Category: Contract

State Trading Corporation of India Ltd v M Golodetz Ltd: CA 1989

Kerr LJ said: ‘What is commonly referred to as an acceptance of a repudiation must be communicated to the party in breach or at least overtly evinced. . An unequivocal act which is inconsistent with the subsistence of the contract may be sufficient, without any concurrent manifestation of intent directed to the other party. But saying and doing nothing at all, other than a continuing failure to perform, cannot constitute an acceptance of a repudiation even if the grounds for such an acceptance then exist. Such conduct would be equivocal and equally consistent with a decision not to exercise the right to treat the contract as repudiated.’ and
‘Thus, the correct analysis of a breach of warranty in the insurance contract may be that, upon the true construction of the contract, the consequence of the breach is that the cover ceases to be applicable unless the insurer subsequently affirms the contract, rather than to treat the occurrence of a breach of the contract by the insured which the insurer subsequently accepts as a wrongful repudiation.’

Judges:

Kerr, LLoyd, Butler Sloss LJJ

Citations:

[1989] 2 Lloyd’s Rep 277

Jurisdiction:

England and Wales

Cited by:

Cited – Vitol Sa v Norelf Ltd (‘the Santa Cara’) CA 26-May-1995
The parties agreed to buy and sell molasses to be delivered on the Santa Clara which was set to leave on a certain date. The market was falling, and when the buyer saw that the ship would not be ready in time, it sent a telex saying that this was a . .
Went too far – Vitol Sa v Norelf Ltd HL 10-Jul-1996
(The Santa Clara) The seller was to deliver propane by a ship set to leave on a certain date. The market was falling. The buyer, when it was clear that the ship would be unable to leave on the day fixed, sent a telex to say that the contract was . .
Cited – Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) HL 1992
The effect of breach of an insurance warranty is automatic, rather than dependant on any acceptance or election.
Lord Goff of Chieveley said: ‘So it is laid down in section 33(3) that, subject to any express provision in the policy, the insurer . .
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
Cited – Gisda Cyf v Barratt SC 13-Oct-2010
The parties disputed the effective date of termination of the claimant’s employment. Was it the date on which the letter notifying her was sent, or was it on the day she received it. She had been dimissed without notice, and the date was the date on . .
Cited – Lidl UK Gmbh v Hertford Foods Ltd and Another CA 20-Jun-2001
The respondent had contracted to supply tinned corned beef to the appellant, but had become unable to fulfil the orders because of industrial action in Brazil. The appellant had purchased supplies elsewhere and set off the cost of that against the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 June 2022; Ref: scu.266198

National Provincial Bank v Jackson: CA 1886

Two sisters executed deeds relating to their property, but did not read them first or having them read out to them or explained. They said that they had relied on their brother, a solicitor.
Held: Cotton LJ said that they could not have been said to have been guilty of negligence in so doing, but their plea of non est factum failed as they knew that the deeds they signed dealt in some way with their houses.

Judges:

Cotton LJ

Citations:

[1886] 33 Ch D 1

Jurisdiction:

England and Wales

Cited by:

Cited – Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society HL 9-Nov-1970
The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 June 2022; Ref: scu.253152

Barclays Bank v Beck: CA 1952

The court drew a distinction between an action on a debt which had been but was no longer secured, and a debt which had not been secured.

Judges:

Denning LJ

Citations:

[1952] 2 QB 47

Jurisdiction:

England and Wales

Cited by:

Cited – Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant CA 31-Jul-2002
The defendants resisted claims by lenders for the payment of mortgage debts. In each case the lender had exercised the power of sale before issuing proceedings for possession. The defendants queried the limitation period applicable.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 23 June 2022; Ref: scu.199719

Campbell v Edwards: CA 1976

The court looked at its ability to set aside an expert’s certificate as to value.
Held: If an expert valuer has undertaken his task honestly and in good faith, the outcome cannot be challenged simply because he has made a mistake or one side does not like the outcome.
Lord Denning MR said: ‘It is simply the law of contract. If two persons agree that the price of property should be fixed by a valuer on whom they agree, and he gives that valuation honestly and in good faith, they are bound by it. Even if he has made a mistake they are still bound by it. The reason is because they have agreed to be bound by it.’

Judges:

Lord Denning MR

Citations:

[1976] 1 WLR 403, [1976] 1 All ER 785

Jurisdiction:

England and Wales

Cited by:

Cited – Morgan Sindall Plc v Sawston Farms (Cambs) Ltd CA 3-Dec-1998
An option had been given for the purchase of land. The claimant challenged the value assigned on exercising the option. The landowner subsequently disclosed a right of way over the land.
Held: An expert’s valuation cannot be challenged if it . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 June 2022; Ref: scu.180627

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 damages award wa sreduced. Although the contract did not contain any particular formula or point of reference for the calculation of the bonus, the obligation was to consider the question of bonus as a rational and bona fide exercise when taking into account the criteria adopted for the purpose of arriving at a decision. To do otherwise would be to ‘fly in the face of the principles of trust and confidence which have been held to underpin the employment relationship.’
Potter LJ said: ‘While, in any such situation, the parties are likely to have conflicting interests and the provisions of the contract effectively place the resolution of that conflict in the hands of the party exercising discretion, it is presumed to be the reasonable expectation and therefore the common intention of the parties that there should be a genuine and rational, as opposed to an empty or irrational, exercise of discretion. Thus the courts impose an implied term of the nature and to the extent described.’

Judges:

Potter, Carnwath LJ, Bodey J

Citations:

[2004] EWCA Civ 1287, [2005] ICR 402, [2004] IRLR 942

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Horkulak v Cantor Fitzgerald International QBD 31-Jul-2003
The claimant sought damages for constructive dismissal. He said that verbal abuse he had suffered from the manager damaged his health and destroyed the relationship of trust and confidence.
Held: The manager was dictatorial and saw it as his . .
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 by:

Cited – 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 . .
Cited – Lymington Marina Ltd v MacNamara and others CA 2-Mar-2007
A share in a marina had been inherited by one brother whose application to grant successive sub-lcences of it to the other two was rejected by the marina, who said that this was not permitted. The marina appealed a finding that it had to make its . .
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 – Parties Named In Schedule A v Dresdner Kleinwort Ltd and Another QBD 28-May-2010
The defendant merchant banks resisted two group claims for annual bonuses for 2008 made by the employee claimants. They now sought summary judgment against the claims. The employer had declared a guaranteed minimum bonus pool available to make the . .
Cited – Small and others v The Boots Co Plc and Another EAT 23-Jan-2009
EAT CONTRACT OF EMPLOYMENT: Written particulars
UNLAWFUL DEDUCTION FROM WAGES
In determining claims under a discretionary bonus scheme the Employment Judge erred in failing to decide whether the scheme . .
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.

Employment, Contract

Updated: 21 June 2022; Ref: scu.216444

Peregrine Systems Ltd v Steria Ltd: TCC 26 Feb 2004

Failed computer system

Citations:

[2004] EWHC 275 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Peregrine Systems Ltd v Steria Ltd CA 14-Mar-2005
The claimant provided computer software to the defendants. The defendants appealed dismissal of their defences arguing that the system had failed.
Held: No repudiatory breach was established, and moreover Steria had elected to affirm the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 21 June 2022; Ref: scu.216010

London Borough of Barnet v Barnet Football Club Holdings Ltd: CA 30 Jul 2004

An application was made for the rectification of a transfer.
Held: The fact that the contract has been negotiated by a person who is not the decision-taker and has made an error is irrelevant unless it can be shown that the decision-taker shared the intention of the negotiator; but that requires evidence. The negotiator for the Borough had made an error in the drafting of the contract, but he was not the decision-taker; those who took the decision for the Borough were not called to give evidence and it could not be inferred that they intended the Borough to contract other than in the form of the contract which the Borough executed.

Judges:

Peter Gibson, Keene, Mauric Kay LJJ

Citations:

[2004] EWCA Civ 1191

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – George Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 21 June 2022; Ref: scu.215984

Anthony McNicholl Ltd And Others v Minister For Agriculture: ECJ 8 Mar 1988

ECJ Whilst the concept of force majeure does not presuppose absolute impossibility, it nevertheless requires the non-performance of the act in question to be due to circumstances beyond the control of the person claiming force majeure, which are abnormal and unforeseeable and of which the consequences could not have been avoided despite the exercise of all due care.
The failure of a purchaser of beef held in intervention storage and intended for exportation to fulfil his obligations to export it, as a result of fraud or negligence or a combination of fraud and negligence on the part of an independent carrier to whom the transport of the goods was subcontracted, does not constitute a case of force majeure within the meaning of article 11 of commission regulation (eec) no 1687/76 laying down common detailed rules for verifying the use and/or destination of products from intervention.
Where the fulfilment of an obligation to export a quantity of beef purchased from an intervention agency is guaranteed by the security referred to in regulation no 1687/76, the principle of proportionality is properly applied in the case of a failure to observe this principal obligation if the intervention agency determines the amount of the security to be declared forfeit by reference to the tonnage which was not exported. Except in the case of force majeure, that principle does not require the intervention agency to take into consideration other circumstances such as the moral blame attaching to the exporter, the loss suffered by community funds or the profit which might have been made on a resale within the community.

Citations:

R-296/86, [1988] EUECJ R-296/86

Links:

Bailii

European, Contract

Updated: 21 June 2022; Ref: scu.215572

Laurence v Lexcourt Holdings Ltd: ChD 1978

The purchasers sought rescission of a 15 year lease of business premises. Unknown to either party, the planning permission restricted their use as offices to a period of no more than two years.
Held: There had been a misrepresentation by the lessors which entitled the lessees to rescind the agreement. Dealing with an alternative plea of common mistake, the court followed Solle v Butcher and Grist v Bailey in holding that the lease could be rescinded on the ground that it had been concluded under a mistake which was fundamental. The defendant’s failure to make the search which would have disclosed the mistake did not disentitle them from relying on their mistake.

