Category: Contract

Franbar Holdings Ltd v Patel and others: ChD 2 Jul 2008

Action alleging breach of shareholders’ agreement.
Held: Directors may have genuine and proper differences of opinion as to the correctness of making a section 172 claim.

Judges:

William Trower QC

Citations:

[2008] EWHC 1534 (Ch), [2009] 1 BCLC 1, [2009] Bus LR D14, [2008] BCC 885

Links:

Bailii

Statutes:

Companies Act 2006 172

Jurisdiction:

England and Wales

Cited by:

Cited – Iesini and Others v Westrip Holdings Ltd and Others ChD 16-Oct-2009
The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 12 July 2022; Ref: scu.276672

Barclays Bank Plc v Estates and Commercial Limited: CA 20 Feb 1996

Millett LJ discussed the assertion of a vendor’s lien where a third party would be adversely affected: ‘A party with an equitable charge can be taken to agree to the postponement of his property against any party who was allowed to his knowledge to purchase the land on the faith that it is unencumbered.’ and
‘As soon as a binding contract for sale of land is entered into the vendor has a lien on the property for the purchase money and a right to remain in possession of the property until payment is made. The lien does not arise on completion but on exchange of contracts. It is discharged on completion to the extent that the purchase money is paid: In re Birmingham, decd.; Savage v. Stannard [1959] Ch. 523, cited with approval in London and Cheshire Insurance Co. Ltd. v. Laplagrene Property Co. Ltd. [ 1971] Ch. 499 , 514. Even if the vendor executes an outright conveyance of the legal estate in favour of the purchaser and delivers the title deeds to him, he still retains an equitable lien on the property to secure the payment of any part of the purchase money which remains unpaid. The lien is not excluded by the fact that the conveyance contains an express receipt for the purchase money.
The lien arises by operation of law and independently of the agreement between the parties. It does not depend in any way upon the parties’ subjective intentions. It is excluded where its retention would be inconsistent with the provisions of the contract for sale or with the true nature of the transaction as disclosed by the documents. It is also excluded where, on completion, the vendor receives all that he bargained for: Capital Finance Co. Ltd. v. Stokes [1969] 1 Ch. 261 and Congresbury Motors Ltd. v. Anglo-Belge Finance Co. Ltd. [1971] Ch. 81. In each of those cases the vendor took a legal charge to secure payment. The unpaid vendor’s lien was held to be excluded notwithstanding that the charge later became void for want of registration. In Williams on Vendor and Purchaser , 4th ed. (1936), vol. 2, p. 984, there is a passage which deals with the exclusion of the lien: ‘The vendor may, however, waive or abandon his lien for the unpaid purchase-money, and his intention to do so may be either expressed or implied from the circumstances of the case.’
After dealing with express waiver or abandonment the author continues:
‘Where such waiver or abandonment is sought to be implied, the onus lies on those who deny the existence of the lien, which arises by the rule of equity in the absence of stipulation to the contrary; the question is one of the parties’ intention, to be determined by the documents they have executed and the circumstances of the case; and the test is, whether they have in effect agreed that the vendor shall have some other security or mode of payment in substitution for his lien.’
As the authorities demonstrate the test is an objective one. The question is: what intention is to be attributed to the parties from the transaction into which they have entered? . . ‘

Judges:

Millett LJ, Waite LJ, Thorpe LJ

Citations:

[1997] 1 WLR 415, [1996] EWCA Civ 1354, (1997) 74 P and CR 30

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Analysed – Kettlewell v Watson 1884
A vendor’s lien was postponed to the equitable interest of a third party with whom the purchaser from the vendor had had dealings. . .

Cited by:

Cited – Bank of Scotland Plc v King and others ChD 23-Nov-2007
The parties contracted to buy and sell a property. The lending bank sought possession, saying that it had advanced the money which had been spent acquirng the property. The defendant purchasers said that completion had not taken place, the full . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Cited – Bank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
Lists of cited by and citing cases may be incomplete.

Equity, Land, Contract

Updated: 12 July 2022; Ref: scu.261516

Contex Drouzhba Ltd v Wiseman and Another: CA 20 Nov 2007

The defendant was a director of a company. He signed a letter for the company promising to pay for goods ordered. The representation was found to have been made fraudulently because he knew the company was insolvent, and unable to pay. He now appealed a finding that he was personally responsible.
Held: The director’s appeal failed. The signature of the defendant on its own was sufficient. Lord Tenterden’s Act, the 1828 Act was ‘concerned with proving by evidence the existence of a representation. It was not concerned with excusing fraudulent behaviour or with differentiating between capacities in which persons put their names to documents. Having regard to the mischief at which the Act was aimed, I can see no reason why, if a document contains a fraudulent representation being made by a director for which that director would otherwise be held personally liable, his signature on the document will not suffice to comply with Lord Tenterden’s Act. ‘ The Act was not to be used to evade proper liability.

Judges:

Waller LJ VP, Rix LJ, Keene LJ

Citations:

[2007] EWCA Civ 1201, Times 08-Jan-2008, [2008] BCC 301, [2007] All ER (D) 293 (Nov)

Links:

Bailii

Statutes:

Statute of Frauds (Amendment) Act 1828

Jurisdiction:

England and Wales

Citing:

Appeal from – Drouzhba v Wiseman and Another QBD 3-Nov-2006
. .
Cited – Standard Chartered Bank v Pakistan National Shipping Corporation, Standard Chartered Bank v Pakistan National Shipping Corporation and Others and Another and Others (Nos 2 and 4) HL 6-Nov-2002
Fraudulent Misrepresentation by Company Director
Fraudulent bills of lading had been issued in order to rely upon letters of credit issued by the bank. The director signing the bills sought to avoid personal liability, saying it was the Act of the company. The defendant company also appealed on . .
Cited – Lyde v Barnard CExC 1836
The question before the court was whether a misrepresentation, that a particular fund in which Lord Edward Thynne had a life interest was charged with only three annuities, was a representation relating to Lord Edward’s credit or ability within the . .
Cited – John Hudson v Oaten CA 19-Jun-1980
The plaintiff sought to avoid the 1828 Act (Lord Tenterden’s Act). Lakeview, had agreed to buy a substantial quantity of oil from them but was never in a position to do so. The plaintiffs sought their loss from the defendant, Mr. Oaten, and not . .

Cited by:

Cited – Lindsay v O’Loughnane QBD 18-Mar-2010
The claimant had purchased Euros through a foreign exchange dealer. The dealer company became insolvent, causing losses to the claimant, who sought to recover from the company’s managing director, the defendant, saying that he was aware of the . .
Cited – Lindsay v O’Loughnane QBD 18-Mar-2010
The claimant had purchased Euros through a foreign exchange dealer. The dealer company became insolvent, causing losses to the claimant, who sought to recover from the company’s managing director, the defendant, saying that he was aware of the . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Contract

Updated: 12 July 2022; Ref: scu.261451

Bank of Scotland Plc v King and others: ChD 23 Nov 2007

The parties contracted to buy and sell a property. The lending bank sought possession, saying that it had advanced the money which had been spent acquirng the property. The defendant purchasers said that completion had not taken place, the full price had not been paid, possession had not been given, and the parties had agreed to rescission.
Held: An executed transfer had been delivered. That delivery had not been explicitly in escrow, but the full purchase price had not been paid. The possibility that a vendor’s lien could apply ‘shows that it is perfectly possible in law for a vendor to complete a transfer unconditionally, even where part of the purchase price has not been paid.’ In this case the document had not been delivered in escrow.
The vendors were to be taken to have consented to their vendors’ lien being subordinated to the interests of the claimants. The Bank was entitled to register its charge.

Judges:

Morgan J

Citations:

[2007] EWHC 2747 (Ch)

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 1(5)

Jurisdiction:

England and Wales

Citing:

Cited – Bowker v Burdekin 1843
Parke B considered how a court identified whether a document had been delivered in escrow: ‘you are to look at all the facts attending the execution, to all that took place at the time, and to the result of the transaction; and therefore, though it . .
Cited – Thompson v McCullough CA 1947
Thompson had agreed to buy a tenanted property, had paid part of the purchase price, and had received a conveyance in escrow pending payment of the balance. He at that point gave McCullough notice to quit. Two months later Thompson paid the balance . .
Qualified – Watkins v Nash 1875
The instrument at issue was delivered to the solicitor acting for the party intended to benefit under it. It was claimed that it was delivered in escrow.
Held: On the detailed facts the delivery was not intended to be a delivery to the . .
Qualified – London Freehold and Leasehold Property Company v Suffield 1897
Where an instrument is delivered to the party who is to benefit under the instrument, any oral statement that the delivery is not an absolute delivery of the deed is of no effect. Where several persons are parties to a deed as grantees and one of . .
Cited – William Cory and Son Limited v Inland Revenue Commissioners CA 1964
Lord Denning MR discussed what was meant by delivery of a document in escrow: ‘When an instrument is delivered in escrow, that only means that it is delivered on condition (which may be expressed or implied by conduct) that it is not to be operative . .
Cited – Bentray Investments Limited v Venner Time Switches Limited ChD 1985
Stuart-Smith J discussed the circumstances under which a deed was said to have been delivered in escrow: ‘the passages to which I have referred seem to establish that the intention of the maker must be made clear, at least where the deed is . .
Cited – Kettlewell v Watson 1884
A vendor’s lien was postponed to the equitable interest of a third party with whom the purchaser from the vendor had had dealings. . .
Cited – Barclays Bank Plc v Estates and Commercial Limited CA 20-Feb-1996
Millett LJ discussed the assertion of a vendor’s lien where a third party would be adversely affected: ‘A party with an equitable charge can be taken to agree to the postponement of his property against any party who was allowed to his knowledge to . .
Lists of cited by and citing cases may be incomplete.

Registered Land, Contract

Updated: 12 July 2022; Ref: scu.261500

Meridian International Services Ltd v Richardson and others: ChD 18 Oct 2007

The claimant had contracted to finalise and update software written by the defendants. They claimed that the contract included an implied clause that the defendant’s copyright was assigned to them by the agreement.
Held: The claimant had not established the term it sought to imply.

Judges:

Ham QC J

Citations:

[2007] EWHC 2539 (Ch), [2007] Info TLR 139

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Robin Ray v Classic FM Plc PatC 18-Mar-1998
Contractor and Client Copyrights
The plaintiff had contributed a design for a system of classifying and selecting tracks to be played on a radio station. He did so under a consultancy contract.
Held: A Joint authorship claim required that the contributor had made some direct . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract

Updated: 12 July 2022; Ref: scu.260348

United Shoe Machinery Company of Canada v Brunet: PC 23 Mar 1909

(Quebec) The defendant Company leased machinery under a condition that it should not be used in conjunction with machinery made by any other manufacturer.
Held: The condition was not in restraint of trade.

