Category: Contract

Associated British Ports v Ferryways Nv and Another: Comc 13 Jun 2008

The parties had contracted for the provision of berths for ferry traffic through Ipswich. Various performance promises were given.

Judges:

Field J

Citations:

[2008] EWHC 1265 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Motemtronic Limited v Autocar Equipment Limited CA 20-Jun-1996
The parties said: ‘Mrs Ford: Where would money come from if M [the principal debtor] had to repay andpound;1 million? Colin Searle [the second defendant, M’s chairman]: From wherever in the group the money was at the relevant time. I’ll make sure it . .

Cited by:

Appeal From – Associated British Ports v Ferryways Nv and Another CA 18-Mar-2009
The court considered whether a document was a guarantee requiring the formality of the 1677 Act, or an indemnity.
Held: The appeal failed. The letter agreement was properly a contract of guarantee which foundered on the subsequent variation. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 17 July 2022; Ref: scu.269733

JP Morgan Chase Bank and others v Springwell Navigation Corporation: Comc 27 May 2008

The company alleged negligence by its financial advisers.
Held: Gloster J said that the absence of a written advisory agreement is a strong pointer against the existence of a free-standing duty of care to give investment advice.
Gloster J said: ‘terms which simply define the basis upon which services will be rendered and confirm the basis upon which parties are transacting business are not subject to section 2 of UCTA. Otherwise, every contract which contains contractual terms defining the extent of each party’s obligations would have to satisfy the requirement of reasonableness.’

Judges:

Gloster J

Citations:

[2008] EWHC 1186 (Comm)

Links:

Bailii

Statutes:

Unfair Contract Terms Act 1977

Jurisdiction:

England and Wales

Citing:

See Also – JP Morgan Chase Bank and others v Springwell Navigation Corporation ComC 14-Mar-2005
The defendants had invested money through the claimants, but had suffered severe losses. The claimants sought a declaration that they had no liability for such losses. The defendants counterclaimed that the claimants were liable in negligence, . .
See Also – JP Morgan Chase Bank and others v Springwell Navigation Corporation CA 20-Dec-2005
The defendants appealed against an order striking out four paragraphs of its defence and counterclaim. . .
See Also – JP Morgan Chase Bank and others v Springwell Navigation Corporation CA 2-Mar-2006
The parties disputed the attempt to strike out part of the defendant’s claim relating to shipping losses. . .
See Also – JP Morgan Chase Bank and others v Springwell Navigation Corporation ComC 3-Nov-2006
. .

Cited by:

See Also – JP Morgan Chase Bank and others v Springwell Navigation Corporation and others ComC 25-Jul-2008
. .
See Also – JP Morgan Chase Bank and others v Springwell Navigation Corp ComC 21-Nov-2008
. .
See Also – JP Morgan Chase Bank and others v Springwell Navigation Corp ComC 20-Feb-2009
The court heard an application for leave to appeal against orders. . .
Cited – Raiffeisen Zentralbank Osterreich Ag v The Royal Bank of Scotland Plc ComC 11-Jun-2010
The court was asked whether certain provisions fell within section 3 of the Misrepresentation Act.
Held: Christopher Clarke J referred to dicta of Gloster J and said: ‘In Springwell Gloster J took the view that terms which simply defined the . .
Appeal from – Springwell Navigation Corporation v JP Morgan Chase Bank and Others CA 1-Nov-2010
The court was asked as to whether representations has been made.
Held: Aikens LJ referred to a provision stating ‘no representation or warranty, express or implied, is or will be made . . in or in relation to such documents or information’, . .
Lists of cited by and citing cases may be incomplete.

Contract, Consumer

Updated: 17 July 2022; Ref: scu.269732

Alan Auld Associates Ltd v Rick Pollard Associates and Another: CA 15 May 2008

Judges:

Tuckey, Longmore, Toulson LLJ

Citations:

[2008] EWCA Civ 655

Links:

Bailii

Statutes:

Late Payment of Commercial Debt (Interest) Act 1998

Jurisdiction:

England and Wales

Cited by:

Cited – Atwal and Another v Rochester TCC 9-Jul-2010
The claimants had engaged the defendant to carry out building works. He became ill part way through and the works were not completed. They now said he was in repudiatory breach of the contract. The defendant said that the contract was frustrated, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 17 July 2022; Ref: scu.269711

Aragona v Alitalia Linee Aeree Italiane Spa: QBD 9 Apr 2001

The claimants were employees of the defendant Italian company working in England. Their contracts were subject to English law. They sought damages for breach of contract or, alternatively, a restitutionary remedy arising out of the failure and refusal of Alitalia to allocate shares to those of its employees who were employed under a contract which was not governed by Italian law, notwithstanding that such an allocation was made to those employees of equivalent status whose contracts were subject to Italian law.

Citations:

[2001] EWHC 463 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Contract

Updated: 15 July 2022; Ref: scu.266909

Axa Sun Life Services Plc v Cannon and Another: QBD 30 Oct 2007

Citations:

[2007] EWHC 2466 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Myers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Contract, Legal Professions

Updated: 15 July 2022; Ref: scu.261564

Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales: 1982

(High Court of Australia) Mason J said: ‘The implication of a term is to be compared, and at the same time contrasted, with rectification of the contract. In each case the problem is caused by a deficiency in the expression of the consensual agreement. A term which should have been included has been omitted. The difference is that with rectification the term which has been omitted and should have been included was actually agreed upon; with implication the term is one which it is presumed that the parties would have agreed upon had they turned their minds to it – it is not a term that they have actually agreed upon. Thus, in the case of the implied term the deficiency in the expression of the consensual agreement is caused by the failure of the parties to direct their minds to a particular eventuality and to make explicit provision for it. Rectification ensures that the contract gives effect to the parties’ actual intention; the implication of a term is designed to give effect to the parties’ presumed intention.’
‘The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning . .
When the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence and to the parties presumed intention in this setting.’

Judges:

Mason J

Citations:

(1982) 149 CLR 337

Jurisdiction:

Australia

Cited by:

Cited – Legal and General Assurance Society Ltd v Expeditors International (Uk) Ltd CA 24-Jan-2007
Leases contained break clauses which the tenant purported to exercise. The landlord replied that they were ineffective because the tenant had not complied with his repair covenants. The dispute appeared settled after negotiations, and the settlement . .
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 15 July 2022; Ref: scu.248232

Good v Parry: CA 1963

A letter discussed first the writer’s proposed purchase of the house (offering andpound;1,350 subject to contract), and continued: ‘The question of outstanding rent can be settled as a separate agreement as soon as you present your account.’
Held: The letter did not to constitute an acknowledgment of the landlord’s claim for rent.
Lord Denning MR said that the sentence meant ‘there may be some rent outstanding and it can be made the subject of an agreement as soon as you present your account’ and concluded: ‘Such being the meaning of it, I am quite satisfied there is no acknowledgment, because there is no admission of any rent of a defined amount due, or of any amount that can be ascertained by calculation. The amount is uncertain altogether. Nor can I regard it as a promise to pay whatever amount may be found due on taking an account. The tenant clearly reserves the right to examine it and not to be bound except by separate agreement.’
Davies LJ thought that ‘the letter did not acknowledge the claim; it only acknowledged that there might be a claim.’
Danckwerts LJ regarded the letter as ‘merely . . . an admission that there may be some possible justified claim but no admission that there is such a debt in fact.’

Judges:

Lord Denning MR, Danckwerts LJ, Davies LJ

Citations:

[1963] 2 QB 418

Jurisdiction:

England and Wales

Cited by:

Applied – Dungate v Dungate CA 1965
A claim was made against the widow and administratrix of the deceased’s estate by his surviving brother. The widow wrote to the creditor: ‘Keep a check on totals and amounts I owe you and we will have account now and then . . .Sorry I cannot do you . .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Lists of cited by and citing cases may be incomplete.

