Category: Contract

Hotgroup v RBS: 2010

Judges:

Charles Hollander QC

Citations:

[2010] EWHC 1241

Jurisdiction:

England and Wales

Cited by:

Cited – BDW Trading Ltd v Opticlife Ltd ChD 29-Jul-2010
The seller of some apartments sought a declaration that it had correctly forfeited a deposit paid to it after the buyer defendant failed to comply with a completion notice. The defendant said that the calimant was itself in repudiatory breach, and . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 08 July 2022; Ref: scu.424202

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 accepted as a hazard of late redelivery that the vessel would miss her cancellation date for the next fixture. This was the kind of result which the parties would have had in mind. Rapid variations in market rates in either direction were market knowledge and the kind of loss, the need, on account of delay in redelivery, to adjust the dates for the subsequent employment of the vessel with a reduction in the previously agreed rate of hire, was within the contemplation of the parties as a not unlikely result of the breach.

Judges:

Christopher Clarke J

Citations:

[2006] EWHC 3030 (Comm), [2007] 1 Lloyd’s Rep 19, [2007] 1 All ER (Comm) 379, [2006] 2 CLC 1069

Links:

Bailii

Citing:

Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
Cited – Meyer v Sanderson 1913
The charterer had sent out the vessel on a further voyage even on the day when the charter was to come to an end. The owner sought damages.
Held: The charterers were ordered to ‘pay for the use of the steamer on that last voyage at the rate . .
Cited – The Peonia CA 1991
The ship had been returned beyond the charter date. The court was asked whether, when the vessel was sent on a legitimate last voyage but, through no fault of the charterers, was then redelivered after the final terminal date, the owners were . .
Cited – Watson Steamship Co v Merryweather and Co 1913
The vessel owners sought damages when the ship was redelivered 20 days late by the charterers. The special case as pleaded was ‘A claim was made by the owners for damages for dislocation of business and other special damage, but there was no . .
Cited – Christopher Hill Ltd v Ashington Piggeries Ltd CA 1969
The buyer suppied a food formula to a food mixer and claimed damages when the food mix injured his mink. The defendant argued that the level of damages sought exceeded that expectations of the parties when the contract was entered into.
Held: . .
Cited – London and Overseas Freighters v Timber Shipping Co SA ‘The London Explorer’ HL 1972
The London Explorer was under a charter where the hire was ‘to continue until the hour of the day of her redelivery’. The charterers redelivered the ship about 3 months late because, although she had set out on a legitimate last voyage, she had been . .
Cited – Christopher Hill Ltd v Ashington Piggeries Ltd HL 1972
Mink farmers had asked a compounder of animal foods to make up mink food to a supplied formula.
Held: There was reliance as to the suitability of the ingredients only.
Lord Diplock said: ‘Unless the Sale of Goods Act 1893 is to be allowed . .
Cited – The Black Falcon 1991
The ship under charter was returned late. The arbitrators had awarded the market rate of hire from the date when the vessel would have been delivered if she had not undertaken her last (illegitimate) voyage rather than from the last date when she . .
Cited – The Dione 1975
Charterers should have redelivered the vessel by a certain date but failed to do so.
Held: They were held liable in damages for the difference between the market and charterparty rate for the overrun period. Lord Denning said that where the . .
Cited – The Johnny 1977
Where a charterer had overrun his time, and faced a claim for damages, under the provisions of the amended Baltime form, the market rate should be assessed by reference to the market rate for 11-13 month charters (the period of the charterparty) as . .
Cited – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) ChD 1991
The ship was returned late from a charter. The court was asked whether or not the legitimacy of the last voyage fell to be established at the date when the order was given or at the time when the last voyage began.
Held: It was the second: . .
Cited – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) CA 4-Jun-1993
The ship was returned by the charterer after the expiry of the time charter. The court was asked as to when the validity of the last order was to be tested.
Held: The legitimacy of the charterer’s final order was to be tested at the date it . .
Cited – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) HL 28-Oct-1994
In a continuing charter when it was clear that the time of the charter will be exceeded, the contract allows an action for an anticipatory breach. Any new redelivery order was to be obtained after after it first became impossible to meet the charter . .
Cited – Victoria Laundry (Windsor) Ltd v Newman Industries CA 1949
The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses . .
Cited – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Cited – H Parsons (Livestock) Limited v Uttley Ingham and C. Limited CA 1978
The defendants had installed a pig nut hopper for the plaintiffs, but failed to provide adequate ventilation, causing the nuts to go sour, and the pigs to be poisoned.
Held: Remoteness of damage is a question of law. The death of the pigs . .
Cited – Kpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Cited – Brown v KMR Services Ltd CA 26-Jul-1995
Allied Maples had made a corporate takeover of assets and businesses within the Gillow group of companies, during which it was negligently advised by the defendant solicitors in relation to seeking protection against contingent liabilities of . .
Cited – The Rio Claro 1987
For a loss arising from a breach of contract to be recoverable, Staughton J said: ‘It must be such as the contract breaker should reasonably have contemplated as not unlikely to result. To that direction must be added the point that the precise . .
Cited – The ‘Pegase’ 1981
The court considered the measure of damages for breach of contract in the light of the cases in the Heron II and Victoria Laundry: ‘the principle in Hadley v Baxendale is now no longer stated in terms of two rules, but rather in terms of a single . .
Cited – British Columbia, etc. Saw Mills Co. Ltd v Nettleship 1868
Willes J said: ‘the mere fact of knowledge cannot increase the liability. The knowledge must be brought home to the party sought to be charged under such circumstances that he must know that the person he contracts with reasonably believes that he . .
Cited – Atlantic Shipping and Trading Co v Louis Dreyfus and Co HL 1921
Lord Dunedin said: ‘My Lords in these commercial cases it is I think of the highest importance that authorities should not be disturbed and if your lordships find that a certain doctrine has been laid down in former cases and presumably acted upon . .
Cited – The ‘Nukila’ CA 1987
Hobhouse LJ said: ‘Turning to the authorities it must at the outset be recognised that, whether or not they are strictly binding on us, they must, insofar as they represent the existing authoritative statements of the law only be departed from if . .
Cited – R and H Hall Ltd v WH Pim Junr and Co Ltd HL 1928
Pim sold a cargo of wheat to Hall at 51s 9d a quarter. Hall had agreed to sell a similar cargo to Williams at 56s 9d a quarter, and Williams to sell again Suzuki at 59s 3d a quarter. Pim bought a cargo of wheat on board the ‘S.S. Indianic’ at 60s a . .
Cited – Slater v Hoyle and Smith Ltd 1920
Cotton cloth was sold. The buyer was to use it to fulfil his own contract with a sub-buyer. The cloth was not of the contractual quality but the buyer was able to perform the sub-contract by delivering the same cloth. The sub-buyers paid the full . .
Cited – Bence Graphics International Ltd v Fasson UK Ltd CA 24-Oct-1996
Bench sold vinyl film to Fasson for decals to identify sea-borne bulk containers. A term required the film to be legible condition for at least five years. Fasson sold them to container manufacturers who supplied the containers marked with the . .
Cited – Koch Marine Inc v D’Amica Societa Di Navigazione ARL (The Elena d’Amico) QBD 1980
The ship owners wrongfully repudiated a charterparty in March 1973, 14 months after its inception. The charterers did not hire a substitute but claimed damages for the loss of profits they would have made between January and April 1974, during which . .
Cited – Louis Dreyfus Trading Ltd v Reliance Trading Ltd 2004
LD sold 7kmt sugar to R, C and FFO Banjul at $257.43 per mt. Shipment was ‘per m.v. Dawn currently discharging at Banjul’. An associate of R had already sold 5kmt to B at $290 per mt, for which the sugar was bought. LD knew of the resale and . .

Cited by:

Appeal from – 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. . .
At first instance – 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.

Transport, Contract, Damages

Updated: 08 July 2022; Ref: scu.246737

Manning v Stylianou: CA 26 Oct 2006

Where an appeal is against a judge’s evaluation of the facts, the Court of Appeal should consider the evaluation in the same way it would approach an appeal against the exercise of discretion.

Judges:

Waller LJ

Citations:

[2006] EWCA Civ 1655

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Datec Electronics Holdings Ltd and others v United Parcels Services Ltd HL 16-May-2007
The defendants had taken on the delivery of a quantity of the claimant’s computers. The equipment reached one depot, but then was lost or stolen. The parties disputed whether the Convention rules applied. UPS said that the claimant had agreed that . .
Cited – Whitehead v Bruce and Others CA 21-Mar-2013
The three defendants each appealed against apportionment of liability for serious personal injuries incurred in a road traffic accident. The first defendant a motor cycle driver, with the claimant his pillion passenger took suddent action to evade a . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 08 July 2022; Ref: scu.246760

Commerzbank Ag v Keen: CA 17 Nov 2006

The bank had sought summary dismissal of a claim for non-payment of bonuses to the claimant a former employee, and now appealed refusal of its request for summary dismissal, saying that the claim had no prospect of success. The claimant said that though the payments were discretionary, it was an implied term that the bank would not exercise that discretion irrationally.
Held: The bank had not established the basis for its decisions to award less than the sums recommended. Before trial the court’s task was to see only whether there might exist a limit on law on the bank’s discretion.
Mummery LJ said: ‘The employment relationship contains implied duties which do not normally feature in commercial contracts sued on by business men in the Commercial Court or in the exercise of public law discretions challenged by citizens in the Administrative Court. Employment is a personal relationship. Its dynamics differ significantly from those of business deals and of State treatment of its citizens. In general there is an implied mutual duty of trust and confidence between employer and employee. Thus it is the duty on the part of an employer to preserve the trust and confidence which an employee should have in him. This affects, or should affect, the way in which an employer normally treats his employee ‘ and the employer should supply information as to how it had chosen to exercise its discretion. However the claims based upon irrationality faced insurmountable difficulties. The discretion was widely set, and the absence of evidence affected also the claimants assertions. As to a later bonus claimed after he left but in relation to an earlier year, the claimant said the clause allowing the bank not to make payment was unfair under the 1977 Act. The judge had been wrong to think that such issues were best raised at trial. They were ones of construction. The court did not accept that a term for payment of a bonus could fall within the 1977 Act, because the employee did not in this respect deal with his employer as a consumer, and nor were the terms of the employment contract the standard terms of business of the defendant in its banking operations: ‘ An employee does not deal with an employer as a consumer. A bank’s business is not entering into contracts of employment with its employees.’ (Moses LJ)