Citations:

[1909] AC 330, [1909] UKPC 10

Links:

Bailii

Cited by:

Cited – Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
Lists of cited by and citing cases may be incomplete.

Contract, Commonwealth

Updated: 12 July 2022; Ref: scu.259690

Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia (the ‘Achilleas’): CA 6 Sep 2007

The court considered damages for late redelivery of a time-chartered vessel.

Judges:

Ward LJ, Tuckey LJ, Rix LJ

Citations:

[2007] EWCA Civ 901, [2007] 2 CLC 400, [2007] 2 Lloyd’s Rep 555, [2008] 1 All ER (Comm) 685

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Appeal from – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 12 July 2022; Ref: scu.259446

Pan Ocean Shipping Co Ltd v Creditcorp Ltd: CA 24 Mar 1993

(The Trident Beauty) Advance payments made under a charterparty contract were not recoverable the assignees when the charter became ineffective. Such contracts were provisional as between the original parties, but did not retain that characteristic on assignment unless the contract was, in effect, clearly identified as such.

Citations:

Gazette 24-Mar-1993

Jurisdiction:

England and Wales

Cited by:

See Also – Pan Ocean Shipping Co Ltd v Creditcorp Ltd CA 1-Feb-1994
(The Trident Beauty) Assignee not obliged to repay advance payment for non-performance. . .
See Also – Pan Ocean Shipping Ltd v Creditcorp Ltd HL 1-Feb-1994
(The Trident Beauty) Charter hire, payable by the charterers 15 days in advance, had been assigned to a third party. The appeal related to hire duly paid in advance for a 15 day period, throughout the whole of which the vessel proved in fact to be . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 11 July 2022; Ref: scu.84550

Pan Ocean Shipping Co Ltd v Creditcorp Ltd: CA 1 Feb 1994

(The Trident Beauty) Assignee not obliged to repay advance payment for non-performance.

Citations:

Times 01-Feb-1994

Jurisdiction:

England and Wales

Citing:

See Also – Pan Ocean Shipping Co Ltd v Creditcorp Ltd CA 24-Mar-1993
(The Trident Beauty) Advance payments made under a charterparty contract were not recoverable the assignees when the charter became ineffective. Such contracts were provisional as between the original parties, but did not retain that characteristic . .

Cited by:

Appeal from – Pan Ocean Shipping Ltd v Creditcorp Ltd HL 1-Feb-1994
(The Trident Beauty) Charter hire, payable by the charterers 15 days in advance, had been assigned to a third party. The appeal related to hire duly paid in advance for a 15 day period, throughout the whole of which the vessel proved in fact to be . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 July 2022; Ref: scu.84551

Pan Ocean Shipping Ltd v Creditcorp Ltd: HL 1 Feb 1994

(The Trident Beauty) Charter hire, payable by the charterers 15 days in advance, had been assigned to a third party. The appeal related to hire duly paid in advance for a 15 day period, throughout the whole of which the vessel proved in fact to be off hire, and after the end of which she continued off hire until the charter was justifiably terminated by the charterers on account of the owners’ repudiation. The owners were in these circumstances under an express obligation (and, even in the absence of an express obligation would have been under an implied obligation) to repay the charter hire overpaid, but were not worth powder and shot. The charterers claimed, unsuccessfully, to recover the overpaid hire from the third party assignee to whom it had been paid.
Held: An assignee of hire contract need not repay advance repayments
Lord Goff of Chieveley stated as a general rule that the existence of a contractual regime for the recovery of overpayments made the imposition by law of a remedy for total failure of consideration ‘both unnecessary and inappropriate’. ‘I am of course well aware that writers on the law of restitution have been exploring the possibility that, in exceptional circumstances, a plaintiff may have a claim in restitution when he has conferred a benefit on the defendant in the course of performing an obligation to a third party (see, eg, Goff and Jones on the Law of Restitution, 4th ed (1993), pp 55 et seq, and (for a particular example) Burrows on the Law of Restitution, (1993) pp 271-272). But, quite apart from the fact that the existence of a remedy in restitution in such circumstances must still be regarded as a matter of debate, it is always recognised that serious difficulties arise if the law seeks to expand the law of restitution to redistribute risks for which provision has been made under an applicable contract.’
Lord Woolf said: ‘There is no justification for subjecting an assignee, because he has received a payment in advance, to an obligation to make a repayment because of the non-performance of an event for which he has no responsibility.’

Judges:

Lord Goff of Chieveley, Lord Woolf

Citations:

Independent 01-Feb-1994, [1994] 1 Lloyds Rep 365, [1994] 1 WLR 161, [1994] 1 All ER 470

Jurisdiction:

England and Wales

Citing:

See Also – Pan Ocean Shipping Co Ltd v Creditcorp Ltd CA 24-Mar-1993
(The Trident Beauty) Advance payments made under a charterparty contract were not recoverable the assignees when the charter became ineffective. Such contracts were provisional as between the original parties, but did not retain that characteristic . .
Appeal from – Pan Ocean Shipping Co Ltd v Creditcorp Ltd CA 1-Feb-1994
(The Trident Beauty) Assignee not obliged to repay advance payment for non-performance. . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 11 July 2022; Ref: scu.84552

F A Tamplin Steamship Co Ltd, and Anglo-Mexican Petroleum Products Co Ltd (Re Arbitration): HL 24 Jul 1916

The charterers hired for a period of five years an oil tank steamship. Two and a quarter years of the contract had expired when the ship was requisitioned by the British Government, who made structural alterations upon it. The shipowners claimed that this determined the contract.
Held (dis. Viscount Haldane and Lord Atkinson) that the contract continued to subsist, and the requisition did not suspend it or affect the rights of the owners or charterers under it.

Judges:

Lord Chancellor (Buckmaster), Earl Loreburn, Viscount Haldane, Lords Atkinson and Parker

Citations:

[1916] UKHL 433, 54 SLR 433

Links:

Bailii

Jurisdiction:

England and Wales

Arbitration, Contract

Updated: 11 July 2022; Ref: scu.630687

Kensington International Ltd v Republic of the Congo: ComC 13 Jul 2007

Citations:

[2007] EWHC 1632 (Comm)

Links:

Bailii

Citing:

See Also – Kensington International Ltd v Republic of Congo and Another ComC 20-Jul-2006
The claimant sought leave to cross examine an officer of the defendant in connection with his affidavit sworn in search order proceedings. The case had a history of deceit and dishonest oral evidence.
Held: Though such an order would be . .
See Also – Kensington International Ltd v Republic of the Congo; Glencore Energy UK Limited, Sphynx UK Limited, Sphynx (BDA) Limited, Africa Oil and Gas Corporation, Cotrade SA (Third Parties) ComC 28-Nov-2005
The claimant had taken an assignment of debts owed by the defendant, and obtained judgment in US$121m. They sought to enforce the judgment and obtained third party debt orders against the parties listed.
Held: Officers in the third party . .
See Also – Kensington International Ltd v Republic of The Congo ComC 16-Apr-2003
. .
See Also – Kensington International Ltd v Republic of the Congo CA 13-May-2003
The claimant had obtained judgment against the defendant for US$60m, and had sought a Mareva injunction against the defendant republic’s assets and against the assets of companies through which it operated in the UK. The claimant now appealed . .
See Also – Kensington International Ltd and Another v Republic Of the Congo ComC 26-May-2006
. .
See Also – Kensington International Ltd v Republic of Congo and Another ComC 20-Jul-2006
The claimant sought leave to cross examine an officer of the defendant in connection with his affidavit sworn in search order proceedings. The case had a history of deceit and dishonest oral evidence.
Held: Though such an order would be . .

Cited by:

See Also – Kensington International Ltd v Republic of Congo CA 7-Nov-2007
The defendants appealed against orders requiring them to disclose documents in an action regarding the payment of bribes, saying that the requirement effectively required them to incriminate themselves.
Held: The appeal failed. The public . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 11 July 2022; Ref: scu.258166

AWB (Geneva) SA and Another v North America Steamships Ltd and Another: CA 18 Jul 2007

A swap agreement provided that pursuant to the ISDA Master Agreement, the agreement was governed by English law and subject to the exclusive jurisdiction of the English courts. The trustee of one of the parties brought statutory avoidance proceedings in Canada. The Court of Appeal refused to grant an anti-suit injunction, because the choice of law and choice of jurisdiction agreement did not apply to the insolvency proceedings. The proceedings in Canada did not relate to a dispute under the contract. They were part of insolvency proceedings. It was a matter for the Canadian Court to decide on the relief that it is prepared to grant within the scope of those proceedings as it is concerned with issues of insolvency and not with issues which relate to the contractual obligations under the agreement.

Judges:

Chadwick LJ, Latham LJ, Thomas LJ

Citations:

[2007] EWCA Civ 739, [2007] 2 Lloyds Rep 315

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – AWB Geneva Sa and Another v North America Steamships Ltd ComC 17-May-2007
Whether a party to a contract governed by English law and subject to the exclusive jurisdiction of the English High Court can found on these provisions to restrain the counterparty’s foreign trustee in bankruptcy from seeking an order in foreign . .

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

Jurisdiction, Contract, Insolvency

Updated: 11 July 2022; Ref: scu.254599

Masri v Consolidated Contractors International Company Sal and Another: CA 11 Jul 2007

Judges:

Tuckey, Longmore, Lloyd LJJ

Citations:

[2007] EWCA Civ 688

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Masri v Consolidated Contractors International (UK) Ltd ComC 17-May-2005
. .
See Also – Masri v Consolidated Contractors International (UK) Ltd CA 24-Oct-2005
The defendants who were resident in Greece appealed a decision that the English court had jurisdiction over them, by virtue of a close connection of the matter with earlier proceedings heard here.
Held: The fact that the defendants were all . .
See Also – Masri v Consolidated Contractors International UK Ltd and Another ComC 28-Jul-2006
. .
See Also – Masri v Consolidated Contractors International (UK) Ltd and others ComC 25-May-2007
Application for an order to prevent some defendants pursuing action in other jurisdictions. . .
See Also – Masri v Consolidated Contractors International UK Ltd and Another ComC 14-Mar-2007
Judgment on quantum. . .

