but that is not in question here. As Goff J equally pointed out, if the facts are that there has been a categorical refusal of consent by the landlord, then it is not incumbent on the vendor to make further or yet further attempts to persuade the landlord to change his mind or to give the purchaser an opportunity of trying his powers of persuasion on the landlord or taking various other steps which hypothetically might equally well, or might not, have any effect in persuading the landlord to change his mind. But the question is a simple question of fact to be decided in the light of common sense’.

Judges:

Dillon LJ

Citations:

[1986] 1 WLR 1490

Jurisdiction:

England and Wales

Cited by:

Cited – Rhodia International Holdings Ltd. Rhodia UK Ltd v Huntsman International Llc ComC 21-Feb-2007
The parties contracted for the sale of a chemical surfactants business.The claimant had contracted to use reasonable endeavours to obtain the consent of a third party for the assignment a a contract to supply energy to the business. The defendant . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 31 July 2022; Ref: scu.251422

Alexander v Rayson: CA 1936

The action was for arrears of rent. The evidence at trial was that the plaintiff granted a lease to the defendant at a rent of pounds 1200 and contracted that certain services in connection with the flat would be performed. The plaintiff sent the defendant two documents. One was a lease with the benefit of certain services at a rent of pounds 450 pa. The other was an agreement for services in connection with the flat for a consideration of andpound;750. The plaintiff used these two documents because he planned to defraud the local Assessment Committee by representing that the total rent was andpound;450. The flat had been assessed at pounds 720 gross, andpound;597 net but when the plaintiff submitted just the lease to the Assessment Committee the gross valuation was reduced to pounds 270. However, the valuation authority learned about the other agreement from the tenant and restored the original figures of pounds 720 gross and pounds 597 net. Sometime later, the plaintiff sued for arrears of rent and was met by the defence of illegality.
Held: The Court referred to a number of cases where the contract in question had been held to be unenforceable because it was intended that the subject matter of the contract was to be used for an unlawful purpose. It is not right that the judge of fact should be asked to express any opinion upon the evidence until the evidence is completed: ‘Where an action is being heard by a jury it is, of course, quite usual and often very convenient at the end of the case for the plaintiff, or of the party having the onus of proof, as the defendant had here, for the opposing party to ask for the ruling of the judge whether there is any case to go to the jury, who are the only judges of fact. It also seems to be not unusual in the King’s Bench Division to ask for a similar ruling in actions tried by a judge alone. We think, however, that this is highly inconvenient. For the judge in such cases is also the judge of fact, and we cannot think it right that the judge of fact should be asked to express any opinion upon the evidence until the evidence is completed. Certainly no one would ever dream of asking a jury at the end of a plaintiff’s case to say what verdict they would be prepared to give if the defendant called no evidence, and we fail to see why a judge should be asked such a question in cases where he and not a jury is the judge that has to determine the facts. In such cases we venture to think that the responsibility for not calling rebutting evidence should be upon the other party’s counsel and upon no one else.’

Citations:

(1936) 1 KB 169

Jurisdiction:

England and Wales

Cited by:

Cited – Miller (T/A Waterloo Plant) v Cawley CA 30-Jul-2002
At the end of the claimant’s case the defendant wished to submit that there was no case for her to answer. The judge then put the defendant to an election as to whether or not she would call any evidence. She appealed.
Held: It is not . .
Cited – Boyce v Wyatt Engineering and Others CA 1-May-2001
The discretion of a judge to deal with a case at the close of the claimant’s case, and without putting the defendants to their respective election was only to be exercised with the greatest caution. There was a risk that, if the claimant appealed . .
Cited – Lloyd v John Lewis Partnership CA 1-Jul-2001
The judge allowed the defendant’s submission of no case to answer without putting them to their election and again the claimant’s appeal succeeded. The trial judge had been persuaded that the rule in Alexander -v- Rayson had been altered by the . .
Affirmed – Benham Limited v Kythira Investments Ltd and Another CA 15-Dec-2003
The appellant complained that the judge had accepted a case of no case to answer before the close of the claimant’s case and without putting them to their election. The claimant estate agents sought payment of their account. The defendants alleged a . .
Cited – 21st Century Logistic Solutions Limited (In Liquidation) v Madysen Limited QBD 17-Feb-2004
The vendor sold computers to the defendant, intending not to account to the commissioners for the VAT. The seller went into liquidation, and the liquidator sought payment. The purchaser had been unaware of the intended fraud and resisted payment. . .
Cited – Neina Graham v Chorley Borough Council CA 21-Feb-2006
The defendant had submitted after the close of the claimant’s case that it had no case to answer. The judge did not put the defendant to its election as to whether to call evidence, but instead decided to accede to the submission. The claimant now . .
Cited – Massey v Crown Life Insurance Company CA 4-Nov-1977
Massey worked as Crown Life’s manager under 2 contracts, one a contract of employment, the other a contract of general agency. Tax and other contributions were deducted from wages paid under the former, while commission was paid under the agency . .
Cited – Moore Stephens (A Firm) v Stone Rolls Ltd (in liquidation) HL 30-Jul-2009
The appellants had audited the books of the respondent company, but had failed to identify substantial frauds by an employee of the respondent. The auditors appealed a finding of professional negligence, relying on the maxim ex turpi causa non . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 31 July 2022; Ref: scu.180537

Pao On and Others v Lau Yiu Long and Others: PC 9 Apr 1979

(Hong Kong) The board was asked whether a contract of guarantee had been obtained by duress.
Held: Lord Scarman said: ‘Duress, whatever form it takes, is a coercion of the will so as to vitiate consent. Their Lordships agree with the observation of Kerr J. in Occidental Worldwide Investment Corporation v. Skibs A/S Avanti [1976] 1 Lloyd’s Rep. 293, 336 that in a contractual situation commercial pressure is not enough. There must be present some factor ‘which could in law be regarded as a coercion of his will so as to vitiate his consent.’ This conception is in line with what was said in this Board’s decision in Barton v. Armstrong [1976] A.C. 104, 121 by Lord Wilberforce and Lord Simon of Glaisdale – observations with which the majority judgment appears to be in agreement. In determining whether there was a coercion of will such that there was no true consent, it is material to inquire whether the person alleged to have been coerced did or did not protest; whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it. All these matters are, as was recognised in Maskell v. Horner [1915] 3 K.B. 106, relevant in determining whether he acted voluntarily or not.’
The Board also considered (obiter) whether english law recognises ‘economic duress’ and said: ‘the pressure must be such that the victim’s consent to the contract was not a voluntary act on his part. In their Lordships’ view, there is nothing contrary to principle in recognising economic duress as a factor which may render a contract voidable, provided always that the basis of such recognition is that it must amount to a coercion of will, which vitiates consent. It must be shown that the payment made or the contract entered into was not a voluntary act.’

Judges:

Lord Wilberforces, Viscount Dilhorne, Lord Simon of Glaisdale, Lord Salmon, Lord Scarman

Citations:

[1980] AC 614, [1979] UKPC 2, [1979] UKPC 17

Links:

Bailii, Bailii

Citing:

Cited – Occidental Worldwide Investment Corporation v Skibs A/S Avanti (The Siboen and Sibotre) 1976
The effect of a rescission of a compromise agreement settling the dispute may be to revive the original agreement. As to the liability of a principal for misrepresentations by his agent: ‘If one agent makes a fraudulent statement to another agent, . .
Cited – Skeate v Beale 1841
The tenant resisted a claim for the balance due under a contract, saying that the landlord in persuading him to agree to a rate of payment had subjected him to duress in threatening a distress.
Held: The plea of duress failed. . .

Cited by:

Cited – Jones v Morgan CA 28-Jun-2001
The claimant appealed against an order refusing him enforcement an agreement for the purchase of a one half share in a property. The judge had found the agreement to be unconscionable.
Held: The appeal was dismissed. The judge had wrongly . .
Cited – Universe Tankships Inc of Monrovia v International Transport Workers Federation HL 1-Apr-1981
A ship belonging to the appellants had been blacked by the defendant union. Negotiations to clear the threat resulted in payment by the appellants to a welfare fund of the defendant. The company sought its refund saying that it had been paid under . .
Cited – Progress Bulk Carriers Ltd v Tube City IMS Llc ComC 17-Feb-2012
The claimant sought to set aside an arbitration saying that the arbitrator had misapplied the test for economic duress. . .
Cited – CTN Cash and Carry v Gallaher CA 15-Feb-1993
The buyer paid a sum demanded by the seller who threatened otherwise to withdraw the credit facilities it provided to the buyer. The sum was not in fact due, but the demand had been made honestly. The buyer said the agreement was voidable for . .
Lists of cited by and citing cases may be incomplete.