Judges:

Mummery, Jacobs, Moses LJJ

Citations:

[2006] EWCA Civ 1536, [2007] IRLR 132, [2006] 2 CLC 844, [2007] ICR 623

Links:

Bailii

Statutes:

Unfair Contract Terms Act 1977

Jurisdiction:

England and Wales

Citing:

Cited – Clark v BET plc 1997
The court considered the assessment of damages in a wrongful dismissal case.
Held: A simple discretion whether to award a bonus must not be exercised capriciously by an employer. . .
Cited – Clark v Nomura International plc 2000
clark_nomura2000
Mr Clark was dismissed on three months’ notice and, although he was paid his basic salary for that period and was still in employment at the date for payment of the annual bonus, he was not paid a bonus. He had earned substantial profits for the . .
Cited – Cantor Fitzgerald International v Horkulak CA 14-Oct-2004
The employee claimed under a bonus clause which ‘contained in a contract of employment in a high earning and competitive activity in which the payment of discretionary bonuses is part of the remuneration structure of employers.’
Held: The . .
Cited – Timeload Ltd v British Telecommunications plc CA 1995
British Telecommunications Plc provided its own directory service. BT was licenced as a public telecommunications operator requiring it to provide telephone services on request to anyone who sought them without discrimination. The claimant wanted to . .
Cited – Chapman v Aberdeen Construction Group 1991
It having been conceded that contracts of service fell within section 15 of the 1977 Act, the court found that the question whether the contract was a consumer contract depended on the circumstances. Though the employee pursuer was to be regarded as . .
Cited – Brigden v American Express Bank Ltd 2000
A clause providing that the employer could dismiss an employee in the first two years of employment without implementing the disciplinary procedure was not void under the 1977 Act. Section 3 extended to contracts of employment and although the . .
Cited – Giovanni Mallone v BPB Industries Plc CA 19-Feb-2002
The claimant was a director of the respondent. On his dismissal, his share options were cancelled. He claimed this was in breach of his rights under the scheme. The company appealed a finding that they were so in breach. The scheme distinguished . .
Cited – Peninsula Business Services Limited v J Sweeney EAT 20-Feb-2003
A commission arrangement, which required the employee to be in the employment of the employer on the date when the commissions would normally have been paid, was not a contract term within section 3(2)(b) of the 1977 Act.
Keen v Commerzbank AG ComC 7-Apr-2006
. .

Cited by:

Cited – Khatri v Cooperatieve Centrale Raiffeisen-Boerenleenbank Ba CA 23-Apr-2010
The claimant appealed against refusal of summary judgment on his claim for payment of a discretionary employment bonus by the defendant.
Held: The appeal succeeded and summary judgment was given. The contract properly construed did give rise . .
Cited – Dresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .
Cited – Braganza v BP Shipping Ltd SC 18-Mar-2015
The claimant’s husband had been lost from the defendant’s ship at sea. The defendant had contracted to pay compensation unless the loss was by suicide. They so determined. The court was now asked whether that was a permissible conclusion in the . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 08 July 2022; Ref: scu.246069

Elisa Maria Mostaza Claro v Centro Movil Milenium SL: ECJ 26 Oct 2006

ECJ Directive 93/13/EEC – Unfair terms in consumer contracts – Failure to raise the unfair nature of a term during arbitration proceedings – Possibility of raising that objection in the context of an action brought against the arbitration award.

Citations:

C-168/05, [2006] EUECJ C-168/05, [2006] ECR I-10421, [2007] Bus LR 60, [2007] CEC 290, [2007] 1 CMLR 22

Links:

Bailii

Cited by:

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

European, Consumer, Contract

Updated: 08 July 2022; Ref: scu.245656

Fiona Trust and Holding Corp and others v Privalov and others: ComC 20 Oct 2006

The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The arbitrator does not have jurisdiction to decide this issue; the court alone does. Nor was there no overlap between what the claims of a routine nature involve and the issue of bribery. Also issues as to jurisdiction were for the court not for the arbitrator. In this case the claimants had a good case for saying they had a right to elect to rescind the contract, and had exercised that right timeously. There was also sufficient circumstantial evidence to justify the joining of further defendants as requested.

Judges:

Morison J

Citations:

[2006] EWHC 2583 (Comm), [2007] 1 All ER (Comm) 81

Links:

Bailii

Statutes:

Arbitration Act 1996 72(1)(a)

Jurisdiction:

England and Wales

Citing:

Cited – Fillite (Runcorn) Ltd v Aqua-Lift CA 1989
The court considered whether claims arising from misrepresentation or breach of a collateral contrat were claims arising ‘under’ the contract so as to be governed by the disputes provisions in it.
Held: The disputes did not arise ‘under the . .
Cited – Aggeliki Charis Compania Maritima SA v Pagnan SpA The Angelic Grace QBD 1994
The court considered whether a claim for a collision between two ships was governed by an arbitration clause which read ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying . .
Cited – Aggeliki Charis Compania Maritima SA v Pagnan SpA – The Angelic Grace CA 1995
On the charterers’ orders the Angelic Grace was required to tie up alongside another vessel which they owned. Whilst unloading the weather turned and the vessels collided. Each blamed the other and the owners claimed a salvage. The court considered . .
Cited – Chimimport Plc v G d’Alesio SAS 1994
The phrase ‘arising under’ in a clause referring matters to arbitration is narrower than ‘arising out of’ and the court doubted whether a tortious claim could easily give rise to a dispute ‘under the contract’. . .
Cited – Ashville Investments Ltd v Elmer Contractors Ltd CA 1987
A clause in the contract refered to arbitration: ‘any dispute or difference as to the construction of this contract or as to any matter or thing of whatsoever nature arising thereunder or in connection therewith.’
Held: The court should adopt . .
Cited – Aggeliki Charis Compania Maritima SA v Pagnan SpA The Angelic Grace QBD 1994
The court considered whether a claim for a collision between two ships was governed by an arbitration clause which read ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying . .
Cited – Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Ltd CA 7-Apr-1993
An action was brought by re-insurers for a declaration that reinsurance policies were void for illegality, and that the plaintiffs were not liable under them. The illegality alleged was that the defendants were not registered or approved to carry on . .
Approved – Ahmad Al-Naimi (T/a Buildmaster Construction Services) v Islamic Press Agency Incorporated CA 28-Jan-2000
The court has an inherent power to stay proceedings. The court could refer a matter to arbitration where there was an arbitration clause, but could also do so under its inherent discretion, where this was not quite clear, but it was clear that good . .
Cited – Newbigging v Adam CA 1886
A party seeking rescission of a contract must give back all that he received. The purpose of rescission is still to restore the parties as nearly as possible to the position in which they were before the contract was made. Bowen LJ said: ‘when you . .
Cited – Vee Networks Limited v Econet Wireless International Limited QBD 14-Dec-2004
The court considered a complaint that the arbitration award was faulty or lack of jurisdiction under the agreement founding it. . .
Cited – Logicrose Ltd v Southend United Football Club Ltd CA 5-Feb-1988
The agent required the contractual counterparty to pay a bribe of pounds 70,000 to an offshore account.
Held: The bribe was held to be recoverable by the principal whether the principal rescinded or affirmed the contract because it was a . .
Cited – Clough v London and North Western Railway Co 1871
When considering an application for rescission the court must ask whether the representee has elected to affirm the contract, elected to rescind the contract or made no election. Mellor J said: ‘In such cases the question is, has the person on whom . .
Cited – O’Sullivan v Management Agency and Music Limited CA 1985
The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the . .
Cited – Senanayake v Cheng PC 1966
A representee, to whom a fraudulent misrepresentation had been made was ‘entitled to make all inquiries and to endeavour to learn all the facts.’
In a claim for rescission in equity for innocent misrepresentation, the questions are ‘whether . .
Cited – Armstrong v Jackson 1917
Rescission was available to a defrauded principal even where the contract had been fully performed. . .
Cited – B v Chief Constable of Avon and Somerset Constabulary QBD 5-Apr-2000
The defendant appealed the making of a sex offender order under 1998 Act. The justices had found that the defendant was a sex offender within section 2(1)(a) and that he had acted on a number of occasions in a way which brought him within section . .
Cited – Sphere Drake Insurance Ltd and Another v Euro International Underwriting Ltd ComC 8-Jul-2003
Relationships between Lloyds underwiters and others in the market rather than just names, could also bind the underwriter to a fiduciary relationship. Here the claimant had granted to the defendant a binding authority. This was in effect a similar . .
See Also – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.

Cited by:

At first instance – Premium Nafta Products Ltd (20th Defendant) and others v Fili Shipping Company Ltd and others; Fiona Trust and Holding Corporation v Privalov HL 17-Oct-2007
The owners of a ship sought to rescind charters saying that they had been procured by bribery.
Held: A claim to rescind a contract by reason of bribery fell within the scope of an arbitration clause under which the parties had agreed to refer . .
Appeal from – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
See Also – Fiona Trust Holding Corporation and others v Privalov and others ComC 19-Jan-2007
. .
See Also – Fiona Trust Holding Corp and others v Privalov and others ComC 21-May-2007
Allegations were made of different varieties of fraud. Applications were made for freezing orders. . .
See Also – Fiona Trust and Holding Corporation and others v Privalov and others ComC 22-Jul-2008
. .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 08 July 2022; Ref: scu.245438

Whitehead Mann Ltd v Cheverny Consulting Ltd: CA 11 Oct 2006

Citations:

[2006] EWCA Civ 1303

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Grant v Bragg ChD 22-Jan-2009
The parties disputed whether they had a contract for the sale and purchase of shares.
Held: The parties had reached agreement, but both anticipated that this would be concluded by formal contracts. An email accepted the outstanding disputed . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 July 2022; Ref: scu.245272

Couturier and others v Hastie and Another: HL 26 Jun 1856

Action for recovery of value of cargo lost at sea.

