Category: Contract

Grossman v Hooper: CA 11 Apr 2001

The parties had lived together in the house, each contributing but held in the name of one only. The parties disputed the effect under the 1989 Act of a letter signed by each of them setting out their agreement as to the basis on which it was held. He argued that it did not include a relevant term, and was therefore not effective.
Held: The appeal failed. The court should be wary of artificially dividing up what is in truth a composite transaction. Sir Christopher Staughton doubted the observation in Tootal saying: ‘I am by no means sure of that. If the parties are allowed by a simple device to avoid the effects of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, what was the point of Parliament enacting it?’

Judges:

Chadwick LJ, Sir Christopher Staughton doubted the observation in

Citations:

[2001] EWCA Civ 615, [2001] 2 EGLR 82, [2001] 3 FCR 662, [2001] 27 EG 135

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2(1)

Jurisdiction:

England and Wales

Citing:

Cited – Tootal Clothing Ltd v Guinea Properties Ltd CA 1992
By a single commercial transaction the parties agreed to the grant of a lease, on terms that Tootal (the intending lessee), would carry out shop-fitting works, have the benefit of a three months rent-free period during the which the works were to be . .

Cited by:

Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Cited – Oun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
Cited – North Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
Cited – Keay and Another v Morris Homes (West Midlands) Ltd CA 11-Jul-2012
The claimants sought damages alleging breach of contract. The defendants argued that the contract related to land, and since it was an oral agreement it was unenforceable under the 1989 Act.
Held: It was not possible that a contract which was . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 11 June 2022; Ref: scu.200973

Shah v Shah and others: CA 7 Mar 2001

Renewed application for permission to appeal – whether deed validly signed.

Citations:

[2001] EWCA Civ 493

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989

Jurisdiction:

England and Wales

Cited by:

Leave given – Shah v Shah CA 10-Apr-2001
The court was asked as to the enforceability of a document under the terms of which the defendants were to make a payment of pounds 1.5 million to the claimant. The document was described as a deed and provided for each defendant to sign in the . .
Lists of cited by and citing cases may be incomplete.

Contract, Estoppel, Land

Updated: 11 June 2022; Ref: scu.200929

Halvanon Insurance Co Ltd v Central Reinsurance Corporation: CA 1988

The fact that a contract was made by an unauthorised insurer contrary to the 1974 Act, which was silent as to the effect of a breach of this statute, did not render the contracts made by the unauthorised insurer void. Rendering transactions void affects both the guilty and the innocent parties. Kerr LJ said: ‘Where a statute prohibits both parties from concluding or performing a contract when both or either of them have no authority to do so, the contract is impliedly prohibited . . But where a statute merely prohibits one party from entering into a contract without authority, and/or imposes a penalty upon him if he does so (i.e. a unilateral prohibition) it does not follow that the contract itself is impliedly prohibited so as to render it illegal and void. Whether or not the statute has this effect depends upon considerations of public policy in the light of the mischief which the statute is designed to prevent, its language, scope and purpose, the consequences for the innocent party, and any other relevant considerations. The statutes considered in Cope v Rowlands, 2 M and W 149 and Cornelius Phillips [1918] AC 199 fell on one side of the line; the Food Acts 1984 would clearly fall on the other.’

Judges:

Kerr LJ, Parker, Balcombe LJJ

Citations:

[1988] 1 WLR 1122, [1988] 1 QB 216

Statutes:

Insurance Act 1974

Jurisdiction:

England and Wales

Cited by:

Cited – Flightline Ltd v Edwards and Another ChD 2-Aug-2002
Money had been paid into an account in the joint names of the parties’ solicitors in order to purchase the release of the applicants from an asset freezing order. The respondent company was in liquidation. It was argued that the payment of funds . .
Cited – Hughes v Asset Managers Plc CA 13-May-1994
The appellants had entered into discretionary investment management agreements wth the respondent. The investments made a substantial losss which the appellants sought to recover, saying that the agreements were void under the 1958 Act.
Held: . .
Cited – Withers Llp v Rybak and Others ChD 9-May-2011
The claimant solicitors sought a declaration as to whether they had a right to assert a solicitor’s common law lien over sums in its client account. The defendant clients had asserted a security interest in the money and had assigned that interest, . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 11 June 2022; Ref: scu.182272