Cited by:

Cited – Masri v Consolidated Contractors International Company Sal and Another CA 4-Apr-2008
The court was asked whether the Commercial Court had international jurisdiction to make an order for the appointment of a receiver by way of equitable execution, and a freezing order, in relation to the judgment debtors’ interest in the concession . .
See Also – Masri v Consolidated Contractors International Company Sal and Another ComC 23-May-2008
Application for interpretation of a receivership order. . .
Cited – Masri v Consolidated Contractors International Company Sal and Another (No 3) CA 6-Jun-2008
The court was asked whether the English court has jurisdiction following judgment to grant an anti-suit injunction against foreign judgment debtors (one of whom has a domicile in a Brussels I Regulation State) restraining them from pursuing . .
See Also – Masri v Consolidated Contractors International Company Sal and others CA 28-Jul-2008
The judgment creditor appealed an order refusing to oblige the defendant company to attend court and provide information about its means. . .
Cited – Masri v Consolidated Contractors International Company Sal and Another ComC 20-Dec-2007
. .
See Also – Masri v Consolidated Contractors International (UK) Ltd and Another ComC 17-Jun-2008
Application for further order of payment of costs of action on account. . .
See Also – Masri v Consolidated Contractors International Company Sal and Another ComC 21-Oct-2008
The court heard matters relating to the recovery by the claimant of $63,000,000. . .
See Also – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
See Also – Masri v Consolidated Contractors (Oil and Gas) Company Sal CA 6-Feb-2009
Appeal from order with regard to management of receivership. . .
See Also – Masri v Consolidated Contractors International Co Sal and others CA 13-Nov-2008
The creditors sought leave to appeal against orders made in the course of proceedings to recover a very substantial debt from a foreign resident company. . .
See Also – Masri v Consolidated Contractors International Company Sal and Others ComC 6-Oct-2010
The third respondent sought to strike out an application for his committal for failure to comply with orders made in support of proceedings to enforce a substantial judgment. . .
See Also – Masri v Consolidated Contractors International Company Sal ComC 21-Oct-2010
The court held a case management conference with regard to an intended application for committal for contempt of one of the defendants. . .
See Also – Consolidated Contractors International Company Sal and Another v Masri CA 21-Jan-2011
. .
See Also – Consolidated Contractors International Company Sal and Another v Masri CA 3-Feb-2011
. .
See Also – Masri and Another v Consolidated Contractors International Co Sal and Others ComC 3-Mar-2011
On notice hearing with regard to without notice receivership order. . .
See Also – Masri v Consolidated Contractors International Company Sal and Others ComC 5-May-2011
The applicant, and judgment creditor sought orders for committal for contempt by the defendant companies and officers after failing to comply with court orders. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 July 2022; Ref: scu.254544

AWB Geneva Sa and Another v North America Steamships Ltd: ComC 17 May 2007

Whether a party to a contract governed by English law and subject to the exclusive jurisdiction of the English High Court can found on these provisions to restrain the counterparty’s foreign trustee in bankruptcy from seeking an order in foreign insolvency proceedings that certain conditions precedent to liability under the contract should cease to apply.

Judges:

Field J

Citations:

[2007] EWHC 1167 (Comm)

Links:

Bailii

Cited by:

Appeal from – AWB (Geneva) SA and Another v North America Steamships Ltd and Another CA 18-Jul-2007
A swap agreement provided that pursuant to the ISDA Master Agreement, the agreement was governed by English law and subject to the exclusive jurisdiction of the English courts. The trustee of one of the parties brought statutory avoidance . .
Lists of cited by and citing cases may be incomplete.

Contract, Jurisdiction, Insolvency

Updated: 11 July 2022; Ref: scu.252439

Yewbelle Ltd v London Green Developments Ltd and Another: CA 23 May 2007

The parties had entered into a contract for the development of land. Two circumstances operated to make it difficult or impossible, and the court was asked whether the contract was frustrated. The vendor was obliged to use all reasonable endeavours to secure the section 106 agreement and the purchaser was under no obligation to complete in the absence of such an agreement. One question was whether a term could be implied allowing the vendor to rescind if, despite the exercise of all reasonable endeavours, the stipulated agreement could not be achieved and the buyer did not waive that condition. Implicit in that question was that it was open to the buyer to waive the condition.
Held: The appeal failed (on this point) There was no inconsistency between the presence in the contract of a condition for the sole benefit of the buyer and the implication into the contract of a term to the effect that, if the seller complied with his obligation to use all reasonable endeavours but was unable to complete the section 106 agreement, the seller should give to the buyer an opportunity to complete the sale without that agreement (in other words, to waive the condition requiring that agreement) but if the buyer should choose not to complete the sale on that basis the vendor would have the right to terminate the contract.

Judges:

Waller LJ, Buxton LJ, Lloyd LJ

Citations:

[2007] EWCA Civ 475, [2007] 2 EGLR 152

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Yewbelle Ltd v London Green Developments Ltd, Knightsbridge Green Limited ChD 8-Dec-2006
The court considered what were the obligations undertaken by a party contracting to use reasonable endeavours.
Held: The question is one of substance, not form, to be determined objectively. Lewison J said: ‘the essence of the obligation . .

Cited by:

Cited – Irwin v Wilson and Others ChD 23-Feb-2011
The claimant sought a declaration that his contract for the sale of leasehold property to the defendants had been lawfully terminated by a letter from his solicitors. The defendants had moved in before completion, but the claimant found himself . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 11 July 2022; Ref: scu.252508

Anglo Petroleum Ltd and Another v TFB (Mortgages) Ltd: CA 16 May 2007

Challenge to validity of mortgages executed by company – allegation that funds used for financial assistance in purchase of own shares – effect on loan.
Toulson LJ approved the case of Waugh v Morris, saying: ‘130 years later, this statement of the law has added importance because of the explosion in the number of statutory regulations of one kind or another under English and European law.’

Judges:

Mummery, Smith, Toulson LJJ

Citations:

[2007] EWCA Civ 456

Links:

Bailii

Statutes:

Companies Act 1985 151

Jurisdiction:

England and Wales

Citing:

Approved – Waugh v Morris 1873
Defence of Illegality of contract failed
Under a voyage charterparty, for a voyage from Trouville to London, pressed hay was to be loaded at Trouville and brought to London where it was to be taken from the ship alongside. The charterer’s agent told the master that the consignees under the . .
Cited – Pearce v Brooks 1866
The contract was for the hire of an ornamental brougham to a prostitute which was supplied with knowledge that it would be used ‘as part of her display’. She returned it in a damaged condition, and refused to make any payments under the contract as . .
Appeal from – Anglo Petroleum Ltd v TFB (Mortgages) Ltd ChD 24-Feb-2006
The company sought to say that loans of 15 million pounds were void under s151 of the 1985 Act. It was said that the loans infringed the provisions of s151 being unlawful financial assistance.
Held: The loans were valid: ‘if it is lawful for a . .

Cited by:

Cited – Parkingeye Ltd v Somerfield Stores Ltd CA 17-Oct-2012
The claimant company operated parking management for the defendant, charging customers for overparking. The defendant came to believe that the claimant’s behaviour was over-aggressive, and the use of falsehoods, and terminated the contract. The . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 11 July 2022; Ref: scu.252382

Domsalla (T/A Domsalla Building Services) v Dyason: TCC 4 May 2007

A consumer has no grounds for complaining about the construction adjudication process per se under the Regulations

Judges:

HH Judge Thornton QC

Citations:

[2007] EWHC 1174 (TCC), [2007] BLR 348

Links:

Bailii

Statutes:

Unfair Terms in Consumer Contracts Regulations

Jurisdiction:

England and Wales

Citing:

Cited – Lovell Projects Ltd v Legg and Carver 2003
The court was asked whether the regulations applied to a construction contract. . .

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 – Shaw and Another v Massey Foundation and Pilings Ltd TCC 12-Mar-2009
The appellants had argued that they were not subject to the construction arbitration system because they were residential occupiers. They now said that as consumers vis a vis the construction contract. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 July 2022; Ref: scu.252362

Barnardo’s v Buckinghamshire and Others: SC 7 Nov 2018

The Court considered the interpretation of a clause in a pension scheme trust deed which defines the phrase ‘Retail Prices Index’ and which allows the trustees of the pension scheme to adopt a ‘replacement’ of the officially published Retail Prices Index.
Held: The Court of Appeal were right to conclude that the correct interpretation of the first sentence of the Definition namely, that ‘the RPI’ means ‘the RPI or any index that replaces the RPI and is adopted by the trustees’.

Judges:

Lady Hale, President, Lord Wilson, Lord Sumption, Lord Hodge, Lord Briggs

Citations:

[2018] UKSC 55, UKSC 2016/0210

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Video Summary, 2018 Jun 11 am Video

Jurisdiction:

England and Wales

Citing:

Appeal from – Barnardo’s and Others v Buckinghamshire and Others CA 2-Nov-2016
Trustees of the appellant charity’s pension scheme sought to sanction the base against which pensions would be uprated under the scheme from a link to the Retail Prices Index, to a link to the Consumer Prices Index.
Held: Lewison and McFarlane . .
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 – 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 – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
Cited – Arnold v Britton and Others SC 10-Jun-2015
Absurdity did not defeat a clear clause
A standard lease of plots on a caravan park, contained a provision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: The tenants’ appeal failed . .
Cited – Safeway Ltd v Newton and Another CA 5-Oct-2017
Briggs JSC said: ‘the Deed exists primarily for the benefit of non-parties, that is the employees upon whom pension rights are conferred whether as members or potential members of the Scheme, and upon members of their families (for example in the . .
Cited – Bestrustees v Stuart ChD 10-Apr-2001
‘The issues in this case concern the normal retirement date (‘NRD’) for the purpose of determining the pension rights of men and women under a pension scheme.’ . .
Cited – In re Courage Group’s Pension Schemes Ryan v Imperial Brewing and Leisure Ltd ChD 1987
It was possible to amend the provisions of a pension scheme provided the amendments did not conflict with the purposes of the scheme. How was a court to identify such purposes: ‘It is trite law that a power can be exercised only for the purpose for . .
Cited – Spooner v British Telecommunications plc 2000
. .
Cited – National Grid Co Plc v Mayes and Others; International Power Plc (Formerly National Power Plc) v Healy and Others HL 7-Jun-2001
The release by the trustees of a sum due to the pension scheme from the employers, did not make funds payable to the employer, so as to trigger the clause within the scheme trust deed which would restrain such a payment. Where an actuarial surplus . .
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: . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 July 2022; Ref: scu.628164

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 payment was no longer payable.
Held: (Neuberger and Mance dissenting) The appeal was allowed. Lord Hoffmann: Parliament had not intended that a payment once due should cease to be so due because of the insoilvency of the contractor. Section 111(1) should be construed as not applying to a lawful ground for withholding payment of which it was in the nature of things not possible for notice to have been given within the statutory time frame.