Contract, Commonwealth

Updated: 30 July 2022; Ref: scu.372847

Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others: ComC 29 Jul 2009

The parties disputed the admissibility in a dispute about the effect of a settlement agreement of evidence of without prejudice exchanges between the parties before it was signed.

Judges:

Justice Andrew Smith

Citations:

[2009] EWHC 1946 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
At first Instance – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 30 July 2022; Ref: scu.368299

Benedetti and Another v Sawiris and Others: ChD 21 Jul 2009

Orders consequential on the main judgement to apportion liability as between the various defendants.

Judges:

Patten LJ

Citations:

[2009] EWHC 1806 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Principle Judg – Benedetti and Another v Sawiris and Others ChD 15-Jun-2009
The claimant sought payment for his services to the defendants for his work in facilitating a substantial buy out of an Italian energy company.
Held: The claim succeeded on a quantum meruit basis to the extent of 75m euros but not otherwise. . .

Cited by:

First Instance consequentials – Benedetti v Sawiris and Others CA 16-Dec-2010
The claimant had claimed a reward for his role in securing a very substantial business deal for the defendants. The judge had rejected claims in contract but had awarded a sum of 67m Euros on a quantum meruit basis. He appealed saying that the award . .
First instance consequential judgment – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 30 July 2022; Ref: scu.349094

Oxonica Energy Ltd v Neuftec Ltd: CA 9 Jul 2009

The parties had entered into a patent and know-how licensing agreement, the interpretation of which was now disputed.

Citations:

[2009] EWCA Civ 668

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Tam Wing Chuen v Bank of Credit and Commerce Hong Kong Ltd PC 1996
The Board considered a banking transaction and the application of a chargeback by the bank, under which a loan was made only after a deposit by a third party against which it was secured, and particularly in the context of the insolvency of the bank . .
Appeal from – Oxonica Energy Ltd v Neuftec Ltd PatC 5-Sep-2008
The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 30 July 2022; Ref: scu.347703

Metropolitan Water Board v Dick Kerr and Co Ltd: HL 26 Nov 1917

In July 1914 the appellants contracted with the respondents, a firm of contractors, for the construction of a reservoir which was to take six years to build. The work was started, but in February 1916 the Minister of Munitions ordered it to cease and requisitioned part of the plant. Work was accordingly stopped, but the appellants claimed that the contract subsisted, and this action was brought to determine the question. Held that the interruption was of such a character and duration as fundamentally to change the conditions of the contract, and could not have been in the contemplation of the parties to the contract when it was made. Accordingly the contract had ceased to be operative.
Upheld

Judges:

Lord Finlay LC, Lord Dunedin

Citations:

[1917] UKHL 2, [1918] AC 119, [1917] UKHL 537, 55 SLR 537

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Distington Hematite Iron Co. v Possehl and Co 1916
Rowlatt J said: ‘War does not create any contract.’ . .
Cited – Baily v De Crespigny QBD 1869
A lessor had covenanted that neither he nor his assigns would build on a piece of land adjoining the demised premises. A railway company, under powers derived from a subsequent private Act, compulsorily acquired the land and erected a station on it. . .

Cited by:

Cited – Islwyn Borough Council and Another v Newport Borough Council CA 28-Jun-1993
Three local authorities disputed whether a contract had been made between them, and if so its terms, as to the financial support of a leisure centre.
Held: Later legislation need not frustrate agreement between the parties.
Hirts LJ said: . .
Lists of cited by and citing cases may be incomplete.

Contract, Construction

Updated: 30 July 2022; Ref: scu.265984

Pendleton and Another v Westwater and Another: CA 28 Nov 2001

Judges:

Thorpe, Laws LJJ, Harrison J

Citations:

[2001] EWCA Civ 1841

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Leave – Pendleton and Another v Westwater CA 30-Apr-2001
. .

Cited by:

Cited – Taylor v Van Dutch Marine Holding Ltd and Others ChD 22-Jul-2019
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 28 July 2022; Ref: scu.218554

Shalson v Russo: ChD 11 Jul 2003

The claimant sought recovery of substantial sums he had advanced by way of loan, where the loan was induced by fraud. He sought to trace the funds into, inter alia, a motor yacht which it had been used to purchase.
Held: The transaction was voidable, not immediately void. On discovery of the fraud, the claimant could put forward a proprietary claim to the money in order to trace them. The lender did not have the benefit of an immediate constructing trust of the money loaned before the contract was rescinded. It was the implied rescission of the loan contract which enabled the proprietary interest. In this case it was not appropriate to allow the claimant to consolidate an overdrawn current and a deposit account. Only those funds which put the account in credit could be taken into account.

Judges:

Rimer J

Citations:

Times 03-Sep-2003, Gazette 18-Sep-2003

Jurisdiction:

England and Wales

Citing:

Cited – Banque Belge pour L’Etranger v Hambrouck 1921
Money was stolen by a thief. He then paid it by way of a gift into the bank account of the woman with whom he was living. The victim claimed its return from the woman and her bankers. GBP315 of the balance in her account represented part of the . .
Cited – El Ajou v Dollar Land Holdings Plc and Another ChD 3-Jan-1993
A non active director may still be company’s ‘directing mind’. The doctrine of attributing the actions of individuals to a company is that ‘Their minds are its mind; their intention its intention; their knowledge its knowledge.’
Tracing was no . .
Cited – Lonhro v Fayed (No 2) 1992
. .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 28 July 2022; Ref: scu.186099

Taylor v Van Dutch Marine Holding Ltd and Others: ChD 22 Jul 2019

Judges:

Julia Dias QC sitting as a deputy High Court judge

Citations:

[2019] EWHC 1951 (Ch), [2019] WLR(D) 491

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – King and Another v Hoare 25-Nov-1844
A judgment (without satisfaction) recovered against one of two joint debtors is a bar to an action against the other: – Secus where the debt is joint and several. – And it is pleadable in bar, and not in abatement. – Such a plea need not contain a . .
Cited – Priestly v Fernie and Another CEC 23-Jun-1863
The master of a ship had been sued on a bill of lading. The plaintiff recovered judgment against the master but attempts to enforce it proved unsuccessful as the master became bankrupt. The plaintiff then discovered that the master had signed the . .
Cited – Kendall v Hamilton HL 1879
The plaintiff had made a loan to a partnership consisting of Wilson and McLay in order to finance certain shipments. Unknown to the plaintiff, the shipments were in fact for the joint benefit of Wilson, McLay and one Hamilton, who had authorised . .
Cited – Edinburgh and District Tramways Co Ltd v Courtenay SCS 29-Oct-1908
(Court of Session Inner House First Division) There was contract between a tramway company and an advertising firm, under which the firm paid a rental for the right to display advertising on the tramcars. It was up to the firm to provide the boards . .
Cited – Pendleton and Another v Westwater and Another CA 28-Nov-2001
. .
Cited – Pendleton and Another v Westwater CA 30-Apr-2001
. .
Lists of cited by and citing cases may be incomplete.

Contract, Agency, Litigation Practice

Updated: 28 July 2022; Ref: scu.640883

The Admiralty v Blair’s Trustee: SCS 10 Dec 1915

Bankruptcy – Sequestration – Crown – Claims – Preference – Damages for Breach of Contract Payable to Admiralty – Prerogative Right of Crown to Preferential Ranking
In a sequestration the Lords Commissioners of the Admiralty claimed a preferential ranking in respect of a sum due as damages for failure by the bankrupt to fulfil a contract made with them. The trustee on the sequestrated estate rejected the claim for preferential ranking, but admitted the debt to an ordinary ranking.
Held that the trustee was right in refusing the claim to a preferential ranking and in admitting the debt to an ordinary ranking.
Scots and English law are not necessarily the same as regards the use of prerogative powers

Citations:

[1915] SLR 188, 1916 1 SLT 19, 1916 SC 247

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 28 July 2022; Ref: scu.618239

Salat v Barutis: CA 20 Nov 2013

The claimant had been knocked from his motor cyle by the defendant. He hired a replacement, but when he sought payment of the associated hire charges, the defendant said that the hire company had failed to comply with the 208 Regulations, and that since the claimant had no obligation to pay, he could not claim the sum as damages. The claimant appealed against the court’s acceptance of the argument.

Judges:

Moor-Bick, Patten, Rafferty LJJ

Citations:

[2013] EWCA Civ 1499

Links:

Bailii

Statutes:

Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008, Council Directive 85/577/EEC, Consumers, Estate Agents and Redress Act 2007^

Jurisdiction:

England and Wales

Citing:

Cited – Dimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
Cited – W v Veolia Environmental Services (UK) Plc QBD 27-Jul-2011
The claimant’s car had been damaged by a lorry operated by the defendant. The claimant hired a replacement car under a credit hire agreement with AE, which he signed at his home when the replacement vehicle was delivered to him. The defendant’s . .