Judges:

Dillon QC

Citations:

[1978] 1 WLR 1128, [1978] 2 All ER 810

Jurisdiction:

England and Wales

Cited by:

Cited – William Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 21 June 2022; Ref: scu.185671

Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd: HL 1981

Where both parties to a contract are in breach of a mutual obligation owed by each to the other, neither can rely upon the other’s breach as giving him a right to terminate. The Court of Appeal has an inherent power to control its own procedure to stop it being abused. It has a ‘general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice.’ and ‘Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant.’

Judges:

Lord Diplock, Edmund-Davies, Russell of Killowen LL

Citations:

[1981] AC 909, [1981] 1 Lloyds Rep 253

Jurisdiction:

England and Wales

Cited by:

Cited – Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd and Others HL 17-Feb-1993
The court has the power to stay an action which pursued a remedy which was outside the terms of the arbitration agreement determining the dispute. The contract between the parties provided for disputes to be settled by arbitration in Belgium. The . .
Cited – Donovan Crawford Regardless Limited Alma Crawford v Financial Institutions Services Limited PC 19-Jun-2003
PC (Jamaica) The petitioners sought leave to appeal to the Privy Council. They had an appeal as of right. They now sought special leave, complaining that the Court in Jamaca had granted leave subject to them . .
Cited – Mote v Secretary of State for Work and Pensions and Another CA 14-Dec-2007
The appellant was accused of having received income benefits to which he was not entitled. A prosecution was commenced and at the same time he appealed to the tribunal against the decision that there had been an overpayment. The authorities . .
Cited – Al Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice, Constitutional

Updated: 21 June 2022; Ref: scu.184491

The Chanda: ChD 1989

Part of an asphalt drying and mixing plant had been shipped on deck in breach of contract. The court asked whether the shipment on deck disentitled the shipowner from relying on Article IV rule 5.
Held: A carrier by sea, who carries cargo on deck in breach of a contract of carriage which is governed by the Rules, can not take advantage of Article IV rule 5 to limit his liability for loss or damage to that cargo.

Judges:

Hirst J

Citations:

[1989] 2 Lloyds Rep 494

Statutes:

Hague-Visby Rules

Jurisdiction:

England and Wales

Cited by:

Not followed – Daewoo Heavy Industries Ltd and Another v Klipriver Shipping Ltd and Another ChD 2002
. .
Cited – Daewoo Heavy Industries Ltd and Another v Klipriver Shipping Ltd and Another CA 3-Apr-2003
The carrier had loaded the cargo on the ship’s deck, despite a clause requiring it to be stowed in a hold. The charterparty sought to use the breach to remove the carrier’s limit of liability. The older form of Hague rules applied.
Held: It . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 21 June 2022; Ref: scu.181080

Lusograin v Bunge: ChD 1986

An innocent party cannot ‘obtain the benefit of a later date by pointing to a later default which has occurred before the acceptance of the repudiation’. This is precisely what he is entitled to do at common law for the good reason that that is his choice (and risk). In so far as it is suggested that such an approach is justified where ‘one default is followed inevitably by a number of others’ that is to introduce unnecessary and undesirable factual uncertainties. In so far as it is suggested that such an approach is justified if the first default is the ‘main obligation under the contract’.that too is to introduce uncertainty. In any event the seller’s main obligation under a sale of goods contract is delivery.

Judges:

Staughton J.

Citations:

[1986] 2 Lloyds Rep 654

Jurisdiction:

England and Wales

Contract

Updated: 21 June 2022; Ref: scu.180030

Ex parte Parsons, In re: Townsend: CA 1886

Parsons was to advance money to Townsend. As security he was to have the right to take immediate possession of the goods and sell them.
Held: As a licence to take possession of goods as between two private individuals, it fell within sections 3 and 4 of the 1878 Act. As whether it was a bill of sale within the 1882 Act Lord Esher MR said: ‘Section 3 says that the two Acts are to be construed as one, and that the expression ‘bill of sale’ is to have the same meaning in the Act of 1882 as in the Act of 1878, except as to bills of sale given otherwise and by way of security for the payment of money, to which the Act is not to apply. This document, therefore, is a bill of sale within the Act of 1882 because it is a bill of sale within the Act of 1878.’ It was not made in the form required and it was, therefore, void.

Judges:

Lord Esher MR

Citations:

(1886) 16 QBD 532

Statutes:

Bills of Sale Act 1878 6 8

Jurisdiction:

England and Wales

Cited by:

Cited – Online Catering Ltd v Acton and Another CA 10-Feb-2010
The claimant agreed for the defendant to repair its fleet of vehicles. The defendant, having fees outstanding, entered the claimants’ premises and removed vehicles saying falsely that they were to be repaired, and then refused to return them. The . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 21 June 2022; Ref: scu.414896

Datec Electronic Holdings Ltd and Another v United Parcels Service Ltd: CA 29 Nov 2005

The parties put forward alternative explanations for the loss of a mail packet. Richards LJ said: ‘Nor do I see any inconsistency between my approach and the observations of Lord Brandon in The Popi M. The conclusion that employee theft was the probable cause of the loss is not based on a process of elimination of the impossible, in application of the dictum of Sherlock Holmes. It does take into consideration the relative probabilities or improbabilities of various possible causes as part of the overall process of reasoning, but I do not read The Popi M as precluding such a course. Employee theft is, as I have said, a plausible explanation and is very far from being an extremely improbable event. A finding that employee theft is more likely than not to have been the cause of the loss accords perfectly well with common sense. Thus the various objections to the finding made by the trial judge in The Popi M simply do not bite on the facts of this case.’

Judges:

Richards LJ

Citations:

[2005] EWCA Civ 1418

Links:

Bailii

Statutes:

Carriage of Goods by Road Act 1965

Jurisdiction:

England and Wales

Citing:

Appeal from – Datec Electronic Holdings Ltd and Another v United Parcels Service Ltd and Another ComC 22-Feb-2005
The claimant sought damages for the loss of goods in transit under the care of the defendant. Andrew Smith J held as regards the burden of proof in an allegation of wilful misconduct: ‘I should add that I was properly reminded by counsel that the . .

Cited by:

Appeal from – 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 – Ide v ATB Sales Ltd and Another CA 28-Apr-2008
Each appellant challenged how the judge had decided between alternative proofs of causation of the respective loss. In Ide, the claimant asserted a fault in a cycle handlebar, and in Lexus, the claimant asserted that it caught fire whilst . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 21 June 2022; Ref: scu.235435

Rwe Nukem Ltd. v Aea Technology Plc: CA 20 Oct 2005

Judges:

Sedley, Longmore, Lloyd LJJ

Citations:

[2005] EWCA Civ 1192

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – RWE Nukem Limited v AEA Technology Plc QBD 28-Jan-2005
For a party making a claim under the contract, the requirement was for ‘written particulars of such claim (giving detail of the specific matter as are available to the purchaser in respect of which such claim is made).’
Held: ‘Every . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 21 June 2022; Ref: scu.231464

Criterion Properties Plc v Stratford UK Properties Llc and others: CA 18 Dec 2002

Citations:

[2002] EWCA Civ 1883, [2003] 2 BCLC 129

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Criterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .

Cited by:

See Also – Criterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 21 June 2022; Ref: scu.217892

Cavanagh and Others v Secretary of State for Work and Pensions: QBD 13 May 2016

Part 8 claim brought against the Defendant by two of its employees, Mr Cavanagh and Ms Williams, and by their trade union, the Public and Commercial Services Union. The main issues were whether, the Claimants having opted to have their subscriptions to the PCS deducted from their salary and paid by the Defendant to the PCS, had a contractual right to insist that the Defendant continue with that arrangement, and whether, if they had, the PCS, which was not a party to their contracts of employment, could enforce that right under the 1999 Act.

Judges:

Elisabeth Laing DBE J

Citations:

[2016] EWHC 1136 (QB)

Links:

Bailii

Statutes:

Contracts (Rights of Third Parties) Act 1999

Jurisdiction:

England and Wales

Contract, Employment

Updated: 19 June 2022; Ref: scu.564500

London and North-Western Railway Co v Richard Hudson and Sons Ltd: HL 30 Jan 1920

The respondents purchased from the Ministry of Munitions twenty-seven bales of calico then lying at the works of Kynochs Limited, Birmingham, and requested Kynochs to forward the bales to them at Manchester, carriage forward. Kynochs consigned the goods already loaded and sheeted by them for carriage by the appellants’ railway, and the appellants signed an acknowledgment on the consignment-note that the goods were received in good condition. The appellants delivered the goods, and by an invoice sent to the respondents charged for them at a rate which included the loading and sheeting of the goods. Upon delivery the goods were found to have been damaged during transit by water owing to defective sheeting. The respondents sued in the County Court for pounds 42, the agreed amount of the damage. Under agreement between the appellants and Kynochs the latter undertook the sheeting and loading of goods consigned from their sidings, receiving a rebate of 2s. 3d. per ton. The sheets and trucks were provided by the Railway Company. The respondents were unaware of this agreement. Held (Lord Haldane and Lord Phillimore dis.) that the appellants were liable to the respondents either as common carriers or under the contract in the consignment-note, and this apart from the agreement between the appellants and Kynochs as to terminal services.

Judges:

Lords Haldane, Dunedin, Atkinson, Buckmaster, and Phillimore

Citations:

[1920] UKHL 452, 57 SLR 452

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 18 June 2022; Ref: scu.631507

Wood v Sureterm Direct Ltd and Capita Insurance Services Ltd: CA 30 Jul 2015

At issue in this appeal is the true construction of a clause in a sale and purchase agreement in respect of all the shares in a company.
Held: The appeal succeeded. The Court of Appeal declared that Mr Wood’s liability under the indemnity in the SPA: ‘cannot arise unless the matter in respect of which indemnity is sought follows and arises out of either (i) a claim made against the Company, a Seller or a Relevant Person or (ii) a complaint registered with the FSA, the Financial Services Ombudsman or any other Authority against the Company, a Seller or a Relevant Person and, in either case, the claim or complaint (a) relates to the period prior to the Completion Date and (b) pertains to any mis-selling or suspected mis-selling of any insurance or insurance related product.’