Citations:

[1856] UKHL J3, 10 ER 1065, [1856] EngR 713, (1856) 5 HLC 673, (1856) 10 ER 1065

Links:

Bailii, Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Couturier And Others v Hastie And Others 26-Jun-1852
Action for recovery of cargo lost at sea. . .
See Also – Hastie And Others v Couturier And Others 25-Jun-1853
. .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 07 July 2022; Ref: scu.244567

Maggs (T/A BM Builders) v Marsh and Another: CA 7 Jul 2006

Judges:

Smith, Moses, Hallett LJJ

Citations:

[2006] EWCA Civ 1058

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Bradley and Another v Heslin and Another ChD 9-Oct-2014
The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 July 2022; Ref: scu.244470

Balmoral Group Ltd v Borealis [UK] Ltd and others: ComC 25 Jul 2006

The claimants manufactured and sold storage tanks. They sought substantial damages after chemical materials purchased from the defendants to help bond the tanks failed.

Judges:

Christopher Clarke J

Citations:

[2006] EWHC 1900 (Comm), [2006] 2 CLC 220, [2006] 2 Lloyd’s Rep 629

Links:

Bailii

Statutes:

Unfair Contract Terms Act 1977, Sale of Goods Act 1979 14(2) 14(3)

Jurisdiction:

England and Wales

Cited by:

Main Judgment – Balmoral Group Ltd. v Borealis (UK) Ltd and others ComC 17-Oct-2006
Whether losing party should pay costs on standard or on indemnity basis.
Held: Something had to have occurred to take the case outside the norm. . .
See Also – Balmoral Group Ltd v Borealis (UK) Ltd and others ComC 23-Aug-2006
Whether court had jurisdiction to hear application for permission to appeal. Clarke J said: ‘the rules provide for the lower court to be able to grant permission at the hearing at which the decision to be appealed was made. On the facts of this . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 July 2022; Ref: scu.244013

Chelsea and Walham Green Building Society v Armstrong: 1951

Mrs Brooks and Mr Armstrong entered into a deed transferring property from her to him, with provisions about a mortgage in favour of the building society to which the property was subject. The building society was not a party to the deed. Mr Brooks expressly covenanted with the building society that he would repay the mortgage debt then owed by Mrs Brooks. The society sued Mr Brooks claiming that it could enforce that covenant against him notwithstanding that it (the building society) was not a party to the deed.
Held: The society could enforce the covenant: ‘the document is in form much more analogous to a deed poll. It may be more accurately stated as a deed not inter partes, although it is not strictly a deed poll.’ It was not necessary to take account of everything in the whole document, because the whole document included a transfer from Mrs Brooks to Mr Armstrong. As respects that part of the document it undoubtedly a deed inter partes. The court took account of the part of the deed upon which the building society wished to rely despite not being a party to it. As respects that part the document was not a deed inter partes, and it followed that the building society could sue upon to enforce the promise which had been made to it.’

Judges:

Vaisey J

Citations:

[1951] 1 Ch 853

Jurisdiction:

England and Wales

Cited by:

Cited – Moody and Another v Condor Insurance Ltd and Another ChD 3-Feb-2006
The claimants sought to enforce a deed of guarantee. The defendants argued that the claimant had no entitlement to enforce the deed, not being parties to it, and that they would be able to set aside the deed as against the company whose debts they . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 July 2022; Ref: scu.238871

Advanced Industrial Technology Corporation Ltd v Bond Street Jewellers Ltd: CA 4 Jul 2006

The claimant left a valuable necklace with the defendant jewellers for sale. The jewellers fell into financial difficulties, and the director gave the necklace as security for a loan to the company. The jeweller failed to maintain payments on the loan and went into insolvency. Action was now brought against the director personally.
Held: The claimant was entitled to summary judgment. The judge had failed properly to analyse the evidence.

Citations:

[2006] EWCA Civ 923

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Rex v Barnard 1837
A buyer dressed as a member of the University to persuade the seller to give him credit.
Held: Active non verbal conduct can amount to deceit just as much as words can. . .
Cited – Richardson v Silvester 1873
An advertisement was placed in the press offering a farm house to let when the advertiser had no authority to let it.
Held: The action gave rise to an action in deceit founded on the implied representation that he did have authority.
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
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 – The Singer Manufacturing Company v Clark 1880
In the case of an ordinary pledge there is an implied undertaking on the part of the pledgor that the property pledged is his own or that he has the authority of the owner to pledge it, and that it may safely be delivered back to him. . .
Cited – Gluckstein v Barnes; Re Olympia Ltd, ex parte Gluckstein HL 1900
Directors’ hidden profits disclosable
Promoters of a company had acquired a property intending its resale through the sale of shares in the company. In doing so the original directors made a substantial profit which they did not disclose (though it was discoverable). The company became . .
Cited – Brownlie v Campbell; Brownlie v Miller HL 1880
Silence where there is a duty to speak, may amount to a misrepresentation. Lord Blackburn said: ‘where there is a duty or an obligation to speak, and a man in breach of that duty or obligation holds his tongue and does not speak, and does not say . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 July 2022; Ref: scu.242975

Shinedean Ltd v Alldown Demolition (London) Ltd and Another: CA 20 Jun 2006

The second defendant insurers appealed a finding of liability, saying that the insured had failed to provide its documents within a reasonable time in order to meet a condition to that effect in its terms. The documents had not been provided for more than two and a half years, but the judge held that this had not prejudiced the insurers.
Held: The insurer’s appeal succeeded. What consituted a reasonable time for the furnishing of documents to support a claim was a matter of fact in each case. The delay was clearly unreasonable, and there was no general rule of law that a lack of prejudice to the insurer was a sufficient excuse. In any event the insurer had suffered possible prejudice, by for example being unable to decide whether to take conduct of the action. May LJ: ‘On the one hand, it is commonplace that if you have to judge what is a reasonable time you take all relevant circumstances into account. Why then is not eventual prejudice to the insurer a relevant circumstance? On the other hand, there are other considerations than just whether eventually there is prejudice. Insurers are entitled to have co-operation and relevant information in good time to be able to assess that potential liability and to take appropriate action. Appropriate action could, importantly in some cases, including deciding to take control of the defence of the case. ‘

Judges:

Sir Anthony Clarke MR, May LJ, Gage LJ

Citations:

[2006] EWCA Civ 939, Times 26-Jul-2006

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Shinedean Ltd v Alldown Demolition (London) Ltd and Another TCC 28-Oct-2005
. .
Cited – Welch v Royal Exchange Assurance CA 1938
The court was asked whether compliance with a clause in the insurance contract was a condition precedent. There was also a question whether the insured could rely on facts arising after the making of their claim.
Held: If a clause does not set . .
Cited – George Hunt Cranes Ltd v Scottish Boiler and General Insurance Co Ltd CA 2002
Provisions in a policy which are stated to be conditions precedent should not be treated as a mere formality which is to be evaded at the cost of a forced and unnatural construction of the words used in the policy. They should be construed fairly to . .
Cited – Barrett Bros (Taxis) Ltd v Davies Lickiss and Milestone Motor Policies at Lloyd’s, Third Parties CA 1966
The court was asked whether notice had in substance been properly given by an insured so as to allow a claim to be made under an insurance policy. The County Court judge held that there had been a breach of condition and that the insurers were . .
Cited – Diab v Regent Insurance Company Ltd PC 19-Jun-2006
(Belize) The appellant’s premises were destroyed by fire. The insurer respondents refused payment, saying that the claimant had delayed notification, had stored ammunition, and had started the fire himself.
Held: Lord Scott referered to his . .
Cited – Pioneer Concrete (UK) Ltd v National Employers Mutual General Insurance Association Ltd 1985
The case concerned the construction of a policy containing terms requiring the insured to notify the insurers ‘immediately’ if he had knowledge of any accident, claim or proceedings.
Held: In any case where an insurer is entitled to rely on . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 07 July 2022; Ref: scu.242973

Esso Petroleum Limited v Commissioners of Customs and Excise: HL 10 Dec 1975

The company set up a scheme to promote their petrol sales. They distributed coins showing the heads of members of the English football team for the 1970 World Cup. One coin was given with each for gallons of petrol. The Commissioners said that the coins were part of the consideration for the sale and were chargeable to purchase tax.
Held: The coins were not taxable since they had not been ‘produced for general sale’. The advertising material invited motorists to undertake to purchase four gallons of petrol, on which they would be given a coin. The coins having no intrinsic value, the parties were not to be interpreted as creating legal relations as to this part of the arrangement (Wilberforce and Simon dissenting).

Judges:

Lord Wilberforce, Viscount Dilhorne, Lord Siomon of Glaisdale, Lord Fraser of Tullybelton, Lord Russell of killowen

Citations:

[1975] UKHL 4, [1976] 3 All ER 117, [1976] 1 WLR 1

Links:

Bailii

Statutes:

Purchase Tax Act 1963

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
Cited – Edwards v Skyways Ltd QBD 1964
There had been a negotiation between representatives of the British Airline Pilots Association and the airline company regarding pension rights of pilots who were made redundant. The company contended that the representation made by it in the course . .
Cited – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Unilateral Contract Liability
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘pounds 100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .
Cited – Balfour v Balfour CA 1919
Mr Balfour had set out in an apparently formal legal way, an agreement to give his wife pounds 30 a month by way of maintenance while he was away in Ceylon. Mrs Balfour sought to enforce the agreement.
Held: Within a family there is a . .
Cited – Heilbut Symons and Co v Buckleton HL 11-Nov-1912
In an action of damages for fraudulent misrepresentation and breach of warranty, the plaintiff founded on a conversation between himself and the defendants’ representative. In this conversation the plaintiff said-‘I understand that you are bringing . .
Cited – Taylor v Smetton 1883
The defendant was accused of running an unlicensed lottery. He sold tea packets. With each tea packet he gave away a ticket allotting a prize to the purchaser. The prizes varied in value, and the purchaser would not know what he would receive until . .
Cited – Bulpitt and Sons Ltd v S Bellman and Sons Ltd 1961
The defendant was subject to an injunction not to sell goods below a certain price. He sought to evade it by giving away with the goods, vouchers entitling th eshopper to other goods at a significant value.
Held: The device failed. . .
Cited – Scott and Co Ltd v W Solomon 1905
The defendants sold tea packets, giving away at the same time coupons entitling the purchaser to claim different articles from the vendor including silver plate. It was argued that there had been an unlicensed sale of the silver plate.
Held: . .
Lists of cited by and citing cases may be incomplete.