Cited by:

Cited – Moseley, Regina (on The Application of) v London Borough of Haringey SC 29-Oct-2014
Consultation requirements
The claimant challenged a decision of the respondent reducing the benefits under the Council Tax Reduction Scheme reducing Council Tax for those in need, saying that the Council’s consultation had been inadequate.
Held: The consultation was . .
Lists of cited by and citing cases may be incomplete.

Consumer, Contract

Updated: 28 July 2022; Ref: scu.518313

Robertson v Swift: CA 15 Jan 2013

The claimant removal company sought payment of its fees after the defendant purported to cancel the arrangement for moving his goods. The defendant now appealed against rejection of his claim that the the contract was cancellable within the 2008 Regulations. The district judge said that the Regulations applied to a contract made only on one visit to the defendant’s home. On this occasion two visits had been involved. The Regulations applied to a contract made ‘(a) during a visit by the trader to the consumer’s home or place of work, or to the home of another individual’
Held: The appeal succeeded. The Regulations applied to a contract made at the consumer home irrespective of whether there had been earlier negotiations. The use of the indefinite article did not limit the contractual process to a single visit. Since the claimant had not given notice of the cancellation right, and the agreement unenforceable. However that also meant that the deposit was not repayable. This was so even though the claimant had visited only at the request of the defendant.
The 2008 Regulations went beyond the requirements of the Directive. Were they ultra vires? Before they had been brought in a clear policy decision was made to extend the protection, and the Regulations were enacted under the 2007 Act and were not dependent upon the terms of the Directive.
The fact that there had been earlier negotiations elsewhere did not work to disapply the 2008 Regulations where in fact the contract was concluded the consumer’s home. The remover was not able to recover the cancellation fee. However neither was the appellant able to recover the initial 1,000 pound deposit he had paid: ‘Since the claimant did not serve any written notice under paragraph 7 (2) of the 2008 Regulations, there was no cancellation period as defined in paragraph 2 (1) of the Regulations. It follows that the defendant was not entitled to cancel the contract under paragraph 7 (1). The effect of the 2008 Regulations is that the contract remained alive, but it was unenforceable as against the defendant.
It follows from this analysis that paragraph 10 (1) of the 2008 Regulations does not apply. Therefore the defendant has no right under the Regulations to recover the andpound;1,000 deposit which he paid.’
Jackson LJ adumbrated two possible interpretations of regulation 5(a). The first was that the regulation only applied where the contract was negotiated and concluded during a single visit to the consumer’s home. The second was that it applied if the consumer’s home was where the contract was concluded, whether or not earlier negotiations had taken place there. He concluded that the second of these was to be preferred.

Judges:

Mummery, Jackson, Lewison LJJ

Citations:

[2012] EWCA Civ 1794, [2013] WLR(D) 11, [2013] Bus LR 479

Links:

Bailii, WLRD

Statutes:

Council Directive 85/577/EEC, Consumer Protection (Cancellation of Contracts Concluded away from Business Premises) Regulations 1987, European Communities Act 1972, Consumers, Estate Agents and Redress Act 2007, Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008

Jurisdiction:

England and Wales

Cited by:

Appeal from – Robertson v Swift SC 9-Sep-2014
Notice Absence did not Remove Right to Cancel
The defendant had contracted to arrange the removal of the claimant’s household goods on moving house. The claimant cancelled the contract, made at his housel, but refused to pay the cancellation fee, saying that the contract not having been made at . .
Lists of cited by and citing cases may be incomplete.

Contract, Consumer, European

Updated: 28 July 2022; Ref: scu.469777

Golden Key Ltd (In receivership): CA 30 Jun 2009

Judges:

Arden LJ

Citations:

[2009] EWCA Civ 636

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

Appeal from – Golden Key Ltd (in receivership) ChD 4-Feb-2009
. .

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

Contract

Updated: 28 July 2022; Ref: scu.347294

Benedetti and Another v Sawiris and Others: ChD 15 Jun 2009

The claimant sought payment for his services to the defendants for his work in facilitating a substantial buy out of an Italian energy company.
Held: The claim succeeded on a quantum meruit basis to the extent of 75m euros but not otherwise.

Judges:

Patten J

Citations:

[2009] EWHC 1330 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Pallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .

Cited by:

Principle Judg – Benedetti and Another v Sawiris and Others ChD 21-Jul-2009
Orders consequential on the main judgement to apportion liability as between the various defendants. . .
Appeal From – Benedetti v Sawiris and Others CA 16-Dec-2010
The claimant had claimed a reward for his role in securing a very substantial business deal for the defendants. The judge had rejected claims in contract but had awarded a sum of 67m Euros on a quantum meruit basis. He appealed saying that the award . .
At first instance – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 28 July 2022; Ref: scu.347018

Greater Manchester Police v Wigan Athletic AFC Ltd: ChD 21 Dec 2007

The claimant sought payment under section 25 from the defendant football club for the costs of policing football matches. The defendant said that the sums were not due since the events had been over-policed, and had not been agreed or requested.
Held: The club occupied strictly onlt the stadium itself and implied rights of access. Had the police not provided certain cover, the club would have had to have provided alternative marshalling. Though there was no express request to provide policing, one could clearly be implied. There was insufficient evidence to establish any unfairness in the levels of policing required or the charges. The police were able to bring their case within the requirements for restitution set out in Rowe, and to claim on a quantum meruit according to the actual work undertaken. The court set out the basis for calculating the claim for different categories of officers.

Judges:

Mann J

Citations:

[2007] EWHC 3095 (Ch)

Links:

Bailii

Statutes:

Police Act 1996 25, Safety of Sports Grounds Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Glasbrook Brothers Limited v Glamorgan County Council HL 1925
A colliery manager asked for police protection for his colliery during a strike. He wanted police officers to be billeted on the premises. The senior police officer for the area was willing to provide protection by a mobile force, but he refused to . .
Cited – Harris v Sheffield United Football Club Ltd CA 1987
The court was asked whether services provided by the police at Sheffield United Football Club for the club’s home fixtures were ‘special police services’ so that, if they were provided at the club’s request, the police could charge for them. Up . .
Cited – Reading Festival Ltd v West Yorkshire Police Authority CA 3-May-2006
The organisers of a music festival in Leeds appealed a decision that they were liable to pay in full a bill from the police for additional services in policing the festival.
Held: The organisers appeal succeeded. Whilst it was a matter for the . .
Cited – Rowe, Regina (on the Application of) v Vale of White Horse District Council Admn 7-Mar-2003
The local council sought to claim payment for sewerage services enjoyed by a householder.
Held: Where a supplier has supplied services to another and there is no contractual relationship in existence, the law may afford to the supplier . .
Distinguished on the facts – Bookmakers’ Afternoon Greyhound Services Ltd v Wilf Gilbert (Staffordshire) Ltd 1994
The bookmaker defendant received a broadcast information service for which he was prepared to pay. That service carried another information service (‘BAGS’) for which the second provider also sought payment. The bookmaker was not prepared to pay for . .

Cited by:

Appeal from – Greater Manchester Police v Wigan Athletic AFC Ltd CA 19-Dec-2008
The parties disputed the amounts payable by a football club to the police for the attendance of police officers at matches. The defendant appealed against a finding that it had requested the services for which charges had been made under section 25 . .
Lists of cited by and citing cases may be incomplete.

Police, Contract, Equity

Updated: 28 July 2022; Ref: scu.262961

Burney v The London Mews Company Ltd: CA 7 May 2003

The defendant sought to appeal judgment against him for his estate agent’s commission. They had been appointed sole agents. A second firm obtained the particulars for their own retained clients, but then copied the particulars onto their own letterhead and advertised the property generally, finding the buyer. That buyer refused to buy through the second agents and approached the appellant direct. The appellant sold the house to the buyer telling the agent the house was withdrawn.
Held: Whilst a prudent draftsman would have put the point beyond doubt by making an express provision on the issue commission was payable because a purchaser was introduced ‘by another agent during that period’ within the terms of the relevant clause. ‘It would, as it seems to me, drive a coach and horses through the agreements which all estate agents make with vendors, if the mere fact that a would be purchaser. Who picked up the particulars from an estate agent’s desk, but carried out all the necessary bargaining thereafter, had the effect and of depriving the estate agent of their commission. . . What Kaye and Co did was to utilise the particulars. The effect of utilising the particulars was to introduce a purchaser — the very thing which the vendor hoped would happen by virtue of his employment of London Mews. London Mews did nothing wrong. They are not relying on something that they were not entitled to do, and in my view, the judge was right in the conclusion he came to that on the facts of this case, London Mews introduced Mr Cullinane to the transaction by use of their particulars, and I would uphold the judgment on that ground.

