A release dated before, but made and delivered after an obligation, does not release the obligation.
[1653] EngR 1796, (1653) Cro Eliz 14, (1653) 78 ER 280 (B)
England and Wales
Updated: 29 June 2022; Ref: scu.414103
The claimants sought payment of their basic costs incurred when they acted as solicitors for the defendant in proceedings he brought for negligence and breach of contract against his former legal advisers.
[2008] EWHC 3147 (QB)
England and Wales
Updated: 29 June 2022; Ref: scu.279946
Stow QC
[1999] EWHC QB 272
England and Wales
Updated: 29 June 2022; Ref: scu.314327
The court examined the subject of mistake as a vitiating factor in the law of contract.
[2001] EWHC 529 (QB)
England and Wales
Appeal from – Great Peace Shipping Ltd v Tsavliris (International) Ltd CA 14-Oct-2002
The parties contracted for the hire of a ship. They were each under a mistaken impression as to its position, and a penalty became payable. The hirer claimed that the equitable doctrine of mutual mistake should forgive him liability.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.331024
[2005] EWCA Civ 1484
England and Wales
Appeal from – Decoma UK Ltd v Haden Drysys International Ltd. TCC 4-Nov-2005
. .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.235528
The customer challenged a series of pawn agreements. The broker appealed the finding that the contracts were invalid, on the basis that the judgment had created an unjust enrichment.
Held: The appeal failed: ‘in pawn transactions the debtor is particularly at risk because there is nothing to stop the pawnbroker selling the security in order to realise the amounts owed without resort to the courts, leaving it to the debtor to go to court if anybody is going to do so. The other is that the unenforceability of these contracts derives in large part from far from technical breaches. They include Mr Howard’s entry into the agreements under a name in which he was not licensed to trade and the omission in other contracts of the identity of the lender.
In this situation, given the provisions of section 106, it seems to me that the judge was justified in adopting the claimant’s account of the parties’ mutual indebtedness, and that in all probability he was obliged to do so. The moral for a pawnbroker such as Mr Howard is that if he wants the rewards of his trade he must operate strictly by the book, and that the result of failing to do so may be not merely to unravel agreements, but to reverse the indebtedness that they have purportedly created.’
Potter, Sedley LJJ
[2005] EWCA Civ 147
England and Wales
Cited – J and E Hall Ltd v Barclay 1937
The company had erected and tested two experimental davits for the appellant. They were then taken down and left unused for many years. The parties disputed the account. The company claimed also for damages for detinue or conversion of the davits . .
Cited – Matthew v T M Sutton Ltd ChD 23-Jun-1994
A pawnbroker was liable to pay interest on excess funds recovered in its capacity as trustee. The court ordered an enquiry: ‘. . . as to what use was made by the defendant of the proceeds of sale and what return was obtained by him on those monies . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.224240
[2005] EWHC 309 (QB)
Updated: 29 June 2022; Ref: scu.223866
Mr S asserted a right as against the builders under a section 106 agreement. The builder said that evidence of what had occurred as a background to the agreement should be admitted. The parties had requested the judge to decide as a preliminary issue on the admissibility of that evidence.
Held: It was rarely wise to decide to the admissibility of evidence as a preliminary matter. It should be decided at trial by the judge who would be hearing the case and have a better grasp of the facts.
Mummery LJ said: ‘In general, disputes about the admissibility of evidence in civil proceedings are best left to be resolved by the judge at the substantive hearing of the application or at the trial of the action, rather than at a separate preliminary hearing. The judge at a preliminary hearing on admissibility will usually be less well informed about the case. Preliminary hearings can also cause unnecessary costs and delays.’
Mummery LJ
[2005] EWCA Civ 265, Times 28-Apr-2005
Town and Country Planning Act 1990 106
England and Wales
Updated: 29 June 2022; Ref: scu.223629
The parties entered into a commercial agreement for the sale and purchase of properties.
Held: The claimants had failed to meet their part of the bargain, and had failed to make mortgage payments, leaving the defendants to do so. The defendants were not entitled to any beneficial part of the proceeds of sale at auction.
Mr Justice Sullivan Lord Justice Keene Lord Justice Mummery
[2005] EWCA Civ 157, Times 02-Mar-2005
England and Wales
Cited – Frawley v Neill CA 1-Mar-1999
The modern approach to a laches claim, was not to test the facts against numbers of earlier cases, but to look at the situation as a whole, and to ask whether the delay made it unconscionable to permit the party to assert those rights. Aldous LJ . .
Cited – Williams v Greatrex CA 1956
A purchaser agreed to buy land to be laid out in building plots. On payment of a deposit and giving notice, the purchaser was to be entitled to enter onto a particular plot in order to build on it. The arrangement met with difficulties, with the . .
Cited – Knight v Bowyer 7-May-1858
knight_bowyer1858
The doctrine of laches and delay did not apply to an express trust, save possibly where there was a release or abandonment by the beneficiary and that was capable of being presumed from the facts of the case. . .
Cited – Mills v Drewitt 1855
A beneficiary cannot be divested of his beneficial interest in the capital of the trust by the operation of the doctrine of laches. ‘A trustee who is in possession of property which he admits to be trust property cannot plead the laches of the . .
Cited – Hourigan v Trustees Executors and Agency Co Ltd 1934
(Australia) The defence of laches may be raised in answer to a claim by a beneficiary of an express trust where there had been acquiescence or ‘gross laches’. . .
Cited – In re Cross 1882
The court applied the doctrine of laches and delay to a claim against a trustee, not for the recovery of trust property, but for breach of trust. . .
Cited – Bright v Legerton (No 1) 1860
The court will not listen to a claim by a cestui que trust trying to challenge accounts settled by his trustees where those accounts had been settled for more than twenty years and he had had ample opportunity to go into them. Lapse of time alone is . .
Cited – Orr v Ford 1989
Ordinarily the laches of a beneficiary would not make it inequitable or unreasonable to grant relief in proceedings for the enforcement of an express trust in relation to property in the possession of the trustee. . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.223234
Lord Justice Peter Gibson Lord Justice Longmore Lord Justice Scott Baker
[2005] EWCA Civ 158
England and Wales
Updated: 29 June 2022; Ref: scu.223301
[2005] EWHC 273 (Comm)
Updated: 29 June 2022; Ref: scu.223035
Waller, Wall, LLJ Blackburne J
[2005] EWCA Civ 156
England and Wales
Updated: 29 June 2022; Ref: scu.222912
The pursuers claimed for breach of copyright and of a software licence. The defendants disputed the title or right of the pursuers to claim.
Held: The assignation of the rights in the software carried with it the rights to enforce intellectual property rights and rights in licences previously granted.
Lord Kingarth
[2005] ScotCS CSOH – 28, [2005] CSOH 28
Scotland
Cited – Saphena Computing Ltd v Allied Collection Agencies Ltd 1995
The court faced a claim as regards an undeveloped computer system which was sold with bugs ‘warts and all’.
Held: The court spoke of expert evidence that in a bespoke system, bugs were inevitable. . .
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 . .
Cited – Bank of Scotland v Dunedin Property Investment Co Ltd IHCS 24-Sep-1998
Issue of loan stock supported by charge for ‘all costs charges and expenses incurred’ this included the breakage cost of the bank in setting up interest-rate swap arrangements to protect itself against swings in costs. . .
Cited – British Actors Film Company Limited and Co v Glover 1918
Under a written agreement the owners of the copyright in a dramatic and the musical work agreed to let to the defendant the right of professionally performing the work in the provinces of the United Kingdom, reserving to themselves full liberty to . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.222733
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 would have been within the contemplation of the parties when they made their contract, and damages were not too remote and were payable. ‘The court’s task, therefore, is to decide what loss to the plaintiffs it is reasonable to suppose would have been in the contemplation of the parties as a serious possibility had they had in mind the breach when they made their contract.’