Judges:

Patten, Gloster, Christopher Clarke LJJ

Citations:

[2015] EWCA Civ 839

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Wood v Sureterm Direct Ltd and Another ComC 14-Oct-2014
Construction of an indemnity provision in an agreement for the sale and purchase of the shares in the First Defendant.
Held: The Court decided a preliminary issue of the interpretation of the indemnity clause holding in effect, that it . .

Cited by:

Appeal from – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
Lists of cited by and citing cases may be incomplete.

Contract, Company

Updated: 18 June 2022; Ref: scu.550901

Montpelier Business Reorganisation Ltd v AJP One Llp and Others: QBD 5 Jul 2016

‘The parties in this action entered into various agreements including an Asset Purchase Agreement and a Management Services Agreement. This case requires determination of a claim and counterclaim arising out of alleged breaches of those agreements.’

Judges:

Saffman HHJ

Citations:

[2016] EWHC 977 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 18 June 2022; Ref: scu.566788

Adcock v Blue Sky Holidays Ltd: CA 13 May 1980

The plaintiffs sought damages after their holiday was disappointing. The cost of the holiday for five people was andpound;98 per person. The county court judge had allowed damages separately for the five holiday makers, having regard to how the breaches of contract affected each of them. He felt inhibited by Jarvis and Jackson and ‘would have approached the damages on a higher scale than [was] revealed by [those cases] ‘as appropriate’.
Held: The Court of Appeal disagreed. Bridge LJ said: ‘I wholly fail to understand how the learned judge was able to extract anything from either of those case which prevented him from awarding the higher scale of damages which he said he was minded to award.’
Cumming-Bruce LJ: ‘Contracts for holidays vary on their facts very greatly. The facilities offered by the tour company vary enormously from case to case. It would be a grave mistake to look at the facts in, for example, the Jackson case or the Jarvis case and compare those facts with the facts in another case as a means of establishing the measure of damages.’

Judges:

Bridge LJ, Cumming-Bruce LJ

Citations:

Unreported, 13/05/1980

Jurisdiction:

England and Wales

Cited by:

Cited – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 18 June 2022; Ref: scu.408561

Kookmin Bank v Rainy Sky Sa and Others: CA 27 May 2010

The defendant bank appealed against summary judgment given on a claim on its obligations under an advance payment bond given to support ship-building contracts.
Sir Simon Tuckey (dissenting) said: ‘There is no dispute about the principles of construction to be applied in order to answer this question. The court must first look at the words which the parties have used in the bond itself. The shipbuilding contract is of course the context and cause for the bond but is nevertheless a separate contract between different parties. If the language of the bond leads clearly to a conclusion that one or other of the constructions contended for is the correct one, the Court must give effect to it, however surprising or unreasonable the result might be. But if there are two possible constructions, the Court is entitled to reject the one which is unreasonable and, in a commercial context, the one which flouts business common sense.’
He went on to discuss whether in the particular circumstances of the case the Judge should have had regard to considerations of commercial and business common sense, and said: ‘But should the judge’s approach in this case have been more restricted as Mr Philipps contends? I do not think so. The title to Article X as a whole is ‘Payment’ but it contains an assortment of different terms. Article X.8 is drafted on the basis that the form of guarantee which the parties contemplated would be annexed to the agreement. That would be the document to look at if one was trying to discover from the contract what the Buyer was looking for, not the reference back to Article X.5. This reference back is poorly drafted and quite capable of referring simply to the opening sentence of paragraph 5. It is difficult to construe it in a way which restricts the refund obligations which the bond was to cover, not least because there is no reference to the Article X.6 obligation to a refund following total or constructive loss of the vessel which both parties agree was to be covered by the bond. By the same token, no significance should be attached to the omission of the Article XII.3 refund obligation. Nor do I think there is anything in Mr Philipps’ further point. On the happening of an Article XII.3 event the Buyer was entitled to a refund of its advance payments ‘immediately’. If that did not happen the contract was in a state of limbo: neither party could terminate at that stage. If the Builder did not proceed with the construction of the vessel, as would be extremely likely if it was insolvent, the Buyer could terminate for delay under Article XII.l but, under the terms of this article, only after 90 days plus 14 days notice. Only then could it call on the Bond. I cannot see how any Buyer (or its financiers) could possibly be satisfied with this as a remedy in the situation where the Builder was insolvent or nearly so.’ and
‘On the Bank’s construction the Bonds covered each of the situations in which the Buyers were entitled to a return or refund of the advance payments which they had made under the contracts apart from the insolvency of the Builder. No credible commercial reason has been advanced as to why the parties (or the Buyers’ financiers) should have agreed to this. On the contrary, it makes no commercial sense. As the judge said, insolvency of the Builder was the situation for which the security of an advance payment bond was most likely to be needed. The importance attached in these contracts to the obligation to refund in the event of insolvency can be seen from the fact that they required the refund to be made immediately. It defies commercial common sense to think that this, among all other such obligations, was the only one which the parties intended should not be secured. Had the parties intended this surprising result I would have expected the contracts and the bonds to have spelt this out clearly but they do not do so.’
Patten LJ said: ‘Before I turn to the language of the bond and the judge’s construction of paragraph (3) it is necessary to say something about the principles to be applied. In paragraph 18(iii) of his judgment Simon J describes the Bank’s construction of the bond as having the surprising and uncommercial result of the guarantee not being available to meet the shipbuilders’ repayment obligations in the event of insolvency. He appears to have taken this factor into account as an indication in favour of the Buyer’s construction of paragraph (3) and Sir Simon Tuckey has adopted the same approach in paragraph 19 of his judgment in deciding between the alternative constructions which are advanced.
I will come in a moment to the question whether there is any real ambiguity in the language of the bond and how evenly balanced the alternative constructions are, but the circumstances in which the Court can confidently declare that one or other possible meaning of the words used is uncommercial needs to be defined with some care. In a commercial contract (like any other contract) the parties have chosen to define the limits of the obligations which they have undertaken by the language they have used. The purpose of the contract is to provide an objective record of what has been agreed so as to regulate the legal relationship between them. The Court’s function is to give effect to those obligations by respecting the terms in which they are cast. When a dispute arises as to the meaning and scope of the contract the Court can only resolve it by construing the words used in a way which gives them the meaning which the document would convey to a reasonable person knowing all the background knowledge which would have been available to the parties in the situation they were in at the time of the contract: see ICS Ltd v West Bromwich Building Society [1998] 1 WLR 896 per Lord Hoffmann at page 912H. . .
In some cases this reference back to the matrix of fact may enable the Court to make sense of language which, as written in the contract, is either misused or ungrammatical. Most of the recent cases in which the House of Lords has re-stated the principles of contractual interpretation have been ones in which there has been some detectable error in the drafting of the document which has required the Court to ignore the precise language used in order to arrive at the meaning which the parties appear to have intended: see Mannai Investments Company Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 . .
In this case (as in most others) the Court is not privy to the negotiations between the parties or to the commercial and other pressures which may have dictated the balance of interests which the contract strikes. Unless the most natural meaning of the words produces a result which is so extreme as to suggest that it was unintended, the Court has no alternative but to give effect to its terms. To do otherwise would be to risk imposing obligations on one or other party which they were never willing to assume and in circumstances which amount to no more than guesswork on the part of the Court . .
For the reasons which I have given, I do not regard the alternative constructions of paragraph (3) advanced on this appeal as being in any way evenly balanced. I also agree with Mr Philips that it is impermissible to speculate on the reasons for omitting repayments in the event of insolvency from the bond. Although the judge is right to say that cover for such event was, objectively speaking, desirable, that is not sufficient in itself to justify a departure from what would otherwise be the natural and obvious construction of the bond. There may be any number of reasons why the Builder was unable or unwilling to provide bank cover in the event of its insolvency and why the Buyer was prepared to take the risk. This is not a case in which the construction contended for would produce an absurd or irrational result in the sense described in the cases I have referred to and merely to say that no credible commercial reason has been advanced for the limited scope of the bond does, in my view, put us in real danger of substituting our own judgment of the commerciality of the transaction for that of those who were actually party to it’.

Judges:

Thorpe, Patten LJJ, Sir Simon Tuckey

Citations:

[2011] 1 All ER (Comm) 18, 130 Con LR 19, [2010] 1 CLC 829, [2010] EWCA Civ 582

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Rainy Sky SA and Others v Kookmin Bank ComC 29-Oct-2009
The claimants sought summary judgment under an advance payment bond issued by the defendants in connection with certain shipbuilding contracts. . .
Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – 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 – Co-operative Wholesale Society Ltd v National Westminster Bank plc CA 1995
The court considered the proper construction of rent review clauses in several cases. The underlying result which the landlords sought in each case was the same.
Held: It was a most improbable commercial result. Where the result, though . .

Cited by:

Appeal from – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – Sugarman and Others v CJS Investments Llp and Others CA 19-Sep-2014
The parties were apartment owners in a development, each owning shares in the management company. They disputed the interpreation of the Articles as to whether the owner of more than one apartment was still restricted to one vote at member meetings, . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 18 June 2022; Ref: scu.416104

Centrovincial Estates Plc v Merchant Investors Assurance Co Ltd: CA 4 Mar 1983

There cannot be a contract when the promisee knows or ought to know that the promisor does not intend to contract on the stated terms. The plaintiff might be able to negate any binding agreement by showing that the defendant ought to have known that the plaintiff’s offer contained an error. In this case there was no proof ‘that the defendants either knew or ought reasonably to have known of the plaintiffs’ error. The non mistaken party need not show that as a result of entering into that contract he has suffered any actual detriment

Citations:

Times 08-Mar-1983, [1983] Com LR 158

Jurisdiction:

England and Wales

Contract

Updated: 18 June 2022; Ref: scu.392838

Rainy Sky SA and Others v Kookmin Bank: ComC 29 Oct 2009

The claimants sought summary judgment under an advance payment bond issued by the defendants in connection with certain shipbuilding contracts.