Limitation, Contract

Updated: 15 July 2022; Ref: scu.243132

Agip SpA v Navigazione Alta Italia SpA, “The Nai Genova”: CA 1984

Rectification was sought of an escalation clause in a charter-party which provided for a base figure in US dollars to be increased by reference to Italian inflation. The plaintiffs claimed that an accord had been reached that the base figure should be in lire rather than dollars, but that when the defendants prepared a draft charter-party, they put the base figure in dollars.
Held: The claim failed. The effect of allowing rectification for unilateral mistake was to impose on the defendants a contract which, at the time of its execution, they did not intend to make. In the absence of estoppel, fraud, undue influence or a fiduciary relationship between the parties, the authorities did not in any circumstances permit the rectification of a contract on the grounds of unilateral mistake, unless the defendant had actual knowledge of the existence of the relevant mistaken belief at the time when the mistaken plaintiff signed the contract. The authorities required actual knowledge by the defendant of the existence of the plaintiff’s mistake. There could be a case of an implied misrepresentation that a proffered draft gave effect to an accord and of a resultant estoppel if it was intended or reasonably foreseeable that the representation would be relied on and if the representee relied on that representation. On the facts those conditions were not satisfied. It had not been shown that the defendants intended or foresaw that the plaintiff would rely on any such representation when the defendants could have reasonably assumed that the plaintiffs would have read the escalation clause for themselves and would have noted any objection when discussing the clause with the defendants. The greater the degree of the carelessness in not detecting the error, the more unrealistic it became for the plaintiffs to assert that the reliance on the representation was foreseeable. The plaintiff’s witnesses did not attempt to blame the defendants for their mistake. The court was unpersuaded that there had been sharp practice by the defendants or that it would be inequitable to allow them to resist the claim for rectification. ‘As the law stands, the conditions which must be satisfied if rectification is to be granted on the grounds of common mistake may, in my opinion, be summarized as follows: First, there must be a common intention in regard to the particular provisions of the agreement in question, together with some outward expression of accord. Secondly, this common intention must continue up to the time of the execution of the instrument. Thirdly, there must be clear evidence that the instrument as executed does not accurately represent the true agreement of the parties at the time of its execution. Fourthly, it must be shown that the instrument, if rectified as claimed, would accurately represent the true agreement of the parties at that time . . The standard of proof required in an action of rectification to establish the common intention of the parties is the civil standard of balance of probabilities. Nevertheless, parties who append their signature to a written instrument prima facie indicate, by the very fact of their signatures, their assent to all the terms contained in it. In these circumstances’
Slade LJ (with whom Oliver and Robert Goff LJJ agreed) summarised the requirements in this way: ‘First, there must be a common intention in regard to the particular provisions of the agreement in question, together with some outward expression of accord. Secondly, this common intention must continue up to the time of execution of the instrument. Thirdly, there must be clear evidence that the instrument as executed does not accurately represent the true agreement of the parties at the time of its execution. Fourthly, it must be shown that the instrument, if rectified as claimed, would accurately represent the true agreement of the parties at that time . . ‘

Judges:

Slade, Oliver and Robert Goff LLJ

Citations:

[1984] 1 Lloyds Law Reports 353

Jurisdiction:

England and Wales

Cited by:

Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract, Estoppel

Updated: 15 July 2022; Ref: scu.216652

Holaw (470) Ltd v Stockton Estates Ltd: ChD 2000

In a sale and immediate sub-sale of land, the contracts used different standard terms and conditions. The result was that the sub-sale excluded a right of access to the property.
Neuberger J summarised the law in what were then uncontroversial terms as follows: ‘Rectification of a bilateral document can be obtained in two types of case. The first is where the party seeking rectification can establish that both parties to the document had an intention that it should contain something different from that which it actually contains, that that intention had been communicated between the parties before execution of the document, and that the intention was shared by both parties up to the time that they executed the document. The second type of case is where the party opposing the claim for rectification appreciated that the document departed from what had previously been negotiated between the parties, and that the other party was under a misapprehension, and the first party, though aware of this, forbore from drawing his attention to the error.’

Judges:

Neuberger J

Citations:

[2000] EGCS 89, (2001) 81 P and CR 29

Jurisdiction:

England and Wales

Cited by:

Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 15 July 2022; Ref: scu.219180

Kawasaki Kisen Kabushiki Kaisha of Kobe v Bantham Steamship Company Limited: CA 1939

The case was heard against the background of an armed conflict between Japan and China. The charterparty contract included a clause providing for cancellation ‘if war breaks out involving Japan’.
Held: The court rejected an argument that the meaning of ‘war’, when found in a charterparty, was to depend on either the question whether war had been recognised by the Government, or on international law, or indeed on any technical meaning. The word had to be construed ‘in a common sense way’, in accordance with ‘the common sense of business men’. The case concerned only the construction of the charter party. The phrase ‘if war breaks out’ could not mean ‘if war is recognised to have broken out by His Majesty’s Government’: ‘Nobody would have the temerity to suggest in these days that war cannot exist without a declaration of war. Similarly, the recent events in the world have introduced new methods and a new technique, with regard to which I conceive that writers on international law will dispute for many years to come. I do not propose to be the first to lay down a definition of ‘war’ in a so called technical sense.’

Judges:

Sir Wilfred Greene MR

Citations:

[1939] 2 KB 544

Jurisdiction:

England and Wales

Cited by:

Cited – If P and C Insurance Limited (Publ.) v Silversea Cruises Limited, Silver Cloud Shipping Company Sa, Silver Wind Shipping Company Sa, Silversea New Build One Limited, Silversea New Build Two Limited&Quot;the Silver Cloud&Quot; CA 5-Jul-2004
The shipping company was insured against loss of business following Acts of war. It sought to claim after the attack on America in September 2001.
Held: The policy had a limitation which applied ‘in the annual aggregate and in all’ which . .
Cited – Spinneys (1948) Ltd v Royal Insurance Co Ltd 1980
The court considered the meaning of ‘war’ in the context of an insurance contract: ‘The issue is not whether the events in Lebanon were recognised in the United Kingdom as amounting to a civil war in the sense in which the term is used in Public . .
Cited – Amin v Brown ChD 27-Jul-2005
The defendant raised as a preliminary point the question of whether the claimant, an Iraqi, was an enemy alien, and therefore debarred from bringing proceedings to recover.
Held: Under modern law it could not be a requirement that a state of . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 15 July 2022; Ref: scu.200215

Crane v Hegeman-Harris Co Inc: ChD 1939

A continuing common intention of the parties to a document alone will not suffice to justify rectification. For rectification to be appropriate, there must be convincing proof that the concluded instrument does not represent the common intention of the parties. Where there has been prolonged negotiations resulting in a formal instrument, with parties having their own legal advisors, there is a strong assumption that the instrument represents their real intention.
Simonds J said: ‘Before I consider the facts and come to a conclusion whether the defendants are right in their contention, it is necessary to say a few words upon the principles which must guide me in this matter. I am clear that I must follow the decision of Clauson J, as he then was, in Shipley Urban District Council v. Bradford Corpn, the point of which is that, in order that this court may exercise its jurisdiction to rectify a written instrument, it is not necessary to find a concluded and binding contract between the parties antecedent to the agreement which it is sought to rectify. The judge held, and I respectfully concur with his reasoning and his conclusion, that it is sufficient to find a common continuing intention in regard to a particular provision or aspect of the agreement. If one finds that, in regard to a particular point, the parties were in agreement up to the moment when they executed their formal instrument, and the formal instrument does not conform with that common agreement, then this court has jurisdiction to rectify, although it may be that there was, until the formal instrument was executed, no concluded and binding contract between the parties. That is what the judge decided, and, as I say, with his reasoning I wholly concur, and I can add nothing to his authority in the matter, except that I would say that, if it were not so, it would be a strange thing, for the result would be that two parties binding themselves by mistake to which each had equally contributed, by an instrument which did not express their real intention, would yet be bound by it. That is a state of affairs which I hold is not the law, and, until a higher court tells me that it is the law, I shall continue to exercise the jurisdiction which Clauson J, as I think rightly, held might be entertained by this court.
Secondly, I want to say this upon the principle of the jurisdiction. It is a jurisdiction which is to be exercised only upon convincing proof that the concluded instrument does not represent the common intention of the parties. That is particularly the case where one finds prolonged negotiations between the parties eventually assuming the shape of a formal instrument in which they have been advised by their respective skilled legal advisers. The assumption is very strong in such a case that the instrument does represent their real intention, and it must be only upon proof which Lord Eldon, I think, in a somewhat picturesque phrase described as ‘irrefragable’ that the court can act. I would rather, I think, say that the court can only act if it is satisfied beyond all reasonable doubt that the instrument does not represent their common intention, and is further satisfied as to what their common intention was. For let it be clear that it is not sufficient to show that the written instrument does not represent their common intention unless positively also one can show what their common intention was. It is in the light of those principles that I must examine the facts of this somewhat complicated case.’

Judges:

Simonds J

Citations:

[1939] 1 All ER 662

Jurisdiction:

England and Wales

Citing:

Approved – Shipley Urban District Council v Bradford Corporation ChD 1936
The parties had reached a clear common understanding in their negotiations as to how they intended the price of water supplied to the plaintiff council by the defendant corporation to be calculated; but, as each party only had power to contract . .

Cited by:

Cited – Frederick E Rose (London) Limited v William H Pim Junior and Co Limited 1953
The plaintiffs, who were London merchants, had been asked by Egyptian buyers to supply ‘feveroles’. Not knowing what this term meant, they asked the defendants’ representative, who responded that ‘feveroles’ meant horsebeans. Relying on this . .
Approved – Joscelyne v Nissen CA 1970
A father entered into a written contract with his daughter by which he transferred to her his car hire business in return for her agreement to pay him a pension and discharge certain expenses. In their discussions it had been agreed between them . .
Cited – Daventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 15 July 2022; Ref: scu.184576

Re Butlin’s Settlement Trusts: 1976

Sir Billy Butlin had executed a voluntary settlement to allow a majority of trustees to exercise a power under the settlement. By a drafting error the settlement did not give effect to this intention.
Held: The court could rectify the settlement even though only one of the original trustees knew of the intention.
Brightman J said: ‘There is, in my judgment, no doubt that the court has power to rectify a settlement notwithstanding that it is a voluntary settlement and not the result of a bargain, such as an ante-nuptial marriage settlement. Lackersteen v. Lactersteen (1860) 30 L.J. Ch 5, a decision of Page-Wood V.C. and Behrens v. Heilbut (1956) 222 L.J. Jo.290, a decision of Harman J., are cases in which voluntary settlements were actually rectified. There are also obiter dicta to the like effect in cases where rectification was in fact refused; see Bonhote v. Henderson [1895] 1 Ch. 642; [1895] 1 Ch. 202.’ and ‘rectification is available not only in a case where particular words have been added, omitted or wrongly written as a result of careless copying or the like. It is also available where the words of the document are purposely used but it was mistakenly considered that they bore a different meaning as a matter of true construction. In such a case . . the court will rectify the wording so that it expresses the true intention . .’