Lord Denning MR, Orr, Scarman LJJ
[1978] QB 791, [1977] EWCA Civ 13
England and Wales
Cited – Jackson and Another v Royal Bank of Scotland HL 27-Jan-2005
The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one . .
Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
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.
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.222087
An agreement was made by the fathers of a bride and groom to pay the groom a sum of money. When the bride’s father failed to pay, the groom sued.
Held: The claim failed. Wightman J said that no stranger to the consideration could take advantage of a contract though made for his benefit.
Crompton J said that consideration must move from the promisee. The doctrine of privity means, and means only, that a person cannot acquire rights, or be subjected to liabilities, arising under a contract to which he is not a party.
Wightman J, Crompton J
(1861) 1 B and S 393, 121 ER 762, [1861] EWHC QB J7, [1861] EngR 690, (1861) 121 ER 762, [1861] EWHC QB J57
England and Wales
Confirmed – Gandy v Gandy 1885
In spite of earlier cases to the contrary, Tweddle v Atkinson had laid down ‘the true common law doctrine’. . .
Affirmed – Midland Silicones Ltd v Scruttons Ltd HL 6-Dec-1961
The defendant stevedores, engaged by the carrier, negligently damaged a drum containing chemicals. When the cargo-owners sued in tort, the stevedores unsuccessfully attempted to rely on a limitation clause contained in the bill of lading between the . .
Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.221997
The Board considered the extent to which an exclusion clause in a bill of lading could be relied on by the third party stevedore, an independent contractor employed by the carrier, who was sued by the consignees of goods for negligently damaging the goods while unloading them.
Held: (Majority) The board gave effect to the clause by regarding the shipper as having made an offer of a unilateral contract to the stevedores to unload the goods on terms incorporating the exclusion clause. This offer was accepted by the stevedores by commencing work.
Lord Wilberforce said that the bill of lading: ‘ brought into existence a bargain initially unilateral but capable of becoming mutual, between the shipper and the [stevedores], made through the carrier as agent. This became a full contract when the [stevedores] performed services by discharging the goods. The performance of these services for the benefit of the shipper was the consideration for the agreement by the shipper that the [stevedores] should have the benefit of the exemptions and limitations contained in the bill of lading.’ The exclusion clause was entered into by the carrier as agent for its servants, agents and independent contractors, and therefore ‘the exemption is designed to cover the whole carriage from loading to discharge, by whomsoever it is performed: the performance attracts the exemption or immunity in favour of whoever the performer turns out to be’. Also ‘In the opinion of their Lordships, to give the appellant the benefit of the exemptions and limitations contained in the bill of lading is to give effect to the clear intentions of a commercial document, and can be given within existing principles. They see no reason to strain the law or the facts in order to defeat these intentions. It should not be overlooked that the effect of denying validity to the clause would be to encourage actions against servants, agents and independent contractors in order to get round exemptions… ‘
Lord Wilberforce
[1975] AC 154, [1974] UKPC 1, [1974] UKPC 4
England and Wales
Cited – The Mahkutai PC 24-Apr-1996
(Hong Kong) The question was whether shipowners, who were not parties to the bill of lading contract between the charterers and carriers on the one part, and the cargo-owners, the bill of lading being a charterer’s bill, could enforce against the . .
Cited – Butler Machine Tool Co Ltd v Ex-Cell-O Corporation CA 25-Apr-1977
The plaintiff offered to sell a machine tool to the defendant. The offer said that its terms had precedence over any terms in the buyer’s order, and contained a clause allowing a price variation. The defendant’s order form allowed no variation, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.221974
The claimants distributed Doc Marten footwear. They asked an agency to prepare a logo. The agency paid an independent contractor to prepare it, but did not take an assignment of copyright to it. The contractor sold the rights in the logo to the defendants who distributed the shoes in Australia. The claimants obtained an order vesting the copyright in them. The defendant appealed.
Held: The appeal failed. The court adopted and approved the approach in Ray v Classic FM. There was no business sense in importing a clause under which the defendant would retain the copyright.
Lord Justice Chadwick Mr Justice Lloyd Lord Justice Jacob
[2005] EWCA Civ 11, [2005] FSR (31) 706
England and Wales
See also – R Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
Appeal from – R Griggs Group Ltd and others v Evans and others ChD 2-Dec-2003
An advertising agency was requested to provide a logo. It employed an independent designer. Who owned the copyright, in this case of the AirWair logo? The defendants had taken an assignment of the copyright from the first author. The claimants . .
Cited – Robin Ray v Classic FM Plc PatC 18-Mar-1998
Contractor and Client Copyrights
The plaintiff had contributed a design for a system of classifying and selecting tracks to be played on a radio station. He did so under a consultancy contract.
Held: A Joint authorship claim required that the contributor had made some direct . .
Cited – Meikle v Maufe 1941
An implied licence is limited to what is in the joint contemplation of the parties at the date of the contract, and does not extend to enable the Client to take advantage of a new unexpected profitable opportunity.
Uthwatt J said: ‘It was . .
Cited – Liverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .
Cited – Philips Electronique v British Sky Broadcasting Ltd CA 1995
There is a presumption against adding terms to a contract. The presumption is stronger where the contract is in writing and represents an apparently complete bargain between the parties. Sir Thomas Bingham MR set out Lord Simon’s formulation, and . .
Cited – BP Refinery (Westernport) Pty Ltd v The Shire of Hastings PC 1977
(Victoria) The Board set out the necessary conditions for a clause to be implied into a contract.
Held: Lord Simon of Glaisdale said: ‘Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a . .
Cited – Orvec International Ltd v Linfoots Ltd IPEC 18-Jun-2014
Action for passing off and breach of contract. The defendants had provided photography services, the copyright residing with the claimants. The claimant said that the defendant had continued use of the photographs after termination of the contract. . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.221741
The buyers sought repayment of the sum paid by them for agricultural machinery purchased from the respondent. The machinery was bought after a repossession, but returned when a vibration was found. The defendants repaired the machine, but would not tell the claimants what had been repaired, and the claimants, fearing that other parts of the machine would have been damaged, rejected it. The defendant said that having had it repaired, they had lost the right of rejection. They appealed refusal of their claim.
Held: Lord Marnoch (dissenting) said that having acquired a right to reject the goods at the time of delivery, they could not have that right taken away from them simply by the renewed tendering of the goods in an allegedly repaired condition. Lord Hamilton and Lord Philip said that on repair the harrow was rendered fit for its purpose and, once re-associated with the power drill, the equipment was, as a whole, of satisfactory quality. At the stage when the appellants declined to receive the repaired harrow and sought to treat the contract as repudiated the respondents were not in breach of contract.
Lords Marnoch, Hamilton and Philip, Lord Marnoch dissenting
[2005] ScotCS CSIH – 3, 2005 SLT 64
Sale of Goods Act 1979 27 35(6)(a), Sale and Supply of Goods Act 1994 2(1)
Scotland
Appeal from – J and H Ritchie Ltd v Lloyd Ltd HL 7-Mar-2007
The appellants had bought a seed drill from the respondents. It had been repossessed but sold as near new. A fault was noticed after two days use, and it was returned. The defendants repaired it without agreeing this with the appellant, and then . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.221461
[2004] EWHC 2407 (TCC)
England and Wales
Updated: 28 June 2022; Ref: scu.220761
Validity of exemption clauses
[2004] EWHC 2924 (Comm)
England and Wales
Updated: 28 June 2022; Ref: scu.220769
[2004] EWCA Civ 1738
England and Wales
Updated: 28 June 2022; Ref: scu.220569
[2002] EWCA Civ 1344
England and Wales
Updated: 28 June 2022; Ref: scu.217472
Britvic purchased bulk CO2 for the carbonation of various soft and alcoholic drinks from a supplier. The CO2 was manufactured by others. As a result of a breakdown of the manufacturing process, the CO2 contained a concentration of benzene which, although benzene is carcinogenic, was so small that it represented no risk to health. The questions were whether the CO2 was of satisfactory quality or reasonably fit for its purpose within section 14(2) or (3) of the 1979 Act.