Judges:

Waller LJ, Kay LJ, Lindsay J

Citations:

[2003] EWCA Civ 766

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – McCann v Pow CA 1975
The estate agents, McCann, claimed a commission, earned as they alleged in their particulars of claim through the activities of persons they described as their ‘subagents’, a firm called Douglas and Co. They had taken a number of steps: they had . .
Cited – Wood (John D) and Co v Dantata; Beauchamp Estates v Dantata CA 1987
The purchaser liked inspecting houses and the vendor had appointed ten firms to act for him as estate agents. Each of the estate agents was approached by this purchaser and each of the estate agents took the would be purchaser over the property of . .
Cited – Peter Yates v Bullock 1992
Whether an introduction of a purchaser by an estate agent to the vendor was the ‘effective cause’ of the transaction which ultimately takes place must be resolved by an examination of the facts as a whole. . .
Cited – Nahum v Royal Holloway and Bedford New College CA 12-Nov-1998
An estate agent was entitled to his commission when he could show that it was he who had brought about the relationship of buyer and seller. Delay and actions of others intended to hide that causation did not defeat the claim. The defendant asked . .

Cited by:

Cited – Foxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
Cited – Glentree Estates Ltd and Others v Favermead Ltd ChD 20-May-2010
The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 28 July 2022; Ref: scu.183384

Anderton and Rowland (A Firm) v Rowland: QBD 5 Nov 1999

Where the rules of an association did not make provision for one member to sue another for a breach of the rules of the association, no such contractual obligation could be inferred. The primary obligations were as between the association (the Showmen’s Guild) and its members, and not between member and member.

Citations:

Times 05-Nov-1999

Jurisdiction:

England and Wales

Contract

Updated: 28 July 2022; Ref: scu.77791

Gillespie Bros and Co Ltd v Roy Bowles Transport Ltd: CA 1973

The court looked at how it should construe the Canada Steamship guidelines with regard to an exemption clause absolving one party of responsibility for negligence. There was a express reference to negligence by the words ‘save harmless and keep . . indemnified against all claims or demands whatsoever.’
Held: Buckley LJ said: ‘It is however a fundamental consideration in the construction of contracts of this kind that it is inherently improbable that one party to a contract would intend to absolve the other party to the contract from the consequences of the latter’s own negligence. The intention to do so must therefore be made perfectly clear, for otherwise the court will conclude that the exempted party was only to be free from liability in respect of damage occasioned by causes other than negligence for which he is answerable.’ and ‘The nature of any claim is essentially linked with and dependent on the cause from which it arises, and any indemnity extending in express terms to all claims and demands of whatsoever kind must, in my opinion, extend to all claims and demands however caused, including claims for negligence’.

Judges:

Buckley, Denning LJJ

Citations:

[1973] QB 400, [1973] 1 Lloyds Rep 10

Jurisdiction:

England and Wales

Citing:

Cited – Canada Steamship Lines Ltd v The King PC 21-Jan-1952
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .

Cited by:

Cited – Tuck v Vehicle Inspectorate Admn 24-Mar-2004
The defendant appealed a conviction for exceeding the gross permitted weight on a goods vehicle. The magistrates having heard the case, the defendant submitted there was no case to answer, the prosecution having failed to bring evidence as to the . .
Cited – Stent Foundations Ltd v M J Gleeson Group Plc TCC 9-Aug-2000
The defendant company sought to rely upon an exemption clause.
Held: Applying standard rules for contract interpretation, the exemption clause was to be construed against the one proposing it. At best the clause was ambiguous, and the . .
Cited – Smith v UMB Chrysler (Scotland) Ltd HL 9-Nov-1977
The principles set out in Canada Steamship apply to ‘clauses which purport to exempt one party to a contract from liability’. The principles should be applied without ‘mechanistic construction’.
Lord Keith of Kinkel said: The tests were . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 28 July 2022; Ref: scu.195679

Smithies v National Association of Operative Plasterers: CA 1909

It was no defence to a claim for inducing breach of contract brought by employers against a trade union for sanctioning a strike that the defendant trade union had acted in the honest belief that the employers against whom action was taken were not intending to comply with a collective agreement. Their good faith was no defence.

Judges:

Vaughan Williams LJ, Kennedy LJ

Citations:

[1909] 1 KB 310

Jurisdiction:

England and Wales

Cited by:

Cited – Mainstream Properties Ltd v Young and others CA 13-Jul-2005
The claimant appealed refusal of his claim for inducing a breach of contract against the sixth defendant. It said that an intention to disturb a contract could be inferred.
Held: A mere recklessness as to whether contractual rights were . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 28 July 2022; Ref: scu.229817

Hulton v Hulton: CA 1917

A wife sought to rescind a separation deed for fraudulent misrepresentation. As part of the terms of the deed the litigation documents had been destroyed.
Held: This was not a bar to rescission, because: ‘it was the defendant who was anxious that those letters should be destroyed. I cannot in those circumstances treat the letters as so important to him that there can be no rescission because they cannot be brought back into existence.’

Judges:

Scrutton LJ

Citations:

[1917] 1 KB 813

Jurisdiction:

England and Wales

Cited by:

Cited – Halpern and others v Halpern and Another (No 2) CA 3-Apr-2007
The parties had settled by compromise a dispute about the implementation of a will before the Beth Din. It was now said that the compromise agreement had been entered into under duress and was unenforceable. The defendant said that rescission could . .
Lists of cited by and citing cases may be incomplete.

Contract, Family

Updated: 28 July 2022; Ref: scu.253431

Walters v Whessoe: CA 1968

The court looked at clauses exempting a party from liability for negligence.
Sellers LJ said: ‘It is well established that indemnity will not lie in respect of loss due to a person’s negligence or that of his servants unless adequate or clear words are used or unless the indemnity could have no reasonable meaning or application unless so applied.’
Devlin LJ said: ‘It is now well established that if a person obtains an indemnity against the consequences of certain acts, the indemnity is not to be construed so as to include the consequences of his own negligence unless those consequences are covered either expressly or by necessary implication.’

Judges:

Sellers, Devlin LJJ

Citations:

[1968] 1 WLR 1056

Jurisdiction:

England and Wales

Cited by:

Cited – Stent Foundations Ltd v M J Gleeson Group Plc TCC 9-Aug-2000
The defendant company sought to rely upon an exemption clause.
Held: Applying standard rules for contract interpretation, the exemption clause was to be construed against the one proposing it. At best the clause was ambiguous, and the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 28 July 2022; Ref: scu.195685

Kendall v Hamilton: HL 1879

The plaintiff had made a loan to a partnership consisting of Wilson and McLay in order to finance certain shipments. Unknown to the plaintiff, the shipments were in fact for the joint benefit of Wilson, McLay and one Hamilton, who had authorised Wilson and McLay to handle all financial arrangements. Unaware of the existence of Hamilton, the plaintiff obtained judgment against Wilson and McLay but they were insolvent and the judgment remained unsatisfied. The plaintiff then discovered the involvement of Hamilton and sought to sue him.
Lord Cairns, analysed the situation as one of agent and undisclosed principal on the basis that Wilson and McLay were in reality agents authorised to borrow on behalf of Wilson, McLay and Hamilton as undisclosed principals. In his view it was clear that: ‘where an agent contracts in his own name for an undisclosed principal, the person with whom he contracts may sue the agent, or he may sue the principal, but if he sues the agent and recovers judgment, he cannot afterwards sue the principal, even although the judgment does not result in satisfaction of the debt. If any authority for this proposition is needed, the case of Priestley v Fernie may be mentioned . . In the present case I think that when the Appellants sued Wilson and McLay, and obtained judgment against them, they adopted a course which was clearly within their power, and to which Wilson and McLay could have made no opposition, and that, having taken this course, they exhausted their right of action, not necessarily by reason of any election between two courses open to them, which would imply that, in order to [make] an election, the fact of both courses being open was known, but because the right of action which they pursued could not, after judgment obtained, coexist with a right of action on the same facts against another person. If Wilson and McLay had been the agents, and Hamilton alone the undisclosed principal, the case could hardly have admitted of a doubt; and I think it makes no difference that Wilson and McLay were the agents and the undisclosed principals were Wilson, McLay, and Hamilton.’

Judges:

Lord Blackburn, Lord Cairns LC, Lord O’Hagan

Citations:

(1879) 4 App Cas 504, (1879) 4 AC 504, 48 LJQB 705, 41 LT 418

Jurisdiction:

England and Wales

Citing:

Cited – King and Another v Hoare 25-Nov-1844
A judgment (without satisfaction) recovered against one of two joint debtors is a bar to an action against the other: – Secus where the debt is joint and several. – And it is pleadable in bar, and not in abatement. – Such a plea need not contain a . .