Judges:

Brightman J

Citations:

[1976] Ch 251

Jurisdiction:

England and Wales

Cited by:

Cited – Lansing Linder Ltd v Alber ChD 2000
Pension scheme rules were amended varying the ages etc for retirement. The rules gave the company power to amend the rules with the consent of the Trustees. The original rules permitted early retirement on an immediate, but actuarially reduced, . .
Cited – AMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Another ChD 2-Mar-2007
The claimants had entered into an agreement with the defendant house-builder for the development of a site which the claimants had recently acquired. The structure of the agreement was that the developer would obtain planning permission and, under . .
Cited – Oun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 15 July 2022; Ref: scu.184579

Frederick E Rose (London) Limited v William H Pim Junior and Co Limited: 1953

The plaintiffs, who were London merchants, had been asked by Egyptian buyers to supply ‘feveroles’. Not knowing what this term meant, they asked the defendants’ representative, who responded that ‘feveroles’ meant horsebeans. Relying on this information, the plaintiffs contracted to buy a quantity of horsebeans from the defendants, which they then sold on as ‘feveroles’ to the Egyptian buyers. To fulfil the contract, the defendants purchased ‘horsebeans’ from an Algerian supplier. There are in fact different varieties of horsebeans and those supplied were ‘feves’, which were less valuable than ‘feveroles’. The Egyptian buyers claimed the difference in value as damages from the plaintiffs, who then sought to rectify their contract with the defendants by adding the word ‘feveroles’ after the references to ‘horsebeans’. Held; Rectification was granted.
The court considered the circumstances under which it could order rectification of a contract: ‘Rectification is concerned with contracts and documents, not with intentions. In order to get rectification it is necessary to show that the parties were in complete agreement on the terms of their contract, but by an error wrote them down wrongly; and in this regard, in order to ascertain the terms of their contract, you do not look into the inner minds of the parties – into their intentions – any more than you do in the formation of any other contract. You look at their outward acts, that is, at what they said or wrote to one another in the coming to their agreement, and then compare it with the document that they have signed. If you can predicate with certainty what their contract was, and that it is, by a common mistake, wrongly expressed in the document, then you rectify the document; but nothing less will suffice. It is not necessary that all the formalities of the contract should have been executed so as to make it enforceable at law . . but, formalities apart, there must have been a concluded contract. There is a passage in Crane v Hegeman-Harris Co. Inc. [ [1939] 1 All ER 662, 664 ] which suggests that a continuing common intention alone will not suffice; but I am clearly of the opinion that a continuing common intention is not sufficient unless it has found expression in outward agreement. There could be no certainty at all in business transactions if a party who had entered into a firm contract could afterwards turn round and claim to have it rectified on the ground that the parties intended something different. He is allowed to prove, if he can, that they agreed something different… but not that they intended something different.’

Judges:

Lord Denning

Citations:

[1953] 2 QB 450

Jurisdiction:

England and Wales

Citing:

Cited – Crane v Hegeman-Harris Co Inc ChD 1939
A continuing common intention of the parties to a document alone will not suffice to justify rectification. For rectification to be appropriate, there must be convincing proof that the concluded instrument does not represent the common intention of . .
Cited – Lovell and Christmas Ltd v Wall CA 1911
The written contract contained a restrictive covenant limiting the defendant’s freedom to carry on the business of a ‘provision merchant’ other than on behalf of the plaintiff company. On the facts found, the parties in their discussions before the . .

Cited by:

Explained – Joscelyne v Nissen CA 1970
A father entered into a written contract with his daughter by which he transferred to her his car hire business in return for her agreement to pay him a pension and discharge certain expenses. In their discussions it had been agreed between them . .
Cited – Lansing Linder Ltd v Alber ChD 2000
Pension scheme rules were amended varying the ages etc for retirement. The rules gave the company power to amend the rules with the consent of the Trustees. The original rules permitted early retirement on an immediate, but actuarially reduced, . .
Cited – AMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Explained – London Weekend Television Ltd v Paris and Griffith ChD 1969
Megaw J said: ‘Where two persons agreed expressly with one another what was the meaning of a particular phrase but did not record their definition in the contract itself, if one of the parties sought to enforce the agreement on the basis of some . .
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 15 July 2022; Ref: scu.184575

Joscelyne v Nissen: CA 1970

A father entered into a written contract with his daughter by which he transferred to her his car hire business in return for her agreement to pay him a pension and discharge certain expenses. In their discussions it had been agreed between them that these expenses should include the father’s gas, electricity and coal bills and the cost of home help. The court considered an application for rectification. At first instance, the court held that the signed contract did not on its proper interpretation provide for payment of these expenses, but rectification was granted. The daughter appealed, contending that as a matter of law the remedy of rectification was not available to the father in the absence of an antecedent concluded contract.
Held: The daughter’s contention as rejected. Rose v Pim did not assert or reinstate the view that an antecedent complete concluded contract was required for rectification. It only showed that prior accord on a term or meaning of a phrase to be used must have been outwardly expressed or communicated between the parties. The burden of proof on the party asking for rectification is high.
A contractual document could only be rectified in order to bring it into conformity with a contract that already existed before the document was executed and which the document failed accurately to record as a result of a mutual mistake.

Judges:

Buckley LJ, Russell LJ

Citations:

[1970] 2 QB 86

Jurisdiction:

England and Wales

Citing:

Explained – Frederick E Rose (London) Limited v William H Pim Junior and Co Limited 1953
The plaintiffs, who were London merchants, had been asked by Egyptian buyers to supply ‘feveroles’. Not knowing what this term meant, they asked the defendants’ representative, who responded that ‘feveroles’ meant horsebeans. Relying on this . .
Approved – Crane v Hegeman-Harris Co Inc ChD 1939
A continuing common intention of the parties to a document alone will not suffice to justify rectification. For rectification to be appropriate, there must be convincing proof that the concluded instrument does not represent the common intention of . .
Cited – Lovell and Christmas Ltd v Wall CA 1911
The written contract contained a restrictive covenant limiting the defendant’s freedom to carry on the business of a ‘provision merchant’ other than on behalf of the plaintiff company. On the facts found, the parties in their discussions before the . .

Cited by:

Cited – AMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Cited – Oun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 15 July 2022; Ref: scu.184577

Watts Watts and Co Ltd v Mitsui and Co Ltd: HL 16 Mar 1917

War – Ship – Charter-Party – Breach by Ship – Measure of Damages – Exception of Restraints of Princes
The respondents chartered a ship from the appellants to proceed to M. before a certain date and to load and carry to Japan a cargo which the respondents had bought. The charter-party excepted ‘restraints of princes.’ The appellants failed to provide a ship, pleading as excuse a reasonable apprehension that the ship might be seized by the King’s enemies. The respondents were unable to obtain another ship and had to repudiate their contract with the sellers of the cargo, paying them (after arbitration proceeding) pounds 4500. The respondents claimed as damages pounds 4500 together with such a sum as represented their loss of profit on the venture.
Held ( a) that restraint of princes must be actual not prospective, ( b) that the measure of damages was the difference between the contract price of the cargo at M. and that which it would have fetched in Japan had the voyage been prosecuted, subject to deduction of the amount of the insurance premium the respondents would have required to pay.

Judges:

Lord Chancellor (Lord Finlay), Earl Loreburn, Lords Dunedin, Parker, and Sumner

Citations:

[1917] UKHL 650, 54 SLR 650

Links:

Bailii

Jurisdiction:

England and Wales

Transport, Contract

Updated: 15 July 2022; Ref: scu.631003

RTS Flexible Systems Ltd v Molkerei Alois Muller Gmbh and Co Kg (UK Productions): TCC 16 May 2008

The parties had gone ahead in performing the contract for the supply of machinery for manufacturing yoghurt pots, despite not having concluded formal agreements.

Judges:

Christopher Clarke J

Citations:

[2008] EWHC 1087 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – G Percy Trentham Ltd v Archital Luxfer Ltd CA 1993
The court discussed how it should approach the task of establishing whether a contract had been made.
Performance can be a critical factor in demonstrating that the parties intended to create legal relations.
Steyn LJ said: ‘Before I turn . .

Cited by:

Appeal from – RTS Flexible Systems Ltd v Molkerei Alois Muller Gmbh and Co KG CA 12-Feb-2009
The parties went ahead with performance of a contract or the provision of a substantial production line without formally completing negotiation of the contract. . .
At First Instance – RTS Flexible Systems Ltd v Molkerei Alois Muller Gmbh and Company Kg (UK Production) SC 10-Mar-2010
The parties had reached agreement in outline and sought to have the contract formalised, but went ahead anyway. They now disputed whether an agreement had been created and as to its terms if so.
Held: It was unrealistic to suggest that no . .
See Also – RTS Flexible Systems Ltd v Molkerei Alois Muller Gmbh and Co KG CA 12-Feb-2009
Costs Judgment . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 14 July 2022; Ref: scu.267720

Shandong Chenming Paper Holding Ltd and others v Saga Forest Carriers Intl As and Another: ComC 14 May 2008

Alleged breach of contract and/or duty and/or negligence in and about the loading handling custody care and discharge of cargo of bleached eucalyptus kraft pulp. Amendmenmt to allow time bar defence to proceed.