Kirkcaldy and District Railway Co v Caledonian Railway Co: HL 10 May 1901

The Caledonian Railway Company, being anxious to obtain direct access into the county of Fife, agreed with the Kirkcaldy and District Railway Company that the latter should promote a bill for the construction of four railways. it was agreed between the parties that, in the event of the bill authorising the construction of the railways not receiving the Royal Assent from any cause other than the withdrawal therefrom of the support of the Caledonian Railway Company, that company should ‘contribute towards the expense of the said bill (1) two-thirds of all outlays incurred in connection with the promotion of the bill; (2) one-third of the professional charges . . in connection with such promotion.’ the House of Lords held the preamble not to be proved so far as it related to the three railways Nos. one, two, and four included in the bill. These three were the only ones in which the Caledonian Railway Company was interested. The preamble was held to be proved as regards railway No. 3.
In an action at the instance of the Kirkcaldy Railway Company against the Caledonian Railway Company for payment of the proportionate amount of expenses connected with the bill, in accordance with the agreement between the parties, the defenders maintained-(1st) that the bill had in fact received the Royal Assent, and that on a sound construction of the agreement they were not liable for any portion of the sum claimed, and (2nd) that their obligation was one of relief only, and that as the whole expenses bad been paid by the North British Railway Company and not by the pursuers the claim of relief must fail.
Held (aff. judgment of the First Division) that under the agreement the defenders were liable in the sum sued for.

Judges:

Lord Chancellor (Halsbury), and Lords Ashbourne, Shand, Davey, Brampton

Citations:

[1901] UKHL 579, 38 SLR 579

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 11 June 2022; Ref: scu.630991

EDI Central Ltd v National Car Parks Ltd: SCS 27 Oct 2010

Judges:

Lord Glennie

Citations:

[2010] ScotCS CSOH – 141

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – IBM v Rockware Glass Ltd CA 1980
The court considered the meaning on a promise by one party to use its best endeavours to obtain a relevant planning permission.
Held: The obligation included an obligation to appeal from an initial refusal of permission so long as the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 June 2022; Ref: scu.425908

Dungate v Dungate: CA 1965

A claim was made against the widow and administratrix of the deceased’s estate by his surviving brother. The widow wrote to the creditor: ‘Keep a check on totals and amounts I owe you and we will have account now and then . . .Sorry I cannot do you a cheque yet. Terribly short at the moment’ The court was asked whether this operated as an admission to extend the limitation period.
Held: An acknowledgment will be sufficient if the amount for which the debtor accepts legal liability can be ascertained by extrinsic evidence.

Judges:

Diplock LJ

Citations:

[1965] 1 WLR 1477

Jurisdiction:

England and Wales

Citing:

Applied – Spencer v Hemmerde HL 1922
A barrister borrowed 1,000 pounds for two months in 1910 but did not repay it. In 1915 the creditor pressed for payment and the debtor wrote to acknowledge the debt but asked for more time. The creditor ‘stayed his hand’. When proceedings were . .
Applied – Good v Parry CA 1963
A letter discussed first the writer’s proposed purchase of the house (offering andpound;1,350 subject to contract), and continued: ‘The question of outstanding rent can be settled as a separate agreement as soon as you present your account.’

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.

Limitation, Contract

Updated: 11 June 2022; Ref: scu.243121

Murray v Leisureplay Plc: QBD 5 Aug 2004

The claimant sought payment of three years’ salary after termination of his service contract. He said that an agreement had been made by the company to purchase a ‘financial institution’, which would trigger the additional payments. The defendants said that the clause requiring the payment was a penalty, and also sought damages under the 1985 Act on the basis that the agreement required approval of the company in general meeting.
Held: The term ‘financial institution’ had not been given the extended meaning asserted by the claimant, no qualifying acquisition had occurred, and the clause triggering the longer notice term had not arisen. The clause was a penalty since it failed to require the claimant to mitigate his losses after termination. If the clause had operated, the claimant would have been required to repay the sums due under s322 of the 1985 Act. No award would have been made to the claimant avoid circuity of actions.