Judges:

Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Mance, Lord Neuberger of Abbotsbury

Citations:

Times 08-May-2007, [2007] UKHL 18, [2007] 1 WLR 1136, [2007] 3 All ER 889

Links:

Bailii

Statutes:

Housing Grants, Construction and Regeneration Act 1996 111

Jurisdiction:

Scotland

Citing:

Appeal from – Melville Dundas Ltd v Hotel Corporation of Edinburgh Ltd IHCS 7-Sep-2006
If a contractor became insolvent, Parliament ‘has provided quite clearly that . . the losses should be borne by the . . employers under the contract.’ . .
Cited – Bouygues (Uk) Ltd v Dahl-Jensen (Uk) Ltd (In Liquidation) CA 17-Aug-2000
When the decision of an adjudicator was challenged, the court should ask whether the adjudicator had either asked the right question but in the wrong way, or whether he had even answered the wrong question. The procedure was intended to provide a . .
See Also – The University Court of The University of Glasgow v Melville Dundas Limited E.M. Mackenzie and Co Limited L.C.H. Generators Limited OHCS 23-Apr-2004
. .
See Also – Melville Dundas Limited (In Receivership) and the Joint Receivers Thereof v George Wimpey UK Limited Norwich Union Insurance Limited OHCS 15-Dec-2005
. .
Cited – Highland Engineering Ltd v Thomson 1972
The liquidation of a company is treated as the equivalent as bankruptcy to prevent the hardship of a debtor who is also a creditor being forced to pay in full, when he will come in only as a creditor for a dividend for his debt as a result of . .
Cited – C and B Scene Concept Design Ltd v Isobars Ltd CA 31-Jan-2002
The claimant appealed a refusal of summary judgement, in a claim to enforce an arbitration award. Where an award was challenged, enforcement should still be allowed to continue unless the challenge went as to the jurisdiction of the reference. . .
Cited – Modern Engineering (Bristol) Ltd v Gilbert Ash (Northern) Ltd HL 1974
The court considered how to construe a clause in a contract which excluded a remedy provided by law. Lord Diplock said: ‘It is, of course, open to parties to a contract . . to exclude by express agreement a remedy for its breach which would . .

Cited by:

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

Construction, Contract, Insolvency

Updated: 10 July 2022; Ref: scu.251484

Minera Las Bambas Sa and Another v Glencore Queensland Ltd and Others: CA 14 Jun 2019

Questions about the correct interpretation of certain tax indemnities and warranties contained in a contract for the purchase of shares in a company which owns a large copper mining project in Peru (and of a further deed of indemnity made pursuant to that contract). The tax liabilities to which the contract terms must be applied are liabilities under Peruvian law for value added tax (VAT).

Judges:

Lord Justice Leggatt

Citations:

[2019] EWCA Civ 972

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 10 July 2022; Ref: scu.638824

McGraddie v McGraddie and Another: SCS 13 Mar 2012

The defender appealed against rejection of his assertion that monies paid to him by his father was by way of gift.
Held: His appeal succeeded. The Lord Ordinary’s conclusions were ‘plainly wrong’ when he stated that he did not find any of the other evidence materially to undermine the specifics of the pursuer’s account or his evidence more generally. On that basis, they concluded that they were entitled to overturn his decision and to substitute their own decision.

Judges:

Lady Paton

Citations:

[2012] ScotCS CSIH – 23, [2012] CSIH 23

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – McGraddie v McGraddie and Another SCS 3-Nov-2009
The parties, father and his and and his wife, disputed whether advances of money had been by way of a gift from the father or otherwise, and accordingly whether property purchased in the son’s own name was to be transferred to the father.
See Also – McGraddie v McGraddie and Another SCS 7-May-2010
Consequential opinion as to remedies. . .

Cited by:

See Also – McGraddie v McGraddie and Another SCS 13-Mar-2012
. .
See Also – McGraddie v McGraddie and Another (Scotland : Costs) SC 28-Jan-2015
The parties, father and son had fallen out. The father said that a property purhased by the son with money provided by the father, was held in trust for the father. The Court had rejected the argument of the son that this had been a gift. The . .
Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Lists of cited by and citing cases may be incomplete.

Trusts, Contract

Updated: 10 July 2022; Ref: scu.460275

Beckett Investment Management Group Ltd. Beckett Financial Services Ltd. Beckett Asset Management Ltd and others v Hall and others: QBD 16 Feb 2007

Citations:

[2007] EWHC 241 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Office Angels Ltd v Rainer-Thomas CA 1991
Reasonability Test of Post Employment Restriction
The court re-stated the principles applicable in testing whether an employee’s restrictive covenant was reasonable: ‘The court cannot say that a covenant in one form affords no more than adequate protection to a covenantee’s relevant legitimate . .

Cited by:

Appeal from – Beckett Investment Management Group Ltd and others v Hall and others CA 28-Jun-2007
The defendants, who had been employed by the claimant as independent financial advisers, covenanted that, for the year immediately following termination of their employment, they would not deal with any of the claimant’s clients with whom they had . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 10 July 2022; Ref: scu.266624

In re Thornett and Fehr and Yuills: KBD 1921

The parties agreed to sell a quantity of two brands of beef tallow, 1919 make. The manufacturers of the stipulated brands chose not to manufacture any tallow at one of their works and at the other they were prevented from manufacturing the required quantity by a strike. No delivery was made under the contract and the buyers were awarded damages in arbitration proceedings.
Held: The umpire’s finding that the contract had not been frustrated was upheld on the ground that the contract was not for specific goods but for unascertained goods; accordingly no term could be implied into the contract that the sellers undertook no liability if the manufacturer did not in fact manufacture the goods whatever the reason might be for that failure.

Judges:

Lord Reading CJ and Darling and Acton JJ

Citations:

[1921] 1 KB 219

Jurisdiction:

England and Wales

Cited by:

Cited – CTI Group Inc v Transclear Sa Comc 14-Sep-2007
The parties had contracted for the sale of concrete. The buyers appealed findings by an arbitrator that the contracts were both frustrated for the inability of the seller to complete after the intervention of a company with an effective monopoly, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 July 2022; Ref: scu.259370

Butler Machine Tool Co Ltd v Ex-Cell-O Corporation: CA 25 Apr 1977

The plaintiff offered to sell a machine tool to the defendant. The offer said that its terms had precedence over any terms in the buyer’s order, and contained a clause allowing a price variation. The defendant’s order form allowed no variation, and said that its own terms applied. They refused to pay a varied price as requested by the plaintiffs. The defendant appealed a finding that the variation had been properly imposed.
Held: The defendant’s appeal succeeded. The multiple letters had to be read as a whole and single document.
Lord Denning MR said: ‘I have much sympathy with the judge’s approach to this case. In many of these cases our traditional analysis of offer, counter-offer, rejection, acceptance and so forth is out-of-date. This was observed by Lord Wilberforce in New Zealand Shipping Co Ltd v AM Satterthwaite. The better way is to look at all the documents passing between the parties and glean from them, or from the conduct of the parties, whether they have reached agreement on all material points, even though there may be differences between the forms and conditions printed on the back of them. [Applying Brogden v Metropolitan Railway Co (1877)] it will be found that in most cases when there is a ‘battle of forms’ there is a contract as soon as the last of the forms is sent and received without objection being taken to it. Therefore, judgment was entered for the buyers.’

Judges:

Lord Denning MR, Lawton LJ, Bridge LJ

Citations:

[1979] 1 All ER 965, [1979] 1 WLR 401, [1977] EWCA Civ 9

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – New Zealand Shipping Co Ltd v A M Satterthwaite and Co Ltd (The Eurymedon) PC 25-Feb-1974
The Board considered the extent to which an exclusion clause in a bill of lading could be relied on by the third party stevedore, an independent contractor employed by the carrier, who was sued by the consignees of goods for negligently damaging the . .

Cited by:

Cited – Tekdata Interconnections Ltd v Amphenol Ltd CA 19-Nov-2009
The court considered which of two sets of contractual terms applied. The parties had dealt with each other over a long period. Under standard offer and acceptance the seller’s terms would apply. The buyer appealed, saying the court should look to . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 July 2022; Ref: scu.251175

Intercall Conferencing Services Ltd v Steer: QBD 15 Mar 2007

The claimant company sought an interim injunction to prevent the defendant, a former employee, from working for a competitor in breach of a clause in his contract and from divulging any confidential information. The defendant said that the non-competition clause was too wide, but was content not to divulge any confidential material. He had been a senior employee with full access to a wide range of systems information. The clause required him not to be employed by a competitor for six months. There was no geographical limit.
Held: The defendant did have confidential information. The clause was necessary because ‘ difficulties in identifying what is and what is not confidential information may mean that a non-competition clause is the most satisfactory term of restraint. The six month period seems to me to be appropriate and the words ‘which are in competition with the business carried on by the Company’ are reasonable. The capacity in which the employee in fact works for the new employer cannot in itself be decisive. If he possesses confidential information which it is appropriate to protect and there is a risk that in the course of his new work the duty of confidentiality may be breached, it matters not in precisely what capacity he is to work.’ The court must last consider still whether it should exercise its discretion to grant the injunction. Though the defendant would suffer loss, if the final injunction was refused, he could be adequately compensated in damages.

Judges:

Nelson J

Citations:

[2007] EWHC 519 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – TFS Derivatives Ltd v Morgan QBD 15-Nov-2004
The claimant sought to enforce a post employment restrictive covenant. There was a 6 months’ prohibition, post-termination of employment (less any period of garden leave) on any employment which was competitive with the business of a former . .
Cited – Thomas v Farr Plc and Another CA 20-Feb-2007
The employee, the former chairman of the company, appealed a finding that his contract which restricted his being employed for one year in the same field after termination, was valid and enforceable. The company had provided insurance services to . .
Cited – Brake Brothers Limited v Ungless QBD 2004
The court considered the law relating to post employment restrictive covenants. Gloster J said: ‘(1) Covenants in Restraint of Trade are prima-facie unlawful and accordingly are ‘to be treated with suspicion’ see per Laddie J in Countrywide Assured . .
Cited – TFS Derivatives Ltd v Morgan QBD 15-Nov-2004
The claimant sought to enforce a post employment restrictive covenant. There was a 6 months’ prohibition, post-termination of employment (less any period of garden leave) on any employment which was competitive with the business of a former . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 10 July 2022; Ref: scu.250622

Leofelis Sa and Another v Lonsdale Sports Ltd 7 Ors: ChD 8 Mar 2007

Judges:

Evans Lombe J

Citations:

[2007] EWHC 451 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

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.

Contract, Intellectual Property

Updated: 10 July 2022; Ref: scu.250021

J and H Ritchie Ltd v Lloyd Ltd: HL 7 Mar 2007

The appellants had bought a seed drill from the respondents. It had been repossessed but sold as near new. A fault was noticed after two days use, and it was returned. The defendants repaired it without agreeing this with the appellant, and then refused to say what the repair had been. The claimant now appealed the refusal of his claim that at the time he had purported to reject the machine, it was in a proper state of repair, and was fit for purpose.
Held: The appeal succeeded. It was proper to imply a term to fill a gap left by the 1979 Act when dealing with returned goods and the loss of the right of rejection. Just what term is to be implied may vary with the circumstances. Until a buyer can be said to have accepted the goods, he has not lost the right to reject them. In this case the nature of the fault was not known to the buyer. He was not in a position to make an informed choice as to whether to accept the goods. The respondents had not behaved in accordance with sensible or reasonable commercial practice by refusing to state the nature of the defect, and that failure was in breach of the terms implied on the machine’s return for inspection.