Contract, Taxes – Other

Updated: 07 July 2022; Ref: scu.242892

Halton International Inc Another v Guernroy Ltd: CA 27 Jun 2006

The parties had been involved in investing in an airline to secure its future, but it was now said that one party had broken the shareholders’ or voting agreement in not allowing further investments on a pari passu basis. The defendants argued that the claim was out of time unless the claimant could bring the case within section 21 of the 1980 Act.
Held: The appeal failed. The property was held as trustee, and the exception to the limitation period applied.
‘Section 21(1) provides an exception to the ordinary limitation rule that civil actions are barred after six years. Such an exception needs to be clearly justified by reference to the statutory language and the policy behind it. It is important therefore to keep in mind the reasoning behind the exception. It is not about culpability as such; fraud may not be sufficient to avoid the ordinary rule.[1] It is about deemed possession: the fiction that the possession of a property by a trustee is treated from the outset as that of the beneficiary. In the words of Millett LJ, the possession of the trustee is ‘taken from the first for and on behalf of the beneficiaries’ and is ‘consequently treated as the possession of the beneficiaries’. An action by the beneficiary to recover that property is not time-barred, because in legal theory it has been in his possession throughout.’

Judges:

Sir Andrew Morritt Ch, Lord Justice Tuckey, Lord Justice Carnwath

Citations:

[2006] WTLR 1241, [2006] EWCA Civ 801

Links:

Bailii

Statutes:

Limitation Act 1980 21(1)

Jurisdiction:

England and Wales

Citing:

Appeal From – Halton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .
Cited – Keech v Sandford ChD 1726
Trustee’s Renewed Lease also Within Trust
A landlord refused to renew a lease to a trustee for the benefit of a minor. The trustee then took a new lease for his own benefit. The new lease had not formed part of the original trust property; the minor could not have acquired the new lease . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – JJ Harrison (Properties) Ltd v Harrison CA 11-Oct-2001
A director had bought land belonging to the company, without disclosing its development potential.
Held: He had acquired the property as a constructive trustee for the company, and was accordingly accountable for it. . .
Cited – Taylor v Davies PC 19-Dec-1919
(Ontario) An assignee for the benefit of creditors conveyed mortgaged property to the mortgagee in satisfaction of part of the debt due to him. The mortgagee was also one of the inspectors required by the Canadian legislation to supervise the . .
Cited – Clarkson and Another v Davies and Others PC 23-Oct-1922
Ontario – Discussing the Taylor case, the Board said: ‘ . . it was there laid down that there is a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arise only by reason of that transaction.’ . .
Cited – Clarkson v Davies PC 1923
In a case involving fraud, referring to Taylor v Davies, Lord Justice Clerk said that: ‘it was there laid down that there is a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arises only by . .
Cited – Regal (Hastings) Ltd v Gulliver HL 20-Feb-1942
Directors Liability for Actions Ouside the Company
Regal negotiated for the purchase of two cinemas in Hastings. There were five directors on the board, including Mr Gulliver, the chairman. Regal incorporated a subsidiary, Hastings Amalgamated Cinemas Ltd, with a share capital of 5,000 pounds. There . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .

Cited by:

Cited – Williams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Lists of cited by and citing cases may be incomplete.

Company, Contract, Limitation

Updated: 07 July 2022; Ref: scu.242876

Thomas v Sorrell: KBD 1674

The plaintiff said that the defendant had sold wine without paying a license fee as required under a statute creating the Company of Vintners.
Held: Vaughan CJ said: ‘every act a man is naturally enabled to do, is in it self equally good, as any other act he is so enabled to do. And so all the schoolmen agree, that actus qua actus non est malus. And that men’s acts are good or bad only as they are precepted or prohibited by a law, according to that truth, where there is no law there is no transgression. Whence it follows, that every malum is in truth a malum prohibitum by some law.’ and
‘A dispensation or license properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful. As a license to go beyond the seas, to hunt in a man’s park, to come into his house, are only actions which, without license, had been unlawful. But a license to hunt in a man’s park, and carry away the deer killed to his own use; to cut down a tree in a man’s ground, and to carry it away the next day after to his own use, are licenses as to the acts of hunting and cutting down the tree, but as to the carrying away of the deer killed and tree cut down, they are grants. So, to license a man to eat my meat, or to fire the wood in my chimney to warm him by, as to the actions of eating, firing my wood, and warming him, they are licenses; but it is consequent necessarily to those actions that my property may be destroyed in the meat eaten, and in the wood burnt. So as in some cases, by consequent and not directly, and as its effect, a dispensation or license may destroy and alter property.’
Vaughan CJ said: ‘And note, if a man have particular damage by a foundrous way, he is generally without remedy, though the nusance is to be punisht by the King. The reason is, because a foundrous way, a decay’d bridge, or the like, are commonly to be repaired by some township, vill, hamlet, or a county who are not corporate, and therefore no action lyes against them for a particular damage, but their neglects are to be presented, and they punish’d by fine to the King.
But if a particular person, or body corporate, be to repair a certain highway, or portion of it, or a bridge, and a man is endamaged particularly by the foundrousness of the way, or decay of the bridge, he may have his action against the person or body corporate, who ought to repair for his damage, because he can bring his action against them; but where there is no person against whom to bring his action, it is as if a man be damaged by one that cannot be known.’

Judges:

Vaughan CJ

Citations:

(1674) Vaughan 330, [1673] EWHC KB J85, 124 ER 1098-1113

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kaisha v Green Cartridge Company (Hong Kong) Limited PC 30-Apr-1997
(Hong Kong) The claimants complained of the sale by the defendants of refilled cartridges for use with their printers.
Held: The spare cartridge manufacturer’s appeal failed: ‘repair is by definition something which does not amount to the . .
Approved – Wood v Leadbitter ExcC 22-Feb-1845
The plaintiff complained of being assaulted. He had been on Doncaster Race Course with a ticket. The owner’s servant requested him to leave, and when he refused gently laid his hands on the plaintiff to remove him. The plaintiff said that his . .
Cited – IDC Group Ltd v Clark CA 2-Jul-1992
The court was asked: ‘whether a deed made between adjoining owners and expressed to ‘grant licence’ to the owners and occupiers for the time being of one property to pass over parts of the other in case of fire operated as the grant of an easement . .
Lists of cited by and citing cases may be incomplete.

Contract, Licensing, Constitutional, Land

Updated: 06 July 2022; Ref: scu.242421

Northstar Land Limited v Maitland Brooks Jacqueline Brooks: CA 14 Jun 2006

The parties’ solicitors were to complete the sale and purchase of land. The purchaser asked for an extension of time beyond the appointed hour to complete. The vendor’s solicitor responded that he would take his client’s instructions. The purchaser said this amounted to an estoppel despite the absence of any explicit promise that the time would be extended. The court was asked also as to whether a solicitor could make a payment from uncleared funds, and what was the latest time for completion in a day.
Held: No estoppel arose. The vendor’s solicitor had made no promise to provide an answer and was under no obligation to provide one. The judge had been correct to hold that completion had to take place by the close of the working day, and not at midnight, and that payment could only take place using cleared funds.

Judges:

Ward LJ, Smith LJ, Cresswell LJ

Citations:

[2006] EWCA Civ 756, Times 17-Jul-2006

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Legione v Hateley 1982
(High Court of Australia) Purchasers of land were put on notice that unless they paid the price by 10th August the contract of sale would be rescinded. On 9th August the purchasers’ solicitor telephoned the vendor’s solicitors and spoke to the . .
Cited – Reardon Smith Line Ltd v Minister of Agriculture, Fisheries and Food HL 1963
Lord Devlin said: ‘If I employ a builder to repair my dwelling-house and he agrees to complete the work within six days or pay a penalty, that does not mean that he can keep me awake by working from midnight to midnight in order to finish the job. . .
Lists of cited by and citing cases may be incomplete.

Contract, Estoppel, Legal Professions

Updated: 06 July 2022; Ref: scu.242520

Wiltshire County Council v Crest Estates Ltd and others: CA 5 Aug 2005

Citations:

[2005] EWCA Civ 1059

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Wiltshire County Council v Crest Estates Ltd. and others CA 5-Aug-2005
The builders had agreed as part of the planning process to indemnify the council against all claims incidental to the carrying out of the works for which permission was given. The council had to compulsorily purchase land, and sought repayment from . .
Lists of cited by and citing cases may be incomplete.

Contract, Construction

Updated: 06 July 2022; Ref: scu.229214

The State of Mauritius and Another v The (Mauritius) Ct Power Ltd and Others: PC 10 Jun 2019

(Mauritius) Issues regarding the interaction of private law and public law in relation to the negotiation of a commercial contract for the implementation of a project for the construction of a new electricity generating plant for Mauritius at Pointe aux Caves in the districts of Black River and Port Louis.

Judges:

Lord Reed, Lord Kerr, Lady Black, Lord Briggs, Lord Sales

Citations:

[2019] UKPC 27

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 06 July 2022; Ref: scu.638485

Sasco Foods UK Ltd and Another v Sanpya Shwe Ngar Company Ltd and Another: QBD 6 Jun 2019

Appeal against Master Davison’s decision giving summary judgment to the First Claimant against the First Defendant on the issue of liability, imposing a condition on the continued defence of payment into court of the full amount of the claim plus interest, and refusing the Second Defendant’s cross application for summary judgment in the claim against her under a guarantee/indemnity.