Held: It was neither. ‘. . . one particular description of the goods to which the reasonable person must have regard is that to be found in BS4105, viz that CO2 of type 2 is suitable for industrial food applications.’ and ‘I therefore find it impossible to conclude that a reasonable person would regard the CO2 supplied as meeting a satisfactory standard. Consumers would not wish to drink products which had inadvertently been contaminated with a measurable quantity of a known carcinogen, notwithstanding the quantity was not harmful to their health. If the manufacturers had not taken steps to satisfy the public that all reasonable measures were being taken to recall the batches of production affected all of their production would very quickly have become unsaleable. The affected products themselves were in a real sense unsaleable in the sense that no consumer would knowingly buy them and the manufacturers could not as responsible manufacturers be seen to attempt to sell them. . . All those affected products which could by reasonably proportionate measures be withdrawn from the distribution chain were in a real sense unsaleable. I do not consider that the CO2 can be regarded as of satisfactory quality if it had this effect on the end product into which it was introduced. . . In that situation, the public perception will be that the carcinogen simply ought not to be present at all and the manufacturers ought not to attempt to sell products which have been in that way inadvertently contaminated. . . ‘
Tomlinson J
[2002] 1 Lloyds Rep 20
Sale of Goods Act 1979 14, Unfair Contract Terms Act 1977 3
England and Wales
Appealed to – Messer UK Ltd and Another v Britvic Soft Drinks Ltd and others CA 30-Apr-2002
The parties contracted for the supply of material to be used in the manufacture of drinks. The material was to be supplied according to a recognised British Standard.
Held: The use of the British Standard of itself was not sufficient to imply . .
Appeal from – Messer UK Ltd and Another v Britvic Soft Drinks Ltd and others CA 30-Apr-2002
The parties contracted for the supply of material to be used in the manufacture of drinks. The material was to be supplied according to a recognised British Standard.
Held: The use of the British Standard of itself was not sufficient to imply . .
Cited – Jewson Limited v Boyhan as Personal Representative of the Estate of Thomas Michael Kelly CA 28-Jul-2003
The company appealed a finding that it was in breach of the 1979 Act. The deceased had bought boilers from the appellant. They were said not to be satisfactory, in that they were not as energy efficient as they had been described to be.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.187445
A plot of land had been originally sold after being pegged out, but the conveyance plan differed from the line pegged out. The land was again sold with a plan on both contract and conveyance still being incorrect. In each case the plan had been used ‘for identification purposes only’, and the purchaser knew the layout of the actual boundary.
Held: Since the plans were used for identification purposes only, and the parties knew of the actual position of the boundary, the court was entitled to take into account the surrounding circumstances to construe the contract. The actual layout on the land prevailed.
Mr Justice Foster
[1971] 1 WLR 635
England and Wales
Applied – Webb v Nightingale CA 8-Mar-1957
A boundary line which the parties had agreed and marked out could supersede a plan on a conveyance expressly said to be for identification only. Lord Denning: ‘It seems to me that the line of white stakes with the white peg in the south-east corner . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.174087
Writ – Holograph – Agreement Written by Factor to the Dictation of his Principal.
Held ( aff. judgment of the Court of Session) that an agreement written by the factor for one of the parties in the presence of the other party to the dictation of the factor’s principal, and unsigned, is not a valid holograph writ of the principal so as to constitute, when formally accepted and acted on, a completed contract between the two parties interested therein.
Lord Chancellor Selborne, Lord Blackburn, and Lord Watson
[1881] UKHL 466, 18 SLR 466
Scotland
Updated: 28 June 2022; Ref: scu.636792
Although the VAT regime required all commercial enterprises to issue VAT invoices in a timely way, that is not sufficient, of itself, to create an implied term into contracts between businesses, that invoices should be issued in a way which would comply with that obligation. A declaration could not be granted, if all other associated claims had failed.
Mr Justice Ferris
Times 11-Sep-2001, Gazette 20-Sep-2001
VAT Regulations 1995 (1995 No 2518) 13(1)
England and Wales
Applied – Society of Lloyds v Clementson, Same v Mason ComC 11-Jan-1994
An undertaking given on joining Lloyds is a sufficiently binding contract. . .
Cited – Hughes and Hughes v Greenwich London Borough Council CA 1992
The applicant was headmaster of a boarding school. The contract of employment did not require him to occupy the house, but a new house was built for the headmaster and he moved into it. It was not necessary for him to occupy the house for his . .
Cited – Earl of Dysart v Hammerton and Co CA 1914
. .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.166156
Arbitration – Reference to Arbiter Unnamed – Reference to Person Holding Office for Time Being – Delectus Personae
Custom – Usage of Trade – Contract – Proof Inadmissible where Language not Technical
The arbitration clause in a contract for the construction of a bridge provided that any question that might arise as to the meaning and intent of the contract should be settled, in the case of difference, by the engineer for the time being of one of the parties.
Held ( aff. the judgment of the First Division) that the reference was invalid, there being no appointment of a referee inferring a delectus personae on the part of the contracting parties.
A contract was entered into by which manufacturers of steel offered to supply the contractors, who were constructing a bridge, with ‘the whole of the steel required by’ them for the bridge at prices which were stated and subject to certain terms and conditions, inter alia, ‘The estimated quantity of the steel we understand to be 30,000 tons more or less.’ The offer was accepted by the contractors, who repeated this estimate in their letter of acceptance. In an action at the instance of the manufacturers to compel the contractors to take from the pursuers the whole of the steel required for the construction of the bridge, the defenders averred that by the custom and practice of the iron and steel trade the contract was to be regarded only as a contract for the estimated quantity with a certain margin for variation.
Held ( aff. the judgment of the First Division) that evidence of the alleged custom or usage of trade was inadmissible, as the words of the contract were unambiguous.
Lord Chancellor (Halsbury), and Lords Watson, Bramwell, Herschell and Morris
[1890] UKHL 463, 27 SLR 463
Scotland
Updated: 28 June 2022; Ref: scu.636732
The court was asked whether negative interest accrues on cash collateral posted under a Credit Support Annex
Sir Geoffrey Vos, C
[2019] EWCA Civ 771
England and Wales
Updated: 28 June 2022; Ref: scu.636710
Contract – Sale of Entailed Estate – Essentials of Sale – Reduction – Alleged Misunderstanding by Vendor – Trial – Issues – Essential Error – Misrepresentation.
An heir of entail in possession having entered into a contract for the sale of the entailed estate, the Court construed the contract to mean that the seller was under a legal obligation to apply to the Court for approval of the sale under the 5th section of the Entail Amendment Act 1853, as amended by the 13th section of the Entail Act 1882.
The seller, proceeding on the construction that the sale was absolute, raised an action for the reduction of the contract on these grounds, (1) that the offer was obtained by fraud and circumvention; (2) that he was under essential error, in respect that in entering into the contract he believed he would be bound by it to apply to the Court for an order of sale under the Entail Act 1882 whereby an entailed estate might be converted into money, and would not be bound to sell at the price proposed if the Court should hold it to be inadequate; (3) error induced by the purchaser’s agent; (4) false and fraudulent representations by the said agent. The Lord Ordinary appointed the issue of facility and circumvention to be the issue for the trial of the cause. On a reclaiming-note the First Division adhered, and so far the parties acquiesced. Their Lordships refused an issue of essential error, on the ground that the error alleged was not in essentialibus, but concerned only the import and effect of the contract, Lord Shand dissenting, on the ground that the pursuer was entitled to both issues.