Judges:

Walker J

Citations:

[2008] EWHC 1055 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Litigation Practice

Updated: 14 July 2022; Ref: scu.267669

Satyam Computer Services Ltd v Upaid Systems Ltd: CA 9 May 2008

The parties had settled their action, but the claimant now wished to assert that the compromise was based on a concealed fraud. The defendant argued that the agreement precluded re-opening the case.
Held: It was only by the clearest of words that an agreement could exclude a right to challenge it for fraud or dishonesty. The dedendant’s appeal was dismissed. The terms of an original agreement can survive a comprehensive settlement, particularly where it is preserved by the settlement agreement.

Judges:

Lawrence Collins LJ, Waller LJ, Rimer LJ

Citations:

[2008] EWCA Civ 487, Times 27-May-2008, [2008] 2 All E.R. (Comm) 465

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Satyam Computer Services Ltd v Upaid Systems Ltd ComC 17-Jan-2008
. .

Cited by:

Cited – Cavell USA, Inc and Randall v Seaton Insurance Company etc CA 16-Dec-2009
The parties had settled terms for concluding business arrangements between them. The agreement released and referred all claims in law and in equity ‘save for fraud’ to the UK courts. The respondents now wanted to bring a case alleging breach of a . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 14 July 2022; Ref: scu.267571

Seele Austria Gmbh and Co Kg v Tokio Marine Europe Insurance Ltd: CA 7 May 2008

The court was asked whether under a policy covering the liability of third parties in a construction project, that policy covered also the costs of gaining access to parts of the building to replace defective parts.

Judges:

Waller LJ, Moore-Bick LJ, Richards LJ

Citations:

[2008] EWCA Civ 441

Links:

Bailii

Jurisdiction:

England and Wales

Insurance, Contract

Updated: 14 July 2022; Ref: scu.267553

Ruttle Plant Hire Ltd v Secretary of State for Environment, Food and Rural Affairs (No. 3): TCC 20 Mar 2008

Judges:

Coulson J

Citations:

[2008] EWHC 730 (TCC)

Links:

Bailii

Statutes:

Late Payment of Commercial Debts (Interest) Act 1998

Jurisdiction:

England and Wales

Cited by:

See Also – Ruttle Plant Ltd v Secretary of State for Environment Food and Rural Affairs No. 2 TCC 30-Apr-2008
. .
Appeal from – Ruttle Plant Hire Ltd v Secretary of State for Environment Food and Rural Affairs CA 27-Feb-2009
Late payment interest not lost for invoice error
The claimant had become entitled to payment for services and submitted its invoices. When the defendant failed to pay promptly, it added sums due under the 1998 Act. The defendant responded that errors on the invoices made the claims for the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 14 July 2022; Ref: scu.267237

TRM Copy Centres (UK) Ltd and others v Lanwall Services Ltd: CA 17 Apr 2008

The court declined an appeal against an order that copier hire agreements were not regulated under the 1974 Act.

Citations:

[2008] EWCA Civ 382, [2008] BusLR 1231

Links:

Bailii

Statutes:

Consumer Credit Act 1974 15

Jurisdiction:

England and Wales

Citing:

Appeal from – TRM Copy Centres (UK) Ltd and others v Lanwall Services Ltd QBD 18-Jul-2007
The court considered as a preliminary issue the alleged inducement by the Defendant of breach of contract on the part of various customers of the Claimants.
Held: The Location Agreements were not consumer hire agreements within the meaning of . .

Cited by:

Appeal From – TRM Copy Centres (UK) Ltd and Others v Lanwall Services Ltd HL 17-Jun-2009
Each party contracted hire copiers to shops and offices. The claimant said that the defendant had interfered with their contracts by substituting their equipment. The defendants said that the claimants’ contracts were controlled by the 1974 Act, but . .
Lists of cited by and citing cases may be incomplete.

Consumer, Contract

Updated: 14 July 2022; Ref: scu.266960

Cotton (T/A Allmat Enterprises) v Rickard Metals Inc: QBD 21 Apr 2008

Eady J set out principles applying on applications for summary judgment: ‘the court needs to be satisfied that the relevant party’s case (in this instance that of Mr Cotton) is bound to fail on the material at present available and, secondly, that there is no reasonable possibility of evidence becoming available to him, whether by further investigation, disclosure, cross-examination or otherwise, sufficiently to support his case and give it some prospect of success.’ and ‘where there are unexplained features in a case, which could only be satisfactorily resolved following disclosure and cross-examination, it is important to consider whether they throw doubt on evidence which would otherwise appear to be clear-cut and/or whether they might provide ‘other compelling reasons’ to justify the case being tried. ‘

Judges:

Eady J

Citations:

[2008] EWHC 824 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Pickenham Romford Ltd v Deville ChD 31-Jul-2013
The claimant company’s administrators sought an order to have vacated unilateral notices entered against land titles registered to the claimant. The court now gave its reasons for making the order as requested by way of summary relief. The notices . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other, Litigation Practice

Updated: 14 July 2022; Ref: scu.267001

City Connect Management Ltd v Telia International Carrier UK and Another: TCC 30 Jul 2004

The parties sought the expenses incurred in negotiating a development contract which failed before the documents were signed.

Judges:

Toulmin J

Citations:

[2004] EWHC 2357 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Branca v Cabarro CA 1947
The fact that the parties might contemplate the possibility of a further written agreement, does not prevent an original agreement being effective as a contract. . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Orion Insurance Co v Sphere Drake Insurance CA 1992
The parties met to negotiate a settlement of the terms of the plaintiff’s withdrawal from a pool insurance scheme. They signed a record of the meeting, but then claimed the record did not amount to a legally binding agreement. The defendants . .
Cited – Walton Stores (Interstate) Limited v Maher 1988
(High Court of Australia) It would be unconscionable for a party to stand by in silence when it must have known that the other party was proceeding on an assumption that they had a binding agreement. . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Cohen v Nessdale Ltd CA 1982
Once negotiations are begun ‘subject to contract’, that label governs all subsequent communications between the parties unless the label is expunged by express agreement or by necessary implication. . .
Cited – Amalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd CA 1982
The court explained the nature of an estoppel by convention.
Lord Denning MR said: ‘The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 14 July 2022; Ref: scu.266706

Emmott v Michael Wilson and Partners Ltd: CA 12 Mar 2008

The court considered the implication of the obligation of confidentiality in banking contracts or in arbitration agreements. It is ‘really a rule of substantive law masquerading as an implied term’.

Citations:

[2008] EWCA Civ 184, [2008] Bus LR 1861

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
See Also – Michael Wilson and Partners Ltd v Emmott ComC 6-Nov-2008
Challenge to jurisdiction of arbitration proceedings. . .
See Also – Emmott v Michael Wilson and Partners Ltd ComC 12-Jan-2009
The claimant, a party to an arbitration, sought first an order requiring the defendant to comply with an order made by the arbitrator for the transfer of certain shares, and second an asset freezing order.
Held: The conditions for a peremptory . .
See Also – Michael Wilson and Partners Ltd v Emmott ComC 8-Jun-2011
The claimant challenged an arbitration award made concerning the agreement under which the defendant had been admitted to partnership. MWP contended that the Tribunal were guilty of a large number of serious irregularities in their conduct of the . .
See Also – Michael Wilson and Partners Ltd v Sinclair and Others ComC 21-Sep-2012
The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .
See Also – Michael Wilson and Partners Ltd v Sinclair and Others CA 16-Jan-2013
Application to stay order for costs. . .
See Also – Michael Wilson and Partners Ltd v Sinclair and Others CA 23-Jul-2015
. .
See Also – Michael Wilson and Partners Ltd v Emmott CA 14-Oct-2015
Appeal against a finding that payments made by the appellant were made in the ordinary course of business and not in breach of a freezing injunction. . .
See Also – Michael Wilson and Partners Ltd v Emmott CA 11-Dec-2015
The court considered a residual jurisdiction to set aside an arbitrator’s award after a first appeal. . .
See Also – Emmott v Michael Wilson and Partners ComC 24-Nov-2016
Application for an anti-suit injunction against the defendant to restrain it from taking any further steps in ongoing proceedings in New South Wales and from commencing or pursuing any other substantive claims against the claimant on the ground that . .
See Also – Michael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice, Contract

Updated: 14 July 2022; Ref: scu.266155

AIC Ltd v Marine Pilot Ltd: CA 7 Mar 2008

The charterparty provided for delivery of cargo to ‘load one safe port Ventspils’. The port was not a safe harbour, and the goods were not delivered.
Held: The words used imported a warranty that the harbour was safe, and since it was not, the charterer was not obliged to call.