Judges:

Stanley Burnton J

Citations:

[2004] EWHC 1927 (QB), [2005] IRLR 946

Links:

Bailii

Statutes:

Companies Act 1985 320 322(3)(b) 727

Jurisdiction:

England and Wales

Citing:

Cited – Alghussein Establishment v Eton College HL 1985
A literal construction of the relevant provision of a lease would have led to an absurd result that a contractor who failed to complete a development without fault could not call for a lease, whereas a contractor who wilfully defaulted could do so. . .
Cited – Cine Bes Filmcilik Ve Yapimcilik and Another v United International Pictures and Others CA 21-Nov-2003
The parties entered into agreements licensing the exclusive distribution of encrypted television channels within Turkey. A clause provided a calculation of damages for a breach amounting to the balance of licence fees due, and other penalties, . .
Cited – Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
Cited – Duckwari Plc v Offerventure Ltd and Another: In Re Duckwari Plc (no 2) CA 8-May-1998
A company director entering into an unapproved contract with his own company was liable to the company for the loss as at the time that loss was realised, not at the time of the breach. Where directors had entered into contracts with their company . .
Cited – Duckwari Plc v Offerventure Ltd and Brian Stanley Cooper; In Re Duckwari Plc (No 2) CA 19-Nov-1998
The company made a claim to recover the borrowing costs incurred to buy property in breach of s320 (no shareholder approval). The acquisition of the property had been unprofitable, and the company was held to be entitled to recover from the . .
Approved – Lordsvale Finance Plc v Bank of Zambia QBD 20-Mar-1996
The court looked at a facility agreement opened by a bank in favour of the defendant which provided that in the event of default the defendant should pay interest during the period of default at an aggregate rate equal to the cost to the bank of . .

Cited by:

Cited – Euro London Appointments Ltd v Claessens International Ltd CA 6-Apr-2006
The court considered whether a clause in an employment agency’s terms and conditions amounted to a penalty and was unenforceable. The contract provided that if the offer was withdrawn by the eventual employer after acceptance but before the . .
Cited – Tullett Prebon Group Ltd v El-Hajjali QBD 31-Jul-2008
The defendant signed an employment contract to join the claimants as a senior broker. He changed his mind and decided to stay in his existing job. The new employers sued for breach of contract. The defendant said that the claimants had refused to . .
Appeal from – Murray v Leisureplay Plc CA 28-Jul-2005
The court considered the extent to which the content of negotiations leading up to the signing of a contract were admissible. Arden LJ said: ‘Lord Dunedin in the Dunlop case makes the point that, although the issue is one of construction, the court . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 11 June 2022; Ref: scu.199844

Firstdale Ltd v Quinton: ComC 5 Aug 2004

In the course of a long dispute, the defendant’s solicitors had indicated that they would accept service of proceedings. Just before the limitation period expired, the papers were served directly in the client. The defendants solicitors said that this was invalid service, and that later service out of time could not revive the claim.
Held: The nature of the claim had changed (it had been assigned) since the solicitors had given the indication, and the papers served direct were in respect of a different claim, for which an indication had not been given. The service stood. The notice of assignment of the debt was valid though not dated.

Judges:

Mr Justice Colman

Citations:

[2004] EWHC 1926 (Comm), Times 27-Oct-2004

Links:

Bailii

Statutes:

Civil Procedure Rules 6.5(4), Law of Property Act 1925 136

Citing:

Applied – Nanglegan v Royal Free Hampstead NHS Trust CA 23-Jan-2001
The requirement is that documents must be served at the address nominated for this purpose by the prospective defendant under the rules. Where a solicitor was so nominated, it was not open to the claimant to serve papers at a different address. In . .
Cited – Anderton v Clwyd County Council (No 2); Bryant v Pech and Another Dorgan v Home Office; Chambers v Southern Domestic Electrical Services Ltd; Cummins v Shell International Manning Services Ltd CA 3-Jul-2002
In each case, the applicant sought to argue that documents which had actually been received on a certain date should not be deemed to have been served on a different day because of the rule.
Held: The coming into force of the Human Rights Act . .
Cited – Wilkey and Another v British Broadcasting Corporation and Another CA 22-Oct-2002
The applicant’s claim had been dismissed for late service. The defendant had in fact received the documents, but the service appeared deemed to be out of time. The subsequent decisions of Anderton and Godwin meant that the judge’s reasoning no . .
Cited – Cranfield and Another v Bridgegrove Ltd; Claussen v Yeates etc CA 14-May-2003
In each case claims had been late in being served and extensions in time were sought and refused.
Held: The recent authorities were examined. The words ‘has been unable to serve’ in CPR 7.6(3)(a) include all cases where the court has failed to . .
Cited – Marchant v Morton Down and Co 1901
An assignment of a debt by a liquidator need not be by deed, any signed writing will be enough. . .
Cited – W F Harrison and Co v Burke 1956
If a notice of assignment of a debt describes the assignment by reference to a wrong date, the notice is invalid because it has described a non-existent document. . .
Cited – Van Lynn Developments Ltd v Pelvis Construction Co Ltd 1969
A notice of an assignment of a debt need not state the date of the assignment. . .
Cited – Holt v Heatherfield Trust 1942
Consideration is not required to support a statutory assignment of a debt under section 136 of the 1925 Act and the lack of consideration does not need to be made good by deed. . .
Cited – The Kelo 1985
A notice of assignment of a debt under the section need not be by deed. . .
Lists of cited by and citing cases may be incomplete.