The pursuer appealed to the House of Lords, and asked an additional issue-the second or else the third, and if neither was granted, then the fourth.
Held ( aff. the judgment of the Court of Session) that the alleged error of the pursuer was by itself insufficient to invalidate his consent; and ( rev. the judgment of the Court of Session) that in view of the pursuer’s averments an issue of essential error induced by the purchaser’s agent must be allowed.
Lords Herschell, Watson, and Macnaghten
[1890] UKHL 469, 27 SLR 469
Scotland
Updated: 28 June 2022; Ref: scu.636730
Application by the Claimants for permission to amend their Amended Claim Form, their Amended Particulars of Claim and their Re-Amended Reply and Defence to Counterclaim.
[2019] EWHC 1023 (QB)
England and Wales
Updated: 28 June 2022; Ref: scu.636169
This appeal concerns (1) the principle by which a party to a contract, in this case a tenant under a lease of commercial premises, may recover from the other party a sum paid by him that has been lost as a result of that party’s breach, and (2) the requirement under the Civil Procedure Rules to deal with a matter justly on appeal, including when a new point can be taken on appeal.
Lady Justice Arden
[2013] EWCA Civ 24
England and Wales
Updated: 28 June 2022; Ref: scu.470618
Application for summary judgment on a claim for specific performance which is brought by the purchaser under a contract for the purchase and sale of the leasehold interest in property.
[2015] EWHC 1758 (Ch), [2015] CN 1037
England and Wales
Updated: 28 June 2022; Ref: scu.549252
[2008] EWHC 3057 (QB)
England and Wales
Updated: 28 June 2022; Ref: scu.278859
The court heard an argument that section 56 of the 1925 Act had not changed the law to allow a third party to sue under a covenant to which he had not been party.
Held: Simonds J rejected an argument that section 56 enabled anyone to take advantage of a covenant if he could shew that if the covenant were enforced it would redound to his advantage: ‘Just as under section 5 of the Act of 1845 only that person could call it in aid who, although not a party, was yet a grantee or covenantee, so under section 56 of this Act only that person can call it in aid who although not named as a party to the conveyance or other instrument is yet a person to whom that conveyance or other instrument purports to grant something or with which some agreement or covenant is purported to be made.’
Simonds J
[1937] Ch 610
England and Wales
Appeal from – White v Bijou Mansions CA 1938
The court heard an rejected an argument that s56 worked to allow a third party to sue under a covenant to which he had not been party: ‘before he can enforce it he must be a person who falls within the scope and benefit of the covenant according to . .
Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.251040
[2005] EWCA Civ 1369
England and Wales
Updated: 28 June 2022; Ref: scu.235241
The claimant asserted an equitable interest in a property underlying a development stating that his share in the profits gave hm that right. He had provided consultancy services, with a promise of payment of a fee calculated as a small percentage of the final project. He had also contributed some funds.
Held: the relationship between the parties was contractual in nature. He was not to bear any share of any losses and was to receive interest on his capital contribution. The entitlement to a share in the profits did not amount to a share in the property itself. Nor had a resulting trust been created buy his contribution. The parties had set out their agreement in the contract and there was ‘no gap for equity to fill.’ The defendant had been accused of slander of title. No malice had been established against him and the tort was not made out.
Lewison J
Times 21-Apr-2006
England and Wales
Updated: 28 June 2022; Ref: scu.241301
There had been a very substantial construction project, in which certain facets of design were sub-contracted and sub-contracted again to the parties. There were substantial delays and a sub-contractor purported to terminate the contract for failing to complete it within a reasonable time. The judge had found substantial and wide ranging delays.
Held: The claimant had failed to establish that time had been made of the essence or what would be a reasonable time for performance so as to alow it to repudiate the contract.
May, Jacob, Lloyd LJJ
[2005] EWCA Civ 1359
England and Wales
See Also – Shawton Engineering Ltd v DGP International Ltd and Another CA 19-Dec-2003
. .
Cited – Hick v Raymond and Reid HL 1893
The House was asked whether the consignee of a cargo was in breach of a contractual obligation to discharge the relevant vessel within a reasonable time, that is to say, a single obligation to do something within a reasonable time, rather than an . .
Cited – Charles Rickards Ltd v Oppenheim CA 1950
A buyer of a Rolls-Royce motor chassis agreed for a body to be built upon it by a fixed date. The body was not completed by that date, but after pressing for delivery, he gave a notice that unless delivery of the car with a completed body was . .
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 – Amalgamated Building Contractors v Waltham Holy Cross Urban District Council 1952
Where a contract made explicit allowance for extensions of time for performance, extensions could be granted retrospectively. . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.235027
(New South Wales) The appellant had executed a deed on behalf of a company to sell shares to the respondent in the context of a long running boardroom battle. He said that the deed had been obtained by duress and was voidable. The respondent was said to have threatened the appellant with death.
Held: The House considered the elements necessary to establish a defence of duress to a claim in tort.
Lord Cross said: ‘The scope of common law duress was very limited and at a comparatively early date equity began to grant relief in cases where the disposition in question had been procured by the exercise of pressure which the Chancellor considered to be illegitimate – although it did not amount to common law duress. ‘ and ‘there is an obvious analogy between setting aside a disposition for duress or undue influence and setting it aside for fraud.’
By way of analogy, he considered the treatment of contributing causes in fraud cases: ‘If it were established that Barton did not allow the representation to affect his judgment then he could not make it a ground for relief. . . If on the other hand Barton relied on the misrepresentation Armstrong could not have defeated his claim to relief by showing that there were other more weighty causes which contributed to his decision . . for in this field the court does not allow an examination into the relative importance of contributing causes . . ‘
Lord Wilberforce (dissenting) said: ‘The basis of the plaintiff’s claim is, thus, that though there was apparent consent there was no true consent to the agreement; that the agreement was not voluntary. This involves consideration of what the law regards as voluntary, or its opposite; for in life, including the life of commerce and finance, many acts are done under pressure, sometimes overwhelming pressure, so that one can say that the actor had no choice but to act. Absence of choice in this sense does not negate consent in law: for this the pressure must be one of a kind which the law does not regard as legitimate. Thus, out of the various means by which consent may be obtained-advice, persuasion, influence, inducement, representation, commercial pressure-the law has come to select some which it will not accept as a reason for voluntary action: fraud, abuse of relation of confidence, undue influence, duress or coercion.’
Lord Wilberforce, Lord Cross and Lord Simon of Glaisdale
[1976] AC 104, [1973] UKPC 2, [1973] UKPC 27
Australia
Appeal from – Barton v Armstrong 1969
(Supreme Court of New South Wales) The claimant sought damages alleging assault by the making of telephone calls.
Held: Threats made over the telephone were capable of amounting to an assault. Taylor J: ‘Mr. Staff’s first and second . .
Cited – R v Her Majesty’s Attorney-General for England and Wales PC 17-Mar-2003
PC (From Court of Appeal of New Zealand) T had been a member of the British SAS. Other members had written books and the Army sought to impose confidentiality contracts or to impose a return to their unit. R . .
Cited – Halpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
Cited – Halpern and others v Halpern and Another (No 2) CA 3-Apr-2007
The parties had settled by compromise a dispute about the implementation of a will before the Beth Din. It was now said that the compromise agreement had been entered into under duress and was unenforceable. The defendant said that rescission could . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.220489
The Hon Mr Justice Lightman
[2004] EWHC 2815 (Ch)
England and Wales
Updated: 27 June 2022; Ref: scu.220212
Undue influence was alleged.