Judges:

Simon J

Citations:

[2010] 1 All ER (Comm) 82, [2009] EWHC 2624 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Esal Commodities v Oriental Credit Ltd CA 1985
The parties disputed whether a letter was a performance bond or a guarantee. The words of the instrument were: ‘We undertake to pay the said amount on your written demand in the event that the supplier fails to execute the contract in perfect . .
Cited – Gold Coast Ltd v Caja De Ahorros Del Mediterraneo and others CA 6-Dec-2001
The banks appealed findings as to their liability to pay out under on-demand guarantees they had given in respect of stage payments for the construction of a ship. It was claimed that the delivery times had not been met, and the builder was in . .

Cited by:

At first instance – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Appeal from – Kookmin Bank v Rainy Sky Sa and Others CA 27-May-2010
The defendant bank appealed against summary judgment given on a claim on its obligations under an advance payment bond given to support ship-building contracts.
Sir Simon Tuckey (dissenting) said: ‘There is no dispute about the principles of . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 18 June 2022; Ref: scu.377856

Wishart v National Association of Citizens Advice Bureaux Ltd: CA 1990

Mustill LJ said: ‘Undeniably, it is possible for an employer to make an offer conditional on something to be objectively determined (for example, the passing of a medical examination).’

Judges:

Mustill LJ

Citations:

[1990] ICR 794

Jurisdiction:

England and Wales

Cited by:

Cited – Cheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 18 June 2022; Ref: scu.346903

Household Fire Insurance Co v Grant: CA 1879

Citations:

[1879] 4 Exch D 216

Jurisdiction:

England and Wales

Citing:

Overruled – British American Telegraph C v Colson 1871
. .

Cited by:

Cited – Holwell Securities Ltd v Hughes CA 5-Nov-1973
An option was to be exercised ‘by notice in writing’ before a certain date. The solicitors’ letter doing so was addressed to the defendant at his residence and place of work, the house which was the subject of the option to purchase, was posted by . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 June 2022; Ref: scu.276457

Chartbrook Ltd v Persimmon Homes Ltd: CA 12 Mar 2008

Owners of land (Chartbrook) made a contract with a developer (Persimmon) granting Persimmon a licence to develop the land for commercial and residential use. Planning permission was granted and the development was built. The sums payable to Chartbrook under the contract included an ‘additional residential payment’ which was to be calculated according to a defined formula. On what Chartbrook contended, and the trial judge (Briggs J) held was the correct interpretation of the contractual formula, the amount payable to Chartbrook was some pounds 4.4m.
Held: The appeal failed.

Judges:

Tuckey, Lawrence Collins LJ, Rimer Lj

Citations:

[2008] EWCA Civ 183, [2008] 11 EG 92, [2008] 2 All ER (Comm) 387

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 by:

Appeal from – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 18 June 2022; Ref: scu.266154

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 licence from the owner, would construct a mixed residential and commercial development and sell the properties on long leases. The payment which the owner was to receive was set out in schedule 6 to the agreement. A dispute arose as to the proper construction of part of the schedule.
Held: The ‘private dictionary’ exception to the general exclusion of evidence relating to parties’ pre-contractual negotiations when construing a contract is limited to cases where the word or phrase in issue is not expressly defined in the contract. There had been no common mistake, as the two directors of Chartbrook had understood both the relevant clause in the contract and a pre-contractual exchange of letters describing the ARP as having the effect for which Chartbrook contended.

Judges:

Briggs J

Citations:

[2007] EWHC 409 (Ch), [2007] 2 P and CR 9, [2007] 1 All ER (Comm) 1083, [2007] 11 EG 160

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Re Butlin’s Settlement Trusts 1976
Sir Billy Butlin had executed a voluntary settlement to allow a majority of trustees to exercise a power under the settlement. By a drafting error the settlement did not give effect to this intention.
Held: The court could rectify the . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – 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 – 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 – 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 . .
Cited – Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH HL 1982
Brinkibon, based in London wanted to buy steel from the defendants who were in Austria. They accepted Stahag’s offer by Telex to Vienna. Brinkibon wanted to sue Stahag and in order to have leave to serve out of the jurisdiction, had to establish . .
Cited – Jones v Bright Capital Ltd and others ChD 7-Dec-2006
. .

Cited by:

Appeal from – Chartbrook Ltd v Persimmon Homes Ltd CA 12-Mar-2008
Owners of land (Chartbrook) made a contract with a developer (Persimmon) granting Persimmon a licence to develop the land for commercial and residential use. Planning permission was granted and the development was built. The sums payable to . .
At first instance – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 18 June 2022; Ref: scu.249889

Catlin Estates Ltd and Another v Carter Jonas (A Firm): TCC 31 Oct 2005

The defendants had been employed to manage a building project which it was said went wrong. The court had to consider several different factual claims.

Citations:

[2005] EWHC 2315 (TCC)

Links:

Bailii

Statutes:

Defective Premises Act 1972

Jurisdiction:

England and Wales

Citing:

Cited – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Cited – Robinson v Harman 18-Jan-1848
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where . .
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Cited – Brown and Root v Sun Alliance CA 2001
Until there has been a transfer in accordance with the provisions of the Land Registration Act the legal title to the estate remains with the vendor . .
Cited – Gardner v Marsh and Parsons (a Firm), Dyson CA 2-Dec-1996
Damages awarded against a surveyor for a negligent survey which had missed certain defects, were not to be reduced for repairs later carried out by the landlord at his own expense. The trial judge decided to award damages reflecting the difference . .
Cited – British Westinghouse Electric and Manufacturing Company Limited v Braulik CA 1910
Between 1904 and 1906 British Westinghouse supplied 8 steam turbines. They were defective in design and used excessive quantities of steam. The railway company did not reject them but reserved its claim to damages for breach of contract. In 1907 the . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Lists of cited by and citing cases may be incomplete.

Contract, Professional Negligence

Updated: 18 June 2022; Ref: scu.237601

Robert Leonard Developments Limited v Wright: CA 23 Mar 1994

The terms expressly agreed by the parties provided for the grant of a lease and the sale of the contents of the property. There was a single agreement for the lease and the contents. The written document did not incorporate the terms as to the sale of the contents and so did not comply with section 2.
Held: Rectification of the written document was ordered so as to include the terms as to the sale of the contents, with the result that the written document as rectified did comply with section 2. Dillon LJ remarked that the availability of rectification in that case was ‘obvious’ and ‘straightforward’.

Judges:

Dillon LJ, Henry LJ

Citations:

Unreported, 23 March 1994

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Cited by:

Cited – Oun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity, Land

Updated: 18 June 2022; Ref: scu.266513

Manzanilla Limited v Corton Property and Investments Limited John Maciver (Southport) Limited Rootbrights Limited Halliwell Landau (a Firm): CA 23 Apr 1997

Citations:

[1997] EWCA Civ 1492

Jurisdiction:

England and Wales

Citing:

See Also – Manzanilla Limited v Corton Property and Investments Limited; John MacIver (Southport) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 13-Nov-1996
Millett LJ set out the principles applicable to a deposit paid on a land transaction being held by a stakeholder: ”Where a stakeholder is involved, there are normally two separate contracts to be considered. There is first the bilateral contract . .

Cited by:

See Also – Manzanilla Limited v Corton Property and Investments Limited; John Mciver (Southampton) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 7-Jul-1997
After settlement between parties of a wasted costs application, a note may be put to the judge where this was needed in order to clear the reputation of lawyer involved. . .
Lists of cited by and citing cases may be incomplete.

Contract, Legal Professions

Updated: 18 June 2022; Ref: scu.141888

Manzanilla Limited v Corton Property and Investments Limited; John MacIver (Southport) Limited; Rootbrights Limited and Halliwell Landau (a Firm): CA 13 Nov 1996

Millett LJ set out the principles applicable to a deposit paid on a land transaction being held by a stakeholder: ”Where a stakeholder is involved, there are normally two separate contracts to be considered. There is first the bilateral contract between the two principals which contemplates two possible alternative future events and by which the parties agree to pay a sum of money to a stakeholder to abide the happening of one or other of them . . The second contract is the tripartite contract which results from the deposit of the money with the stakeholder on terms that he is to keep it until one or other of the relevant events happens and then pay it to one or other the parties accordingly. The stakeholder is a party to the second contract but not the first. His rights and obligations are not normally expressly spelled out. They are implicit in the transaction itself, and must be discovered not by implying terms, but by analysing the relationship of the parties which arises from the deposit of the money.
The following propositions emerge from the authorities:
(1) The relationship between the stakeholder and the depositors is contractual, not fiduciary. The money is not trust money; the stakeholder is not a trustee or agent; he is a principal who owes contractual obligations to the depositors: Potters v Loppert [1973] Ch. 399, 406; Hastingwood Ltd v Saunders Bearman [1991] Ch. 114, 123. The underlying relationship is that of debtor and creditor, and is closely analogous to the relationship between a banker and his customer.
(2) Until the specified event occurs, the stakeholder is entitled to retain the interest on the money. This is usually as his reward for holding the money: see Harington v Hoggart (1830), I BandAd 577. The right may be excluded by special arrangement, and was excluded in the present case.
(3) Until the event happens the stakeholder holds the money to the order of both depositors and is bound to pay it (strictly speaking an equivalent sum) to them or as they may jointly direct: Rockeagle v Alsop Wilkinson [1992] Ch. 47.
(4) Subject to the above, the stakeholder is bound to await the happening of the event and then to pay the money to one or other of the parties according to the event. The money is payable to the party entitled on demand, and if the stakeholder fails to pay in accordance with a proper demand he is liable for interest from the date of the demand: Lee v Munn [1817] EngR 769; (1817) 8 Taunt. 45; Gaby v Driver (1828) 2 YandJ 549.
(5) If the occurrence of the event is disputed, the stakeholder cannot safely pay either party, for if he mistakenly pays the party not entitled the payment will not discharge his liability to the other. In these circumstances he may (i) interplead and pay the money into Court; (ii) retain the money pending the resolution of the dispute; or (iii) take the risk of paying one party. The choice is entirely his.
(6) If he takes the second course, he may notify the parties that he is content to abide the outcome of the dispute. There is then no need to join him in any proceedings which are taken to resolve it. If he is not joined, the Court cannot order the money to be paid to the successful party. All it can do is to declare that the successful party is entitled to give a good receipt for the money: see Smith v Hamilton [1951] Ch. 175.
(7) If the stakeholder is not content to abide the outcome of the proceedings, he may be joined in order to bind him. This was done in the present case, albeit on the application of the stakeholder.’