Judges:

Mrs Justice Cheema-Grubb DBE

Citations:

[2019] EWHC 1390 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 06 July 2022; Ref: scu.638450

Francis and Another v Vista Del Mar Development Ltd: PC 8 Apr 2019

(From the Court of Appeal of the Cayman Islands) ‘When one person gives another (the option holder) a conditional option to buy her land, the option holder will be entitled to exercise the option when the conditions for exercising it are fulfilled by following any procedural requirements set by the terms of the option. A new contract then arises between the parties and their relationship changes from one of option giver and option holder to one of vendor and purchaser. This appeal concerns the consequences for their relationship, in the context of proceedings for specific performance, if the option holder delays in exercising her option rights or in enforcing her rights under that new contract to which exercise of the option has given rise. ‘

Judges:

Lord Reed, Lord Carnwath, Lady Black, Lady Arden, Lord Kitchin

Citations:

[2019] UKPC 14

Links:

Bailii

Jurisdiction:

Commonwealth

Contract, Land, Equity

Updated: 06 July 2022; Ref: scu.638472

Jamal v Moolla Dawood, Sons and Co: PC 3 Nov 1915

The plaintiff claimed damages from the buyer for his failure to accept shares contracted to be taken on a particular date. Two months after that date the sellers began to re-sell the shares on a rising market.
Held: Damages for breach of contract such as a contract of sale are normally to be assessed as at the date of the breach. The profit accruing should not be deducted from the damages for non-acceptance.
Lord Wrenbury said: ‘The seller’s loss at the date of the breach was and remained the difference between contract price and market price at that date. When the buyer committed this breach the seller remained entitled to the shares, and became entitled to damages such as the law allows. The first of these two properties, namely, the shares, he kept for a time and subsequently sold them in a rising market. His pocket received benefit, but his loss at the date of the breach remained unaffected.’

Judges:

Lord Wrenbury

Citations:

[1916] 1 AC 175, [1915] UKPC 51

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – R Pagnan and Fratelli v Corbisa Industrial Agropacuaria Limitada CA 1970
Corbisa sold maize to Pagnan on cif terms, with extensions, the shipment period ended on 22 August 1965. The sellers failed to ship in time. On 21 September 1965 the parties met and the buyers agreed to accept a consignment on a named vessel if . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Bunge Sa v Nidera Bv SC 1-Jul-2015
The court considered the effect of the default clause in a standard form of contract which is widely used in the grain trade. On 10 June 2010 the respondents, Nidera BV, whom I shall call ‘the buyers’, entered into a contract with the appellants, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 July 2022; Ref: scu.242131

Felthouse v Bindley: QBD 8 Jul 1862

(Court of Common Pleas) An offeror cannot erect a contract between himself and the offeree by the device of stating that unless he hears from the offeree he will consider the offeree bound. He cannot assert that he will regard silence as acceptance: ‘If I hear no more I shall consider the horse mine’ was not effective to create a contract.

Judges:

Willes J, Byles J, Keating J

Citations:

[1862] EWHC QB J35, [1862] EWHC CP J35, [1862] EngR 931, (1862) 11 CB NS 869, (1862) 142 ER 1037

Links:

Bailii, Bailii, Commonlii

Jurisdiction:

England and Wales

Torts – Other, Contract

Updated: 06 July 2022; Ref: scu.241590

The David Roberts Art Foundation Ltd v Riedweg: ChD 6 Jun 2019

The defendant had failed to complete on land purchase from the Vendor. The contract came to be rescinded, but the defendant objected to forfeiture of the deposit paid, saying that the Charity had failed to comply with its statutory obligations as regards land sales.
Held: The claimant’s request for summary judgment was refused.

Judges:

March CM

Citations:

[2019] EWHC 1358 (Ch)

Links:

Bailii

Statutes:

Charities Act 2011 117 119

Jurisdiction:

England and Wales

Land, Contract

Updated: 06 July 2022; Ref: scu.638270

Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd: CA 6 Apr 2006

Moore-Bick LJ discussed whether the court should give effect to a non-reliance clause in a contract saying: ‘It is common to include in certain kinds of contracts an express acknowledgement by each of the parties that they have not been induced to enter the contract by any representations other than those contained in the contract itself. The effectiveness of a clause of that kind may be challenged on the grounds that the contract as a whole, including the clause in question, can be avoided if in fact one or other party was induced to enter into it by misrepresentation. However, I can see no reason in principle why it should not be possible for parties to reach an agreement to give up any right to assert that they were induced to enter into it by misrepresentation, provided that they make their intentions clear, or why a clause of that kind, if properly drafted, should not give rise to a contractual estoppel of the kind recognised in Colchester Borough Council v Smith. However, that particular question does not arise in this case. A clause of that kind may (depending on its terms) also be capable of giving rise to an estoppel by representation if the necessary elements can be established: see E A Grimstead and Son v McGarrigan (CA) 27 October 1999, unreported.’

Judges:

Mr Justice Lawrence Collins, Lord Justice Chadwick, Lord Justice Moore-Bick

Citations:

[2006] EWCA Civ 386, [2006] 2 Lloyds Rep 511, [2006] 1 CLC 582

Links:

Bailii

Statutes:

Misrepresentation Act 1967 2(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Peekay Intermark Ltd and Another v Australia and New Zealand Banking Group Ltd ComC 25-May-2005
The claimant alleged mis-selling of an emerging markets investment product. The defendant claimed that whilst there might have been a misrepresentation, by the time the contract was formed, correct information had been provided and incorporated in . .
Cited – E A Grimstead and Son Ltd v McGarrigan CA 27-Oct-1999
The court considered the effect of an acknowledgement of non-reliance clause: ‘There are, as it seems to me, at least two good reasons why the courts should not refuse to give effect to an acknowledgement of non-reliance in a commercial contract . .

Cited by:

Cited – Ahmed v Landstone Leisure Ltd ChD 30-Jan-2009
The claimant appealed against a refusal to set aside a statutory demand. He had given a cheque at a land auction, and it had bounced on his instructions, saying that the property had been misrepresented.
Held: The auctioneer had specifically . .
Cited – Ahmed v Landstone Leisure Ltd ChD 30-Jan-2009
The claimant appealed against a refusal to set aside a statutory demand. He had given a cheque at a land auction, and it had bounced on his instructions, saying that the property had been misrepresented.
Held: The auctioneer had specifically . .
Cited – Morgan and Another v Pooley and Another QBD 7-Oct-2010
The claimants had bought a property from the defendants and now sought damages in misrepresentation saying that the defendants had failed to disclose a planning application for an adjacent farm as regards a track bordering the property.
Held: . .
Cited – AJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .
Cited – Wright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd ChD 6-Mar-2018
IVA is a special form of contract
Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Contract

Updated: 05 July 2022; Ref: scu.240107

Euro London Appointments Ltd v Claessens International Ltd: CA 6 Apr 2006

The court considered whether a clause in an employment agency’s terms and conditions amounted to a penalty and was unenforceable. The contract provided that if the offer was withdrawn by the eventual employer after acceptance but before the employment was taken up, the customer was to pay one third of the annual fee.
Held: The issue was whether a term which was only a condition precedent triggering a further clause could be seen as a penalty. It could not. In this case, the sum at issue could not be a penalty since it did not operate in substitution for a claim in damages for a breach, but related to a payment or repayment of fees.

Judges:

Mr Justice Lawrence Collins Lord Justice Chadwick Lord Justice Moore-Bick

Citations:

Times 02-Jun-2006, [2006] EWCA Civ 385, [2006] 2 Lloyd’s Rep 436

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
Cited – In re Apex Supply Co Ltd 1942
A hire purchase agreement provided that if the hirer should go into liquidation, and the owner should retake possession, the hirer would pay a sum by way of compensation for depreciation.
Held: The provision for the payment of compensation was . .
Cited – Philip Bernstein (Successors) Ltd v Lydiate Textiles Ltd; orse Sterling Industrial Facilities v Lydiate Textiles Ltd CA 26-Jun-1962
Lord Justice Diplock: ‘. . the ordinary rule which the courts apply is that contracts should be enforced, pacta sunt servanda, unless they can be brought within that limited category of cases in which, for reasons of public policy, the court refuses . .
Cited – Lordsvale Finance Plc v Bank of Zambia QBD 20-Mar-1996
The court looked at a facility agreement opened by a bank in favour of the defendant which provided that in the event of default the defendant should pay interest during the period of default at an aggregate rate equal to the cost to the bank of . .
Cited – Export Credits Guarantee Department v Universal Oil Products HL 1983
A contract provided for the payment of a stated sum by one party to the contract (A) to the other party (B) in the event of the non-performance by A of one of more contractual obligations owed by A not to B himself but to C, who was not a party to . .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – Murray v Leisureplay Plc QBD 5-Aug-2004
The claimant sought payment of three years’ salary after termination of his service contract. He said that an agreement had been made by the company to purchase a ‘financial institution’, which would trigger the additional payments. The defendants . .
Cited – Cine Bes Filmcilik Ve Yapimcilik and Another v United International Pictures and Others CA 21-Nov-2003
The parties entered into agreements licensing the exclusive distribution of encrypted television channels within Turkey. A clause provided a calculation of damages for a breach amounting to the balance of licence fees due, and other penalties, . .

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 July 2022; Ref: scu.240100

Kyle Bay Ltd (T/A Astons Nightclub) v Underwriters Subscribing Under Policy No. 019057/08/01: ComC 29 Mar 2006

The court was asked whether the Claimants were entitled on the grounds of mistake and misrepresentation to re-open an insurance claim which they compromised with the Defendant underwriters. The claimant said that the it had taken out with the defendant was ‘declaration-linked’, and was not therefore subject to average, whereas the settlement of the business interruption component of its insurance claim following a fire was based on the common mistaken assumption and/or a misrepresentation by the defendant. That assumption or misrepresentation was to the effect that the Policy was not declaration-linked, but was on the ‘gross profits basis’ and was accordingly subject to average. As a result, the claimant agreed with, and received from, the defendant the Settlement figure of some andpound;205,500, whereas, on the basis that the Policy was declaration-linked, the claimant should have received some andpound;100,000 more.
Held: the action failed. The claimant was held to its agreement. The court rejected the claimant’s contention that it should not be bound by the Settlement, or that it should be allowed to reopen the Settlement, based on the argument that the Settlement agreement was liable to be set aside on the ground that both the claimant and the defendant were negotiating under a common mistake as to a fact fundamental to the Settlement, or on the ground that the defendant had negligently misrepresented to the claimant a fact fundamental to the Settlement, namely that the Policy was not declaration-linked, whereas, in fact, it was.