Judges:

Sir Anthony Clarke, Master of the Rolls, Lord Justice Longmore and Sir William Aldous

Citations:

[2008] EWCA Civ 175, Times 22-Apr-2008

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ullises Shipping Corp v Fal Shipping Co Ltd Rev 1 ComC 14-Jul-2006
. .
Cited – STX Pan Ocean Co Ltd v Ugland Bulk Transport A.S. (Livanita) ComC 6-Jun-2007
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 14 July 2022; Ref: scu.266120

Pink Floyd Music Ltd and Another v EMI Records Ltd: CA 14 Dec 2010

The defendant appealed against an order made on the claimant’s assertion that there were due to it substantial underpayments of royalties over many years. The issues were as to the construction of licensing agreements particularly in the context of digital sales, under which the appellants were found to owe the respondents come 10 million pounds in royalty arrears.
Held: The appeal failed (Carnwath LJ dissenting in part). Before the court can be satisfied that something has gone wrong, the court has to be satisfied both that there has been ‘a clear mistake’ and that it is clear ‘what correction ought to be made’.
Lord Neuberger MR said: ‘Commercial common sense strongly supports the case advanced by PFM, as the Chancellor said. It seems perverse to imagine that the parties envisaged the integrity of the Albums being rigidly controlled by PFM so far as they were physically recorded and distributed, but that PFM would have no control whatever over the integrity of digital recordings and distribution, particularly when one bears in mind that downloading by the eventual purchaser can involve a permanent recording being held on a physical format. While it is true that digital distribution was in its infancy at the time, it was plainly in existence and was seen by the parties as being commercially significant, and, on the issue of maintaining the integrity of recordings, no sensible reason for distinguishing between physical format and digital recordings has been advanced. ‘
An application allowing the redaction of a commercially sensitive percentage was incorrect: ‘a private hearing or party anonymisation will be granted in the Court of Appeal only if, and only to the extent that, a member of the Court is satisfied that it is necessary for the proper administration of justice.’

Judges:

Lord Neuberger MR, Laws, Carnwath LJJ

Citations:

[2010] EWCA Civ 1429, [2011] 1 WLR 770

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Pink Floyd Music Ltd and Another v EMI Records Ltd ChD 11-Mar-2010
The claimant sought summary judgment for a claim under Licensing agreements under which the defendants had marketed and sold the claimant’s products. The remaining disputes concerned differences as to royalties from digital downloads sold through . .
Cited – City Alliance Ltd v Oxford Forecasting Services Ltd CA 16-Nov-2000
The parties disputed the construction of a clause in the contract between them.
Held: Chadwick LJ said: ‘It is not for party who relies upon the words actually used to establish that those words effect a sensible commercial purpose. It should . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – East v Pantiles Plant Hire Ltd CA 1981
The court considered the circumstances under which rectification could properly be ordered in respect of a deed. Brightman LJ said: ‘It is clear on the authorities that a mistake in a written instrument can, in certain limited circumstances, be . .
Cited – City Alliance Ltd v Oxford Forecasting Services Ltd CA 16-Nov-2000
The parties disputed the construction of a clause in the contract between them.
Held: Chadwick LJ said: ‘It is not for party who relies upon the words actually used to establish that those words effect a sensible commercial purpose. It should . .
Cited – KPMG Llp v Network Rail Infrastructure Ltd CA 27-Apr-2007
The parties disputed the interpretation of a break clause in their lease. Carnwath LJ said that courts should not readily accept that parties have made mistakes in formal documents: ‘correction of mistakes by construction’ is not a separate branch . .
Cited – Lediaev v Vallen CA 5-Mar-2009
. .
Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .

Cited by:

Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – Campbell v Daejan Properties Ltd CA 20-Nov-2012
The tenant appealed against an order requiring the amendment of what was found to be an obvious error in the lease as to the responsibility of the lessor to make repairs to certain walls and rooves, and the apportionment of liability for payment of . .
Cited – AJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .
Cited – Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School CA 13-Oct-2017
Single Sex Schooling failed to prepare for life
The Chief Inspector appealed from a decision that it was discriminatory under the 2010 Act to educate girls and boys in the same school but under a system providing effective complete separation of the sexes.
Held: The action was . .
Cited – Lu v Solicitors Regulation Authority Admn 6-Jul-2022
No Unmnecessary Anoniymity
The appellant, having been acquitted of misconduct, complained of the anonymisation of various partied by the SDT.
Held: The court was critical of the approach taken by the Tribunal. ‘I see no good reason why Ms Pearson, Ms Stone, Mr Ewing and . .
Lists of cited by and citing cases may be incomplete.

Contract, Media

Updated: 14 July 2022; Ref: scu.427179

Singh v Dass: CA 7 Mar 2019

Judges:

Lord Justice Mccombe
Lord Justice Moylan
Lord Justice Haddon-Cave

Citations:

[2019] EWCA Civ 360

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Lu v Solicitors Regulation Authority Admn 6-Jul-2022
No Unmnecessary Anoniymity
The appellant, having been acquitted of misconduct, complained of the anonymisation of various partied by the SDT.
Held: The court was critical of the approach taken by the Tribunal. ‘I see no good reason why Ms Pearson, Ms Stone, Mr Ewing and . .
Lists of cited by and citing cases may be incomplete.

Limitation, Contract

Updated: 14 July 2022; Ref: scu.634308

King v David Allen and Sons Billposting Ltd: HL 14 Feb 1916

Termination of a periodical tenancy by either the landlord or the tenant will bring to an end the possession of a licensee from the tenant, since the licensee’s rights are only contractual rights against the tenant. Termination by the tenant will expose the tenant to a claim for damages from the licensee. A licence creates personal rights which are binding solely upon the parties to the contract and do not run with the land

Citations:

[1916] UKHL 1, [1916] 2 AC 54, (1915) 2 IR 213

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Landlord and Tenant

Updated: 13 July 2022; Ref: scu.265981

Socimer International Bank Ltd v Standard Bank London Ltd: CA 22 Feb 2008

Rix LJ considered the restraints operating a party to a contract in exercising any discretion gien under it, preferring the use of the term ‘irrationality’ to ‘unreasonableness’: ‘It is plain from these authorities that a decision-maker’s discretion will be limited, as a matter of necessary implication, by concepts of honesty, good faith, and genuineness, and the need for the absence of arbitrariness, capriciousness, perversity and irrationality. The concern is that the discretion should not be abused. Reasonableness and unreasonableness are also concepts deployed in this context, but only in a sense analogous to Wednesbury unreasonableness, not in the sense in which that expression is used when speaking of the duty to take reasonable care, or when otherwise deploying entirely objective criteria: as for instance when there might be an implication of a term requiring the fixing of a reasonable price, or a reasonable time. In the latter class of case, the concept of reasonableness is intended to be entirely mutual and thus guided by objective criteria . . Laws LJ in the course of argument put the matter accurately, if I may respectfully agree, when he said that pursuant to the Wednesbury rationality test, the decision remains that of the decision-maker, whereas on entirely objective criteria of reasonableness the decision-maker becomes the court itself.’

Judges:

Rix LJ, Laws LJ, Lloyd LJ

Citations:

[2008] EWCA Civ 116, [2008] Bus LR 1304

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Socimer International Bank Ltd v Standard Bank London Ltd ComC 17-Nov-2006
. .
Cited – CVG Siderurgicia del Orinoco SA v London Steamship Owners’ Mutual Insurance Association Limited ‘The Vainqueur Jose’ 1979
The plaintiff sought to claim under the rules of the P and I club of which it was a member. After defining the risks in respect of which members were to be indemnified, the rules made the following proviso in Rule 8(k): ‘A member shall at the . .
Cited – Abu Dhabi National Tanker Co v Product Star Shipping Ltd (No 2) CA 1993
Where parties enter into a contract which confers a discretion on one of them, the discretion must be exercised honestly and in good faith, and not ‘arbitrarily, capriciously or unreasonably’. The owner had acted unreasonably in that there was no . .
Cited – Ludgate Insurance Company Limited v Citibank NA CA 26-Jan-1998
Brooke LJ said that the circumstances in which the court will interfere with the exercise by a party to a contract of a contractual discretion given to it by another party are extremely limited. The courts will not intervene where the discretion is . .
Cited – Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd CA 3-Jul-2001
A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to . .
Cited – Paragon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .

Cited by:

Cited – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
Cited – Hayes v Willoughby SC 20-Mar-2013
The claimant and appellant had been employer and employee who had fallen out, with a settlement in 2005. The appellant then began an unpleasant and obsessive personal vendetta against Mr Hayes, complaining to public bodies with allegations of tax . .
Cited – Braganza v BP Shipping Ltd SC 18-Mar-2015
The claimant’s husband had been lost from the defendant’s ship at sea. The defendant had contracted to pay compensation unless the loss was by suicide. They so determined. The court was now asked whether that was a permissible conclusion in the . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 13 July 2022; Ref: scu.265925

Reinwood Ltd v L Brown and Sons Ltd: HL 20 Feb 2008

The employer received a notice of non-completion from his architect, and in turn served a notice on the contractor under section 111, and deducted damages for non-completion from the next payment. The contractor said this was not allowed because the architect had in the meantime granted an extension.
Held: The contract should be construed in the light of the statute to which it gave effect. The extension did not cancel the notce of non-completion. The contractor should still have referred the matter to arbitration.

Judges:

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

Citations:

[2008] UKHL 12

Links:

Bailii

Statutes:

Housing Grants, Construction and Regeneration Act 1996 111

Jurisdiction:

England and Wales

Citing:

Appeal from – Reinwood Ltd v L Brown and Sons Ltd CA 21-Jun-2007
. .
Cited – Melville Dundas Ltd and others v George Wimpey UK Ltd and others HL 25-Apr-2007
The appellant sought an interim payment for works of construction undertaken for the respondents under a JCT contract. The respondents contended that, having terminated the contract on their receivership, the contract and Act meant that the interim . .