Held: Equity avoids dispositions of property procured by the improper or unconscientious use of the influence of one person over another, that cannot be explained on the grounds of friendship, charity or other ordinary motives on which people ordinarily act. It was not enough simply to show a relationship of dominance or influence, but also the parties needed to establish that the transaction constituted a manifest and unfair disadvantage to the person seeking.
The relationship of borrower and lender, or banker and customer, does not give rise, of itself, to any presumption of special disability on the part of the borrower or of undue influence, but exceptionally it may do. If the relationship of banker and customer becomes one in which the banker acquires a dominating influence, and a manifestly disadvantageous transaction is proved, ‘there would then be room’ for a court to presume that it resulted from the exercise of undue influence. ‘The Court of Appeal erred in law in holding that the presumption of undue influence can arise from the evidence of the relationship of the parties without also evidence that the transaction itself was wrongful in that it constituted an advantage taken of the person subjected to the influence which, failing proof to the contrary, was explicable only on the basis that undue influence had been exercised to procure it.’
Lord Scarman said that the determination of whether a relationship of undue influence exists is to be arrived by ‘a meticulous examination of the facts.’ and ‘the Court of Appeal erred in law in holding that the presumption of undue influence can arise from the evidence of the relationship of the parties without also evidence that the transaction itself was wrongful in that it constituted an advantage taken of the person subjected to the influence which, failing proof to the contrary, was explicable only on the basis that undue influence had been exercised to procure it.’ He continued with reference to Poosathurai: ‘The wrongfulness of the transaction must, therefore be shown: it must be one in which an unfair advantage has been taken of another . . the doctrine is not limited to transactions of gift. A commercial relationship can become a relationship in which one party assumes a role of dominating influence over the other.’
Lord Scarman, Lord Keith of Kinkel, Lord Roskill, Lord Bridge of Harwich, Lord Brandon of Oakbrook
[1985] AC 686, [1985] UKHL 2, [1985] 1 All ER 821, [1985] ANZ Conv R 251, [1985] 2 WLR 588
England and Wales
Cited – Poosathurai v Kannappa Chettiar and Others PC 18-Nov-1919
(Madras) . .
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Cited – CIBC Mortgages Plc v Pitt and Another HL 21-Oct-1993
Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.219906
The appellant had taken certain insurance risks on behalf of the respondents, subject to banking indemnities. Disputes arose and were settled under a Tomlin order, which was now itself subject to challenge.
Held: The appeal was allowed. The agreement was intended to put the arbitration behind the parties. A commercial contract should be interpreted in a way which reflected its commercial purpose, and a literal approach to interpretation was no longer appropriate.
Lord Steyn said: ‘The settlement contained in the Tomlin Order must be construed as a commercial instrument.’
. . And ‘The aim of the inquiry was not to probe the real intentions of the parties but to ascertain the contextual meaning of the relevant contractual language.
The inquiry was objective; the question being what a reasonable person in the parties’ position would have understood the parties to have meant by the use of the specific language’
. . and ‘There has been a shift from literal methods of interpretation towards a more commercial approach.’ A settlement contained in a Tomlin Order must be construed as a commercial instrument.’
Lord Steyn: ‘The aim of the enquiry is not to probe the real intentions of the parties but to ascertain the contextual meaning of the relevant contractual language. The enquiry is objective: the question is what a reasonable person, circumstanced as the parties were, would have understood the parties to have meant by use of specific language. The answer to that question is to be gathered from the text under consideration and its relevant contextual scene.’
Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood
[2004] UKHL 54, Times 03-Dec-2004, [2004] 1 WLR 3251, [2005] 1 All ER 191
England and Wales
Cited – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Appeal from – Sirius International Insurance Company v FAI General Insurance Ltd and others CA 4-Apr-2003
An insurance and banking dispute with regard to the benefit of a letter of credit had been settled between the companies, but the parties then disagreed as to the meaning of the settlement.
Held: Counsel for Sirius ‘accepted that the second . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – On Demand Information Plc and others v Michael Gerson (Finance) Plc and others HL 18-Apr-2002
The claimant took equipment under leases. After the initial period the rentals would be renewed without substantial further rental payments. The company went into administration after or toward the end of the initial period, and the lessors sought . .
Cited – Michael Gerson (Leasing) Limited v Michael Wilkinson and State Securities Limited CA 31-Jul-2000
Where goods were subject to a financing arrangement involving a sale and leaseback with a finance company, the goods were to be treated as constructively delivered to the finance company on the sale. Delivery required a voluntary act by the person . .
Cited – Bolivinter Oil SA v Chase Manhattan Bank NA 1984
The court emphasised ‘the great and fundamentally important separation’ between bankers and re-insurers. . .
Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
At first instance – Sirius International Insurance Co (Publ) v FAI General Insurance Ltd ChD 23-Jul-2002
The beneficiary sought to claim under a letter of credit. The bank resisted saying that the conditions in a letter accompanying the letter of credit had not been satisfied.
Held: The conditions set out in the letter of credit were satisfied . .
Cited – Brunt and others v Southampton International Airport Ltd CA 7-Feb-2005
The claimants lived near Southampton Airport. The airport was altered to allow larger aircraft to use it, and they claimed damages for the increased noise and disturbance. Land had been acquired for additional parking. The number of aircraft flying . .
Cited – 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 . .
Cited – Bushell and Others, Regina (on the Application of) v Newcastle Upon Tyne Licensing Justices and Another HL 15-Feb-2006
Licensees appealed against the grant of judicial review of decisions granting special removal of old on-licences for premises. The grant had been challenged on the basis that the magistrates had had no jurisdiction to make the award because the . .
Cited – Pratt v Aigaion Insurance Company SA (‘the Resolute’) CA 27-Nov-2008
The court considered the interpretation of a term in a contract of insurance to the effect that ‘Warranted Owner and/or Owner’s experienced skipper on board and in charge at all times and one experienced crew member.’, asking whether ‘at all times’ . .
Cited – Community Care North East (A Partnership) v Durham County Council QBD 29-Apr-2010
The parties had settled their dispute and sealed it in a Tomlin Order. The court now asked as to its power to vary such an order. The order required the defendant to reopen a tendering process, but other tenderers now objected, and the council felt . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.219902
Colman J
[2004] EWHC 2676 (Comm), [2005] 1 Lloyd’s Rep 128
England and Wales
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.
Updated: 27 June 2022; Ref: scu.219705
The more embryonic is an oral ‘agreement’, the less likely it is that the parties intended to create legal relations at that stage. For there to be an agreement formed by conduct, there must be a course of dealing from which a contract is necessarily to be implied because the conduct in question is only referable to a contract as opposed to a desire to obtain one. On a strike-out claim it is the duty of the court to apply English law ‘as it now stands’. Judge LJ said: ‘However settled the law may appear to be, one of its strengths is that the possibility of development or change remains. In my view, even for the purposes of CPR 24.2, we must apply the law as it is, not as it may possibly one day become.’
Judge LJ, Mance LJ
[2001] CLC 999, [2002] 1 All ER (Comm) 737, [2001] EWCA Civ 274
England and Wales
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Cited – Aitken v Standard Life Assurance Ltd SCS 3-Dec-2008
The pursuer averred that the defendant, his pension provider, had wrongfully reduced its final bonus by ten per cent without notifying him. He sought to imply a term into the contract to provide such an effect, saying that the contract promised an . .
Cited – MSM Consulting Ltd v United Republic of Tanzania QBD 30-Jan-2009
The claimants sought commission or a quantum meruit for the part they had taken in finding a suitable site for the defendant’s High Commission in London.