Judges:

Jonathan Hirst QC DJ

Citations:

[2006] EWHC 607 (Comm), [2006] Lloyd’s Rep IR 718

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Kyle Bay Ltd (T/A Astons Nightclub) v Underwriters CA 7-Feb-2007
The claimant had been insured under a business interruption insurance policy issued by the respondent defendaants. A claim had arisen, and had been settled, but the caimant said that the parties had mistaken the basis of the policy and had settled . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 05 July 2022; Ref: scu.239805

Stora Enso Oyj v Port of Dundee: OHCS 8 Mar 2006

Two consignments were destroyed by a fire in the defendaers warehouse. The defender asserted that the pursuer had no title to the goods because under the ‘CIP’ contract, title had passed already to the consignee.
Held: The 1979 Act provided that title and risk passed when the parties agreed. The term ‘Carriage and Insurance Paid’ in Incoterms 2000 meant that the seller paid the cost of carriage so far as the named destination, and that thereafter the buyer bore all costs and risks. The endorsement on the contract of a term from Incoterms 2000 was not effective to incorporate those terms. It was merely a shorthand for what had been agreed to be included in the price. In this case the intention of the parties was that title and risk would not pass until payment. The pursuer could sue.

Judges:

Lord Clarke

Citations:

[2006] ScotCS CSOH – 40, Times 11-Apr-2006

Links:

Bailii

Statutes:

Sale of Goods Act 1979 17 20

Jurisdiction:

Scotland

Citing:

Cited – Albacruz (Cargo Owners) v Albazero ‘The Albazero’ HL 1977
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 July 2022; Ref: scu.239629

Hubbard v Middlebridge Scimitar Ltd: 27 Jul 1990

The plaintiff had contracted to sell a vintage Bentley racing car ‘Old Number One’ for andpound;10 million pounds. The buyer came to suspect its authenticity and refused to complete. The plaintiff sought specific performance.
Held: During the course of its life any such car would have alterations and replacements made, and by 1930, only one or two parts of the original would remain. Included was a radiator on which had been inscribed a list of the car’s racing successes. Even so, there was a continuous history of the car through the various events and repairs. The claim succeeded. Adopting the criteria suggested the car was the Old Number One: ‘The plaintiff has faithfully, sympathetically and accurately restored it to its last known racing form, i.e. the form it was in Brooklands in 1932 when it crashed. There has been no break in its historic continuity from the time when it first emerged from the racing shop in 1929 until today.’

Judges:

Otton J

Citations:

[1990] EWHC 1 (QB)

Links:

Bailii

Cited by:

Cited – Lloyd v Svenby QBD 27-Feb-2006
The two claimants sought title to a car registration plate and to a chassis number. They were to be applied to historic racing cars.
Held: The power to assign registration marks lay with the Secretary of State. Any legal rights rested not with . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 July 2022; Ref: scu.238748

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 company to repay its own indebtedness and there is a genuine commercial justification it must also equally be lawful to the company to assist that repayment by providing security’.

Judges:

Peter Smith J

Citations:

[2006] EWHC 258 (Ch)

Links:

Bailii

Statutes:

Companies Act 1985

Jurisdiction:

England and Wales

Citing:

Cited – Gradwell (PTY) v Rostra Printers Ltd 1959
(South Africa) An offer was made of andpound;42,000 for the shares and the loan account that was then outstanding to the parent company less amounts owed to lenders on first mortgages. An analysis showed that andpound;40,258 was owed on the loan . .
Cited – Chaston v SWP Group Plc CA 20-Dec-2002
The ‘general mischief’ of Section 151 was to stop the resources of the target company and its subsidiaries being used directly or indirectly to assist the purchase financially to make the acquisition. The reason for this is that it might prejudice . .
Cited – Armour Hick Northern Ltd v Whitehouse; Armour Trust Ltd ChD 1980
A vendor company was assisted by financial assistance given by a subsidiary.
Held: The use of money by a company to repay its existing indebtedness would not normally fall within the concept of the company giving financial assistance to . .
Cited – Charterhouse Investment Trust Ltd v Tempest Diesels Ltd ChD 1986
When looking at transactions challenged under the Act, the court must look to the ‘commercial realities’ of what had taken place. ‘There is no definition of giving financial assistance in the Section although some examples are given. The words have . .
Cited – In re Wellington Publishing Company Ltd 1973
(New Zealand) The company a target of a takeover raised money (including by raising a loan on security of the company’s assets). Those were then used to declare lawful dividends which were then declared to the takeover shareholder.
Held: 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 . .

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

Company, Contract

Updated: 05 July 2022; Ref: scu.238708

Parsons Corporation and others v CV Scheepvaartonderneming “Happy Ranger”: ComC 9 Feb 2006

A large cylinder part was damaged as it was being loaded on board the Happy Ranger in Italy. A hook on the crane was brittle and did not meet the approriate specification. It had not been tested as required.

Judges:

Mrs Justice Gloster DBE

Citations:

[2006] EWHC 122 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – W. Angliss v Peninsular and Oriental Steam Navigation Co 1927
Wright J held: ‘The Carriage of Goods by Sea Acts have introduced a new and obligatory code of responsibilities and immunities as affecting carriers under bills of lading in place of the former rule that carriers by sea, while generally under the . .
Cited – Northern Shipping Company v Deutsche Seereederei Gmbh and others (‘The Kapitan Sakharov’) CA 3-Mar-2000
A carrier: (a) should not be exposed to an infinite liability in time; and (b) is not, without more, liable for latent defects in a vessel before it acquired it. The relevant failure to exercise due diligence must relate to the performance of a . .
Cited – Riverstone Meat Co Pty Ltd v Lancashire Shipping Co (‘The Muncaster Castle’) HL 1961
Persons employed by a carrier in the work of keeping or making a vessel seaworthy are the carrier’s agents whose diligence or lack of it is attributable to the carrier. A shipowner’s or carrier’s duty under Article III, Rule 1 would not start and he . .
Lists of cited by and citing cases may be incomplete.

Contract, Negligence, Transport

Updated: 05 July 2022; Ref: scu.238654

Redwell Investments Ltd v 1-3 Cuba Street Ltd: CA 14 Dec 2005

Lord Justice Chadwick considered what was meant by actual completion: ‘I accept, of course, that there is no absolute rule that completion takes place when title is transferred . . We were referred to no case in which it has been held that completion did not take place until some time after title had been transferred. The question has to be answered on the facts of each case; construing the language which the parties have used in their agreement in the light of the facts known to them (or which they must be taken to have known) at the time.’

Judges:

Lord Justice Chadwick

Citations:

[2005] EWCA Civ 1799

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kalatara Holdings Ltd v Benedict Thomas Andersen and Another Chd 25-Jan-2008
The claimant sought specific performance of a contract to buy land from the defendant. The defendant sought summary dismissal of the claim and forfeiture of the deposit. It had been intended that the property would be ‘rolled over’ on a sub-sale. . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 05 July 2022; Ref: scu.238645

Proforce Recruit Ltd v The Rugby Group Ltd: CA 17 Feb 2006

The parties to a contract disputed the meaning of the phrase ‘preferred supplier status’ in a service cleaning agreement. The Court was asked whether an otherwise unarguable case on construction could be saved from being struck out by reference to the meaning that it was alleged that the parties had in their negotiations placed on that phrase.
Held: the appeal against a strike out was allowed. It might be appropriate to construe the phrase in the light of the parties negotiations.
Mummery LJ said: ‘Also, as stated in Chitty on Contracts, evidence of facts about which the parties were negotiating is admissible to explain what meaning was intended and evidence of what the parties said in negotiations is admissible to show that the parties negotiated on an agreed basis that the words used bore a particular meaning.’

Judges:

Mummery LJ

Citations:

[2006] EWCA Civ 69

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Partenreedesei Karen Oltmann v Scarsdale Shipping Co Ltd (The Karen Oltmann) 1976
The parties disputed the application of the word ‘after’ in a break-clause in a charter party which provided that ‘Charterers to have the option to redeliver the vessel after 12 months’ trading subject giving 3 months’ notice’. By their negotiations . .
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 . .

Cited by:

Cited – Chartbrook Ltd v Persimmon Homes Ltd and Another ChD 2-Mar-2007
The claimants had entered into an agreement with the defendant house-builder for the development of a site which the claimants had recently acquired. The structure of the agreement was that the developer would obtain planning permission and, under . .
Cited – Great Hill Equity Partners Ii Lp v Novator One Lp and others ComC 22-May-2007
The parties disputed whether oral statements had been incorporated into an option agreement.
Held: Evidence of negotiations before the written contract was signed were inadmissible, because it is only on the signing of the first document that . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 July 2022; Ref: scu.238560

WWF-World Wide Fund for Nature and Another v World Wrestling Federation Entertainment Inc: ChD 16 Feb 2006

Judges:

Peter Smith J

Citations:

[2006] EWHC 184 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Tilling v Whiteman HL 1980
Lord Scarman said: ‘Preliminary points of law are too often treacherous short cuts. Their price can be, as here, delay, anxiety and expense.’
Lord Wilberforce said: ‘The judge took what has turned out to be an unfortunate course. Instead of . .
See Also – WWF – World Wide Fund for Nature (Formerly World Wildlife Fund); World Wildlife Fund Inc v World Wrestling Federation Entertainment Inc CA 27-Feb-2002
The claimant sought enforcement of a contract restricting the use by the appellant defendant of the initials ‘WWF’ in their trading. The agreement had been reached in settlement of an action for breach of the claimant’s trade mark rights. The . .
See Also – World Wide Fund for Nature (Formerly World Wildlife Fund), World Wildlife Fund Incorporated v World Wrestling Federation Entertainment Incorporated – Intervener Jakks Pacific Llc CA 27-Mar-2003
. .