Cited by:

Cited – Taylor v Van Dutch Marine Holding Ltd and Others ChD 22-Jul-2019
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 26 July 2022; Ref: scu.640902

Nuclear Decommissioning Authority v Energysolutions EU Ltd (Now Called ATK Energy EU Ltd): SC 11 Apr 2017

This is an appeal on preliminary points of European Union and domestic law regarding the circumstances in which damages may be recoverable for failure to comply with the requirements of the Public Procurement Directive (Parliament and Council Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts as given effect in the United Kingdom by the Public Contracts Regulations 2006. The claimant was part of a consortium bidding for a contract for nuclear decommissioning. They complained that the process did not meet the requirements. The issues before the court related to the availability of damages for a breach of the procurement requirements, and whether the matter required a reference to the ECJ.
Held: No reference was required, and the decision of the CA was confirmed in part (see below).
‘there is in my view very clear authority of the Court of Justice confirming that the liability of a contracting authority under the Remedies Directive for breach of the PP Directive is assimilated to that of the state or of a public body for which the state is responsible. ‘
However the CA erred in considering that no additional elements were necessary before a claim for damages could be made: ‘The scheme of the Remedies Directive is a balanced one. The Francovich conditions represent the Court of Justice’s conclusion as to the appropriate minimum protection by way of damages which an economic operator can expect. Although there is no Marleasing imperative to construe the scheme so far as possible consistently with the Francovich conditions, it is I think a natural assumption that the UK legislator will not go further than required by EU law when implementing such a scheme, without considering this and making it clear. That is fortified by the legislator’s clear intention not to gold plate when substituting the new Part 9 scheme for the old in 2009. In these circumstances, I consider that the 2006 Regulations as amended in 2009 should be read as providing for damages only upon satisfaction of the Francovich conditions. That is also consistent with the use of the word ‘may’ which otherwise seems to me to have no real significance.’ NDA’s appeal as to this element succeeded.

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Sumption, Lord Carnwath

Citations:

[2017] UKSC 34, [2017] WLR(D) 272, [2017] 3 CMLR 13, [2017] BLR 351, [2017] 4 All ER 1, [2017] 1 WLR 1373, 171 Con LR 16, [2017] PTSR 539, UKSC 2016/0006

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 010317 am Video, SC 01032017pm Video, SC 02032017am Video

Statutes:

(Parliament and Council Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, Public Contracts Regulations 2006

Jurisdiction:

England and Wales

Citing:

See Also – Energysolutions EU Ltd v Nuclear Decommissioning Authority TCC 29-Jul-2016
Claim challenging the procurement of decommissioning contracts.
Held: CFP should have been disqualified from the competition for failing two threshold requirements, and, in any event, RSS would have won the competition had the NDA not made . .
Appeal from – Energysolutions EU Ltd v Nuclear Decommissioning Authority CA 15-Dec-2015
The claimant had tendered for a part in a major nuclear decommissioning project. . .
Cited – Gebroeders Beentjes Bv v State Of The Netherlands ECJ 20-Sep-1988
(Approximation Of Laws ) Procedure for the award of public works contracts.
The provisions of the Directives were unconditional and sufficiently precise to be relied upon by persons before national courts, despite the absence of explicit . .
Cited – Francovich, Bonifaci and others v Italy ECJ 19-Nov-1991
LMA The claimants, a group of ex-employees sought arrears of wages on their employers’ insolvency. The European Directive required Member States to provide a guarantee fund to ensure payment of employees’ arrears . .
Cited – Brasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4) ECJ 5-Mar-1996
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .
Cited – Gesellschaft fur Abfallentsorgungs-Technik GmbH (GAT) v Osterreichische Autobahnen und Schnellstrassen AG (OSAG) ECJ 19-Jun-2003
Europa Reference for a preliminary ruling – Public contracts – Directive 89/665/EEC – Review procedures concerning the award of public contracts – Power of the body responsible for review procedures to consider . .
Cited – Kobler v Republik Osterreich ECJ 30-Sep-2003
The claimant’s claim had been presented to the Supreme Administrative Court in Austria, who had referred a question to the ECJ. Following the Schoning decision, the court withdrew the referral, and dismissed the claim. He now claimed damages from . .
Cited – Manfredi v Lloyd Adriatico Assicurazioni SpA; Antonio Cannito v Fondiaria Sai SpA, Nicolo Tricarico; Pasqualina Murgolo v Assitalia SpA C-295/04 ECJ 13-Jul-2006
ECJ Article 81 EC- Competition – Agreements, decisions and concerted practices – Accidents caused by motor vehicles, vessels and mopeds – Compulsory civil liability insurance – Increase in premiums – Effect on . .
Cited – Rizeni Letoveho Provozu UR SP v Bundesamt fur Finanzen ECJ 15-Feb-2007
Europa (Taxation) Thirteenth VAT Directive Article 2(2) GATS Most-favoured-nation clause Interpretation of secondary Community law in the light of international agreements concluded by the Community . .
Cited – Combinatie Spijker Infrabouw v De Jonge Konstruktie And Others (Law Relating To Undertakings) ECJ 14-Sep-2010
ECJ (Opinion) Public procurement – Review procedures concerning the award of public supply and public works – Provisional Measures – Damage and losses arising from breach of EU law – Criteria for the allocation . .
Cited – Strabag and Others (Freedom To Provide Services) ECJ 30-Sep-2010
ECJ Directive 89/665/EEC – Public procurement – Review procedures – Actions for damages – Unlawful award – National rule on liability based on a presumption that the contracting authority is at fault. . .
At CA – Energy Solutions EU Ltd v Nuclear Decommissioning Authority TCC 23-Jan-2014
This litigation concerns the procurement process for a contract in relation to the decommissioning of nuclear installations. The Claimant is a company which provides integrated waste management and decommissioning services for the nuclear industry. . .
Cited – Association Justice and Environment v Commission ECFI 23-Jan-2017
ECJ (Judgment) Access to documents – Regulation (EC) No 1049/2001 – Documents relating to an infringement procedure opened by the Commission against the Czech Republic – Refusal of access – Exception concerning . .
At TCC (2) – Energysolutions EU Ltd v Nuclear Decommissioning Authority TCC 29-Jul-2016
Claim challenging the procurement of decommissioning contracts.
Held: CFP should have been disqualified from the competition for failing two threshold requirements, and, in any event, RSS would have won the competition had the NDA not made . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Disapproved – Matra Communication SAS v Home Office CA 25-Feb-1999
In the absence of comparable situations, a member state is entitled to choose the time limits within which a public service contract is to be challenged, provided only that it did not make it impossible to challenge and there was no prejudice . .
Cited – Regina v Montila and Others HL 25-Nov-2004
The defendants faced charges under the two Acts. They raised as a preliminary issue whether it is necessary for the Crown to prove that the property being converted was in fact the proceeds, in the case of the 1994 Act, of drug trafficking and, in . .
Cited – Phonographic Performance Limited v Department of Trade and Industry HM Attorney General ChD 23-Jul-2004
The claimant represented the interests of copyright holders, and complained that the defendant had failed to implement the Directive properly, leaving them unable properly to collect royalties in the music rental market. The respondent argued that . .
Cited – Norbrook Laboratories v Ministry of Agriculture, Fisheries and Food ECJ 2-Apr-1998
ECJ Directives 81/851/EEC and 81/852/EEC – Veterinary medicinal products – Marketing authorisation . .
Lists of cited by and citing cases may be incomplete.

European, Contract, Commercial, Damages

Updated: 26 July 2022; Ref: scu.581646

Energy Solutions EU Ltd v Nuclear Decommissioning Authority: TCC 23 Jan 2014

This litigation concerns the procurement process for a contract in relation to the decommissioning of nuclear installations. The Claimant is a company which provides integrated waste management and decommissioning services for the nuclear industry.

Judges:

Edwards-Stuart J

Citations:

[2015] EWHC 73 (TCC), [2015] PTSR 1106, [2015] WLR(D) 41

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Appeal from – Energysolutions EU Ltd v Nuclear Decommissioning Authority CA 15-Dec-2015
The claimant had tendered for a part in a major nuclear decommissioning project. . .
See Also – Energysolutions EU Ltd v Nuclear Decommissioning Authority TCC 29-Jul-2016
Claim challenging the procurement of decommissioning contracts.
Held: CFP should have been disqualified from the competition for failing two threshold requirements, and, in any event, RSS would have won the competition had the NDA not made . .
At TCC (1) – Association Justice and Environment v Commission ECFI 23-Jan-2017
ECJ (Judgment) Access to documents – Regulation (EC) No 1049/2001 – Documents relating to an infringement procedure opened by the Commission against the Czech Republic – Refusal of access – Exception concerning . .
At CA – Nuclear Decommissioning Authority v Energysolutions EU Ltd (Now Called ATK Energy EU Ltd) SC 11-Apr-2017
This is an appeal on preliminary points of European Union and domestic law regarding the circumstances in which damages may be recoverable for failure to comply with the requirements of the Public Procurement Directive (Parliament and Council . .
Lists of cited by and citing cases may be incomplete.