Cited by:

See Also – Reinwood Ltd v L Brown and Sons Ltd CA 17-Oct-2008
The court was asked whether a contractor under a particular building contract was entitled to determine the contract and walk away, or whether such behaviour amounted to a repudiation entitling the main contractor to damages. . .
Lists of cited by and citing cases may be incomplete.

Construction, Contract

Updated: 13 July 2022; Ref: scu.264638

Coles and others (Trustees of the Ward Green Working Mens Club) v Samuel Smith Old Brewery (Tadcaster) (Unltd Company) and Another: CA 29 Nov 2007

The claimants appealed refusal of an order for specific performance of a contract for the purchase of land under the exercise of an option agreement. The defendant had conveyed the land to a subsidiary in order to defeat the option.
Held: ‘The sale by the Brewery to Rochdale was to a genuine company, for a genuine (albeit low) price, and the transaction was carried out overtly for all to see. The true nature of the transaction was precisely what it purports to have been, namely, a transaction which was intended to enable both Brewery and Rochdale to assert and rely on legal rights that would enable them to defeat the claim to enforce the option agreement.’ However there had also been an earlier purported intermediate sale to a third party, but this had not included the option land, and specific performance was ordered.

Judges:

Pill, Sedley, Rimer LJJ

Citations:

[2007] EWCA Civ 1461

Links:

Bailii

Statutes:

Friendly Societies Act 1974

Jurisdiction:

England and Wales

Citing:

Cited – Elliott and H Elliott (Builders) Ltd v Pierson ChD 1948
Harmon J: ‘At law A may contract to sell to B any defined subject matter and can enforce the contract if by the time when he is obliged to do so he has obtained a sufficient interest or can compel other interested parties to concur in the sale. It . .
Cited – Gilford Motor Co Ltd v Horne CA 1933
The defendant was the plaintiff’s former managing director. He was bound by a restrictive covenant after he left them. To avoid the covenant, he formed a company and sought to transact his business through it. At first instance, Farwell J had found . .
Cited – Jones v Lipman and Another ChD 1962
The defendant had contracted to sell his land. He changed his mind, and formed a company of which he was owner and director, transferred the land to the company, and refused to complete. The plaintiff sought relief.
Held: Specific performance . .
Cited – Midland Bank Trust Co Ltd v Green (No 1) HL 11-Dec-1980
A father had granted an option over land to his son, but it had not been registered. The father later tried to frustrate the option by conveying the land to his wife for 500 pounds. The land was worth 40,000 pounds. When the son found out about it, . .
Cited – Trustor Ab v Smallbone and Another (No 2) ChD 30-Mar-2001
Directors of one company fraudulently diverted substantial sums to another company owned by one of them. The defrauded company sought return of the funds, from the company and from the second director on the basis that the corporate veil should be . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 13 July 2022; Ref: scu.264477

Biffa Waste Services Ltd and Another v Maschinenfabrik Ernst Hese Gmbh and others: TCC 11 Jan 2008

Judges:

Ramsey J

Citations:

[2008] EWHC 6 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Biffa Waste Services Ltd and Another v Maschinenfabrik Ernst Hese Gmbh and others TCC 19-Sep-2008
Claim for damages after fire occuring during construction of waste plant. . .
See Also – Biffa Waste Services Ltd and Another v Maschinenfabrik Ernst Hese Gmbh and others TCC 31-Oct-2008
. .
Appeal from – Biffa Waste Services Ltd and Another v Maschinenfabrik Ernst Hese Gmbh and others CA 12-Nov-2008
The defendant contracted to build a plant for the claimant. The plant was damaged by a fire caused by the defendant’s independent sub-contractor. The defendant appealed against the finding that it was responsible for the sub-contractor’s failure. . .
Lists of cited by and citing cases may be incomplete.

Contract, Vicarious Liability

Updated: 13 July 2022; Ref: scu.264013

Bradley v Carritt: HL 11 May 1903

Shares in a tea company had been mortgaged to secure a loan from a broker on terms that the mortgagor would seek to ensure that the mortgagee should thereafter have sale of the company’s teas. The mortgage contained a covenant that, if the company sold its teas otherwise than through the mortgagee, the mortgagor would pay to the mortgagee an amount equivalent to the commission that he would have earned from the company as broker. It was complained that the agreement was a clog on the mortgagor’s equity of redemption.
Held: (Lord Lindley dissenting): The agreement did not fail, falling within the principle in Noakes v Rice.

Judges:

Macnaghten, Davey, Robertson, Lindley LL

Citations:

[1903] UKHL 1, [1903] AC 253

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Noakes and Co Ltd v Rice HL 17-Dec-2001
A charge on a public house provided that even after repayment of the principal, the owner continued to be obliged to purchase his beer from the brewery, and that any non-payment would be charged on the property.
Held: The clauses operated as a . .

Cited by:

Explained – G and C Kreglinger v The New Patagonian Meat and Cold Storage Company HL 20-Nov-1913
Mortgagor’s collateral dvantage is not a clog
The appellant woolbrokers had lent the respondent andpound;10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The . .
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 . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 13 July 2022; Ref: scu.263838

Sainsbury’s Supermarkets Ltd v Olympia Homes Limited, Hughes etc: ChD 17 Jun 2005

The claimant sought rectification of the land register. In a development deal, an option agreement had not been registered, and the land sold on. The land was required to allow the building of a roundabout necessary for the intended store. An application had been made for registration of the option, but requisitions had not been answered. The purchaser had bought the land from chargees of the buyer, and who were aware of the possible legal interest of the claimant.
Held: ‘the main characteristics of an option are that it is an undertaking to sell property to the grantee if the latter wishes to purchase it, usually within a specified period.’ An option had been created which was not void for uncertainty, and an equitable interest had arisen in favour of the claimant. On cancellation of the application for first registration, the land reverted to the seller on trust for the buyer who then had only an equitable interest. His chargee had therefore only an equitable interst and could proceed to enforce his charge only by a court order. The order made only affected the buyer’s equitable estate, and therefore the chargee was unable to convey the legal estate. The claimant had established that it would be unjust for the rectication not to be made.

Judges:

The Honourable Mr Justice Mann

Citations:

[2005] EWHC 1235 (Ch)

Links:

Bailii

Statutes:

Law of Property Act 1925 90, Land Registration Act 1925, Land Registration Act 2002 65 Sch 4

Jurisdiction:

England and Wales

Citing:

Cited – London and Blenheim Estates v Ladbroke Retail Parks Ltd CA 1-Jun-1993
The land-owner sold part of his land, granting easements over the retained land, and an agreement that, if further plots were purchased, similar easements would be granted. The agreement stated that the purchaser should have the right to give notice . .
Cited – Pearce v Watts CA 9-Jun-1875
An agreement for the sale included the reservation: ‘[The Vendor] reserves the necessary land for making a railway through the estate to Prince Town.’ Specific performance was sought by the purchaser, and the vendor objected that it was void for . .
Cited – London and South Western Railway Co v Gomm CA 1882
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .
Cited – Midland Bank Trust Co Ltd v Green (No 1) HL 11-Dec-1980
A father had granted an option over land to his son, but it had not been registered. The father later tried to frustrate the option by conveying the land to his wife for 500 pounds. The land was worth 40,000 pounds. When the son found out about it, . .
Cited – James Hay Pension Trustees Ltd v Cooper Estates Ltd ChD 20-Jan-2005
The court ordered rectification of the land register where not to do so would give the then registered proprietor an unattractive and uncovenanted ransom position. . .
Cited – Horrill v Cooper CA 1999
(Year?) The appelant had bought unregistered land knowing of restrictive covenants and paying accordingly, but the covenants had not been registered and his title was free of them. He now appealed an order for rectification of the register which had . .
Cited – Horrill v Cooper QBD 1998
Restrictive covenants were registered against unregistered land, but were not revealed by a subsequent formal search with the result (as found) that as matter of technicality the purchaser took free from them. However, that purchaser knew of the . .
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 – Banner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
Cited – Greasley v Cooke 1980
For a proprietary estoppel to arise the plaintiff must have incurred expenditure or otherwise have prejudiced himself or acted to his detriment. However, once it has been established that promises were made, and that there has been conduct by the . .
Cited – Gillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .

Cited by:

Cited – Gold Harp Properties Ltd v Macleod and Others CA 29-Jul-2014
The company appealed against an order re-instating to the register leases which the company said it had forfeited for non-payment of rent. After the forfeiture, the landlord had granted new leases. It appealed saying that exceptional circumstances . .
Lists of cited by and citing cases may be incomplete.