Contract, Civil Procedure Rules

Updated: 11 June 2022; Ref: scu.199882

Martin v David Wilson Homes Ltd: CA 28 Jun 2004

The court considered the construction of a restrictive covenant, and was asked whether an indefinite article ‘a private dwellinghouse’ was to be construed as a limitation of number or whether it was to be construed as being as to the manner of use.
Held: Buxton LJ said that: ‘I do not think that the expression ‘a’ does carry any necessary implication of singularity. ‘A’ is an article, not a number. When, as here, one is concerned with how any particular building shall be used, a natural way of expressing that is ‘use as a private dwellinghouse.’
He went on to say ‘One has to remember, when looking at issues about the factual matrix, that although reference for that matrix is not limited to cases where the words are clearly ambiguous, the first place where one expects to find the meaning of the words and the intention of the draftsmen is in the words themselves. If they yield a fairly clear conclusion . . then one has to pause long before concluding that at that point the draftsman has used words with a meaning do not fit in with the objective he was seeking to attain.’

Judges:

Buxton LJ, Arden LJ

Citations:

[2004] EWCA Civ 1027, [2004] EGLR 77, A3/2004/0881

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Re Endricks’ Conveyance ChD 1973
Goulding J remarked that redundant words in a contract may sometimes serve the useful purpose of increasing clarity. . .
Cited – Crest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .
Cited – Dobbs v Linford CA 1953
The tenant had entered into a covenant: ‘not to use the said premises for any purpose other than as a private dwelling-house And not to sublet or part with the possession of the premises (except as a furnished house) without the consent in writing . .
Cited – Briggs v McCusker 1996
Where one of the plots subject to a building scheme had been sub-divided, the benefit of the covenant in the scheme which originally burdened the whole plot did not pass to the owner of one of the subdivided plots so as to enable that owner to . .

Cited by:

Cited – Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
Cited – Fitzroy Robinson Ltd v Mentmore Towers Ltd TCC 7-Jul-2009
. .
Cited – Fitzpatrick Contractors Ltd v Tyco Fire and Integrated Solutions (UK) Ltd (Prelinary Issues) TCC 13-Jun-2008
. .
Approved – Jani-King (GB) Ltd v Pula Enterprises Ltd and others QBD 23-Oct-2007
. .
Cited – Lambson Fine Chemicals Ltd v Merlion Capital Housing Ltd TCC 7-Feb-2008
. .
Cited – Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another CA 22-Oct-2009
The defendant company had contracted to carry out works for the claimant. In fact the claimant did not ask the defendant to do the work but carried it out itself. When sued for damages the defendant claimed that the claimant’s conduct amounted to a . .
Applied – Legal and General Assurance Society Ltd, Regina (on the Application of) v Rushmoor Borough Council Pillar (Farnborough) Ltd Admn 9-Sep-2004
. .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 11 June 2022; Ref: scu.199983

Days Medical Aids Ltd v Pihsiang Machinery Manufacturing Co Ltd and others: CA 13 Jul 2004

Judges:

Langley J

Citations:

[2004] EWCA Civ 993, [2004] 1 All ER (Comm) 991, [2004] Eu LR 477, [2004] UKCLR 384

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Days Medical Aids Limited v Pihsiang Machinery Manufacturing Co Ltd, Pihsiang Wu (Also Known As Donald P H Wu), Chiang Ching-Ming Wu (Also Known As Jenny Wu) ComC 29-Jan-2004
Alleged repudiation of exclusive distribution agreement.
Held: The claim succeeded in part. . .
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.