Held: The works undertaken were consistent with the claimant seeking work from the . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.219433
Various licencees of the respondent challenged supply contracts under which Esso had the freedom to alter prices.
Held: The agreements were effective to allow Esso to alter prices unless they were acting either arbitrarily or dishonestly. The agreement required Esso to measure the volume of its fuel when it was ‘hot’ when the petrol was loaded, even though as it colled when delivered the volume was slightly reduced.
Ward, Tuckey, Neuberger LJJ
Times 16-Nov-2004, [2004] EWCA Civ 1470
England and Wales
Appeal from – Esso Petroleum Company Ltd v Addison and others ComC 15-Jul-2002
The applicants were retailers of the products of the defendant. The supply agreement allowed the defendant to alter the pricing structures. They complained.
Held: The agreements were lawful and did allow Esso to alter the prices in the way . .
Appealed to – Esso Petroleum Company Ltd v Addison and others ComC 15-Jul-2002
The applicants were retailers of the products of the defendant. The supply agreement allowed the defendant to alter the pricing structures. They complained.
Held: The agreements were lawful and did allow Esso to alter the prices in the way . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.219476
EAT The ET correctly found that a conversation between the Applicant and his manager at the office Christmas dance did not amount to an enforceable promise to increase pay, but were words of comfort. The claimant had not proved his case.
It is open to a tribunal, having heard all the evidence, to reach a conclusion on the facts which is inconsistent with the account advanced by either party.
His Honour Judge McMullen QC
[2004] UKEAT 0443 – 04 – 2809, UKEAT/0443/04
England and Wales
Cited – Woodhouse School v Webster CA 18-Feb-2009
The school appealed against a finding that it had constructively dismissed the claimant. The claimant had refused an order to dismiss a staff member for profound bilateral deafness, saying that that would be unlawful. He had left rather than obey an . .
Appeal from – Judge v Crown Leisure Ltd CA 21-Apr-2005
The claimant appealed against dismissal at the ET and EAT of his claim for constructive dismissal. The court considered whether the employer had made a promise to the employee.
Held: Smith LJ said: ‘In my view, with respect, [the claimant’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.219502
The parties entered into exclusive cross marketing agreements. The defendant resisted enforcement of the contract saying it was void under European law, being contrary to Article 81. The parties were alleged to have agreed to make cross purchases. It was argued that the issue was res judicata.
Held: The defendant could raise the issue before the award of damages was made. The article was intended to protect the public. The court had to see first whether there was an action estoppel, which could only be negated by fraud or collusion. If that did not apply, the court could look to see if there was a Henderson estoppel.
Lord Justice May Lord Justice Kennedy Lord Justice Longmore
[2004] EWCA Civ 1490, Times 22-Nov-2004
England and Wales
Appeal from – Bim Kemi Ab v Blackburn Chemicals Limited ComC 6-Feb-2004
. .
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
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 . .
See Also – Bim Kemi v Blackburn Chemicals Ltd CA 3-Apr-2001
The question was the degree of connection which must be shown between (1) a claim for unliquidated damages for breach of a contract and (2) a cross-claim for unliquidated damages for breach of a different contract between the same parties, in order . .
See Also – Bim Kemi Ab v Blackburn Chemicals Ltd ComC 30-Jan-2002
. .
See Also – Bim Kemi Ab v Blackburn Chemicals Ltd CA 13-Feb-2003
. .
See Also – Bim Kemi Ab v Blackburn Chemicals Ltd SCCO 24-Jun-2003
. .
See Also – Bim Kemi Ab v Blackburn Chemicals Ltd CA 24-Jun-2003
It had been argued by the claimant in written submissions (although not maintained orally) that an order for payment of pre-judgment interest on costs should never be made. As to an award of interest on costs:- ‘In any event in principle there seems . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.219337
His Honour Judge Richard Seymour
[2004] EWHC 2450 (TCC)
Appeal from – Bryen and Langley Ltd v Boston CA 29-Jul-2005
The special facts surrounding the agreement of the standard term at issue were such that the court held that it could not possibly say that there had been a breach of the principle of fair dealing and that rendered it unnecessary for the court to . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.219351
[2004] EWHC 1778 (TCC)
England and Wales
Appealed to – Morgan Est (Scotland) Ltd v Hanson Concrete Products Ltd CA 17-Feb-2005
The defendant appealed an order adding two new claimants.
Held: Cases decided under the old RSC were not apposite for matters covered by the new Civil Procedure Rules. The court was not bound by the Sardinia Sulcis rules: ‘The Sardinia Sulcis . .
On appeal from – Morgan Est (Scotland) Ltd v Hanson Concrete Products Ltd CA 17-Feb-2005
The defendant appealed an order adding two new claimants.
Held: Cases decided under the old RSC were not apposite for matters covered by the new Civil Procedure Rules. The court was not bound by the Sardinia Sulcis rules: ‘The Sardinia Sulcis . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.218883
[2001] EWCA Civ 2073
England and Wales
Updated: 27 June 2022; Ref: scu.218655
The claimants appealed against rejection of their claim that an agreement entitled them to take a 35 years lease of the defendants. The contract had depended on complex conditions as to planning consents.
Held: The appeal failed: ‘Ultimately, it is a question of deciding what the contract says, construed in its commercial context but without speculation about the parties’ unexpressed hopes and motives.’
Auld, Ward, Robert Walker LJJ
[2001] EWCA Civ 1986
England and Wales
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.218602
Renewed application for permission to appeal against an order settling contract dispute.
Chadwick LJ
[2001] EWCA Civ 1809
England and Wales
Updated: 27 June 2022; Ref: scu.218548
Application for leave to appeal – construction contract dispute.
Waller LJ
[2001] EWCA Civ 1878
England and Wales
Updated: 27 June 2022; Ref: scu.218501
Claim for damages on purchase of tractor said to be not of merchantable quality.
Held: Appeal dismissed; appeal in relation to VAT allowed; appellants to pay Wards’ costs summarily assessed
[2001] EWCA Civ 1517
England and Wales
Updated: 27 June 2022; Ref: scu.218478
Renewed application for permission to appeal
Rix LJ
[2001] EWCA Civ 1504
England and Wales
Updated: 27 June 2022; Ref: scu.218397
Ward LJ
[2001] EWCA Civ 1561
England and Wales
Updated: 27 June 2022; Ref: scu.218404
Liability to estate agent for payment of account.
[2002] EWCA Civ 1663
England and Wales
Updated: 27 June 2022; Ref: scu.217650
[2002] EWCA Civ 1457
England and Wales
See Also – Lam v National Federation of Small Businesses CA 28-Jan-2002
The plaintiff appealed failure of his action against the defendant arguing that they had contracted to provide him with legal representation. . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.217698
[2002] EWCA Civ 1274
England and Wales
Updated: 27 June 2022; Ref: scu.217473
The parties had exchanged contracts for the sale and purchase of a company’s shares. The contract provided that a variation would only be effective if in writing. There was an oral agreement to allow time to complete.
Held: The issue was whether in a telephone conversation, the contractual requirement to complete on that day had been waived. He had. An extension of time for completion was not as such a variation, because the contract already envisaged the possibility of an extension of time.
Davis J
Times 25-Jun-2003
England and Wales
Updated: 27 June 2022; Ref: scu.183879
Land was sold with an overage clause, requiring further payments after deduction of incentives. The parties disputed whether car parking facilities given to the purchasers were incentives, or part of the consideration.
Held: The clause itself was of little assistance. The parking spaces were included wihin the leases, and were part of what was sold. They were not to be deducted as incentives for the calculation.