Judges:

Millett LJ

Citations:

[1996] EWCA Civ 942

Jurisdiction:

England and Wales

Citing:

Cited – Rockeagle Ltd v Alsop Wilkinson CA 1991
The position of a stakeholder and the two potential claimants to a stake is the subject of a tripartite contract. The relationship between the stakeholder and the two potential claimants is contractual, not fiduciary. The money is not trust money. . .
Cited – Potters v Loppert ChD 1973
The court was asked as to the liability of an estate agent to account for interest earned upon a pre-contract deposit paid to him expressly as a stakeholder. No contract was made.
Held: A stakeholder is not a trustee or agent; he is a . .

Cited by:

Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
See Also – Manzanilla Limited v Corton Property and Investments Limited John Maciver (Southport) Limited Rootbrights Limited Halliwell Landau (a Firm) CA 23-Apr-1997
. .
See Also – Manzanilla Limited v Corton Property and Investments Limited; John Mciver (Southampton) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 7-Jul-1997
After settlement between parties of a wasted costs application, a note may be put to the judge where this was needed in order to clear the reputation of lawyer involved. . .
Lists of cited by and citing cases may be incomplete.

Contract, Legal Professions

Updated: 18 June 2022; Ref: scu.140809

Insured Financial Structures Ltd v Elektrocleplownia Tychy SA: CA 28 Jan 2003

The parties to a contract had agreed that Poland should have non-exclusive jurisdiction over disputes. Poland was not a party to the Lugano Convention, but both parties were domiciled in contracting states.
Held: The agreement had extended exclusive jurisdiction to the Polish courts through article 17 of the Convention. The agreement must first be interpreted against English law as against the Convention, following Kurtz

Judges:

Woolf LCJ, Hale, Latham LJJ

Citations:

Times 31-Jan-2003

Statutes:

Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 17(1)

Jurisdiction:

England and Wales

Citing:

Cited – Kurz v Stella Musical Veranstaltungs GmbH ChD 1991
A prorogation clause which claimed to confer exclusive jurisdiction on the courts of one country would, if it complied with Article 17 in point of form, be given effect so as to exclude any other jurisdictions which might otherwise be competent . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Updated: 17 June 2022; Ref: scu.178841

Jackson v Bishop: CA 1979

Where the definition of the parcels in a conveyance or transfer is not clear, then the court must have recourse to extrinsic evidence, and in particular to the physical features on the ground: ‘It seems to me that the question is one which must depend on the application of the plan to the physical features on the ground, to see which out of two possible constructions seems to give the more sensible result.’

Judges:

Bridge LJ

Citations:

(1979) 48 P and CR 57

Jurisdiction:

England and Wales

Cited by:

Cited – Geoffrey Allan Chadwick, Sylvia Joyce Chadwick, Edward James Chadwick v Abbotswood Properties Ltd, Gordon Leonard Hauser, Pamela Ann Hauser, Rectory Pump Ltd ChD 18-May-2004
Between to new houses was a steep bank. Who owned it? Before the transfer there had been different plans and much correspondence.
Held: Where there was doubt as to the extent of land transferred, the court could look to the physical boundaries . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 17 June 2022; Ref: scu.197725

Charter Reinsurance Co Ltd v Fagan and Others: HL 24 May 1996

The re-insurers appealed against a finding that they were liable to make payment under a contract which required them to pay ‘sums actually paid.’ They said that the company having become insolvent, no payment would in fact be made.
Held: The contract had to be construed as a whole. Under the contract, the sum became payable when the insurance claim itself became payable and not only when it was actually paid out. The complex layering arrangements envisaged by the contract required this interpretation.
Lord Hoffmann said: ‘I think that in some cases the notion of words having a natural meaning is not a very helpful one. Because the meaning of words is so sensitive to syntax and context, the natural meaning of words in one sentence may be quite unnatural in another. Thus a statement that words have a particular natural meaning may mean no more that that in many contexts they will have that meaning. In other contexts their meaning will be different but no less natural.’
Lord Mustill said: ‘If . . the words ‘actually paid’ can only as a matter of language and context mean what the syndicates maintain, I would hesitate long before giving them any other meaning, just because the result would be extraordinary’ and ‘Subject to [the use of a specialist vocabulary] the inquiry will start, and usually finish, by asking what is the ordinary meaning of the words used.’ and ‘This is . . an occasion when a first impression and simple answer no longer seem the best, for I recognise that the focus of the argument is too narrow. The words must be set in the landscape of the instrument as a whole. Once this is done the shape of the policy and the purpose of the terms become quite clear.’
and: ‘There comes a point at which the court should remind itself that . . to force upon the words a meaning which they cannot fairly bear is to substitute for the bargain actually made one which the court believes could better have been made. This is an illegitimate role for a court.’

Judges:

Lord Mustill, Lord Hoffmann

Citations:

Times 24-May-1996, [1996] 1 All ER 406, [1996] 3 All ER 46, [1996] 2 WLR 726, [1996] 2 Lloyds Rep 113, [1997] AC 313

Jurisdiction:

England and Wales

Citing:

Appeal from – Charter Reinsurance Co Ltd v Fagan and Others CA 6-Nov-1995
Liability of re-insurers arises on insurers becoming liable to pay, not payment. . .
Considered – In re Eddystone Marine Insurance Co, ex parte Western Insurance 1892
. .
Cited – Arbuthnott v Fagan CA 30-Jul-1993
The court considered the proper approach to construction of the terms in a contract. Sir Thomas Bingham MR said: ‘Courts will never construe words in a vacuum. To a greater or lesser extent, depending on the subject matter, they will wish to be . .

Cited by:

Cited – Yorkshire Water Services Ltd v Sun Alliance and London Insurance Plc and Others (1) CA 20-Aug-1996
The court was asked whether the costs of flood alleviation works were recoverable under public liability insurance policies.
Held: A claim for the costs of remedial action taken to mitigate future losses were not covered by the terms of the . .
Cited – Pilkington United Kingdom Limited v CGU Insurance Plc QBD 28-Jan-2004
The claimants had installed glass tiles in a roof. They fractured, and facing a claim for damages, they sought payment from their insurers. The claimants argued that the risk of fracture meant that the damage occurred upon installation, the insurers . .
Cited – Yorkshire Water Services Ltd v Taylor Woodrow Construction Northern Ltd TCC 8-Jul-2004
The claim arose from works at a sewage plant carried out by the defendants and their sub-contractors. The plant failed to meet performance standards. It was suggested that the form of standard contract restricted the claimant’s ability to pursue a . .
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 – Bedfordshire Police Authority v Constable and others ComC 20-Jun-2008
The authority insured its primary liability for compensation under the 1886 Act through the claimants and the excess of liability through re-insurers. The parties sought clarification from the court of the respective liabilities of the insurance . .
Cited – Trygort (Number 2) Ltd v UK Home Finance Ltd and Another SCS 29-Oct-2008
The landlords claimed that the tenants remained bound under the lease to occupy and use the premises and pay rent. The tenant said that it had exercised a break option. The landlord said that the break was not exercisable because it had otherwise . .
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 – Lexington Insurance Co v AGF Insurance Ltd HL 30-Jul-2009
The respondent insurers had been held liable in Washington, and had been granted indemnity against the appellants by the Court of Appeal. The insurance contract had been under the law of Pennsylvania, but that of the re-insurance under the law of . .
Cited – Sigma Finance Corporation, Re; (in administrative receivership) SC 29-Oct-2009
The court considered how the losses of the insolvent company were to be distributed as between secured creditors and preferential creditors, given the terms of the applicable trust deed.
Held: The court considered the interpretations of the . .
Cited – Bloomsbury International Ltd v Sea Fish Industry Authority and Department for Environment, Food and Rural Affairs SC 15-Jun-2011
The 1995 Regulations imposed a levy on fish both caught and first landed in the UK and also on imported fish products. The claimants, importers challenged the validity of the latter charges, saying that they went beyond the power given by the 1981 . .
Cited – Employers’ Liability Insurance ‘Trigger’ Litigation: BAI (Run Off) Ltd v Durham and Others SC 28-Mar-2012
The court considered the liability of insurers of companies now wound up for mesothelioma injuries suffered by former employees of those companies, and in particular whether the 1930 Act could be used to impose liability. The insurers now appealed . .
Cited – Lloyds TSB Foundation for Scotland v Lloyds Banking Group Plc SC 23-Jan-2013
A predecessor bank had created a trust into which it paid a small proportion of its profits. The parties now disputed the calculation of profits when the Bank declared a loss which allowed for an unrealised gain on the acquisition of HBOS. . .
Cited – Teal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .
Cited – The Financial Conduct Authority and Others v Arch Insurance (UK) Ltd and Others SC 15-Jan-2021
Many businesses, having been ordered to suspend business during the Covid-19 epidemic, sought to claim under business interruption insurance. The claims were rejected by the insurers and the insurers now appealed from a finding that they had been . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 17 June 2022; Ref: scu.78995

In Re Banister; Broad v Munton: CA 1879

Property was sold from a deceased estate under an order of the Court.The purchaser found the title was defective.
Held: A condition in a contract for the sale of land which purports to oust any right to object to the title or to raise requisitions cannot be relied on if it is misleading, or there has been less than full disclosure.
Fry J said: ‘It is also perfectly plain that, where the sale is under the direction of the Court, the Court will lean, if possible, to a more exact requirement of good faith and honesty on the part of the vendor; it will endeavour to insist upon that fair, straightforward, honest, open dealing which ought to characterise transactions between vendor and purchaser.’
Jessel MR said: ‘in sales by the Court there should be at least as much good faith shewn towards the purchaser as, and perhaps a little more than, is required by ordinary vendors out of Court. The old Court of Chancery – and this Court is its successor – has always felt bound to see that purchasers are fairly and honestly dealt with in every respect; and if there is any difference – I do not say there is – the difference must surely be in favour of a purchaser who buys under the decree and order of the Chancery Division.’
Cotton LJ said: ‘but I think in a case of this sort, where the sale is by the Court, the Court is bound to take more especial care, if possible, that there shall be nothing in the conditions, or in the representations therein contained, which by possibility can mislead a vendor, because the purchaser has a right to assume that the Court will take very good care that there shall be nothing that can in any way mislead him as to the title he is getting.’