Judges:

Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood, Lord Mance

Citations:

[2007] UKHL 9, Times 08-Mar-2007

Links:

Bailii

Statutes:

Sale of Goods Act 1979 35(6)(a)

Jurisdiction:

England and Wales

Citing:

Appeal from – J and H Ritchie Ltd v Lloyd Ltd SCS 11-Jan-2005
The buyers sought repayment of the sum paid by them for agricultural machinery purchased from the respondent. The machinery was bought after a repossession, but returned when a vibration was found. The defendants repaired the machine, but would not . .
Cited – William Morton and Co v Muir Brothers and Co 1907
Lord McLaren said: ‘The conception of an implied condition is one with which we are familiar in relation to contracts of every description, and if we seek to trace any such implied conditions to their source, it will be found that in almost every . .
Cited – Liverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .
Cited – Clegg v Olle Andersson (T/A Nordic Marine) CA 11-Mar-2003
Right oReject Survived Attempted Repair
The claimant agreed to purchase a yacht from the defendants with a keel to the manufacturer’s standard specifications. The keel actually installed was rather heavier. After correspondence, the claimant rejected the yacht and required the return of . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract, Consumer

Updated: 10 July 2022; Ref: scu.249892

Baker and Another v J E Clark and Co (Transport) UK Ltd and Another: CA 22 Mar 2006

The claimant sought payment of insurance benefits which she said should have been paid to her husband before his death. The company and its directors sought reliance on an exemption clause in common form in the trust instrument absolving them from liability. The scheme had been terminated by the insurance company. The widow asserted negligence in not having made alternative arrangements or notified her husband.
Held: No sufficient duty had arisen toward the deceased. The assertion that the 1977 Act made the exemption clause invalid failed. The clause did not amount to a notice within the Act.

Judges:

The Hon Mr Justice Carnwath Lord Justice Tuckey Mr Justice Bennett

Citations:

[2006] EWCA Civ 464

Links:

Bailii

Statutes:

Unfair Contract Trems Act 1977

Jurisdiction:

England and Wales

Trusts, Contract, Negligence

Updated: 10 July 2022; Ref: scu.241383

Heronsgate Enterprises Ltd v Harman (Chesham) Ltd: CA 21 Jan 1993

The court described the duties of a vendor as trustee of the property after exchange but before completion: ‘It is well-established law that, subject always to the terms of the particular contract, a seller of property under a specifically enforceable contract is to be regarded after the contract has been made as holding the property as a trustee for the buyer. However, he is not a bare trustee. His trust obligations are limited in certain respects. For example, if, as is usually the case, he is entitled to remain in possession for the period after the contract has been made pending the date fixed for completion, he is entitled to keep and retain for his own benefit the rents and profits of the land arising during that period . . The seller must take care not to damage the property or to prejudice the buyer’s interest in the property of which, on completion, he will become the legal owner. But in general, within those limits he is entitled to the ordinary rents and profits, and for him to take steps to obtain them after contract and before the date fixed for completion, either by occupying and using the property himself or by permitting another to occupy and work the property in return for a rent, is not a breach of his duties as seller under a contract for sale.’ The release of a tipper from an indemnity agreement was not a matter of which a purchaser could complain, since the benefit of the agreement was not part of the property being sold: it was not annexed to the land, and was a benefit vested in the vendor under an agreement which, on completion, would not survive to bind or to benefit the purchaser as the new owner. If the purchaser could not compel the vendor to assign that benefit, then the purchaser could not complain if the vendor chose not to do so.

Judges:

Sir Donald Nicholls VC

Citations:

Unreported, 21 January 1993

Jurisdiction:

England and Wales

Cited by:

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

Land, Contract

Updated: 10 July 2022; Ref: scu.223741

Eccles v Bryant and Pollock: CA 1947

The Plaintiff contended that a letter written by the purchaser’s solicitor which effectively set out the terms of the agreement, enclosed the part of the contract signed by the purchaser, and asked in exchange for the counter-part signed by the vendor, created a binding contract between the parties.
Held: Negotiations ‘subject to contract’ for the grant of a lease remain in a state of negotiation until exchange of lease and counter-part.
Letters written by solicitors, acting as solicitors relating to a proposed grant of a lease, or related to a proposed acquisition of property by sale, are letters written by agents of the parties who have no authority to conclude a contract; they are not written by agents within whose ostensible authority there lies the function of making a contract. Once the documents had been exchanged however, the parties would be bound.
Lord Greene MR said: ‘One thing is quite clear on the facts of this case to my mind, that both firms of solicitors, one of whom – that is the vendors’ solicitors – practised in East Grinstead and the other of whom, the purchaser’s solicitors, practised in London, when they were instructed to carry this matter through by their respective clients, contemplated and intended from beginning to end to do so in the customary way which is familiar to every firm of solicitors in the country, namely, by preparing the engrossment of the draft contract when agreed in duplicate, the intention being to do what I have no doubt at this very moment is happening in dozens of solicitors’ offices all over the country, namely, to exchange the two parts when signed by their respective clients.’ and
‘When parties are proposing to enter into a contract, the manner in which the contract is to be created so as to bind them must be gathered from the intentions of the parties express or implied. In such a contract as this, there is a well-known, common and customary method of dealing; namely, by exchange, and anyone who contemplates that method of dealing cannot contemplate the coming into existence of a binding contract before the exchange takes place.
Lord Greene MR continued: ‘It was argued that exchange is a mere matter of machinery, having in itself no particular importance and no particular significance. So far as significance is concerned, it appears to me that not only is it not right to say of exchange that it has no significance, but it is the crucial and vital fact which brings the contract into existence. As for importance, it is of the greatest importance, and that is why in past ages this procedure came to be recognised by everybody to be the proper procedure and was adopted. When you are dealing with contracts for the sale of land, it is of the greatest importance to the vendor that he should have a document signed by the purchaser, and to the purchaser that he should have a document signed by the vendor. It is of the greatest importance that there should be no dispute whether a contract had or had not been made and that there should be no dispute as to the terms of it. This particular procedure of exchange ensures that none of those difficulties will arise. Each party has got what is a document of title, because directly a contract in writing relating to land is entered into, it is a document of title. That can be illustrated, of course, by remembering the simple case where a purchaser makes a sub-sale. The contract is a vital document for the purpose of the sub-sale. If he had not got the vendor’s part, signed by the vendor, to show to the sub-purchaser, he would not be able to make a good title. ‘If the argument for the purchaser is right and the contract comes into existence before exchange takes place, it would mean that neither party could call upon the other to hand over his part. The non-exchanged part would remain the property of the party who signed it, because exchange would be no element in the contract at all and therefore you could get this position, that the purchaser might wish to resell and would have no right to obtain from the vendor the vendor’s signed part.’

Judges:

Lord Greene MR, Cohen and Asquith LJJ

Citations:

[1948] Ch 93, [1947] 2 All ER 865

Jurisdiction:

England and Wales

Cited by:

Cited – Domb and Another v Isoz CA 29-Nov-1979
In a chain of conveyancing transactions, a solicitor sent his contract and deposit to his vendor’s solicitor, asking him to hold it to his order pending exchange. On the next day, that vendor’s solicitors agreed to an exchange of contracts over the . .
Cited – D’Silva v Lister House Development Ltd 1970
Even an unlawful sub-tenancy can have protection under Part II of the 1954 Act. The court described as fallacious the submission that section 74(1) does not extend to or answer the question whether the document has ever been delivered, saying: ‘The . .
Cited – Evans v James (Administratrix of the Estate of Thomas Hopkin Deceased) CA 5-Jul-1999
Before the parties called evidence, and having read the papers, the court considered that there was no real defence shown, and invited submissions. Negotiations for the grant of a tenancy had been terminated by the sudden illness of the proposed . .
Cited – Evans v James (Administratrix of the Estate of Thomas Hopkin Deceased) CA 5-Jul-1999
Before the parties called evidence, and having read the papers, the court considered that there was no real defence shown, and invited submissions. Negotiations for the grant of a tenancy had been terminated by the sudden illness of the proposed . .
Cited – Alan Estates Ltd v WG Stores Ltd and Another CA 1-Jul-1981
The proposed tenant wanted to get into possession, and was given a key and paid a quarter’s rent to the lessor’s solicitors to be held as stakeholders, before the lease had been formally granted. An undated lease and counterpart were executed and . .
Cited – The Anemone 1987
Owners wished to let their vessel on time charter to Afram Line Limited but were unwilling to do so without a guarantee. The negotiations were conducted by Centre Shipping on behalf of owners and Dipgrove Holdings on behalf of charterers. It was . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another CA 9-Mar-2012
The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract, Legal Professions, Agency

Updated: 10 July 2022; Ref: scu.183158

Simantob v Shavleyan: CA 28 Jun 2019

The court as asked as to the extent to which a forbearance to raise a defence later found to be without legal merit can constitute sufficient consideration to support an agreement between the parties.

Judges:

Lord Justice Simon

Citations:

[2019] EWCA Civ 1105

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Litigation Practice

Updated: 10 July 2022; Ref: scu.638836

Glenn v Watson and Others: ChD 31 Jul 2018

In the context of a claim in which there were substantial disagreements as to the underlying facts. Nugee J said: ”Despite the primacy which our trial system has long given to oral evidence, it is by now a commonplace that the memory even of witnesses who are doing their honest best is often unreliable . . and in cases of fraud when the credibility of witnesses is in issue, it has long been recognised to be essential to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities . .’

Judges:

Nugee J

Citations:

[2018] EWHC 2016 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Walsh v Greystone Financial Services Ltd ChD 4-Jul-2019
The parties disputed a long history of allegations and denials of involvement in fraud. . .
Lists of cited by and citing cases may be incomplete.

Contract, Trusts

Updated: 10 July 2022; Ref: scu.621072

Emirates Trading Agency Llc v Prime Mineral Exports Private Ltd: ComC 1 Jul 2014

The claimant argued that the proposed arbitral tribunal lacked jurisdiction because the reference was based upon an unenforceable agreement to negotiate.
Held: The agreement to negotiate contained in the contract amounted to an enforceable condition precedent to the referral of a dispute to arbitration. As the condition precedent had been satisfied, the arbitral tribunal had jurisdiction to hear and determine the claim.

Judges:

Teare J

Citations:

[2014] EWHC 2104 (Comm), [2014] WLR(D) 293

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Arbitration, Contract

Updated: 09 July 2022; Ref: scu.533679

Apollo Engineering Ltd v James Scott Ltd: SCS 21 May 2009

Application for judicial review of arbitration

Judges:

Lord Kingarth, Lord Eassie, Lord Carloway

Citations:

[2009] ScotCS CSIH – 39, [2009] CSIH 39

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – James Scott Limited v Apollo Engineering Limited and others SCS 24-Jan-2000
. .
See Also – Apollo Engineering Ltd v James Scott Ltd SCS 7-Mar-2008
Outer House – Court of Session . .