Cited by:

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

Damages, Contract

Updated: 05 July 2022; Ref: scu.238543

Dalkia Utilities Services Plc v Celtech International Ltd: ComC 27 Jan 2006

The Court was asked to decide (i) which, if either, of the two parties to a 15 year agreement lawfully terminated it; (ii) whether, if one of them did so, it was by giving notice under a contractual termination clause or by way of acceptance of the repudiation of the contract by the other party, or both; and (iii) whether a notice of termination pursuant to a particular clause of the contract may, also, serve as an acceptance of a repudiation by the other party or may, if the notice was invalid and there was no such repudiation, itself, be a repudiation.
Held: Christopher Clarke J observed: ‘a) Equity, before the Judicature Acts, insisted that prima facie time for payment was not essential. But Equity’s patience was exhaustible. It would allow the contract to be treated as repudiated if the party in default had been given the opportunity to mend his ways by the giving of a notice to comply within a reasonable time. Whilst this is described as making time of the essence in reality the notice is the means of bringing to an end equity’s interference with the contract: Behzadi v Shaftesbury Hotels Ltd [1992] Ch 1
b) Such a notice, which may be given in respect of any species of term, may not be served until the time for performance has expired; but it may be served as soon as that time arrives;
c) Such a notice must state clearly what the other party is required to do and the consequence if he fails i.e. that the contract may be terminated; Afovos Shipping Co SA v Pagnan[1982] 1 Lloyd’s Rep562, 565 col 2; [1982] 1 WLR 848, 854C;
d) If the defaulting party fails to perform after service of such a notice, the failure is not automatically a repudiation of the contract, giving rise to a right to terminate. The breach must go to the root of the contract;
e) The notice operates as evidence of the date by which the promisee considers it reasonable to require the contract to be performed, failure to perform by which is evidence of an intention not to perform: see Lord Simon of Glaisdale in United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904, 946E-947A; Astea (UK) Ltd v Time Group Ltd [2003] EWHC 725 (TCC) para 147.’

Judges:

Christopher Clarke J

Citations:

[2006] EWHC 63 (Comm), [2006] 1 Lloyd’s Rep 599, [2006] 1 LLR 599, [2006] 2 P and CR 9

Links:

Bailii

Citing:

Cited – Hobson v Gorringe CA 1897
The intention of the parties in affixing an object to land is only relevant to the extent that it can be derived from the degree and object of the annexation: ‘the intention of the parties as to the ownership of the chattel fixed to the land is only . .
See Also – Celtech International Limited v Dalkia Utilities Services Plc ChD 12-Feb-2004
. .
Cited – Behzadi v Shaftsbury Hotels CA 1992
The court must distinguish between an open contract such as Green v Sevin where no date for completion is fixed by the contract and the more normal case where a completion date is fixed but time is not of the essence of the date specified. In the . .

Cited by:

Judgement – Dalkia Utilities Services Plc v Celtech International Ltd (No. 2) ComC 2-Feb-2006
. .
Cited – Stocznia Gdynia Sa v Gearbulk Holdings Ltd CA 13-Feb-2009
Orders were placed for the construction of ships. They were not delivered. The buyer, the defendant, cancelled the orders. The defendants sought the loss of profit. The claimants said they were entitled only to the repayment of instalments. The . .
Cited – Imageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
Cited – Warren and Another v Burns QBD 13-Nov-2014
The boxing manager and boxer each said that the other owed him money.
Held: The contract entitled the claimant to take some share of the boxers earnings but as part of the overall management fee, but as a part of the overall sum and at a share . .
Lists of cited by and citing cases may be incomplete.

Contract, Land, Equity

Updated: 05 July 2022; Ref: scu.238351

Meretz Investments Nv and Another v ACP Ltd and others: ChD 30 Jan 2006

The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The power was validly exercised. Provided the recovery of the sums for which the security was given were at least part of the motive, additional motives did not vitiate the exercise.
Lewison J held: ‘A dissection of a mortgagee’s motives is likely to be difficult in practice. Moreover, unlike statutory powers conferred for the public benefit, or trustees’ powers conferred for the benefit of beneficiaries (which were two analogies on which [counsel] relied) a mortgagee’s powers are conferred upon him for his own benefit. In such circumstances ‘purity of purpose’ may be difficult to achieve. The cases do support the proposition that a power of sale is improperly exercised if it is no part of the mortgagee’s purpose to recover the debt secured by the mortgage. Where, however, a mortgagee has mixed motives (or purposes) one of which is a genuine purpose of recovering, in whole or in part, the amount secured by the mortgage, then in my judgment his exercise of the power of sale will not be invalidated on that ground. In addition I consider that it is legitimate for a mortgagee to exercise his powers for the purpose of protecting his security.’

Judges:

Lewison J

Citations:

[2006] EWHC 74 (Ch), Times 27-Apr-2006, [2007] Ch 197, [2006] 2 P and CR 23, [2006] 3 All ER 1029, [2006] 6 EGCS 170, [2007] 2 WLR 403

Links:

Bailii

Statutes:

Law of Property Act 1925 104

Jurisdiction:

England and Wales

Citing:

See Also – Meretz Investments Nv v ACP Ltd QBD 27-May-2002
Meretz sued ACP for monies alleged to be due under agreements. . .
Cited – Hoystead v Commissioner of Taxation PC 1926
Lord Shaw: ‘In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different . .
See Also – Channel Hotels and Properties (UK) Ltd v Fahad Al Tamimi and First Penthouse Ltd CA 30-Jul-2004
. .
Cited – Thoday v Thoday CA 1964
The court discussed the difference between issue estoppel, and action estoppel: ‘The particular type of estoppel relied upon by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. The first . .
Cited – Arnold v National Westminster Bank Plc HL 1991
Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
Cited – Republic of India and Others v India Steamship Co Ltd (‘The Indian Endurance and The Indian Grace’) (No 1) HL 29-Mar-1993
Munitions were being carried to Cochin on board the defendants’ vessel. Some was jettisoned in a fire and the remainder was damaged. The cargo owners sought damages in India for short delivery under the bills of lading, as to the jettisoned cargo . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Coflexip S A and Another v Stolt Offshore Ms Ltd and others CA 27-Feb-2004
Proceedings had been brought by a third party in which the patent had been revoked. The Defendant in the first proceedings now sought release from an enquiry as to damages after being found, before the revocation, to have infringed the patent.
Cited – Leeds Industrial Co-operative Society Ltd v Slack HL 1924
The plaintiff complained of a threatened interference with ancient lights.
Held: Damages may be awarded in lieu of an injunction even where the injunction sought is a quia timet injunction, but that power imports a further power to give an . .
Cited – Dexter Ltd v Vlieland-Boddy CA 2003
The court discussed the significance of Johnson v Gore Wood.
Clarke LJ said: ‘The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood and Co [2002] 2 AC 1, can be summarised as follows:
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Gleeson v J Wippell and Co Ltd ChD 1977
The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. ‘Second, it seems to me that the sub-stratum of the doctrine is that a man ought . .
Cited – Downsview Nominees Ltd and Another v First City Corporation Ltd and Another PC 19-Nov-1992
(New Zealand) The holder of a second debenture appointed receivers to the assets. The first debenture holder then also appointed receivers not to obtain repayment of its debt, but to disrupt the work of the first appointed receivers and in order to . .
Cited – Raja v Austin Gray (A Firm) CA 19-Dec-2002
A mortgagee is at all times free to consult his own interests alone as to whether and when to exercise his power of sale. The relationship and duties owed by the receiver are equitable only. Peter Gibson LJ said: ‘(1) A mortgagee with the power of . .
Not followed – Robertson v Norris 1857
A mortgage sale for purposes other than merely to recover payment of the debt was a ‘fraud on a power’. . .
Cited – Nash v Eads CA 1880
Sir George Jessel MR: ‘The mortgagee was not a trustee of the power of sale for the mortgagor, and if he was entitled to exercise the power, the Court could not look into his motives for so doing. If he had a right to sell on June 1, and he then . .
Cited – Belton v Bass CA 1922
The mortgagees of shares in a brewery wanted to a director to be able later to acquire the shares. They could not grant an option. They sold the shares to the director, as mortgagees, and lent the purchase price, interest free. The director could . .
Cited – Ashley Guarantee plc v Zacaria CA 1993
In possession proceedings based on a mortgage debt, the mortgagee’s right to possession of the mortgaged property will not be defeated by a cross-claim of the mortgagor in the absence of some contractual or statutory provision to the contrary. . .
Cited – Farrar v Farrars Ltd CA 1888
The mortgagor of a quarry defaulted, and the mortgagees took possession. They were unable to sell the quarry, but formed a company which bought the quarry at a proper value. The mortgagor sought to set aside the sale.
Held: A mortgagee in . .
Cited – Quennell v Maltby CA 15-Nov-1978
A house was mortgaged to a bank. The house was then let to tenants at an annual rate of pounds 1,000. The tenants were protected as against the mortgagor by the Rent Acts. The tenancy was not binding on the bank. The mortgagor’s wife took a transfer . .
Cited – Palk v Mortgage Services Funding Plc CA 1993
The mortgagees had obtained an Order for possession with the intention, not of proceeding to sell the property but of waiting in the hope that the market might improve. The mortgagor was anxious that the property should be sold so that the proceeds . .
Cited – China and South Sea Bank Limited v Tan Soon Gin PC 1990
A mortgagee’s decision on sale is not constrained by reason of the fact that the exercise or non-exercise of the power will occasion loss or damage to the mortgagor. He can sit back and do nothing. He is not obliged to take steps to realise his . .
Cited – Joseph v Joseph CA 1967
The words in section 38(1) ‘purports to’ means ‘has the effect that’ so that an agreement to give up possession in two years when the lease would still have six years to run infringed section 38 as it would preclude an application or request for a . .
Cited – Mbasogo, President of the State of Equatorial Guinea and others v Logo Ltd and others QBD 21-Sep-2005
The court was asked whether a crime, which was not an actionable tort, constituted unlawful means for the purposes of the tort of conspiracy to injure by unlawful means. . .
Cited – Mainstream Properties Ltd v Young and others CA 13-Jul-2005
The claimant appealed refusal of his claim for inducing a breach of contract against the sixth defendant. It said that an intention to disturb a contract could be inferred.
Held: A mere recklessness as to whether contractual rights were . .
Cited – Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .
Cited – Strover v Harrington 1988
A property was at first wrongly described by the agents as having mains drainage. Correcting information was sent to the buyer’s solicitors by the Agents, but the solicitors did not pass on the correction to their client. The mistake was later . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – Credit and Mercantile Plc v Feliciangela Marks CA 14-May-2004
The defendant had charged her home to the claimant and fallen into arrears. There was a sub-charge executed on the same day in favour of the Bank of Scotland (BOS) under which the claimant agreed to repay to BOS the amount it owed to them.
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – Paragon Finance Plc (Formerly the National Home Loans Corporation Plc) v Pender and Pender ChD 25-Nov-2003
Section 114 of the 1925 Act has no application to Registered Land. It provides for a transfer ‘unless a contrary intention is expressed’ in the mortgage. Thus if section 114 applies, all depends upon the true construction of the mortgage. The power . .
Cited – Michaels and Michaels v Taylor Woodrow Developments Ltd, etc ChD 19-Apr-2000
The respondents sought to strike out the claim for conspiracy and failure to comply with the Act. The respondent was landlord of premises occupied by the claimants. They had served a notice under the Act of their intention to sell.
Held: The . .
Cited – Kuwait Oil Tanker Company SAK and Another v Al Bader and Others CA 18-May-2000
The differences between tortious conspiracies where the underlying acts were either themselves unlawful or not, did not require that the conspiracy claim be merged in the underlying acts where those acts were tortious. A civil conspiracy to injure . .
Cited – Deakin, JDeakin v Corbett, Corbett, Halifax Plc CA 18-Dec-2002
The home owners requested the setting aside of the sale of their house after a re-possession, alleging impropriety, and that it had been sold at an undervalue. The respondent society had a rule that properties taken into possession could not be . .
Cited – Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd and Others HL 23-Jan-2001
The claimant took out insurance on its fleet of ships (the Star Sea). It had been laid up in its off season. The ship’s safety certificates were renewed before it sailed. It was damaged by fire. The insurers asserted that the ship had been . .