Judges:

Fry J, Je ssel MR , LJ Cotton

Citations:

(1879) 12 ChD 131

Jurisdiction:

England and Wales

Cited by:

Cited – Area Estates Ltd v Weir CA 20-Jul-2010
The parties contracted for the sale and purchase of land with vacant possession. It was subject to a lease which the seller said had been surrendered, and it refused to accept any requisitions of objections. After exchange it appeared that the . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 17 June 2022; Ref: scu.420980

Lord Walpole v Lord Orford: HL 1797

The court considered the difference between an obligation accepted in law, and what was described as ‘an honourable engagement’.

Judges:

Lord Loughborough LC, Lord Camden L.C

Citations:

(1797) 3 Ves Jun 402, [1797] EngR 489, (1797) 3 Ves Jun 402, (1797) 30 ER 1076

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Lord Walpole v Lord Orford 1789
The court was asked, where there were two inconsistent wills, to which of them a later codicil must be held to refer.
The equitable maxim, voluntas testatoris ambulatotia est usque ad mortem, operates so that an instrument which appears to be . .

Cited by:

Cited – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – In re Cleaver dec’d, Cleaver v Insley ChD 1981
Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
Nourse J said: ‘The principle of all these cases is that a court of . .
Cited – In Re Estate of Monica Dale Dec, Proctor v Dale ChD 11-Feb-1993
The claimant’s parents had made mutual wills dividing their estates equally between the claimant and her brother. After the father’s death the mother chaged her will to give the biggest benefit to the brother.
Held: The mother could change her . .
Cited – In re Dale dec’d ChD 1994
The taking of a benefit on the strength of a binding engagement is enough to create a constructive trust. For this doctrine to apply there must be a contract at law. For the doctrine of mutual wills to apply it is not necessary that the second . .
Lists of cited by and citing cases may be incomplete.

Contract, Trusts

Updated: 16 June 2022; Ref: scu.183793

Banco de Portugal v Waterlow and Sons Ltd: HL 28 Apr 1932

Lord Macmillan said: ‘Where the sufferer from a breach of contract finds himself in consequence of that breach placed in position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. It is often easy after an emergency has passed to criticise the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency. The law is satisfied if the party placed in a difficult position by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken.’

Judges:

Lord Macmillan

Citations:

[1932] AC 452, [1932] UKHL 1

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Douglas Williams and others v Glyn Owen and Co CA 11-Jun-2003
Land was sold at auction. The particulars appeared to included valuable milk quota. The vendor was unable to complete, but no completion notice was served. The judge had held that the correct measure of damages was the difference (in financial . .
Cited – Pt Pan Indonesia Bank Ltd Tbk v Marconi Communications International Ltd CA 27-Apr-2005
The parties disputed the jurisdiction of the English courts over a letter of credit. It foresaw payment here and in sterling, made by the English bank as against the appropriate documents. Authority had been given for service out of the . .
Cited – 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 . .
Cited – Cheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
Cited – Joyce v Bowman Law Ltd ChD 18-Feb-2010
The claimant asserted negligence by the defendant licensed conveyancers in not warning him of the effect of an option in the contract. He had been advised that it would allow him to choose to buy additional land, but it was in fact a put option. The . .
Cited – Borealis Ab v Geogas Trading Sa ComC 9-Nov-2010
The parties had contracted for sale and purchase of butane for processing. It was said to have been contaminated. The parties now disputed the effect on damages for breach including on causation, remoteness, mitigation and quantum.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 16 June 2022; Ref: scu.183571

In re Helbert Wagg and Co Ltd’s Claim: ChD 8 Dec 1955

Conflict of Laws – Movables – Assignment – Foreign legislation –
Validity – Foreign exchange legislation – Whether confiscatory –
German Moratorium law of 1933 – Debt payable in London made payable to
Konversionskasse in Reichsmarks – German law proper law of contract.
Conflict of Laws – Chose in action or debt – Situs – Debtor’s place of
residence – No situs until but payable
Conflict of Laws – Contract – Proper law – Contract to be ‘construed in accordance with x law’ – x proper law.
Trading with the Enemy – Loan before war – Enemy debtor – Whether
contract abrogate
Trading with the Enemy – Administrator of Enemy Property – Appeal from decision – Whether decision of Administrator on effect of German law
final – Distribution of German Enemy Property Act, 1949 (12, 13 and 14 Geo. 6, c. 85) – Distribution of German Enemy Property (No. 2) Order, 1951 (S.I. 1951, No. 1899), art. 7 (2).
Contract – Conflict of laws – Debt – No local situation until payable
– Governed by proper law – Moratorium law – Whether confiscatory.
Upjohn J said: ‘the elementary proposition that it is part of the law of England, and of most nations, that in general every civilized state must be recognized as having power to legislate in respect of movables situate within that state and in respect of contracts governed by the law of that state, and that such legislation must be recognized by other states as valid and effectual to alter title to such movables.’

Judges:

Upjohn J

Citations:

[1956] 1 Ch 323

Links:

Google Groups

Jurisdiction:

England and Wales

Cited by:

Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

International, Contract

Updated: 14 June 2022; Ref: scu.634755

Unsworth v Elder Dempster Lines Ltd: HL 1940

Shippers of cargo on a chartered ship brought an action against the shipowners for damage caused to the cargo by bad stowage, for which the shipowners were responsible. The cargo was shipped under charterers’ bills of lading, so that the contract of carriage contained in or evidenced by the bills of lading was between the shippers and the charterers. The shipowners sought to rely, as against the shippers, on an exception in the bill of lading which protected the charterers from liability for damage due to bad stowage.
Held: The shipowners were entitled to do so. Lord Sumner: ‘in the circumstances of this case the obligations to be inferred from the reception of the cargo for carriage to the United Kingdom amount to a bailment upon terms, which include the exceptions and limitations of liability stipulated in the known and contemplated form of bill of lading.’

Judges:

Lord Sumner

Citations:

[1940] 1 KB 658, [1940] 1 All ER 362

Jurisdiction:

England and Wales

Cited by:

Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 14 June 2022; Ref: scu.243137

Stretford v The Football Association Ltd and Another: CA 21 Mar 2007

The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the Association had agreed to postpone disciplinary proceedings pending the result of other litigation between the parties.
Held: The appeal was dismissed. There was nothing in the exchanges to amount to such an agreement. The court considered the complaint that the arbitration proceedings would not provide a fair trial, and said ‘where parties have voluntarily or (as some of the cases put it) freely entered into an arbitration agreement they are to be treated as waiving their rights under article 6. ‘ Given the greater protection afforded to those subject to arbitration than that given in other countries whose systems had been approved by the ECHR, no infringement of the claimant’s human rights would follow from the referral to arbitration.

Judges:

Sir Anthony Clarke MR, Waller LJ, Sedley LJ

Citations:

[2007] EWCA Civ 238, Times 13-Apr-2007

Links:

Bailii

Statutes:

Arbitration Act 1996 1

Jurisdiction:

England and Wales

Citing:

Appeal from – Stretford v Football Association Ltd and Another ChD 17-Mar-2006
. .
Cited – Deweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
Cited – Mullins v Mcfarlane and the Jockey Club QBD 5-May-2006
Whether horse had been wrongly disqualified in a race. . .
Cited – Mullins, Regina (on the Application of) v The Jockey Club Admn 17-Oct-2005
The claimant’s horse had been found after a race to have morphine in his system. It was not thought that the claimant was at fault, but the horse was disqualifed. He sought judicial review of the decision.
Held: The decision was a disciplinary . .
Cited – R v Switzerland ECHR 4-Mar-1987
(Commission) ‘whereas the inclusion of an arbitration clause in an agreement between individuals amounts legally to partial renunciation of the exercise of those rights defined by Article 6 para. 1; whereas nothing in the text of that Article nor of . .
Cited – Edwards v The United Kingdom ECHR 16-Dec-1992
The fact that the elderly victim of the robbery of which the defendant had been convicted had failed to pick out Mr Edwards when she was shown two volumes of photographs of possible burglars which included his photograph was not disclosed to the . .
Cited – Regina v Disciplinary Committee of the Jockey Club, ex parte Aga Khan CA 4-Dec-1992
No Judicial Review of Decisions of Private Body
Despite the wide range of its powers, the disciplinary committee of the Jockey Club remains a domestic tribunal. Judicial review is not available to a member. Tne relationship is in contract between the club and its member. Sir Thomas Bingham MR: . .
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 – Nordstrom-Janzon v The Netherlands ECHR 1996
The parties had settled an earlier dispute under a joint venture agreement on terms which included a provision that disputes between them should not be settled by the ordinary courts but by a special arbitration procedure. The arbitrators rejected . .
Cited – Oberschlick v Austria ECHR 23-May-1991
A journalist was convicted by a court which regarded itself as bound by the opinion of the court of appeal which had remitted his case to the lower court for trial after it had been dismissed by that court. The judge who presided over the court of . .
Cited – Di Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
Cited – Millar v Dickson PC 24-Jul-2001
The Board was asked whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that . .
Cited – Pfeifer And Plankl v Austria ECHR 25-Feb-1992
Two of the judges who had acted in Mr Pfeifer’s case also presided at his trial, despite a clear provision of the Code of Criminal Procedure disqualifying them. The Commission dealt with whether the court was ‘established by law’ separately from . .
Cited – Schuler-Zgraggen v Switzerland ECHR 24-Jun-1993
The court considered a contributory invalidity scheme: ‘today the general rule is that Article 6(1) does apply in the field of social insurance, including even welfare assistance . . State intervention is not sufficient to establish that Article . .