Agency, Contract

Updated: 11 June 2022; Ref: scu.199987

Cooper v Phibbs: HL 1867

There is an exception to the general rule that a mistake of law does not vitiate a contract where the mistake was as to private rights.

Citations:

(1867) 2 LR HL 149, [1867] UKHL 1

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Brennan v Bolt Burdon and Others, London Borough of Islington, Leigh Day and Co CA 29-Jul-2004
The claimant sought damages for injury alleged to have been suffered as tenant of a house after being subjected to carbon monoxide poisoning, and also from her former solicitors for their delay in her claim. The effective question was whether the . .
Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 June 2022; Ref: scu.199750

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 self contradictory as to its term.
Held: The court had first to try to read the conflicting clauses together. The court was able to do that, but considered what other rules of construction could be used, including trying to find the clause which best expressed the true intent of the agreement. On the issue of where the copyright in a song resided, the court held that the copyright in earlier versions of songs created during the terms vested in the defendant in accordance with the contract, and that copyright was infringed by development of later versions without the defendant’s licence.

Citations:

[2004] EWHC 1605 (Ch)

Links:

Bailii

Statutes:

Copyright Designs and Patents Act 1988 16(2)

Jurisdiction:

England and Wales

Citing:

Cited – 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 – Goldmile Properties Limited v Speiro Lechouritis CA 29-Jan-2003
The tenant claimed damages form his landlord for breach of the covenant for quiet enjoyment. The landlord was obliged to repair the building, and in his doing so the tenant suffered losses through interruptions. The question was whether the Landlord . .
Cited – 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. . .
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 – HIH Casualty and General Insurance Limited v New Hampshire Insurance Company Independent Insurance Company Limited Axa Reinsurance S A CA 21-May-2001
A claim was made under a re-insurance policy which supported film finances. The re-insurers resisted the claim on the grounds of misrepresentation. Rix LJ: ‘In principle it would seem to me that it is always admissible to look at prior contracts as . .
Cited – Yien Yieh Commercial Bank Ltd v Kwai Chung Cold Storage Co Ltd PC 1989
The Board was asked as to how conflicting provisions within a contract should be read and reconciled: ‘Their Lordships wish to stress that to reject one clause in a contract as inconsistent with another involves a rewriting of the contract which can . .
Cited – Saunderson v Piper 27-May-1839
Where there is an inconsistency in a contract between written words expressing a number and the same number expressed in figures, the written number will usually prevail. . .
Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Cited – Walker v Giles 1848
The court sought to reconcile conflicting parts of a deed.
Wilde CJ said: ‘And as the different parts of the deed are inconsistent with each other, the question is, to which part effect ought to be given. There is no doubt, that, applying the . .
Cited – Modern Building Wales Ltd v Limmer and Trinidad Co Ltd CA 1975
Where a contract incorporates by reference the terms of another document, the incorporating contract will usually prevail over the terms of document incorporated.
Buckley LJ said, ‘if any of the imported terms in any way conflict with the . .
Cited – Slingsby’s Case 1587
Where two inconsistent provisions in a deed cannot be reconciled, the earlier provision prevails over the later. . .
Cited – Forbes v Git HL 1922
If there are conflicting provisions in a deed and they cannot be reconciled, the court may apply as a last resort the ancient rule of thumb that the earlier provision prevails over the later one. . .
Cited – Martin v Martin 1987
A property was bought by parties as ‘beneficial joint tenants in equal shares’.
Held: The words ‘in equal shares’ had the effect of severing any joint tenancy created by the first words of the phrase. The law would apply the first of two . .
Cited – D B Ramsden and Co Ltd v Nurdin and Peacock Plc and Another ChD 14-Sep-1998
The tenant overpaid rent, including a payment in May 1997 on advice that the payment would be recoverable following litigation establishing that it was an overpayment. The court later held that the payments in question were indeed overpayments. The . .
Cited – LA Gear Inc v Hi-Tec Sports plc 1992
The court considered at what point a work would constituted a finished work, and how this related to the copyright in earlier forms of the work: ‘If, in the course of producing a finished drawing, the author produces one or more preliminary . .
Cited – Thompson v Asda MFI Group Plc 1988
The court considered the implication of a term which would prevent an employer selling a subsidiary so that employees of the subsidiary who had rights under the group share option scheme ceased to be employees for the purpose of that agreement. It . .
Cited – Little v Courage Ltd ChD 19-Jan-1994
The pub tenant had an option to renew his lease, subject to agreeing with the brewer a business plan and agreement. He notified the landlord that he wished to renew but the landlord did not himself present any plan and agreement, or obtain one, but . .
Cited – Inchbald v Western Neilgherry Coffee, Tea and Cinchona Plantation Co Ltd 1864
The damages for breach of contract for prevention of the fulfilment of a condition will take into account the chance that, irrespective of the breach of contract, the condition would not have been fulfilled anyway. . .
Lists of cited by and citing cases may be incomplete.