Cited by:

Cited – Apollo Engineering Ltd (In Liquidation) v James Scott Ltd SCS 18-Jan-2012
The parties had for several years been involved in litigation and arbitration. Apollo’s funds had run out and a director sought permission to represent the company before the court. He had asked the court to make an order under article 6 of the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 July 2022; Ref: scu.346247

North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd (The Atlantic Baron): 1978

The defendant had contracted to build a ship for the plaintiff. When part built and paid for, the defendants demanded further payments over and above that agreed to finish the contract. The plaintiffs paid without protest, and took delivery, but some time later sued, alleging that the additional payments had been made under duress.
Held: The claim failed. The now owners had so conducted themselves as to affirm the contract. The Court considered whether an agreement had been entered into under duress.
Mocatta J discussed the nature of consideration by a promise to perform an existing duty: ‘Counsel for the yard relied on what Denning L.J. said in two cases dealing with very different subject matters. The earlier was Ward v. Byham (1956) 2 All E.R. 318. There the father of an illegitimate child who had lived with her mother for some years turned the mother out of the house, retaining the child for a while for himself. Later he made an offer to let the mother have the child and pay an allowance of pounds 1 a week, provided the child was well looked after and happy and was allowed to decide for herself where she wished to live. When the mother married, the father discontinued payment, but on being sued by the mother he was held liable. The mother was by statute bound to maintain her illegitimate child, but Denning LJ said that he thought there was sufficient consideration in the promise to perform an existing duty or in its performance. Apart from the fact that the existing duty on the mother was imposed on her by statute law, which I think differentiates the case, the other two members of the Court of Appeal thought that compliance with the special terms of the father’s letter, about keeping the child happy and leaving her freedom of choice constituted ample consideration. Again in Williams v. Williams (1957) 1 All E.R. 305 at 307, whilst Denning L.J. said that ‘a promise to perform an existing duty is, I think, sufficient consideration to support a promise’, nonetheless he went on to find two separate grounds for good consideration for the husband’s promise. Similarly Hodson L.J. and Morris L.J. found good consideration for the husband’s promise. I do not therefore think either of these cases successfully enables counsel for the yard to avoid the rule in Stilk v. Meyrick.’
He considered the effect of duress: ‘I was referred to a number of cases decided overseas: Nixon v Furphy, Knutson v Bourkes Syndicate and Re Hooper and Grass’ Contract, all of which have a similarity to Close v Phipps. Perhaps their greatest importance, however, is the quotation in the first mentioned from the judgment of Isaacs J in Smith v William Charlick Ltd, where he said:
‘It is conceded that the only ground on which the promise to repay could be implied is ‘compulsion’. The payment is said by the respondent not to have been ‘voluntary’ but ‘forced’ from it within the contemplation of the law . . . ‘Compulsion’ in relation to a payment of which refund is sought, and whether it is also variously called ‘coercion’, ‘extortion’, ‘exaction’ or ‘force’, includes every species of duress or conduct analogous to duress, actual or threatened, exacted by or on behalf of the payee and applied to the person or the property or any right of the person who pays . .. Such compulsion is a legal wrong, and the law provides a remedy by raising a fictional promise to repay.’

Judges:

Mocatta J

Citations:

[1979] 3 WLR 419, [1978] 3 All ER 1170, [1979] QB 705

Jurisdiction:

England and Wales

Cited by:

Cited – Times Travel (UK) Ltd v Pakistan International Airlines Corporation CA 14-May-2019
This appeal concerns the area of lawful act duress, where a contract results from a threat of a lawful act or omission. Does lawful act duress exist at all and, if so, in what circumstances may it be invoked? . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 July 2022; Ref: scu.372849

Carmichael v Carmichael’s Exx: HL 30 Jul 1920

The pursuer had taken out an insurance policy and paid the premiums on his son’s life. He sought payment of the proceeds of the policy from his son’s estate asserting a jus quaesitum tertio.

Judges:

Lord Dunedin

Citations:

[1920] UKHL 5, 1920 2 SLT 285, 1920 SC (HL) 195

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Appeal from – Carmichael v Carmichael’s Exx SCS 15-Jul-1919
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 July 2022; Ref: scu.279681

The Rugby Group Ltd v Proforce Recruit Ltd: QBD 2 Feb 2005

Judges:

Filed J

Citations:

[2005] EWHC 70 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Contract

Updated: 09 July 2022; Ref: scu.263170

Barbados Trust Company Ltd v Bank of Zambia and Another: CA 27 Feb 2007

The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of the original creditors to sue was invalid without such consent since the assignment which might justify it was itself invalid.
Held: The declaration of trust was not itself an equitable assignment so as to be caught by the prohibition on assignment without notice. The issue of who might be able to sue was procedural, and was not ‘a measure of substantive law which might affect the asset, the subject of the declaration of trust.’ The appeal was allowed.

Judges:

Waller LJ, President, Rix LJ, Hooper LJ

Citations:

[2007] EWCA Civ 148, [2007] 1 Lloyd’s Rep 495

Links:

Bailii

Statutes:

Law of Property Act 1925 136

Jurisdiction:

England and Wales

Citing:

Cited – Vandepitte v Preferred Accident Insurance Corp. of New York PC 1933
The plaintiff was injured in a motor accident. He failed in a direct claim against the insurers of the negligent defendant driver. The insurance was effected by the father (Mr Berry) of the negligent driver and provided that an indemnity would be . .
Cited – The Argo Fund Ltd v Essar Steel Ltd ComC 26-Jan-2004
. .
Cited – The Argo Fund Ltd v Essar Steel Ltd ComC 12-Apr-2005
. .
Cited – Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .
Appeal from – Barbados Trust Company Ltd v Bank of Zambia and Another ComC 22-Feb-2006
. .
Cited – Don King Productions Inc v Warren and Others ChD 13-Apr-1998
Where partnership terms required benefit of all contracts to be assigned to the partnership, this included unassignable personal contracts which were to be held in trust for partnership, unless stated otherwise.
Lightman J said: ‘The existence . .
Cited – Target Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .
Cited – Saunders v Vautier 7-May-1841
A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of . .
Cited – Ambler v Bolton CA 1872
An inalienable government contract held by one of the partners constituted a partnership asset. On the dissolution of the partnership, a value had to be given to it (since it could not be sold) and the partner who held it debited with that amount in . .
Cited – Re Turcan CA 1888
A man effected an insurance policy which contained a term that it should not be assignable in any case whatever. He had previously covenanted with trustees to settle after-acquired property.
Held: The court will seek to protect the interests . .
Cited – R W Pathirana v A Pathirana PC 1967
Section 29 requires a partner to account to the partnership for any private benefit which he derives at the expense of the partnership, and this duty subsists after the dissolution of the partnership until the winding up is completed. An inalienable . .
Cited – In Re Brockbank 1948
A new trustee was to be appointed. The beneficiaries, all of full age and capacity wanted the remaining trustee to appoint someone they nominated. The trustee purported to exercise the discretion given to him in the trust deed and appointed someone . .
Cited – Explora Group Plc v Hesco Bastion Ltd and Another CA 20-Jul-2005
. .
Cited – Target Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .
Cited – Don King Productions Inc v Warren; Roberts; Centurion Promotions Limited (Formerly Sports Network Limited); Sports Network Usa, Inc; Time Warner Entertainment Company, Lp and Sport International, Inc CA 19-Nov-1998
Contracts between the members of a firm and third parties, and which were subject to the partnership contract, but which were expressed to be personal and incapable of assignment, were still held on trust for the partnership, and renewals made . .
Cited – Ellis v Torrington CA 1920
An assignment of the benefit of a covenant in a lease held to be sufficiently connected with enjoyment of the property as not to be a bare right of action. The assignment was not void.
Scrutton LJ stated that the assignee of a cause of action . .
Cited – Essar Steel Ltd v The Argo Fund Ltd CA 14-Mar-2006
The parties disputed the effect of provisions of an unsecured syndicated loan in standard 1997 Loan Market Association form. . .
Cited – Tom Shaw and Co v Moss Empires Ltd 1908
An actor, was engaged by Moss Empires under a contract which prohibited the assignment of his salary. He assigned 10 per cent of the salary to his agent, Tom Shaw. Tom Shaw sued Moss Empires for 10 per cent of the salary joining the actor as second . .
Cited – Harmer v Armstrong CA 1934
The court considered the position where the assignor of a contract was required to attend court as a party when the assignee sought to enforce the debt.
Held: A beneficiary under a bare trust could bring proceedings in his own name and, where . .
Cited – Performing Right Society Limited v London Theatre of Varieties Limited HL 1924
The parties, the plaintiff who was the equitable assignee of performing rights and the infringing defendant, joined specific issue on the absence of the legal owner of the rights.
Held: His absence was critical. PRS failed to obtain a . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 09 July 2022; Ref: scu.249235

David Truex, Solicitor (A Firm) v Kitchen: CA 3 Nov 2006

Application for leave to appeal – granted.

Judges:

Hallett LJ

Citations:

[2006] EWCA Civ 1592

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Leave – David Truex, Solicitor (A Firm) v Kitchin CA 4-Jul-2007
The claimant solicitors sought payment of their fees. The defendant claimed they had been negligent in not advising her that she might be entitled to legal aid. The firm had pointed out to her that they did not undertake legal aid work, and that she . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 09 July 2022; Ref: scu.249082

Australia and New Zealand Banking Group Ltd v Compagnie Noga D’Importation Et D’Exportation Sa and Another: ComC 21 Feb 2007

Non-payment of bills of exchange – construction of settlement agreement. It was said that the compromise agreement ws unenforceable as being against public policy in restraining one party.
Held: The restraint ‘does not affect the course of legal proceedings, let alone criminal proceedings. The contrast has to be made between the purported compromise of a public offence and settlement of a private damage suit.’ The agreement was valid.