Registered Land, Contract, Equity

Updated: 13 July 2022; Ref: scu.226740

Harlow and Jones v Panex (International) Ltd: ChD 1967

The sellers claimed under a sale contract against buyers who had refused to accept goods. By reason of the buyer’s non-acceptance of the goods, the sellers had incurred storage charges to their own suppliers with whom they had entered into an agreement which effectively made recovery of the storage charges contingent upon recovery of the storage charges from the buyers.
Rosklii J said: ‘Next there are the storage charges . . [Counsel] correctly summarised the final position by saying that the bargain was that the Russian sellers would only claim against the plaintiffs if the plaintiffs could recover those charges from the defendants in this action. [Counsel] argued that an arrangement of that kind barred the plaintiffs recovering in this action. For my part I am unable to see why. The plaintiffs have – and this was not contested – apart from any agreement with the Russian sellers, a perfectly good claim for these storage charges. Why the plaintiffs should not make an arrangement for their own sellers, ‘we will claim these and hand the proceeds over to you if we recover provided you let us off if we do not’, I am unable to see. Nor do I see why the existence of such an arrangement should afford the defendants a defence which they would not otherwise possess. It seems to me an eminently sensible commercial arrangement . . ‘

Judges:

Roskill J

Citations:

[1967] 2 Lloyd’s Rep 509

Jurisdiction:

England and Wales

Cited by:

Cited – Giles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract, Damages

Updated: 13 July 2022; Ref: scu.272902

Kolden Holdings Ltd v Rodette Commerce Ltd and Another: CA 21 Jan 2008

Lawrence Collins LJ said: ‘For the purposes of article 27, the question whether the ‘same cause of action’ is raised before the courts of two member states is answered by looking at the claims made, and not at the defences raised at a later stage to those claims: Case C-11/01 Gantner Electronic GmbH v Basch Exploitatie Maatschapi [2003] ECR I-4207, para 30: whether the ‘same cause of action’ is raised in the two actions is to be determined on the basis of ‘the respective claims in each of the sets of proceedings, and not to the defence which may be raised by a defendant’.’

Judges:

Tuckey LJ, Lawrence Collins LJ, Rimer LJ

Citations:

[2008] EWCA Civ 10, [2008] 1 Lloyd’s Rep 434, [2008] ILPr 20, [2008] Bus LR 1051, [2008] 1 CLC 1, [2008] 1 BCLC 481, [2008] 2 All ER (Comm) 289

Links:

Bailii

Statutes:

Brussels Convention 27

Jurisdiction:

England and Wales

Citing:

Cited – Gantner Electronic GmbH v Basch Exploitatie Maatschappij BV ECJ 8-May-2003
The dutch based claimant sought damages for wrongful termination of what it said was a long-term contract. The claimant in Austria claimed the price of goods sold and delivered pursuant to a number of one-off contracts to which the defendant . .
See Also – Kolden Holdings Ltd v Rodette Commerce Ltd and Another ComC 4-Jul-2007
. .

Cited by:

Cited – Television Autonomica Valenciana, Sa v Imagina Contenidos Audiovisuales, Sl ChD 8-Feb-2013
The defendant sought a stay of these proceedings pending the outcome of related proceedings in Spain. The claimant sought a declaration that a contract was terminated and damages for such breach. The Spanish proceedings were first in time.
Lists of cited by and citing cases may be incomplete.

Company, International, Contract

Updated: 12 July 2022; Ref: scu.263801

Midasplayer.Com Ltd v Watkins: ChD 12 Jun 2006

The claimant operated an internet based game on which participants could win money. The defendant operated a web-site selling software which could operate the game automatically, and increase winnings. The claimant alleged that the defendant broke the terms of his contract with the claimant and encouraged others to do similarly.

Citations:

[2006] EWHC 1551 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Torts – Other

Updated: 12 July 2022; Ref: scu.263671

Batey v Todd Engineering (Staffs) Ltd: QBNI 7 Mar 1998

Citations:

[2007] NIQB 109

Links:

Bailii

Jurisdiction:

Northern Ireland

Citing:

Cited – Cordoba Shipping Co Ltd v National State Bank, Elizabeth, New Jersey (The Albaforth) CA 1984
A negligent misrepresentation was made in a telex sent from the United States but received and acted upon in England. The judge had set aside leave to serve the document out of the jurisdiction.
Held: The appeal succeeded. The transmission was . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 12 July 2022; Ref: scu.263303

Bradley v The Jockey Club: QBD 1 Oct 2004

The claimant said that penalties imposed on him by the defendants were disproportionate to the offences claimed. Richards J described the duty of the court testing a decision: ‘The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits . . the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth.’

Judges:

Richards J

Citations:

[2004] EWHC 2164 (QB)

Links:

Bailii

Cited by:

Cited – McDougal, Regina (On the Application of) v Liverpool City Council Admn 22-Jul-2009
Right Questions asked on School Closure
The claimant sought to challenge the respondent’s decision to close a local school. The choice had been made on academic results and the number of vacancies.
Held: The application failed. The Council had complied with its obligation in . .
Lists of cited by and citing cases may be incomplete.

Contract, Administrative

Updated: 12 July 2022; Ref: scu.263166

Financings Ltd v Stimson: CA 17 Jul 1962

A purchaser signed a hire purchase agreement for a motor vehicle in early March 1961. A clause in the agreement provided that when the form was signed by the purchaser it would become binding ‘upon acceptance by signature’ of an officer of the finance company. An officer of the finance company did not sign the agreement until late March 1961 and in the intervening period the purchaser returned the vehicle due to dissatisfaction with its condition and performance and the vehicle was subsequently stolen resulting in damage.
Held: The purchaser’s signature on the hire purchase agreement form was ‘in law not an agreement, but only an offer by [the purchaser] to enter into a hire purchase agreement with a . . Finance Company.’ There was implied a condition into the offer that the subject matter of the offer must remain in substantially the same condition it was in at the time of the offer, failing which the offer lapses.
Pearson LJ said: ‘The judge found in terms that this car suffered severe damage before the acceptance and that there was substantial depreciation as the result. On that basis it seems to me that we should by implication read into this offer, in order to give the transaction that business efficacy which the parties must have intended it to have, an implied condition that this offer was capable of acceptance only if the car remained in substantially the same condition with substantially the same value. That condition in this case was not fulfilled because the car was severely damaged and its value was substantially depreciated. Therefore, when the [plaintiffs] purported to accept it . . it was an offer which was no longer capable of acceptance, and therefore no agreement was concluded.’
Donovan LJ agreed, and said: ‘Who would offer to purchase a car on terms that if it were severely damaged before the offer was accepted, he, the offeror, would pay the bill? . . The county court judge held that there must, therefore, be implied a term that until acceptance the goods would remain in substantially the same state as at the date of the offer; and I think that this is both good sense and good law.’
Lord Denning MR held that it was not necessary for any particular action to be taken to manifest a revocation of an offer, so long as the intention is clear.

Judges:

Lord Denning MR, Donovan, Pearson LJJ

Citations:

[1962] EWCA Civ 1, [1962] 3 All ER 386, [1962] 1 WLR 1184

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Car and Universal Finance Company Ltd v Caldwell CA 19-Dec-1963
The defendant had sold a car, taking as payment a cheque which was dishonoured; the plaintiffs later bought the car in good faith.
Held: The defendant was entitled to return of the car, even though the original purchaser had disappeared, and . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 12 July 2022; Ref: scu.262809

Routledge v McKay and others: CA 10 Mar 1954

In considering whether a statement amounts to a warranty in a contract, the court may have regard to the time which has elapsed between the time of making the statement and the final implementation of the agreement; if the interval is a long one, thus points to a representation.

Judges:

Sir Raymond Evershed MR, Denning, Romer LJJ

Citations:

[1954] EWCA Civ 8, [1954] 1 All ER 855, [1954] 1 WLR 615

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Prior of Southwards 1498
The prior complained because the defendant, who was a glover, had made a lime pit for calf-skins so close to a stream as to pollute it.
Held: If the glover had dug the lime pit in the prior’s soil, the action ought to be in trespass: but if it . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 12 July 2022; Ref: scu.262844

Mountford and Another v Scott: CA 17 Oct 1974

The vendor challenged the validity of an option agreement, saying that the consideration (one pound) was only nominal.
Held: ‘a valid option to purchase constitutes an offer to sell irrevocable during the period stated, and a purported withdrawal of the offer is ineffective. When therefore the offer is accepted by the exercise of the option, a contract for sale and purchase is thereupon constituted, just as if there were then constituted a perfectly ordinary contract for sale and purchase without a prior option agreement. The Court is asked to order specific performance of that contract of sale and purchase, not to order specific performance of a contract not to withdraw the offer: provided that the option be valid and for valuable consideration and duly exercised, it appears to me to be irrelevant to the question of remedy under the contract for sale and purchase that the valuable consideration can be described as a token payment: and so also if the option agreement be under seal with no payment, which is what I take the learned Judge to be referring to when he refers to a gratuitous option in his Judgment. While I therefore agree that a valid option to purchase constitutes an interest in the land, I do not consider, as the learned Judge appears to have thought, that that fact is necessary to his conclusion and my conclusion on what is the appropriate remedy.’

Judges:

Russell, Cairns LJJ, Sir John Pennycuick

Citations:

[1974] EWCA Civ 10, [1975] Ch 258

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from (affirmed) – Mountford and Another v Scott 1973
The plaintiff paid one pound for an option to buy property in London. The option allowed the plaintiff to acquire the property at the agreed price at any time within six months. Soon after the option was granted the defendant resiled, saying he was . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 12 July 2022; Ref: scu.262734

Merritt v Merritt: CA 27 Apr 1970

The parties had setted an arramngement for the house on splitting up. Following the agreement, she repaid the mortgage over time, and then requested the conveyance of the house under the agreement. She now appealed from an order refusing the transfer into her name.
Held: The appeal failed. Agreements between husband and wide are not generally intended to have legal effect, but ‘It is altogether different when the parties are not living in amity but are separated, or about to separate. They then bargain keenly. They do not rely on honourable understandings. They want everything cut and dried. It may safely be presumed that they intend to create legal relations.’