Cited by:

Cited – Sumukan Ltd v The Commonwealth Secretariat CA 21-Mar-2007
The appellants sought to challenge a finding that they had by their contract with the defendants excluded the right to appeal to a court on a point of law. The defendants replied that the appeal court had no jurisdiction to hear such an appeal.
Lists of cited by and citing cases may be incomplete.

Contract, Human Rights, Arbitration

Updated: 14 June 2022; Ref: scu.250448

Rahimtoola v Nizam of Hyderabad: HL 1957

A claim was made against the former High Commissioner for Pakistan personally for money had and received. He established that he had received the money in England in his official capacity as High Commissioner.
Held: Appeal allowed. The application of the doctrine of sovereign immunity does not depend upon the persons between whom the issue is joined, but upon the subject-matter of the issue.
The House described the basis of state immunity: ‘The principle of sovereign immunity is not founded on any technical rules of law: it is founded on broad considerations of public policy, international law and comity.’ Lord Denning MR in the Court of appeal had expressed, obiter, the view that judicial immunity should not apply to commercial transactions, but the House expressly dissociated themselves from this view, because the point had not been argued.

Judges:

Lord Reid, Viscount Simonds

Citations:

[1958] AC 379, [1957] 3 WLR 884, [1957] 3 All ER 441

Jurisdiction:

England and Wales

Citing:

Overruled – Rahimtoola v Nizam of Hyderabad CA 1957
The court considered the doctrine of state immunity. Lord Denning MR said: ‘If the dispute brings into question, for instance, the legislative or international transactions of a foreign government, or the policy of its executive, the court should . .

Cited by:

Cited – Jones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
Cited – AIC Limited v The Federal Government of Nigeria, the Attorney General of the Federation of Nigeria QBD 13-Jun-2003
AIC had used the 1920 Act to register a judgment obtained in Nigeria against the Nigerian Government. The underlying matter was a commercial transaction. Nigeria applied to set the registration aside, saying that registration was an adjudicative act . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

International, Contract

Updated: 14 June 2022; Ref: scu.219441

Alston’s Trustees v Gibson: HL 19 Mar 1895

C. R. and Co. wrote to G. offering him an investment upon the security of an estate in Ceylon, for which they acte as agents, and saying, ‘it is an excellent security, apart from our guarantee of principal and interest.’ G. replied, accepting the investment, ‘with C. R. and Co.’s guarantee of principal and interest.’
Held that C. R. and Co.’s letter amounted to a distinct offer of a guarantee, which became operative as soon as it was accepted, and the loan which was to be the consideration for it was made

Judges:

Lord Chancellor (Herschell), and Lords Watson, Macnaghten, Morris, and Shand

Citations:

[1895] UKHL 724, 32 SLR 724

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Contract

Updated: 13 June 2022; Ref: scu.634055

James Scott and Sons Ltd v R and N Del Sel and Another: HL 25 Jan 1923

A firm of jute merchants contracted to ship a specified number of bales of jute from Calcutta to Buenos Ayres. The contract contained, inter alia, the following provisions:-‘Any delay in shipment caused by fire, strike, breakages, and accidents . . and for any other unforeseen circumstances, to be excepted, and the quantity short produced in consequence thereof to be deducted from the quantity named in this contract, or delivered soon as possible thereafter, buyers having the option of refusing it after time. . . Should the vessel by which freight has been engaged be commandeered or delayed by the Government, sellers shall not be responsible for any late shipment or other consequences arising therefrom, and the goods shall be sent forward as early as possible. . . ‘ It also contained an arbitration clause in the following terms:-‘Any dispute that may arise under this contract to be settled by arbitration in Dundee.’ Before all the bales of jute had been shipped, further export of jute from India to the Argentine was prohibited by an Order in Council of the Governor-General of India. A dispute having arisen between the parties as to whether the contract was rendered void and unenforceable quoad the balance of the bales of jute, the sellers maintained that the arbitration clause was inapplicable on the ground that the dispute as to whether the contract had been ended was not a dispute arising under the contract. Held ( aff. the judgment of the Second Division) that as the dispute which had arisen was a dispute as to the meaning of the contract, viz., whether the contract had specifically provided for the events which had happened, it was a dispute under the contract, and that accordingly it fell to be determined by arbitration.

Judges:

Lord Chancellor, Lord Dunedin, Lord Shaw, Lord Buckmaster, and Lord Carson

Citations:

[1923] UKHL 437, 60 SLR 437

Links:

Bailii

Jurisdiction:

Scotland

Contract, Arbitration

Updated: 13 June 2022; Ref: scu.633254

Moore and Weinberg v Ernsthausen Ltd: HL 28 Nov 1916

The pursuers had purchased from the defenders certain goods in bales, and had intimated a claim of damages for the goods being disconform to contract. The claim went to arbitration, and for that purpose the pursuers recovered, with the approval of the defenders, five unopened bales, the defenders intimating that they wished two of these left unopened so that in the event of the claim being sustained they might be available for a claim by them against their sellers. The arbiter having sustained the claim, including in the award the price of the five bales, the pursuers instructed the warehouseman that the two bales were held for the defenders. He accepted this notice. They also informed the defenders that the bales were there at their disposal. Subsequently the pursuers arrested the bales jurisdictionis Fundandae causa, and sued for the amount of the award.
Held that the arrestment was good.

Judges:

Earl Loreburn, Lord Atkinson, Lord Shaw, and Lord Sumner

Citations:

[1916] UKHL 78, 54 SLR 78

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 13 June 2022; Ref: scu.630696

Penney v Clyde Shipbuilding and Engineering Co Ltd: HL 15 Mar 1920

On the outbreak of war, a ship, being built to the order of an enemy firm, was in the builders’ yard nearing completion. The contract provided that ‘the steamer as she is constructed . . shall immediately as the work proceeds become the property of the purchasers,’ and the price was payable by instalments. On the ship being requisitioned and paid for by the Admiralty, held that the builders were bound to account to the Custodian of Enemy Property for Scotland under the Trading with the Enemy Amendment Acts 1914 and 1916 for the instalments paid, subject to any counter-claims arising out of the occupation of the berth beyond the period required for building.

Judges:

Lord Chancellor (Birkenhead), Viscount Haldane, Viscount Finlay, Viscount Cave, Lord Dunedin

Citations:

[1920] UKHL 342

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 13 June 2022; Ref: scu.631513

International Sponge Importers Ltd v Watt and Son: HL 31 Mar 1911

Circumstances in which held that the purchaser was not bound to pay over again for goods for which he had already paid, though such prior payment had been made, out of the usual course of business, in cash to the seller’s commercial traveller, who had embezzled the money.

Judges:

Lord Chancellor (Loreburn), Lord Atkinson, and Lord Shaw

Citations:

[1911] UKHL 515, 48 SLR 515

Links:

Bailii

Jurisdiction:

Scotland

Contract, Agency

Updated: 13 June 2022; Ref: scu.619191

Petromec Inc v Etroleo Brasileiro Sa Petrobras and others: ComC 6 Jul 2007

Judges:

Cooke J

Citations:

[2007] EWHC 1589 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Petromec Inc v Petroleo Brasileiro S A Petrobras and others ComC 18-Feb-2003
. .
See Also – Petromec Inc and Petroleo Brasileiro S A Petrobras, Braspetro Oil Services Company v Petromec Inc, Petro-Deep Inc, Maritima Petroleo E Engenharia Ltda QBD 2-Feb-2004
The parties entered into a complex group of inter-related contracts for the purpose of purchasing and upgrading an oil production platform for use by Petrobras in the South Marlim oilfield. At a very early stage it was agreed that the upgrade . .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras, Braspetro Oil Services Company, Societa Armamento Navi Appoggio Spa, Den Norske Bank Asa CA 17-Feb-2004
. .
See Also – Petromec Inc v Petroleo Brasileiro SA Petrobrasbraspetro Oil Services etc ComC 20-May-2004
. .
See Also – Petromec Inc Petro-Deep Inc and others v Petroleo Brasileiro Sa and others CA 15-Jul-2005
. .
See Also – Petroleo Brasileiro SA and Another v Petromec Inc and others ComC 3-Nov-2005
. .
See Also – Petromec Inc v Petroleo Brasiliero Sa Petrobras and Another ComC 16-Jun-2006
. .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras CA 19-Jul-2006
A Mr Efremovich, a third party to the action was ordered to pay the costs of Petrobras and Brasoil which on the failure of its claim against them had been ordered to be paid by Petromec. The judge found that Mr Efromovich controlled the proceedings . .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras and others ComC 7-Dec-2006
. .
See Also – Petromec Inc v Petrobras ComC 11-May-2007
Defendant’s application for security for costs. . .