Judges:

David Steel J

Citations:

[2007] EWHC 293 (Comm)

Links:

Bailii

Citing:

Cited – Howard v Odhams Press CA 1935
The plaintiff claimed damages arising out of disclosure to his union of fraudulent activities in the defendant’s competition department of which he had been a member, such disclosure being contrary to an agreement between the claimant and his . .
Cited – Egerton v Earl of Brownlow HL 1853
The House considered a challenge to the terms of a trust on the basis that it offended public policy. The House therefore considered the nature and importance of public policy.
Held: Public policy ‘has been confounded with what may be called . .
Cited – Lound v Grimwade ChD 1886
The plaintiff tried to set aside a bond, saying that he had executed it under duress in the form of the threat of criminal proceedings.
Held: The bond had not been executed under pressure at law. However the consideration for it included a . .
Cited – Keir v Leeman 1846
Tyndal CJ said: ‘Indeed it is very remarkable what very little authority there is to be found . . for the principle that any compromise of a misdemeanour or indeed of any public offence can be otherwise than illegal and any promise founded on such a . .
Cited – Fulham Football Club Ltd v Cabra Estates plc CA 1994
Fulham, as lessees of Craven Cottage, agreed with CABRA, a developer, who had applied for planning permission to redevelop the ground, shortly before a public inquiry which had been set up to consider the planning application; and also a proposal by . .
See Also – Compagnie Noga D’Importation Et D’Exportation Sa v Australia and New Zealand Banking Group Ltd and others ComC 18-Nov-2004
Langley J held a ‘nominal claimant’ to be ‘one whose name is used to bring a claim in which he does not have any or at least any significant legal or beneficial interest’. . .
See Also – Compagnie Noga D’Importation Et D’Exportation Sa and Another v Australian and New Zealand Banking Group and others ComC 24-Mar-2006
. .
See Also – Compagnie Noga D’Importation Et D’Exportation Sa v Australia and New Zealand Banking Group Ltd ComC 26-Jan-2007
. .
See Also – Compagnie Noga D’Importation et D’Exportation Sa v Australia and New Zealand Banking Group Ltd. and others CA 31-Jul-2002
If the court wishes to enable a party to appeal against a particular finding contained in the judgment, it may make a declaration embodying that finding. . .

Cited by:

Cited – Office of Communications and Another v Floe Telecom Ltd CA 10-Feb-2009
The court was asked to accept an appeal against not the order made by the tribunal, but the terms of the reasoned judgment.
Held: The appeal was allowed. The Tribunal had made findings which were unnecessary to its judgment, and which were . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 09 July 2022; Ref: scu.248950

Rhodia International Holdings Ltd. Rhodia UK Ltd v Huntsman International Llc: ComC 21 Feb 2007

The parties contracted for the sale of a chemical surfactants business.The claimant had contracted to use reasonable endeavours to obtain the consent of a third party for the assignment a a contract to supply energy to the business. The defendant said that the commitment to use reasonable endeavours was equivalent to a duty to use best endeavours.
Held: As a matter of language, the standards expected of a promisor to use ‘best endeavours’ are more onerous than of an obligation to use ‘reasonable endeavours’, but an obligation to use ‘all reasonable endeavours’ should be equated with the more onerous obligation to use ‘best endeavours’.

Judges:

Julian Flaux QC

Citations:

[2007] EWHC 292 (Comm), Times 06-Apr-2007, [2007] 2 Lloyds’ Reports 325

Links:

Bailii

Citing:

Cited – Overseas Buyers v Granadex 1980
The court considered the meaning of a promise by one party to use its best endeavours.
Held: Mustill J said: ‘it was argued that the arbitrators can be seen to have misdirected themselves as to the law to be applied, for they have found that . .
Cited – Galaxy Energy v Bayoil CA 2001
The court equated reasonable efforts with due diligence. . .
Cited – IBM v Rockware Glass Ltd CA 1980
The court considered the meaning on a promise by one party to use its best endeavours to obtain a relevant planning permission.
Held: The obligation included an obligation to appeal from an initial refusal of permission so long as the . .
Cited – Marc Rich v SOCAP 1992
The court equated best endeavours with due diligence. . .
Cited – Jolley v Carmel Limited 2000
Kim Lewison QC said: ‘Where a contract is conditional upon the grant of some permission, the courts often imply terms about obtaining it. There is a spectrum of possible implications. The implication might be one to use best endeavours to obtain it . .
Cited – Hyde v Pimley CA 1952
The court drew a distinction between prior consent to a breach of contract and waiver or forbearance. Sir Raymond Evershed MR said: ‘The learned judge was of opinion that consent to the commission of a particular act was not the same thing as . .
Cited – Yewbelle Ltd v London Green Developments Ltd, Knightsbridge Green Limited ChD 8-Dec-2006
The court considered what were the obligations undertaken by a party contracting to use reasonable endeavours.
Held: The question is one of substance, not form, to be determined objectively. Lewison J said: ‘the essence of the obligation . .
Cited – 29 Equities Ltd v- Bank Leumi (UK) Ltd CA 1986
The court considered a clause requiring a party to use reasonable endeavours.
Held: Dillon LJ: ‘As Goff J pointed out in Lipmnas Wallpaper Ltd v Mason and Hodghton Ltd [1969] 1 Ch. 20, the vendor could not escape the clause by rescinding on . .

Cited by:

Cited – Hiscox Syndicates Ltd and Another v The Pinnacle Ltd and others ChD 25-Jan-2008
The claimants sought an injunction in nuisance, saying that the defendants had agreed to use all reasonable endeavours to avoid causing a nuisance to them in demolition works on their neighbouring land.
Held: The injunction should be granted. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 July 2022; Ref: scu.248954

Raffles v Wichelhaus and Another: Exc 19 Apr 1864

A contract referred to cotton ‘to arrive ex Peerless from Bombay’. Two ships called the Peerless sailed from Bombay, one in October and one in December. The court accepted that the defendants meant the October vessel and the plaintiff the December vessel.
Held: There was no contract – because the offer and acceptance, although verbally identical, could objectively refer to different ships of the same name, ‘there was no consensus ad idem, and therefore no binding contract’. An agreement is void for mutual mistake if the agreement cannot be reasonably understood in the sense understood by either party – despite the apparent agreement, no offer was accepted. Parol evidence could be given for the purpose of showing that the plaintiff meant one ‘Peerless’ and the defendant the other.

Citations:

[1864] EWHC Exch J19, (1864) 2 H and C 906, [1864] EngR 150, (1864) 159 ER 375

Links:

Bailii, Commonlii

Contract

Updated: 09 July 2022; Ref: scu.248827

Tool Metal Manufactuing Company Ltd v Tungsten Electric Company Ltd: HL 16 Jun 1955

The principle in Hughes v Metropolitan Railway could apply to a reduction by concession in payments due to a creditor and a concession could be terminated by giving reasonable notice.

Judges:

Viscount Simonds, Lord Oaksey, Lord Reid, Lord Tucker, Lord Cohen

Citations:

[1955] UKHL 5, [1955] 1 WLR 761, [1955] 2 All ER 657

Links:

Bailii

Statutes:

Patents and Designs Act 1938 38

Jurisdiction:

England and Wales

Citing:

Cited – Hughes v Metropolitan Railway Co HL 1877
A notice to repair had been served by the landlord on the tenant. The tenant wrote offering to buy the premises and proposed deferring the commencement of repairs until the landlord responded. The landlord replied by letter asking the price. It was . .

Cited by:

Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Cited – Collier v P and M J Wright (Holdings) Ltd CA 14-Dec-2007
Agreement for payment by joint debtor not contract
The claimant appealed against refusal of an order to set aside a statutory demand. He said that he had compromised a claim by the creditors. He argued for an extension to the Rule in Pinnel’s case, so that where a debtor agrees to pay part of a . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages, Equity, Estoppel

Updated: 09 July 2022; Ref: scu.248524

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 damages for default on the basis that the term as to notice was a condition. The damages claimed were the difference between the contract price and the market price. The sellers did not contend that, if the term was not a condition, the delay of four days amounted to a repudiation. The breach complained of consisted not of giving less than the requisite number of days’ notice under the contract, but of giving notice after the last date on which it could legitimately be given because the required 15 days notice would have ended after the last possible date for shipment. The House considered the construction of clause 7 of GAFTA 119, and in particular whether it was a condition or warranty, and whether time was of the essence.
Held: Whether a time limit is of the essence of a contractual provision is a question of interpretation.
Lord Wilberforce said: ‘As to such a clause there is only one kind of breach possible, namely to be late, and the questions to be asked are: first what importance have the parties expressly ascribed to this consequence? And, second, in the absence of expressed agreement, what consequence ought to be attached to it having regard to the contract as a whole?’ and ‘In conclusion, the statement of the law in Halsbury’s Laws of England, 4th ed., vol. 9 (1974), paras. 481-482, including the footnotes to paragraph 482 (generally approved in the House in the United Scientific Holdings case), appears to me to be correct, in particular in asserting (1) that the court will require precise compliance with stipulations as to time wherever the circumstances of the case indicate that this would fulfil the intention of the parties, and (2) that broadly speaking time will be considered of the essence in ‘mercantile’ contracts – with footnote reference to authorities which I have mentioned.’
Lord Lowry said: ‘It is by construing a contract (which can be done as soon as the contract is made) that one decides whether a term is, either expressly or by necessary implication, a condition, and not by considering the gravity of the breach of that term (which cannot be done until the breach is imminent or has occurred).’

Judges:

Lord Wilberforce, Lord Fraser of Tullybelton, Lord Scarman, Lord Lowry, Lord Roskill

Citations:

[1981] UKHL 11, [1981] 2 All ER 513, [1981] 1 WLR 711, [1981] 2 Lloyds Rep 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Bunge Corporation v Tradax CA 1980
. .

Cited by:

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

Contract, Damages

Updated: 09 July 2022; Ref: scu.248649

Rose and Frank and Co v JR Crompton and Bros Ltd: HL 5 Dec 1924

For a contract to come into existence there has to be not only an intention to create legal relations but an agreement as to the terms of the contract. In a commercial contect there is a presumption of an intention to create legal relations. However, a clear and unambiguous express term stating that the parties did not intend their agreement to create legal relations was indeed binding upon them. It is the duty of the court to give proper effect to the terms agreed between the parties, whatever the reason for its introduction. The appeal failed. A party breaching a gentlemen’s understanding or agreement suffers damages to his honour and standing or reputation whilst the other party who is affected by the breach recovers nothing and cannot turn to the Courts to seek relief

Judges:

Earl of Birkenhead, Lord Atkinson, Lord Sumner, Lord Buckmaster, Lord Phillimore

Citations:

[1924] UKHL 2, [1925] AC 445

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Rose and Frank Co v J R Crompton and Bros Ltd CA 1923
The court considered whether a contract had been brought into existence.
Held: Scrutton LJ said: ‘Now it is quite possible for parties to come to an agreement by accepting a proposal with the result that the agreement does not give rise to . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 July 2022; Ref: scu.248476

Ravennavi Spa v New Century Shipbuilding Company Ltd: CA 7 Feb 2007

Moore Bick LJ considered the interpretation of poorly drafted contracts and said: ‘Unless the dispute concerns a detailed document of a complex nature that can properly be assumed to have been carefully drafted to ensure that its provisions dovetail neatly, detailed linguistic analysis is unlikely to yield a reliable answer. It is far preferable, in my view, to read the words in question fairly as a whole in the context of the document as a whole and in the light of the commercial and factual background known to both parties in order to ascertain what they were intending to achieve.’

Judges:

Tuckey, Jacob, Moore-Bick LLJ

Citations:

[2007] EWCA Civ 58, [2007] 1 CLC 176, [2007] 2 Lloyd’s Rep 24, [2007] 2 All ER (Comm) 756

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Ravennavi Spa v New Century Shipbuilding Company Ltd ComC 4-Apr-2006
. .