Judges:

Lord Denning MR, Widgery, Karminski LJJ

Citations:

[1970] EWCA Civ 6, [1970] 2 All ER 760, [1970] 1 WLR 1211

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Land, Family

Updated: 12 July 2022; Ref: scu.262771

Lombard North Central v Butterworth: CA 31 Jul 1986

The defendant entered into a hire-purchase contract for a computer, time being stipulated to be ‘of the essence’ in relation to the payment obligations. He defendant defaulted, and the plaintiff took possession of the goods, and and sought payment of the balance due.
Held: Time is of the essence where the parties have expressly stipulated in their contract that time is to be of the essence. The same result will follow if the contract contains a clause to the effect that any breach of such a clause will entitle the innocent party to terminate (or cancel) the agreement. The injured party is relieved of any obligation that remains unperformed on his part. In addition the injured party may claim for damages on the basis that upon termination of the contract the obligations of both parties remaining unperformed are brought to an end.
Mustill LJ said: ‘A stipulation that time is of the essence in relation to a particular contractual term, denotes that timely performance is a condition of the contract. The consequence is that delay in performance is treated as going to the root of the contract, without regard to the magnitude of the breach. It follows that where a promisor fails to give timely performance of an obligation in respect of which time is expressly stated to be of the essence, the injured party may elect to terminate and recover damages in respect of the promisor’s outstanding obligations, without regard to the magnitude of the breach.’

Judges:

Lawton, Mustill, Nicholls LJJ

Citations:

[1986] EWCA Civ 5, [1987] QB 527, [1987] 1 All ER 267, [1987] 2 WLR 7

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bettini v Gye QBD 1876
Mr Bettini agreed to sing for Mr Gye in concerts and operas in London between March and July 1875. The contract said he was to be in London ‘without fall’ at least six days before the 30th March for rehearsals. Because of illness, he did not arrive . .
Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Cited – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
Cited – Bunge Corporation (New York) v Tradax Export Sa (Panama) HL 25-Feb-1981
The FOB contract for the sale of goods required the buyers to give notice of the probable readiness of the ships on which the goods were to be carried. The notice was given four days too late. The sellers declared the buyers in default and claimed . .
Cited – Campbell Discount Company Ltd v Bridge HL 1962
The parties disputed the validity of a clause in a car hire contract relating to the consequences of a breach.
Held: (Majority) The agreement had been terminated by breach rather than by the exercise of an option, so that the stipulated . .
Distinguished – Financings Ltd v Baldock CA 1963
The hirer took delivery of a vehicle under an HP contract. he plaintiff exercised a contractual right to terminate the hiring and take possession of the vehicle when the defendant failed to pay the first two monthly instalments.
Held: Where an . .
Cited – Bunge Corporation (New York) v Tradax Export Sa (Panama) HL 25-Feb-1981
The FOB contract for the sale of goods required the buyers to give notice of the probable readiness of the ships on which the goods were to be carried. The notice was given four days too late. The sellers declared the buyers in default and claimed . .

Cited by:

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

Financial Services, Contract

Updated: 12 July 2022; Ref: scu.262652

Partenaire Ltd v Department of Finance and Personnel: QBNI 23 Nov 2007

Application to extend an interim injunction.

Judges:

Coghlin J

Citations:

[2007] NIQB 100

Links:

Bailii

Jurisdiction:

Northern Ireland

Citing:

Cited – Francome v Mirror Group Newspapers Ltd CA 1984
The defendant had acquired illegal tapes of telephone conversations which it said implicated the plaintiff. He sought to restrain publication of the material pending forthcoming discliplinary charges at the Jockey Club.
Held: The court had to . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 12 July 2022; Ref: scu.261770

Howatson v Webb: ChD 1907

The defendant, a solicitor’s clerk, pleaded non est factum to an action on a mortgage deed he had signed. He said that he had thought it to be a deed transferring property held as nominee for the solicitor.
Held: The court should make distinction between a failure by the signatory to appreciate the character of the deed signed and its contents. After citing passages from Foster v MacKinnon, Warrington J said: ‘I pause there for a moment to remark that it seems to me to be essential to the proposition which is there stated that the contract which the signer means to execute should be of a nature entirely different from the contract in dispute.’ and ‘It will not be contended that if, in reading over a contract to a blind or illiterate person, the reader merely omits or misstates some material clause, the contract is altogether void.’ Afer further citations, he said: ‘Reading that with reference to the first passage I have quoted I think he means ‘ deceived as to the actual contents’ as expressing the nature and character of the document.’ The defendant had been told that they were deeds relating to the property to which they did in fact relate. ‘His mind was therefore applied to the question of dealing with that property. The deeds did deal with that property. The misrepresentation was as to the contents of the deed, and not as to the character and class of the deed. He knew that he was dealing with the class of deed with which in fact he was dealing, but did not ascertain its contents. The deed contained a covenant to pay. Under those circumstances I cannot say that the deed is absolutely void.’

Judges:

Warrington J

Citations:

[1907] 1 Ch 537

Jurisdiction:

England and Wales

Citing:

Cited – Foster v MacKinnon 1869
The court considered a plea of non est factum.
Held: Byles J set out situations where the plea was available: ‘It seems plain, on principle and on authority, that, if a blind man, or a man who cannot read, or who for some reason (not implying . .

Cited by:

Appeal from – Howatson v Webb CA 1908
The court accepted a plea of non est factum, approving the distinction made by the trial judge between the approval of the contents and the character of the deed executed. Cozens-Hardy MR said that he approved every word of Warrington J’s judgment. . .
Cited – Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society HL 9-Nov-1970
The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 12 July 2022; Ref: scu.253145

The Phosphate Sewage Co (Ltd) v Molleson (Peter Lawson and Son’s Trustee): HL 20 Jun 1876

A company which was formed for the purpose of purchasing a concession of the fields of guano in a certain island from the grantees, nearly two years after its incorporation brought a claim against the grantees for recision of the contract and repayment of the purchase price on the ground of fraud and misrepresentation. Circumstances in which held that the Company had not established the claim.
The estates of a firm carrying on business both in England and Scotland having been sequestrated in Scotland, an English creditor lodged a claim with the trustee, and at the same time raised proceedings in the Court of Chancery in England against the trustee in the Scotch sequestration and certain other parties to recover payment of the same debt as was the subject of the claim in the Scotch sequestration. The trustee having rejected the claim, the English creditor appealed to the Court of Session, and craved that proceedings should be sisted and a dividend effeiring to the claim should be set aside pending the issue of the Chancery suit.- Held (affirming judgment of Court of Session) that in the circumstances there were no grounds for interfering with the ordinary course of procedure.

Citations:

[1876] UKHL 1, 14 SLR 1

Links:

Bailii

Statutes:

Bankruptcy (Scotland) Act 1856

Jurisdiction:

Scotland

Contract, Insolvency

Updated: 12 July 2022; Ref: scu.639640

NHS Commissioning Board (Known as NHS England) v Vasant (T/A MK Vasant and Associates) and Others: CA 16 Jul 2019

Whether NHS England, as successor to Croydon PCT, is entitled to terminate contractual arrangements under which three dentists supply an Intermediate Minor Oral Surgery service to the NHS.

Citations:

[2019] EWCA Civ 1245

Links:

Bailii

Jurisdiction:

England and Wales

Health Professions, Contract

Updated: 12 July 2022; Ref: scu.639665

Daimler Co Ltd v Continental Tyre and Rubber Co (Great Britain) Ltd and Another: HL 30 Jun 1916

By writ specially indorsed under Order XIV the solicitors of the respondent company on the authority of its secretary commenced an action in October 1914 to recover certain debts.
The respondent company was registered in London with a capital of pounds 25,000 in pounds 1 shares, only one of which was held by a naturalised British subject, the remainder by Germans. All the directors were Germans and resided in Germany.
The appellants contended (1) that it was illegal to trade with or pay money to or for the benefit of alien enemies during the war, and that in substance and in fact the respondent company was an alien enemy; (2) that the solicitors for the respondent company had no authority to issue the writ in the action.
Held that as the secretary was not ex officio authorised to commence actions on the company’s behalf, and the directors were precluded by their character of alien enemies from instructing him to do so, the action was irregular and unauthorised.
Observations as to the enemy character of companies registered in the United Kingdom and of their directors and shareholders.

Judges:

Earl of Halsbury, Viscount Mersey, and Lords Kinnear, Atkinson, Shaw, Parker, Sumner, and Parmoor

Citations:

[1916] UKHL 845, 53 SLR 845

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Company

Updated: 12 July 2022; Ref: scu.630683

Novus Aviation Ltd v Alubaf Arab International Bank Bs[c]: ComC 30 Jun 2016

The Court was asked whether or not the claimant, Novus Aviation Limited (‘Novus’), and the defendant, Alubaf Arab International Bank BSC(c) (‘Alubaf’), made a contract under which Alubaf agreed to provide equity funding for the purchase of an aircraft to be leased to Malaysian Airlines.

Judges:

Leggatt J

Citations:

[2016] EWHC 1575 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 12 July 2022; Ref: scu.566295

HC Trading Malta Ltd v Tradeland Commodities Sl: ComC 2 Jun 2016

Application by the defendant to set aside the claim for declaratory relief made against it by the claimant and/or to set aside service out of the jurisdiction.

Judges:

Waksman C HHJ

Citations:

[2016] EWHC 1279 (Comm), [2016] WLR(D) 295

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Jurisdiction, Contract

Updated: 12 July 2022; Ref: scu.565185