Mr John McDonnell QC
Gazette 22-Jun-2003
England and Wales
Appealed to – Bride Hall Estates Limited, Openboard Limited v St George North London Limited CA 18-Feb-2004
A contract contained an overage clause which would come into effect according to whether car parking spaces were included when calculatiing the average values.
Held: The contracts indicated that the parking spaces were to be included. . .
Appeal from – Bride Hall Estates Limited, Openboard Limited v St George North London Limited CA 18-Feb-2004
A contract contained an overage clause which would come into effect according to whether car parking spaces were included when calculatiing the average values.
Held: The contracts indicated that the parking spaces were to be included. . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.183800
The applicants were retailers of the products of the defendant. The supply agreement allowed the defendant to alter the pricing structures. They complained.
Held: The agreements were lawful and did allow Esso to alter the prices in the way they had sought to do. The court discussed the construction of a non-derogation covenant: ‘even accepting that the principle of derogation from grant is, as Lord Denning suggested, one of general application, the nature and scope of the licensee’s obligation is a matter to be determined by reference to the contract as a whole having due regard to its commercial context. Accordingly, I do not think that the doctrine has any direct application to the present case, though it is no doubt a useful reminder that in the absence of clear words, parties to a contract are unlikely to have intended to make significant derogations through the operation of a subsidiary clause from the primary benefits intended to be conferred under it.’
Moore-Bick J
[2003] EWHC 1730 (Comm)
England and Wales
See Also – Suleyman Kirik v Oktay Ltd EAT 11-Mar-2004
The EAT had on an earlier occasion remitted the case to the tribunal for consideration of the damages award following a finding of unfair dismissal. The tribunal had then limited the award to two weeks pay. The employee appealed again.
Held: . .
Appealed to – Addison and others v Esso Petroleum Company Ltd CA 12-Nov-2004
Various licencees of the respondent challenged supply contracts under which Esso had the freedom to alter prices.
Held: The agreements were effective to allow Esso to alter prices unless they were acting either arbitrarily or dishonestly. The . .
Appeal from – Addison and others v Esso Petroleum Company Ltd CA 12-Nov-2004
Various licencees of the respondent challenged supply contracts under which Esso had the freedom to alter prices.
Held: The agreements were effective to allow Esso to alter prices unless they were acting either arbitrarily or dishonestly. The . .
Cited – Stone and Another (T/A Tyre 20) v Fleet Mobile Tyres Ltd CA 31-Aug-2006
The defendants appealed an injunction which prevented them soliciting business from any customer of the claimant for one year, granted pursuant to a restrictive covenant contained in a franchise agreement.
Held: The injunction was discharged. . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.184652
The football club played in a league operated by the first defendant, which sought a stay of an application for relief from unfair prejudice, saying their was a binding obligation for the complaint to be referred to arbitration.
Held: ‘the court controlled by statute the creation and extinction of a company and also attended to it during its mid-life crises.’ The court refused to regard the right to petition for unfair prejudice under section 459 as capable of being the subject of an arbitration.
Weeks QC, J
Times 12-Feb-2004, Gazette 04-Mar-2004
England and Wales
Cited – A Best Floor Sanding Pty Ltd v Skyr Australian Pty Ltd 1999
(Australia) The right of a contributor to a company to take his application for a winding up of the company to court could not be ousted by agreement btween the parties. . .
Cited – In re Magi Capital Partners LLC 2003
The court stayed a petition under the section to allow for an arbitration. . .
Cited – In re Vocam Europe Ltd 1998
The applicant was entitled to stay an application for a winding up of the company where it had been agreed that such a dispute would be referred to arbitration. The claimant had argued that a stay should not be given because an arbitrator would not . .
Cited – Halpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.193476
On a share sale agreement, a retention was made with respect to a possible action. A clause in the agreement created a procedure for counsel’s opinion to be obtained as to its chances. The buyer obtained counsel’s opinion as provided.
Held: The defendant would not be allowed to go behind counsel’s opinion to challenge its basis or the instructions which led to it. It had been intended to act as a form of certificate to secure the money at issue until trial, and the only issue was as to whether it stood in the form agreed.
Mr Justice Lightman
Gazette 08-Aug-2002
England and Wales
Updated: 27 June 2022; Ref: scu.174458
As at the date of their failure to nominate loading places and silos, the sellers were in default of fulfilment of a contract and it was at that date that they failed to carry out the contract. Thereafter, the buyers were not obliged immediately to treat the sellers as being in default. They had the choice to keep the contract open and hold the sellers in default at a later date, but that did not mean that the date of default was changed; that date remained the day when time for performance came and went without due performance, namely when the sellers were obliged, but failed, to nominate load places and silos. Once the sellers were in default of their obligation to declare loading places, further defaults inevitably followed.
Robert Goff J
[1979] 2 Lloyd’s Rep 98
Sale of Goods Act 1979 51(3), GAFTA
England and Wales
Cited – Fleming and Wendeln Gmbh and Co v Sanofi Sa/Ag ComC 20-Mar-2003
The parties concluded a contract for the sale and purchase of 20,000MT up to 30,000MT at Sellers’ option Russian/Ukrainian black sunseed crop 1997. The price was to ‘be fixed for each shipment latest 15 days prior delivery . . In case . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.180029
The respondents had been awarded judgment for payment of their fees in securing a purchaser of the appellants business. Two bidders were in place. One sought exclusivity before incurring the costs of acquisition. A contract race was suggested provided the vendor underwrote the first part of the bidder’s due diligence costs. An offer was made, but the parties differed according as to whether it was payable if the bid failed.
Held: The relevant letter was to be construed as an invitation and an offer to pay the costs, and was not conditional upon contracts being ready to be signed by a certain date. Appeal dismissed.
Lord Justice Waller, Lord Justice Rix, And, Mr Justice Wilson
[2002] EWCA Civ 128
England and Wales
Updated: 27 June 2022; Ref: scu.167636
[1997] EWCA Civ 2792
England and Wales
Updated: 27 June 2022; Ref: scu.143191
Breach of share sale agreement.
Morritt LJ, Buxton LJ
[1997] EWCA Civ 2802, [1998] CLC 189
England and Wales
Cited – Continental Illinois National Bank and Trust Company of Chicago v John Paul Papanicolaou (The Fedora) CA 1986
The court considered the effect of a guarantee clause.
Held: The provisions of the guarantee went to timing and cash flow rather than liability. A term excluding a right of set-off is not to be treated in the same way as an exclusion clause. . .
Cited – Coca-Cola Financial Corporation v Finsat International Ltd and Others CA 1-May-1996
Party may contract out of right of set-off. Issue justiciable under Order 14. . .
Cited – BOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA 29-Apr-1999
The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
Held: The appeal . .
Cited – Barclays Bank Plc v Kufner ComC 10-Oct-2008
barclays_kufnerComC2008
The bank sought summary judgment under a guarantee to secure a loan to purchase a luxury yacht which was to be hired out in business. The loan had been charged against the yacht, but when the yacht was re-registered, the bank failed to re-establish . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.143201
Allegation of repudiation of agreement to lease fleet of aircraft.
Phillips J
[2018] EWHC 3315 (Comm)
England and Wales
Updated: 27 June 2022; Ref: scu.631315
[2012] EWCA Civ 1235
England and Wales
Updated: 27 June 2022; Ref: scu.464652
[2012] EWCA Civ 1440
England and Wales
Updated: 27 June 2022; Ref: scu.465887
Goulding J remarked that redundant words in a contract may sometimes serve the useful purpose of increasing clarity.