Cited by:

See Also – Meretz Investments Nv and Another v ACP Ltd and others ChD 14-Nov-2007
The parties disputed the success of a sale by a mortgagee in possession of various properties. The parties disputed the apportionment of costs.
Held: The appeal failed. Where there is no express agreement concerning the division of costs, a . .
Appeal from – Meretz Investments Nv and Another v ACP Ltd and others CA 11-Dec-2007
The claimant alleged that when exercising its power of sale under a mortgage over its land, the mortgagee had done so in order to override the claimant’s intention of granting a sub-lease, and that this was a tortious intention to induce a breach of . .
Cited – The Co-Operative Bank Plc v Phillips ChD 21-Aug-2014
The bank had brought possession proceedings against the defendant under two legal charges securing personal guarantees. The proceedings had been abandoned, but the court now was asked whether costs for the defendant should be on the standard or . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 05 July 2022; Ref: scu.238210

Assi v Dina Foods Ltd: QBD 20 May 2005

Citations:

[2005] EWHC 1099 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Stilk v Myrick KBD 16-Dec-1809
No Obligation Incurred without Consideration
The plaintiff agreed to sail with the defendant on a voyage being paid pounds 5.00 a month. Two crew deserted and the captain asked the remainder to do their work sharing the wages saved. The plaintiff sought the additional sum above the articled . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 July 2022; Ref: scu.228161

The Kelo: 1985

A notice of assignment of a debt under the section need not be by deed.

Citations:

[1985] 2 Lloyd’s Rep 85

Statutes:

Law of Property Act 1925 136

Jurisdiction:

England and Wales

Cited by:

Cited – Firstdale Ltd v Quinton ComC 5-Aug-2004
In the course of a long dispute, the defendant’s solicitors had indicated that they would accept service of proceedings. Just before the limitation period expired, the papers were served directly in the client. The defendants solicitors said that . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 July 2022; Ref: scu.219113

Castaneda v Clydebank Engineering and Shipbuilding Co Ltd: HL 28 Jul 1902

In 1896 a contract to build four torpedo boat destroyers for the Spanish navy was entered into between A, Chief, and B, Commissary of the Spanish Royal Naval Commission, London, ‘both in the name and representation of his Excellency the Spanish Minister of Marine in Madrid, hereinafter called the Spanish Government,’ and a Scottish shipbuilding company. The contract provided that it was to have no legal power until ratified by the Spanish Government. The contract was duly ratified by the Spanish Government. In 1900, D, then Spanish Minister of Marine at Madrid, but who was not Minister of Marine at the date of the contract; E, then chief of the said Spanish Royal Naval Commission, London; F, the Commissary of the same; and the said Spanish Royal Naval Commission, raised an action against the shipbuilding company for breach of the contract of 1896, upon the ground that the torpedo boat destroyers had not been delivered within the time specified in the contract, and that loss and damage had been sustained by the Spanish Government owing to the delay. The pursuers averred that both in making and enforcing contracts relating to war vessels the Government of Spain was by the law of Spain represented by the Minister of Marine.
Held ( rev. judgment of the Second Division, and restoring judgment of Lord Low, Ordinary) that the Minister of Marine for the time being had a good title to sue the action.

Judges:

Lord Chancellor (Halsbury) and Lords Macnaghten, Brampton, Robertson, and Lindley

Citations:

[1902] UKHL 855, 39 SLR 855

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 05 July 2022; Ref: scu.630799

Aviva Insurance Ltd v Hackney Empire Ltd: CA 19 Dec 2012

This appeal concerns a bond given to secure the performance of a construction contract. The bondsman appeals against a decision that it remains liable under the bond, despite the fact that the employer paid to the contractor additional sums which were not due under the contract. There are also issues concerning the extent of the bondsman’s liability; these issues turn upon the meaning and effect of the termination provisions in the construction contract.

Judges:

Sir John Thomas P, Moses, Jackson LJJ

Citations:

[2012] EWCA Civ 1716, [2013] 1 EGLR 101, [2013] 2 EG 66, [2013] BLR 57, [2013] WLR(D) 2, [2013] 1 WLR 3400, 146 Con LR 1

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Contract, Construction

Updated: 04 July 2022; Ref: scu.467186

White v Elmdene Estates Ltd: CA 1960

The relative legislation prohibited the requirement of ‘payment of any premium’ on the grant, renewal or continuance of any tenancy. Mr and Mrs White owned and lived in a house, but it was subject to a mortgage which was in arrears, and they decided that they had to sell, repay the mortgage and then rent a flat. They found a suitable flat, but the estate agents acting on the letting required them to sell their house through them, and to sell it for andpound;500 less than the fair market value, which they agreed to do, and did. The Court was asked inter alia whether this amounted to the payment to a premium, defined in part as ‘any fine or other like sum and any other pecuniary consideration in addition to rent’, and was unlawful.
Held: The imposition of the obligation to sell the house at andpound;500 less than the proper price was the requirement of a premium. Lord Evershed MR said: ‘If I am right it must follow that the exaction of such a deduction must amount to a ‘payment’; and I find, indeed, no difficulty in so concluding: for the word ‘payment’ in itself is one which, in an appropriate context, may cover many ways of discharging obligations.’
Willmer LJ said: ‘Again, in my judgment, there can be no doubt that the defendants required a ‘payment’ to be made. It is true that no actual money passed, but I venture to point out that a taxpayer is none the less a taxpayer because income tax which he owes is deducted at source. Similarly, the plaintiff and his wife in this case none the less ‘paid’ andpound;500 because it was deducted from the purchase price of the house that they had for sale.’

Judges:

Lord Evershed MR, Wilmer, Ormrod LJJ

Citations:

[1960] 1 QB 1

Jurisdiction:

England and Wales

Cited by:

Cited – Hanoman v London Borough of Southwark HL 10-Jun-2009
The claimant sought a discount on the purchase of his flat from the appellant. The discount was to be increased because of the authority’s delay in responding to his application. The respondent now appealed against a finding that it must repay the . .
Appeal from – Elmdene Ltd v White HL 1-Feb-1960
The landlord’s appeal failed. A payment can include a payment in kind. . .
Cited – Superstrike Ltd v Rodrigues CA 14-Jun-2013
The Defendant took an assured shorthold tenancy of premises from the Claimant for a fixed term of one year less one day, paying a deposit of a month’s rent under the terms of the tenancy agreement at that time. At the expiry of the fixed term, by . .
Lists of cited by and citing cases may be incomplete.

Contract, Housing

Updated: 04 July 2022; Ref: scu.374692

Frederick Hatton v Henry English and George Williams: 12 Jan 1857

Under stat. 17 and 18 Vict. c. 36, s. 1, a bill of sale is void against creditors unless a description of the residence and occupation of the person granting it be filed along with the bill of sale. It is not sufficient that the bill of sale, which is filed, itself contains a description of his residence and occupation.

Citations:

[1857] EngR 85, (1857) 7 El and Bl 94, (1857) 119 ER 1183

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 04 July 2022; Ref: scu.289831

Kuenyehia and others v International Hospitals Group Ltd: CA 25 Jan 2006

Service of litigation documents by fax was not an acceptabe departure from the rules where the party being served had not beforehand given consent to service in this manner. The mere advertisement of a fax number did not amount to such consent. Such service could not be characterised as no more than a minor departure from the rules.
Neuberger LJ said: ‘we do not consider that the claimants can rely on the absence of prejudice to the defendant as a reason for letting the Judge’s decision to stand. In our view . . the time limits in the CPR, especially with regard to service of the claim form where the limitation period may have expired, are to be strictly observed, and extensions and other dispensations are to be sparingly accorded, especially when applied for after time has expired. While there may be exceptional cases, we consider that prejudice is only relevant in this sort of case to assist a defendant, where the court would otherwise think it right to dispense with service. In other words, prejudice to the defendant is a reason for not dispensing with service, but the absence of prejudice cannot usually, if ever, be a reason for dispensing with service’ and ‘Service on the defendant’s solicitors was ineffective under the CPR, and it cannot be said to have been a ‘minor departure’ from the permitted methods of service to serve on solicitors who had not been nominated by the defendant. In any event, for the reasons already given, this would not have been an exceptional case. Quite apart from any other point, it can fairly be said that it would have been only too easy for the claimants’ solicitors to ask the defendant, with whom they had been in fairly close contact, to nominate its solicitors’ address as its address for service in accordance with r.6.5(2), but they never did so.’

Judges:

Lord Justice Waller Lord Justice Dyson Lord Justice Neuberger

Citations:

[2006] EWCA Civ 21, Times 17-Feb-2006

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Brown and Others v InnovatorOne Plc and Others ComC 19-Jun-2009
The claimants served proceedings by fax. The defendants denied that it was effective saying that they had not confirmed that they were instructed to accept service or that as required by the rules they had confirmed that they would accept service by . .
Lists of cited by and citing cases may be incomplete.

Contract, Limitation, Litigation Practice

Updated: 04 July 2022; Ref: scu.238134