Cited by:

Cited – Multi-Link Leisure Developments Ltd v Lanarkshire Council SC 17-Nov-2010
The parties disputed the effect of an option clause in a lease, and particularly whether, when fixing the price, potential for development was to be included. The clause required the ‘full market value’ to be paid. The tenant appealed.
Held: . .
Cited – Garratt v Mirror Group Newspapers Ltd CA 13-Apr-2011
The claimant had been employed by the defendant. They made him redundant. He claimed and enhanced payment saying that his emloyment was covered by a collective agreement, but when he refused to sign a compromise agreement, the company paid him only . .
Lists of cited by and citing cases may be incomplete.

Contract, Jurisdiction

Updated: 09 July 2022; Ref: scu.248385

BBC Worldwide Ltd v Bee Load Ltd (T/A Archangel Ltd.): ComC 8 Feb 2007

The parties had contracted for the exploitation of recordings of live music performances held by the claimant. Summary judgment was sought.
Held: Where, as here, the court was already in possession of all the evidence which might be presented at a full trial, that was one factor in favour of considering a summary disposition.
Toulson LJ said: ‘This raises the question how the court should proceed where the issue raised is a pure point of construction which can be as well determined on a summary application as on a full trial (or a trial of preliminary issues), because it will not be affected by evidence. It seems to me that if at the end of the argument the court comes to a clear view as to the correct construction, the court has jurisdiction to grant summary judgment under CPR 24.2 on the basis that a trial would have no realistic prospect of causing it to reach a different judgment.’

Judges:

Toulson LJ

Citations:

[2007] EWHC 134 (Comm)

Links:

Bailii

Cited by:

Cited – Kingerlee Holdings Ltd v Dunelm (Soft Furnishings) Ltd ChD 21-Jan-2013
There had been an agreement for a lease of a property on a commercial estate yet to be built. The parties disagreed when the tenant was to be obliged to take the lease. The proposed landlord sought summary judgment.
Held: The court had all the . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 09 July 2022; Ref: scu.248398

Cutter v Powell: KBD 9 Jun 1795

The plaintiff’s estate sought payment from the employer who had agreed to pay the deceased thirty pounds for an entire voyage. The plaintiff died part way through the voyage. The estate argued for payment on a quantum meruit.
Held: The court found there was no standard custom and practice. The contract was for an entire service. It was a condition precedent for payment that that service be completed. It had not been, and no payment was due. Ashurst J said: ‘This is a written contract, and it speaks for itself. And as it is entire, and as the defendant’s promise depends on a condition precedent to be performed by the other party, the condition must be performed before the other party is entitled to receive any thing under it. It has been argued however that the plaintiff may now recover on a quantum meruit: but she has no right to desert the agreement; for wherever there is an express contract the parties must be guided by it; and one party cannot relinquish or abide by it as it may suit his advantage.’

Citations:

[1795] EWHC KB J13, [1795] EngR 4125, (1795) 6 TR 320, (1795) 101 ER 573

Links:

Bailii, Commonlii

Jurisdiction:

England and Wales

Contract, Employment

Updated: 09 July 2022; Ref: scu.248375

Paradine v Jane: KBD 26 Mar 1647

The defendant tenant had had his house occupied by an invading army and he sought to be excused from paying rent.
Held: ‘where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him. As in the case of waste, if a house be destroyed by tempest, or by enemies, the lessee is excused.’ and ‘when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.’
The performance of absolute promises is not excused by supervening impossibility of performance.

Citations:

[1647] EWHC KB J5, (1647) Aleyn 26, [1658] EngR 486, (1658) Sty 47, (1658) 82 ER 519 (C)

Links:

Bailii, Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Taylor and Another v Caldwell and Another QBD 6-May-1863
The defendants had agreed to hire a hall to give four concerts, but it burned down before they were to start.
Held: Blackburn J said: ‘where, from the nature of the contract, it appears that the parties must from the beginning have known that . .
Cited – National Carriers Ltd v Panalpina (Northern) Ltd HL 11-Dec-1980
No Frustration of Lease through loss of access
The tenant’s access to the premises was closed by the local authority because it passed by a derelict and dangerous building. The tenant argued that its tenancy was frustrated.
Held: The lease was not frustrated. The lease had a term of ten . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract

Updated: 09 July 2022; Ref: scu.248369

Rowallan Group Ltd v Edgehill Portfolio No 1 Ltd: ChD 19 Jan 2007

When striking out a claim for rectification of a contract on the basis of a unilateral mistake: ‘the remedy of rectification for unilateral mistake is a drastic remedy, for it has the result of imposing on the defendant to the claim a contract which he did not, and did not intend to, make. Accordingly the conditions for the grant of such relief must be strictly satisfied.’

Judges:

Lightman J

Citations:

[2007] EWHC 32 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Connolly Ltd v Bellway Homes Ltd ChD 23-Apr-2007
The claimant sought rectification of a contract for the sale of land, or damages in deceit. They said that it had been agreed that the price would be adjusted to reflect any change in values. The formula inserted made no great sense mathematically, . .
Cited – Connolly Ltd v Bellway Homes Ltd ChD 23-Apr-2007
The claimant sought rectification of a contract for the sale of land, or damages in deceit. They said that it had been agreed that the price would be adjusted to reflect any change in values. The formula inserted made no great sense mathematically, . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 09 July 2022; Ref: scu.248253

Post Office Ltd v Castleton: QBD 22 Jan 2007

The defendant ran a post office. A cash shortage was found, and he challenged the calculation of the account.
Held: The defendant was liable for the deficit in law. He had shown no sufficient reason to make the court think the calculations were wrong, and the defence failed.

Judges:

Richard Havery QC

Citations:

[2007] EWHC 5 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Shaw v Picton 1825
Bayley J: ‘It is quite clear, that if an agent (employed to receive money, and bound by his duty to his principal from time to time to communicate to him whether the money is received or not,) renders an account from time to time which contains a . .
Cited – Camillo Tank Steamship Company Limited v Alexandria Engineering Works 1921
Viscount Cave (dissenting on other points) said: ‘The expression ‘account stated’ . . has more than one meaning. It sometimes means a claim to payment made by one party and admitted by the other to be correct. An account stated in this sense is no . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 09 July 2022; Ref: scu.247969

Yewbelle Ltd v London Green Developments Ltd, Knightsbridge Green Limited: ChD 8 Dec 2006

The court considered what were the obligations undertaken by a party contracting to use reasonable endeavours.
Held: The question is one of substance, not form, to be determined objectively. Lewison J said: ‘the essence of the obligation required Yewbelle to use reasonable endeavours to reach an agreement, not with the other party to the contract, but with a third party. To that extent it seems to me that at the very least Phillips is a useful analogy. In using reasonable endeavours towards that end, I do not consider that Yewbelle was required to sacrifice its own commercial interests.
I come back to the question: for how long must the seller continue to use reasonable endeavours to achieve the desired result? In his opening address, Mr Morgan said that the obligation to use reasonable endeavours requires you to go on using endeavours until the point is reached when all reasonable endeavours have been exhausted. You would simply be repeating yourself to go through the same matters again. I am prepared to accept this formulation, subject to the qualification that account must be taken of events as they unfold, including extraordinary events.’

Judges:

Mr Justice Lewison

Citations:

[2006] EWHC 3166 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Rhodia International Holdings Ltd. Rhodia UK Ltd v Huntsman International Llc ComC 21-Feb-2007
The parties contracted for the sale of a chemical surfactants business.The claimant had contracted to use reasonable endeavours to obtain the consent of a third party for the assignment a a contract to supply energy to the business. The defendant . .
Cited – Irwin v Wilson and Others ChD 23-Feb-2011
The claimant sought a declaration that his contract for the sale of leasehold property to the defendants had been lawfully terminated by a letter from his solicitors. The defendants had moved in before completion, but the claimant found himself . .
Appeal from – Yewbelle Ltd v London Green Developments Ltd and Another CA 23-May-2007
The parties had entered into a contract for the development of land. Two circumstances operated to make it difficult or impossible, and the court was asked whether the contract was frustrated. The vendor was obliged to use all reasonable endeavours . .
Cited – Venture North Sea Gas Ltd v Nuon Exploration and Production UK Ltd Comc 10-Feb-2010
Application for specific performance of contract. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 July 2022; Ref: scu.246976

Pankhania and Another v Hackney and Another: ChD 2 Aug 2002

The claimant sought damages alleging misrepresentation of land sold at auction.

Judges:

Rex Tedd QC J

Citations:

[2002] EWHC 2441 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Contract, Land, Torts – Other

Updated: 08 July 2022; Ref: scu.246960

The Mahkutai: PC 24 Apr 1996

(Hong Kong) The question was whether shipowners, who were not parties to the bill of lading contract between the charterers and carriers on the one part, and the cargo-owners, the bill of lading being a charterer’s bill, could enforce against the cargo-owners an exclusive jurisdiction clause contained in that contract.
Held: Ship owners may not rely on an exclusive jurisdiction clause in a charterer’s contract. They could not because the Himalaya clause in the bill of lading, which extended the benefit of all ‘exceptions, limitations, provision, conditions and liberties herein benefiting the carrier’ to ‘servants, agents and subcontractors of the carrier’ did not include the exclusive jurisdiction clause because an exclusive jurisdiction clause is a mutual agreement and does not benefit only one party. Rather the rights conferred entail correlative obligations. A contract (and in particular a Himalaya clause) must be construed to give commercial effect if possible.

Judges:

Lord Goff of Chieveley

Citations:

Times 24-Apr-1996, [1996] AC 650, [1996] 3 WLR 1

Jurisdiction:

England and Wales

Citing:

Cited – New Zealand Shipping Co Ltd v A M Satterthwaite and Co Ltd (The Eurymedon) PC 25-Feb-1974
The Board considered the extent to which an exclusion clause in a bill of lading could be relied on by the third party stevedore, an independent contractor employed by the carrier, who was sued by the consignees of goods for negligently damaging the . .

Cited by:

Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Cited – Borkan General Trading Ltd v Monsoon Trading Ltd CA 8-Jul-2003
A contract for a tug expressly provided a benefit for a third party. He now sought to claim benefit under it.
Held: If, in the absence of a trust in his favour a third party for whose benefit a contract had expressly been made, could not take . .
Cited – Nisshin Shipping Co Ltd v Cleaves and Company Ltd and others ComC 7-Nov-2003
One party sought a declaration that arbitrators should have no jurisdiction to determine claims for commission said to be due to the Respondent chartering brokers.
Held: Because he has in effect become a statutory assignee of the promisee’s . .
Lists of cited by and citing cases may be incomplete.

Transport, Jurisdiction, Contract, Arbitration

Updated: 08 July 2022; Ref: scu.89834