Contract, European

Updated: 26 July 2022; Ref: scu.542235

Peterborough City Council v Enterprise Managed Services Ltd: TCC 10 Oct 2014

Application by the Defendant for an order to stay the action brought in respect of a dispute arising out of a contract made between the Council and EMS by which EMS agreed to design, supply, install, test and commission a 1.5 MW solar energy plant on the roof of a building owned by the Council.

Judges:

Edwars-Stuart J

Citations:

[2014] EWHC 3193 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 26 July 2022; Ref: scu.537523

The Law Debenture Trust Corporation Plc v Elektrim Sa and Another: ChD 20 Jul 2009

Judges:

Sales J

Citations:

[2009] EWHC 1801 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 26 July 2022; Ref: scu.349096

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.

Judges:

Lord Clerke of Stone-cum-Ebony MR, Rix, Carnwath LLJ

Citations:

[2009] EWCA Civ 531, [2009] 2 Lloyd’s Rep 639, [2009] 1 CLC 909, [2010] 1 All ER (Comm) 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Adopted – 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 . .
Cited – Trollope and Colls Limited v North West Metropolitan Regional Hospital Board HL 1973
The court was requested to imply a term into a building contract.
Held: The term could not be implied, since at least four alternatives might also be implied.
Lord Pearson said: ‘[T]he court does not make a contract for the parties. The . .

Cited by:

Mentioned – 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 . .
Cited – Mr H TV Ltd v ITV2 Ltd ComC 8-Oct-2015
The claimant had contracted with the defendant for the production of a series of reality TV shows featuring celebrities. After severe personal clashes between the people involved on the claimants side, the contract was terminated. The claim was that . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another CA 14-May-2014
The court considered the operation of a break clause within a lease, and in particular ‘ Can the court imply a term which enables the lessee to get back that part of the advance payment of rent which relates to a period (‘the broken period’) after . .
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.

Contract

Updated: 26 July 2022; Ref: scu.346800

Lombard North Central Plc v Stewart and Another: SCS 27 May 2009

The pursuers sought a decree for payment against the first and second named defenders in the action. The second named defender is the appellant. The claim rested on a guarantee, signed by both of the defenders, under which they guaranteed to pay to the pursuers any outstanding amount due, under a lease purchase agreement entered into by the pursuers and Mailstream Packaging Limited, in the event that the latter company was unable to pay. The pursuers averred in the action that they had called upon Mailstream Packaging Limited to make payment, but that the company was no longer trading.

Judges:

Lord Osborne, Lord Nimmo Smith, Lady Dorrian

Citations:

[2009] ScotCS CSIH – 41

Links:

Bailii

Jurisdiction:

Scotland

Contract, Insolvency

Updated: 26 July 2022; Ref: scu.346596

E A Grimstead and Son Ltd v McGarrigan: CA 27 Oct 1999

The court considered the effect of an acknowledgement of non-reliance clause: ‘There are, as it seems to me, at least two good reasons why the courts should not refuse to give effect to an acknowledgement of non-reliance in a commercial contract between experienced parties of equal bargaining power a fortiori, where those parties have the benefit of professional advice. First, it is reasonable to assume that the parties desire commercial certainty. They want to order their affairs on the basis that the bargain between them can be found within the document which they have signed. They want to avoid the uncertainty of litigation based on allegations as to the content of oral discussions at pre-contractual meetings. Second, it is reasonable to assume that the price to be paid reflects the commercial risk which each party – or, more usually, the purchaser – is willing to accept. The risk is determined, in part at least, by the warranties which the vendor is prepared to give. The tighter the warranties, the less the risk and (in principle, at least) the greater the price the vendor will require and which the purchaser will be prepared to pay. It is legitimate, and commercially desirable, that both parties should be able to measure the risk, and agree the price, on the basis of the warranties which have been given and accepted.’
The court gave effect to a non-reliance clause in a contract.

Judges:

Peter Gibson, Pill, Chadwick LJJ

Citations:

[1999] EWCA Civ 3029

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Thomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .
See Also – E A Grimstead and Son Limited v McGarrigan CA 13-Oct-1998
. .

Cited by:

Cited – Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd CA 6-Apr-2006
Moore-Bick LJ discussed whether the court should give effect to a non-reliance clause in a contract saying: ‘It is common to include in certain kinds of contracts an express acknowledgement by each of the parties that they have not been induced to . .
Cited – Morgan and Another v Pooley and Another QBD 7-Oct-2010
The claimants had bought a property from the defendants and now sought damages in misrepresentation saying that the defendants had failed to disclose a planning application for an adjacent farm as regards a track bordering the property.
Held: . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 26 July 2022; Ref: scu.346267

Priestly v Fernie and Another: CEC 23 Jun 1863

The master of a ship had been sued on a bill of lading. The plaintiff recovered judgment against the master but attempts to enforce it proved unsuccessful as the master became bankrupt. The plaintiff then discovered that the master had signed the bill as agent on behalf of the shipowner and sought to implead the owner.
Held: The action could not be maintained.
Bramwell B said: ‘If this were an ordinary case of principal and agent, where the agent, having made a contract in his own name, has been sued on it to judgment, there can be no doubt that no second action would be maintainable against the principal. The very expression that where a contract is so made the contractee has an election to sue agent or principal, supposes that he can only sue one of them, that is to say, sue to judgment. For it may-be that an action against one might be discontinued and fresh proceedings be well taken against the other. Further, there is abundance of authority to shew that where the situation of the principal is altered by dealings with the agent as principal, the former is no longer subject to an action. But this is the case here. The defendants may or may not be liable to indemnify the master in respect of his costs or his imprisonment. But they are clearly liable to him or his estate, in respect of the damages recovered against him, and proceedings might have been taken against them as soon as judgment was recovered against the master, and before any payment by or execution against him. They are now therefore under a liability to the master or his estate to the extent of the whole claim, and yet it is sought to bring them under a fresh liability for that to the plaintiffs.’

Judges:

Bramwell B

Citations:

[1863] EngR 737, (1865) 3 H and C 977, (1863) 159 ER 820

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Taylor v Van Dutch Marine Holding Ltd and Others ChD 22-Jul-2019
. .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 26 July 2022; Ref: scu.283392

Midill (97Pl) Ltd v Park Lane Estates Ltd and Another: ChD 16 Jan 2008

Was the vendor of shares in a company owning a single property, who had served notice to complete on the purchaser, itself ready, able and willing to complete?

Judges:

His Honour Judge Mackie QC

Citations:

[2008] EWHC 18 (Ch), [2008] 3 EG 178, [2008] 1 P and CR DG18

Links:

Bailii

Statutes:

Law of Property Act 1925 49(2)

Jurisdiction:

England and Wales

Cited by:

Appeal from – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 26 July 2022; Ref: scu.263647

Ruabon Steamship Co v The London Assurance Co: HL 1900

Lord Halisbury said: ‘I cannot understand how it can be asserted that it is part of the common law that where one person gets some advantage from the act of another, a right of contribution towards the expense from that act arises.’ Rejecting the argument, he continued: ‘But this is the first time in which it has sought to advance that principle where there is nothing in common between the two persons, except that one person has taken advantage of something that another person has done, there being no contract between them, there being no obligation by which each of them is bound, and the duty to contribute is alleged to arise only on some general principle of justice, that a man ought not to get an advantage unless he pays for it. So that if a man were to cut down a wood which obscured his neighbour’s prospect and gave him a better view, he ought in principle to be compelled to contribute to cutting down the wood.’