Contract, Media, Intellectual Property

Updated: 11 June 2022; Ref: scu.198641

Portolana Compania Naviera Limited v Vitol Sa Inc, Vitol Sa of Switzerland: CA 12 Jul 2004

Whilst in port the flange of a pipeline had broken so as to allow a discharge of the cargo, delaying the sailing.
Held: The term in the contract ‘a breakdown of machinery or equipment’ was to be taken to include such a breakdown, allowing the charterer claim demurrage under the Asbatankvoy form of voyage charterparty.

Judges:

Lord Justice Clarke Lord Justice Laws Lord Justice Ward

Citations:

[2004] EWCA Civ 864, Times 24-Aug-2004

Links:

Bailii

Jurisdiction:

England and Wales

Transport, Contract

Updated: 11 June 2022; Ref: scu.198683

Murad, and Murad v Al-Saraj and Westwood Business Inc: ChD 28 May 2004

Judges:

Etherton, The Honourable Mr Justice Etherton

Citations:

[2004] EWHC 1235 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – AbouRahmah and Another v Abacha and others QBD 28-Nov-2005
Claims were made as to an alleged fraud by some of the respondents. . .
Appeal from – Murad and Another v Al Saraj and Another CA 29-Jul-2005
An account of profits is available without proof of loss, and the onus is upon the defaulting party to show that profits are not ones for which he should account . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 11 June 2022; Ref: scu.197931

Petromec Inc v Petroleo Brasileiro SA Petrobrasbraspetro Oil Services etc: ComC 20 May 2004

Judges:

Mr Justice Moore-Bick

Citations:

[2004] EWHC 1180 (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
. .

Cited by:

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. . .
See Also – Petromec Inc v Etroleo Brasileiro Sa Petrobras and others ComC 6-Jul-2007
. .
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

Updated: 11 June 2022; Ref: scu.197734

Collin v Duke of Westminster: CA 1985

In 1975 the tenant sought to exercise his right to purchase the freehold reversion of his property. The landlord argued that the rent payable precluded any such entitlement. Under the law as then understood, the landlord’s contention appeared correct. The leaseholder proceeded no further. In 1980 the law was clarified so as to indicate that he was so entitled, and in 1981 he sought to proceed with his claim. The landlord’s contention that he had abandoned it failed at first instance.
Held: The tenant’s appeal failed. Oliver LJ: ‘As regards abandonment [the judge] held – and in my judgment he was clearly right in this – that in order to succeed the trustees had to show either some reliance and change of position amounting to an estoppel (of which there was no suggestion) or what amounted in effect to a contract for mutual release. Quite clearly there was no question of an express contract and what he had, therefore, to look for was whether there was material from which mutual promises could be implied. On the facts, he found himself unable to find any mutual release but, perhaps even more importantly, he held that the Act of 1967 and the regulations provided, as it were, a complete statutory code which regulated exclusively how the statutory contract of sale was to be either completed or discharged and that there was no room for the application of the common law concept of inferred abandonment by mutual consent.
With respect to the judge, I doubt whether this latter conclusion can be right. . . As he rightly pointed out there is, in the law of contract, no room for a concept of unilateral abandonment. What the court has to look for is . . . material from which there can be inferred mutual releases or mutual promises not to proceed. In other words . . there has to be established, if only by inference, a fresh contract which has the effect of dissolving the relationship originally entered into by the parties and upon which one party still seeks to rely. Now tenants who are entitled to enfranchise under the Act of 1967 are not permitted to contract out of their entitlement, but there is nothing in the Act which prevents them, once their right of enfranchisement has accrued, from releasing contractually the immediate right of enfranchisement which they have acquired by serving a notice under the Act.’ The court agreed with the judge’s alternative conclusion that on the facts of the case there was no material from which mutual releases could be inferred.
The essence of a specialty is a covenant under seal or an obligation imposed by statute.