Cited by:

See Also – Petromec Inc v Petroleo Brasileiro SA Petrobras and others CA 21-Dec-2007
. .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras and others CA 23-Jan-2008
Short order. . .
Lists of cited by and citing cases may be incomplete.

Contract, Construction

Updated: 13 June 2022; Ref: scu.254491

Pagnan SpA v Tradax Ocean Transportation S.A.: CA 2 Jan 1987

When looking at different clauses in a contract, there would obviously be an inconsistency if two clauses cannot ‘sensibly’ be read together.

Judges:

Dillon LJ

Citations:

[1987] 3 All ER 565

Jurisdiction:

England and Wales

Citing:

Appeal from – Pagnan SpA v Tradax Ocean Transportation SA 1986
When asked to interpret a contract with apparently conflicting provisions, the duty of the court is ‘to reconcile seemingly inconsistent provisions if that result can conscientiously and fairly be achieved’. . .

Cited by:

Cited – Taylor v Rive Droite Music Ltd ChD 6-Jul-2004
The claimant music producer and songwriter had entered into a publishers agreement with the defendant, agreeing to work for it. He now sought to be free to work for another company. The factual background was unclear, and the contract documentation . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 13 June 2022; Ref: scu.211391

Bogie Trading As Oakbank Services v The Forestry Commission: SCS 23 Nov 2001

The pursuer sought declarator that he had a valid option to purchase an area of ground extending to 24 hectares or thereby together with a servitude right of access thereto, and that the defenders were bound and obliged by the terms and conditions thereof.

Judges:

Lord MacFadyen

Citations:

[2001] ScotCS 267, 2002 SCLR 278

Links:

Bailii

Scotland, Contract, Land

Updated: 13 June 2022; Ref: scu.202224

Yorkshire Water Services Ltd v Taylor Woodrow Construction Northern Ltd: TCC 8 Jul 2004

The claim arose from works at a sewage plant carried out by the defendants and their sub-contractors. The plant failed to meet performance standards. It was suggested that the form of standard contract restricted the claimant’s ability to pursue a damages claim for breach, but it now sought the contractual entitlement to recover its relevant remedial costs.
Held: The claimant’s rights were limited by the contract, which provided other remedies. The claimant had not carried out the recommended acceptance testing. The system itself was sound. The claim failed.

Judges:

Forbes J

Citations:

[2004] EWHC 1660 (TCC)

Links:

Bailii

Citing:

Cited – Charter Reinsurance Co Ltd v Fagan and Others HL 24-May-1996
The re-insurers appealed against a finding that they were liable to make payment under a contract which required them to pay ‘sums actually paid.’ They said that the company having become insolvent, no payment would in fact be made.
Held: The . .
Cited – Arbuthnott v Fagan CA 30-Jul-1993
The court considered the proper approach to construction of the terms in a contract. Sir Thomas Bingham MR said: ‘Courts will never construe words in a vacuum. To a greater or lesser extent, depending on the subject matter, they will wish to be . .
Lists of cited by and citing cases may be incomplete.

Construction, Contract

Updated: 13 June 2022; Ref: scu.201846

Amec Process and Energy Ltd v Stork Engineers and Contractors Bv (A Company Registered In the Netherlands): TCC 6 May 1999

Contract – Sub-contract for topsides of floating oil production unit – Preliminary issues as to programme, implied exclusion of right to damages by variations clause, voluntary acceleration and effect of bonus agreement for early completion.

Citations:

[1999] EWHC Technology 238

Links:

Bailii

Contract

Updated: 13 June 2022; Ref: scu.201777

Invensys Plc and others v Automotive Sealing Systems Ltd.: ComC 8 Nov 2001

The contract provided that a certificate made by an expert was to be conclusive save in the case of manifest error.
Held: The expert’s reasons could be examined in order to determine whether he had made a manifest error. The contract provided for the expert to give reasons, and the parties must have contemplated that those reasons could be examined to see whether any manifest error had been made.

Judges:

Thomas J

Citations:

[2001] EWHC 501 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Van Der Merwe and Another v IIG Capital Llc ChD 13-Nov-2007
The parties had entered into a debt factoring agreement, under which repayment was sought of some $30m, and the claimants were said to have guaranteed the loan by the factor to their company. The court was asked whether the guarantors had the same . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 13 June 2022; Ref: scu.201718

Delos, Owners of Cargo v Delos Shipping Ltd: ComC 31 Jan 2001

Claims for breach of duty and bailment could be brought within the phrase ‘any disputes under’ the contract.

Judges:

Langley J

Citations:

[2001] EWHC 486 (Comm), [2001] 1 Lloyds Rep 703

Links:

Bailii

Cited by:

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

Contract, Arbitration

Updated: 13 June 2022; Ref: scu.201694

Midland Land Reclamation Ltd, Leicestershire County Council v Warren Energy Ltd: TCC 20 Jan 1997

Claim of set-off

Judges:

Bowsher QC HHJ

Citations:

[1997] EWHC Technology 375

Links:

Bailii

Citing:

Cited – Sheffield District Railway co v Great Central Railway Co 1911
(Rail and Canal Commissioners) The Sheffield District Railway agreed (in a contract appended to a special Act of Parliament, with the Lancashire, Derbyshire and East Coast Railway for the operation of a short line with two stations by means of which . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 13 June 2022; Ref: scu.201731

Prudential Assurance Company Ltd v McBains Cooper: TCC 27 Jun 2000

The claimant sought damages from the defendant firm of surveyors, alleging negligence in their survey of commercial property.

Citations:

[2000] EWHC Technology 85

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Prudential Assurance Company Ltd v McBains Cooper (A Firm) and Others CA 23-May-2000
A judge who had submitted a draft judgment to the parties for comment before publishing a final version, was entitled to go ahead and publish his judgment notwithstanding that the parties had reached a settlement after seeing the draft. The judge . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Contract

Updated: 13 June 2022; Ref: scu.201814

International Finance Corporation v Utexafrica SPRL: ComC 9 May 2001

The defendant applied to have set aside judgement entered against him in default of acknowledgment of service.
Held: The authorities make it plain that, in order to satisfy the test for resisting a summary claim for for wrongful repudiation and/or breach of contract, a defendant has to demonstrate a defence which is not ‘false, fanciful or imaginary’, and is better than merely arguable.

Judges:

Moore-Bick J

Citations:

[2001] EWHC 508 (Comm), [2001] CLC 1361, [2001] All ER (D) 101 (May)

Links:

Bailii

Statutes:

Civil Procedure Rules 13.3.(1)

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Contract

Updated: 13 June 2022; Ref: scu.201703

Sajid v Sussex Muslim Society: CA 2 Oct 2001

The defendant appealed against the strike out of parts of its defence. The claimant was employed as the mosque director and imam. He had brought an action in the Industrial Tribunal alleging wrongful dismissal, but notifying the defendants that any excess above what the tribunal could order would be sought in the current action. That action had been withdrawn on commencement of the High Court proceedings. The defence had been that this was an abuse of process.
Held: The judge was correct. The case of Barber was to be distinguished because in the case the claimant had expressly reserved the roght to commence these proceedings: ‘The underlying policy of cause of action estoppel and related doctrines, which are usually classified under the heading res judicata, is that of finality in litigation and the avoidance of the multiplicity of proceedings. Save in special circumstances, it is contrary to public policy and may be an abuse of the process of the court to attempt to re-open in new proceedings a case which has already been litigated and finally determined by a court or tribunal in proceedings between the same parties or issues which could have been litigated properly between the parties in relation to the subject matter of the earlier litigation. This doctrine embodies, in my view, a principle of justice, not just policy. In the absence of special circumstances it is unjust for a party who spent time and money in obtaining a final determination of a claim or an issue in a claim to be faced with fresh proceedings from the other party seeking to re-litigate the same cause of action or the same issue.’

Judges:

Mummery, Laws LJJ

Citations:

[2001] EWCA Civ 1684, [2002] IRLR 113

Links:

Bailii

Statutes:

Employment Rights Act 1996 98(1)(b)

Jurisdiction:

England and Wales

Citing:

Distinguished – Barber v Staffordshire County Council CA 29-Jan-1996
A dismissal of a claim without consideration by the tribunal created an issue estoppel. Issue estoppel rules apply equally to Industrial Tribunal decisions as elsewhere. Redundancy claim once withdrawn on one ground could not be revived on another. . .

Cited by:

Cited – Singh v The Members of The Management Committe of The Bristol Sikh Temple and Others EAT 14-Feb-2012
EAT WORKING TIME REGULATIONS – Worker
NATIONAL MINIMUM WAGE ACT – Worker
The issue was whether the Priest at a Sikh Temple was a ‘worker’ within section 54(3)(b) of the National Minimum Wage Act 1998. . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 13 June 2022; Ref: scu.201434

BBF Consultancy Group (A Firm) v Barratt Homes Ltd: CA 12 Jul 2001

Barratt Homes Ltd appeals against an order in a claim by BBF Consulting Group, a firm of architects, against Barratt, the well-known building company, for sums allegedly owing under, or damages allegedly suffered by breach of, a contract allegedly entered into between the parties orally on 29th June 1998 for work to be done by BBF for Barratt.

Judges:

Mummery, Jonathan Parker LJJ, Wilson J

Citations:

[2001] EWCA Civ 1155

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 13 June 2022; Ref: scu.201207

Pegler Ltd v Wang (Uk) Ltd and Another: CA 18 Jun 2001

Costs had been awarded against the third party, the parent company of the defendant. Leave to appeal was sought.
Held: It was arguable that the judge had not taken into account properly the interest of the company in protecting the interests of creditors and not just itself. Leave was given.

Judges:

Kay LJ, Keene LJ

Citations:

[2001] EWCA Civ 1019

Links:

Bailii

Statutes:

Supreme Court Act 1981 51

Jurisdiction:

England and Wales

Citing:

Appeal from – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages, Costs

Updated: 13 June 2022; Ref: scu.201169