Judges:

Lord Halisbury

Citations:

[1900] AC 61

Jurisdiction:

England and Wales

Cited by:

Cited – Becerra v Close Brothers ComC 25-Jun-1999
ComC Claim for fee for introducing successful bidder at a controlled auction – no express contract – no implied contract based on City practice – claim for quantum meruit failed because no express or implied . .
Distinguished – TFL Management Services Ltd v Lloyds Bank Plc CA 14-Nov-2013
The court was asked: ‘A spends money seeking a judgment for the recovery of a debt from B. A fails to recover the debt because, so the court holds, the debt is not in fact owed by B to A (as A mistakenly thought), but owed by B to C. C then recovers . .
Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 26 July 2022; Ref: scu.245320

Hilton v Barker Booth and Eastwood: HL 3 Feb 2005

The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and also that the solicitor had himself leant the deposit in the transaction to his other client. The claimant sought damages when the other client proved a man of straw.
Held: If a solicitor accepted conflicting duties, he had a duty to fulfil them both, and could not prefer the interests of one client over another. The fact of the conviction was not as such confidential, but the solicitors had a duty to further the interests of that client which would require them not to volunteer the information.
Lord Walker of Gestingthorpe said: ‘A solicitor’s duty to his client is primarily contractual and its scope depends on the express and implied terms of his retainer . . The relationship between a solicitor and his client is one in which the client reposes trust and confidence in the solicitor. It is a fiduciary relationship . . A solicitor’s duty of single-minded loyalty to his client’s interest, and his duty to respect his client’s confidences, do have their roots in the fiduciary nature of the solicitor-client relationship. But they may have to be moulded and informed by the terms of the contractual relationship.’ The Appeal court was wrong to distinguish Moody v Cox, and the appeal succeeded: ‘it is now 15 years since Mr Hilton suffered a grievous wrong for which he has not been compensated. For the good name of the solicitors’ profession his compensation should be agreed, on a generous scale, without further delay.’

Judges:

Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood

Citations:

[2005] UKHL 8, Times 04-Feb-2005, [2005] 1 WLR 567, [2005] 1 All ER 651, [2007] Lloyds Rep PN 1

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Moody v Cox and Hatt CA 1917
An action was brought for rescission of a contract of sale of a public house and four cottages, with a counterclaim for specific performance. The sellers, Hatt and Cox, were respectively a solicitor and his managing clerk. They were the trustees of . .
Appeal from – Hilton v Barker Booth & Eastwood (a Firm) CA 22-May-2002
The firm of solicitors acted for both parties in a conveyancing transaction, in a situation when they were permitted to do so. The firm had previously acted for one party in a case where he had been convicted of a crime. The other party said the . .
Cited – Hospital Products Ltd v United States Surgical Corporation 25-Oct-1984
High Court of Australia – A solicitor’s duty of loyalty to his client’s interest, and his duty to respect his client’s confidences, have their roots in the fiduciary nature of the solicitor-client relationship, but may have to be moulded and . .
Cited – Mothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
Cited – Kelly v Cooper and Another PC 25-Nov-1992
There was a dispute between a client and an estate agent in Bermuda. The client sued the estate agent for damages for breach of duty in failing to disclose material information to him and for putting himself in a position where his duty and his . .
Cited – Farrington v Rowe McBride and Partners 1985
(New Zealand) When a solicitor acts for two clients and there is a conflict in his responsibilities, the solicitor must ensure that he fully discloses the material facts to both clients and obtains their informed consent to his so acting. There may . .
Cited – Clark Boyce v Mouat PC 4-Oct-1993
(New Zealand) No duty of wisdom is owed to client in full command of his faculties by a lawyer. If the client requires only action from his lawyer, that is what is required. Informed consent can be sufficient to allow a solicitor to act for two . .
Cited – Mortgage Express Ltd v Bowerman and Partners (A Firm) CA 1-Aug-1995
A solicitor acting for both a lender and a borrower was under a duty to disclose relevant information to the lender client. An incident of their duty to exercise reasonable care and skill, solicitors are obliged to advise their lender client in . .

Cited by:

Cited – Burkle Holdings Ltd v Laing TCC 23-Mar-2005
The parties had each instructed the same solicitor, but now disputed the entitlement of the other to see documents held by the solicitor. . .
Cited – Quinn Direct Insurance Ltd v The Law Society of England and Wales CA 14-Jul-2010
Q had provided professional indemnity insurance to a firm of solicitors in which the Law Society had intervened. Claims were made against the firm, but Q declined to pay, saying that the apparently fraudulent activities of the firm fell outside the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract, Professional Negligence

Updated: 26 July 2022; Ref: scu.222204

Freiburger Kommunalbauten GmbH Baugesellschaft and Co. KG v Ludger Hofstetter, Ulrike Hofstetter: ECJ 1 Apr 2004

ECJ Directive 93/13/EEC – Unfair terms in consumer contracts – Contract for the building and supply of a parking space – Reversal of the order of performance of contractual obligations provided for under national law – Clause obliging the consumer to pay the price before the seller or supplier has performed his obligations – Obligation on the seller or supplier to provide a guarantee.
The Court considered the role of the ECJ and of the national court in relation to the determination as to whether a particular term was unfair. It stated that the issue of unfairness turned on all the facts and was for the national court. Directive 93/13/EEC of 5 April 1993 on unfair terms and consumer contracts, which the Regulations implement, applies to contracts in respect of land.

Citations:

C-237/02, [2004] EUECJ C-237/02, [2004] ECR I-3403, [2004] 2 CMLR 13

Links:

Bailii

Statutes:

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

Jurisdiction:

European

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 . .
Cited – Peabody Trust v Reeve ChD 2-Jun-2008
The court was asked to sanction the unilateral alteration by the landlord of the terms of some ten thouand tenancies. The agreements contained a clause which the landlord said allowed for variations under the Housing Act 1985. The landlord was a . .
Cited – Office of Fair Trading (OFT) v Abbey National Plc and Others SC 25-Nov-2009
The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could . .
Lists of cited by and citing cases may be incomplete.

Consumer, Contract

Updated: 26 July 2022; Ref: scu.195731

A and B v D and C: CA 1989

The phrase ‘may arise in connection with this agreement’ covered a dispute as to inspection and repair work carried out under a contract with no arbitration clause which related to the supply of a liquified gas plant pursuant to a different contract which had an arbitration clause containing that phrase.

Judges:

Mustill J

Citations:

[1989] 1 QB 488, [1989] QB 488, [1988] 2 All ER 577, [1988] 3 WLR 868

Jurisdiction:

England and Wales

Cited by:

Cited – Davies Middleton and Davies Ltd v Toyo Engineering Corporation CA 29-Aug-1997
Parties to a dispute agreed a way of resolving issues before arbitration. One party then sought to say that the agreement was void for uncertainty, being an agreement to agree.
Held: The agreement merely set a mechansim for resolving the . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Contract

Updated: 26 July 2022; Ref: scu.188393

The Sormovskiy 3068: QBD 1994

It makes commercial sense to have a simple rule that in the absence of an express term of the contract the master must only deliver the cargo to the holder of the bill of lading who presents it to him. In that way both the shipowners and the persons in truth entitled to possession of the cargo are protected by the terms of the contract.

Judges:

Clarke J

Citations:

[1994] 2 Lloyds Rep 266

Jurisdiction:

England and Wales

Cited by:

Cited – J I MacWilliam Co Inc v Mediterranean Shipping Company S A, ‘The Rafaela S’ CA 16-Apr-2003
Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport, Commercial

Updated: 26 July 2022; Ref: scu.181893

Services Europe Atlantique Sud (SEAS) v Stockholms Rederiaktiebolag: CA 1979

Goff LJ discussed whether damages might be ordered to be paid in a foreign currency: ‘For my part, I do not understand these cases to be inconsistent with the general rule stated in rule 172. Both cases were concerned with contracts for the supply of foreign currency, and in such a case, where the defendant fails to supply the foreign currency which he has contracted to supply, the claimant can only obtain an equivalent amount of foreign currency by expending some other currency which is likely to be the currency of the place in which he carries on business. Generally speaking, therefore, in cases such as these that is the currency in which the loss is incurred.’

Citations:

[1979] 1 QB 4911

Jurisdiction:

England and Wales

Cited by:

Appeal from – Services Europe Atlantique Sud (SEAS) v Stockholms Rederiaktiebolag Svea HL 1979
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 25 July 2022; Ref: scu.640548

Wood v Sureterm Direct Ltd and Another: ComC 14 Oct 2014

Construction of an indemnity provision in an agreement for the sale and purchase of the shares in the First Defendant.
Held: The Court decided a preliminary issue of the interpretation of the indemnity clause holding in effect, that it required Wood to indemnify Capita even if there had been no claim or complaint by a customer.