Goulding J
[1973] 1 All ER 843
England and Wales
Cited – Martin v David Wilson Homes Ltd CA 28-Jun-2004
The court considered the construction of a restrictive covenant, and was asked whether an indefinite article ‘a private dwellinghouse’ was to be construed as a limitation of number or whether it was to be construed as being as to the manner of use. . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.421518
Judge J
[2001] EWCA Civ 1422
England and Wales
Updated: 27 June 2022; Ref: scu.218332
Application for leave to appeal against summary judgment for agent’s letting fees.
Tuckey LJ
[2001] EWCA Civ 1112
England and Wales
Updated: 27 June 2022; Ref: scu.218300
[2002] EWCA Civ 1910
England and Wales
Updated: 27 June 2022; Ref: scu.217902
Kay LJ
[2002] EWCA Civ 1892
England and Wales
Updated: 27 June 2022; Ref: scu.217859
Laws LJ
[2002] EWCA Civ 1775
England and Wales
Updated: 27 June 2022; Ref: scu.217655
Application for leave to appeal
[2002] EWCA Civ 1550
England and Wales
Application for leave – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.217664
Renewed application for permission to appeal out of time
[2002] EWCA Civ 1413
England and Wales
Updated: 27 June 2022; Ref: scu.217610
Potter, Chadwick LJJ
[2002] EWCA Civ 959
England and Wales
Updated: 23 June 2022; Ref: scu.217468
Construction on the provisions relating to the payment of interest in an equipment lease agreement.
[2002] EWCA Civ 1031
England and Wales
Updated: 23 June 2022; Ref: scu.217447
[2002] EWCA Civ 1296
England and Wales
Updated: 23 June 2022; Ref: scu.217361
[2002] EWCA Civ 1294
England and Wales
Updated: 23 June 2022; Ref: scu.217365
Whether software licence was for indefinite term or determinate term.
[2002] EWCA Civ 1033
England and Wales
Cited – L’Estrange v F Graucob Limited CA 1934
The company’s order form contained a clause providing them with complete exemption from liability: ‘Any express or implied, condition, statement of warranty, statutory or otherwise is expressly excluded’.
Held: If a party signs a written . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 June 2022; Ref: scu.217362
[2002] EWCA Civ 999
England and Wales
Updated: 23 June 2022; Ref: scu.217318
[2002] EWCA Civ 1051
England and Wales
Updated: 23 June 2022; Ref: scu.217345
[2002] EWCA Civ 993
England and Wales
Updated: 23 June 2022; Ref: scu.217294
Clarke LJ, Sir Swinton Thomas
[2002] EWCA Civ 758
England and Wales
Updated: 23 June 2022; Ref: scu.217190
[2002] EWCA Civ 650
England and Wales
See Also – Sabah Shipyard (Pakistan) Ltd v The Islamic Republic of Pakistan and Another CA 14-Nov-2002
An order was sought to restrain proceedings in Pakistan.
Held: The agreement provided that it should be subject to the exclusive jurisdiction of England. The national state was also party to the agreement, and had waived sovereign immunity. It . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 June 2022; Ref: scu.217095
Aldous LJ
[2002] EWCA Civ 394
England and Wales
Updated: 23 June 2022; Ref: scu.216879
[2002] EWCA Civ 491
England and Wales
Updated: 23 June 2022; Ref: scu.216891
Pill, Longmore LJJ, Sir Martin Nourse
[2002] EWCA Civ 440
England and Wales
Updated: 23 June 2022; Ref: scu.216959
Solicitors sued for payment of their costs.
[2002] EWCA Civ 282
England and Wales
Updated: 23 June 2022; Ref: scu.216707
Application for permission to appeal in claim against pawnbrokers for return of pledged jewelry.
[2002] EWCA Civ 622
England and Wales
Updated: 23 June 2022; Ref: scu.216758
Leave to appeal
[2002] EWCA Civ 154
England and Wales
Cited – PST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Leave – Otis Vehicle Rentals Ltd v Ciceley Commercials Ltd CA 12-Jul-2002
. .
Lists of cited by and citing cases may be incomplete.
Updated: 23 June 2022; Ref: scu.216731
The parties disputed the effect of a clause in an option agreement, and as to whether it contained an agreement to negotiate and was therefore not binding.
Held: Chadwick LJ said: ‘First, each case must be decided on its own facts and on the construction of the words used in the particular agreement. Decisions on other words, in other agreements, construed against the background of other facts, are not determinative and may not be of any real assistance.
Second, if on the true construction of the words which they have used in the circumstances in which they have used them, the parties must be taken to have intended to leave some essential matter, such as price or rent, to be agreed between them in the future – on the basis that either will remain free to agree or disagree about that matter – there is no bargain which the courts can enforce.
Third, in such a case, there is no obligation on the parties to negotiate in good faith about the matter which remains to be agreed between them – see Walford v. Miles [1992] AC 128, at page 138G.
Fourth, where the court is satisfied that the parties intended that their bargain should be enforceable, it will strive to give effect to that intention by construing the words which they have used in a way which does not leave the matter to be agreed in the future incapable of being determined in the absence of future agreement. In order to achieve that result the court may feel able to imply a term in the original bargain that the price or rent, or other matter to be agreed, shall be a ‘fair’ price, or a ‘market’ price, or a ‘reasonable’ price; or by quantifying whatever matter it is that has to be agreed by some equivalent epithet. In a contract for sale of goods such a term may be implied by section 8 of the Sale of Goods Act 1979 . But the court cannot imply a term which is inconsistent with what the parties have actually agreed. So if, on the true construction of the words which they have used, the court is driven to the conclusion that they must be taken to have intended that the matter should be left to their future agreement on the basis that either is to remain free to agree or disagree about that matter as his own perceived interest dictates there is no place for an implied term that, in the absence of agreement, the matter shall be determined by some objective criteria of fairness or reasonableness.
Fifth, if the court concludes that the true intention of the parties was that the matter to be agreed in the future is capable of being determined, in the absence of future agreement, by some objective criteria of fairness or reasonableness, then the bargain does not fail because the parties have provided no machinery for such determination, or because the machinery which they have provided breaks down. In those circumstances the court will provide its own machinery for determining what needs to be determined-where appropriate by ordering an inquiry (see Sudbrook Trading Estate Ltd v. Eggleton [1983] A.C. 444).’
Schiemann, Chadwick LJJ, Sir Murray Stuart-Smith
[2002] EWCA Civ 163
England and Wales
Cited – Sudbrook Trading Estate Ltd v Eggleton HL 1982
The grantors of an option, which contained a machinery for fixing the price, had refused to appoint a valuer and that made it impossible for the contractual machinery for the valuation of the option price to work. The House of Lords held that the . .
Cited – MRI Trading Ag v Erdenet Mining Corporation Llc CA 8-Mar-2013
The Commercial Court had found the result of an arbitration award ‘obviously wrong’, and ineed bizarre.
Held: The appeal failed. The award was flawed, in failing to take account of the trading context between the parties: ‘The overall . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 June 2022; Ref: scu.216677
[2001] EWCA Civ 1408
England and Wales
Updated: 23 June 2022; Ref: scu.201333
[2004] EWHC 1750 (TCC)
England and Wales
Updated: 23 June 2022; Ref: scu.216448
HHJ David Cooke
[2021] EWHC 21 (Ch)
England and Wales
Updated: 23 June 2022; Ref: scu.657219
Walker J
[2019] EWHC 1011 (QB)
England and Wales
Updated: 23 June 2022; Ref: scu.636175
Attempted collaboration in relation to the production of a capsule suspension formulation for Clomazone (‘CS-CLO’), this being a plant protection product designed to control the growth of various weeds and to protect crops including, in particular, oilseed rape and potatoes.
Butcher J
[2018] EWHC 2765 (Comm)
England and Wales
Updated: 23 June 2022; Ref: scu.631311