Judges:

Popplewell J

Citations:

[2014] EWHC 3240 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Wood v Sureterm Direct Ltd and Capita Insurance Services Ltd CA 30-Jul-2015
At issue in this appeal is the true construction of a clause in a sale and purchase agreement in respect of all the shares in a company.
Held: The appeal succeeded. The Court of Appeal declared that Mr Wood’s liability under the indemnity in . .
At First Instance – 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 . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 25 July 2022; Ref: scu.537546

Potters v Loppert: ChD 1973

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

Judges:

Sir John Pennycuick V-C

Citations:

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

Jurisdiction:

England and Wales

Cited by:

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

Land, Contract

Updated: 25 July 2022; Ref: scu.550154

Griffin v Citibank Investments Ltd: ChD 14 Nov 2000

Where there existed properly constituted documents recording a contract, the court could not go behind them to discover the real transaction. The rules in Ramsay is not a special set of principles restricted to issues in determining the legal effect for taxation of a series of transactions, but rather part of general rules. In this case no steps had been introduced into the transaction whose only purpose was to reduce tax liability, and they could not be seen as one composite whole.

Citations:

Times 14-Nov-2000, Gazette 23-Nov-2000

Jurisdiction:

England and Wales

Citing:

Cited – W T Ramsay Ltd v Inland Revenue Commissioners HL 12-Mar-1981
The taxpayers used schemes to create allowable losses, and now appealed assessment to tax. The schemes involved a series of transactions none of which were a sham, but which had the effect of cancelling each other out.
Held: If the true nature . .
Lists of cited by and citing cases may be incomplete.

Taxes Management, Contract

Updated: 25 July 2022; Ref: scu.81036

Radio Pictures v Commissioners of Inland Revenue: ChD 1938

The court considered whether a particular document could properly be included among the batch of documents which as a whole formed the contract, so that the stipulations therein were themselves contractual.

Judges:

Lawrence J

Citations:

[1938] 22 TC 106

Jurisdiction:

England and Wales

Cited by:

Disapproved – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Contract

Updated: 25 July 2022; Ref: scu.251070

Chelsea Building Society v Armstrong: ChD 1951

The court considered a claim to benefit under a contract.
Held: Being in fact a party to an agreement might not be enough; the person claiming a benefit must be named a party in the indenture.

Judges:

Vaisey J

Citations:

[1951] Ch 853

Jurisdiction:

England and Wales

Cited by:

Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 25 July 2022; Ref: scu.251043

Pease and Another v McMillan and Others: CA 2 Apr 2009

A farm had been sold subject to a farm tenancy and with an obligation to secure vacant possession. The parties disputed the assignment of the Single Payment farm subsidy.
Held: The 2003 Council Regulation provides a scheme for single payments which would replace many of the subsidies then paid to farmers.

Citations:

[2009] EWCA Civ 258

Links:

Bailii

Statutes:

Council Regulation (EC) No 1782/2003, Commission Regulation (EC) No 795/2004 of 21 April 2004

Jurisdiction:

England and Wales

Cited by:

Cited – National Trust for Places of Historic Interest v Birden ChD 31-Jul-2009
The parties had entered into an old-form share farm agreement in 1994. The tenant later became a farm business tenant on other land. The claimant sought a share of the Single Payment Scheme calculated with reference to the period in which the . .
Lists of cited by and citing cases may be incomplete.

Contract, Agriculture

Updated: 24 July 2022; Ref: scu.329544

Conteh v Onslow Fane and another: CA 26 Jun 1975

Mr Conteh, a boxer, was accused of misconduct in breaking his contracts with his former manager and former promoter, and the High Court proceedings had been brought by him for declarations that these contracts were not binding on him. It was conceded by the Board that any finding that the contracts were binding on Mr Conteh would be provisional, and that a subsequent High Court judgment to a different effect would prevail.

Citations:

Times 26-Jun-1975, Bar Library Transcript No. 291 of 1975

Jurisdiction:

England and Wales

Cited by:

Cited – Land and others v the Executive Counsel of the Joint Disciplinary Scheme QBD 15-Oct-2002
The applicants were partners and staff in Ernst and Young. They sought a stay of disciplinary proceedings brought against them by the accountancy regulators pending resolution of the civil claim against them in respect of closely related issues . .
Lists of cited by and citing cases may be incomplete.

Contract, Administrative

Updated: 24 July 2022; Ref: scu.198155

Colonel Francis Charteris, of Ampsfield v The Right Honourable James Earl of Hyndford: HL 23 Mar 1724

Usury – South Sea Company – During the rapid rising of South Sea stock, an agreement was entered into, on a Sunday, to sell a certain quantity of stock, at 90 per cent. above the price of the preceding day, the price not to be payable till a year after transfer of the stock; and an heritable bond was afterwards granted in consequence of the transfer, for payment of the agreed price on a day certain: this bond being reduced on the head of usury, the judgment is reversed.
Witness – In a reduction on the head of usury, a menial servant of the defender who was a subscribing witness to an agreement, being refused to be examined, the judgment is reversed.
The grantee in a bond having proposed to examine a cautioner therein as a witness, with regard to the transaction for which the bond was granted, consenting that what he deponed to should not be of prejudice to him, the Court refused to admit him, but the judgment is reversed.
Appeal – Interlocutors reversed, and an agreement adjudged of consent.

Citations:

[1724] UKHL Robertson – 471, (1724) Robertson 471

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 24 July 2022; Ref: scu.553900

Get Nominees Limited v Trinity Welsh Homes Limited: ChD 9 Sep 2014

Trial of an action under which the claimant seeks specific performance of an agreement made between itself and the defendant dated 22 June 2010 relating to a freehold property at Bethel Road, Caernarfon, Gwynedd for a sum of andpound;613,500. The claimant was the seller, and the defendant was the buyer. The seller argued that an option agreement had lapsed after a failure to meet a time condition. The buyer argued that time was not of the essence.

Judges:

Purle QC HHJ

Citations:

[2014] EWHC 4737 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Rockeagle Ltd v Alsop Wilkinson CA 1991
The position of a stakeholder and the two potential claimants to a stake is the subject of a tripartite contract. The relationship between the stakeholder and the two potential claimants is contractual, not fiduciary. The money is not trust money. . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 24 July 2022; Ref: scu.550163

Damm v Herrtage: ChD 1974

Sir John Pennycuick VC said: ‘A lay vendor and purchaser normally discuss terms in the expectation that if they reach agreement in principle, the terms will be incorporated in a written document with a number of other terms, and that they will not be contractually bound until that written document is signed. It is, of course, possible for them to bind themselves orally, and the purchaser may make it clear to the vendor that that is what he is proposing, but bearing in mind the normal practice in this connection, there is obviously room for misunderstanding, and worse, in this transaction at an oral interview from discussion to binding contract . . If indeed the parties intend to bind themselves forthwith, the obvious and straightforward course would be for both of them to sign a document containing the terms of the contract and for that document to be described as an agreement.’

Judges:

Sir John Pennycuick VC

Citations:

(1974) 234 EG 365

Jurisdiction:

England and Wales

Contract

Updated: 24 July 2022; Ref: scu.538775

Winnetka Trading Corp v Julius Baer International Ltd and Another: ChD 29 Jul 2011

Judges:

Roth J

Citations:

[2011] EWHC 2030 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Winnetka Trading Corp v Julius Baer International Ltd and Others ChD 26-Nov-2008
The parties disputed whether a clause providing the government of their banking arrangements to be decided according to the laws of Guernsey were applicable. . .
Lists of cited by and citing cases may be incomplete.

Contract, Negligence

Updated: 24 July 2022; Ref: scu.442451

Lound v Grimwade: ChD 1886

The plaintiff tried to set aside a bond, saying that he had executed it under duress in the form of the threat of criminal proceedings.
Held: The bond had not been executed under pressure at law. However the consideration for it included a stipulation that certain criminal proceedings against a third party should be conducted in such a way that the plaintiff’s name should not be mentioned and, accordingly, the consideration was partly illegal.
Stirling J referred to Egerton v Bownlow and said: ‘Upon this principle it has been repeatedly held that agreements tending to affect the course of legal proceedings are illegal, even although those proceedings may not be strictly criminal in their nature.’

Judges:

Stirling J

Citations:

[1886] 39 ChD 605

Jurisdiction:

England and Wales

Citing:

Cited – Egerton v Earl of Brownlow HL 1853
The House considered a challenge to the terms of a trust on the basis that it offended public policy. The House therefore considered the nature and importance of public policy.
Held: Public policy ‘has been confounded with what may be called . .

Cited by:

Cited – Howard v Odhams Press CA 1935
The plaintiff claimed damages arising out of disclosure to his union of fraudulent activities in the defendant’s competition department of which he had been a member, such disclosure being contrary to an agreement between the claimant and his . .
Cited – Australia and New Zealand Banking Group Ltd v Compagnie Noga D’Importation Et D’Exportation Sa and Another ComC 21-Feb-2007
Non-payment of bills of exchange – construction of settlement agreement. It was said that the compromise agreement ws unenforceable as being against public policy in restraining one party.
Held: The restraint ‘does not affect the course of . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 24 July 2022; Ref: scu.270279