Judges:

Oliver LJ, May LJ and Sir Roger Ormrod

Citations:

[1985] 1 QB 581

Statutes:

Leasehold Reform Act 1967, Limitation Act 1980

Jurisdiction:

England and Wales

Cited by:

Cited – Martin v Medina Housing Association Ltd CA 31-Mar-2006
The former tenant had set out to buy the council house, but had written to say that she did not intend to go ahead. Her son who had taken over the tenancy after her death now sought, twelve years later, to require the authority to proceed at that . .
Cited – Hill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .
Cited – Nolan v Wright ChD 26-Feb-2009
The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract, Limitation

Updated: 11 June 2022; Ref: scu.242431

Jackson v Horizon Holidays Ltd: CA 5 Feb 1974

A family claimed damages for a disappointing holiday. The generous measure of damages given to the father was that the father was being fully compensated for his own mental distress, but the rule of privity of contract operated to bar the claim for damages by a person not party to the contract.
Denning MR LJ said: ‘In Jarvis . . it was held by this Court that damages for the loss of a holiday may include not only the difference in value between what was promised and what was obtained but also damages for mental distress, inconvenience, upset, disappointment and frustration caused by the loss of the holiday . . People look forward to a holiday. They expect the promises to be fulfilled. When it fails, they are greatly disappointed and upset. It is difficult to assess in terms of money; but it is the task of the judges to do the best they can. I see no reason to interfere with the total award of andpound;1100.’

Judges:

James LJ , Denning Mr L

Citations:

[1975] 1 WLR 1468, [1974] EWCA Civ 12, [1975] 3 All ER 92

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Radford v De Froberville 2-Jan-1977
A contract was made for the sale of a plot of land adjoining a house belonging to the plaintiff (the vendor) but occupied by his tenants, under which the defendant (the purchaser) undertook to build a house on the plot and also to erect a wall to a . .
Applied – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
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 . .
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, Damages

Updated: 11 June 2022; Ref: scu.218907

Wiltshire v Powell and others: CA 7 May 2004

The claimant sought a declaration as to the ownership of an aircraft. Saying he had bought it in good faith from E H and S, who in turn similarly claimed to have bought it from Ebbs. The defendant had obtained a judgment that he was owner as against Mr Ebbs after the sale to E H and S, but before the sale to the claimant.
Held: Since the issue of ownership had been determined before his purchase and against one through whom he claimed to derive title, the claim failed. The doctrine of privity applies in the same manner to a judgment determining the ownership of goods as it does to one determining the ownership of land.
Latham LJ expressed his conclusion: ‘where title to goods is in dispute . . a person claiming title is privy to the interests of those through whom he claims that title for the purposes of the operation of the doctrine of estoppel per rem judicatam but only if the title he claims was acquired after the date of the judgment.’
Arden LJ said ‘Res judicata promotes the important public policy of finality in legal proceedings and thus legal certainty . . If there was no estoppel per rem judicatam in this situation the result would always be that a defendant to an action about the ownership of property could always avoid the result of an adverse judgment by disposing of the property before the judgment was enforced. That would clearly be an intolerable state of affair . . ‘
Holman J said: ‘If after A has obtained a final judgment establishing that a chattel belongs to A rather than B, A wishes to sell it, it is essential that a purchaser can rely on the judgment as against B for otherwise A cannot really benefit from his judgment. Any alternative view would lead to uncertainty and commercial chaos.’

Judges:

Lord Justice Latham Lady Justice Arden Mr Justice Holman

Citations:

[2004] EWCA Civ 534, Times 03-Jun-2004, [2004] 3 All ER 235, [2004] 3 WLR 666, [2005] QB 117

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Wiltshire v Powell and others (Costs) CA 7-May-2004
. .
Cited – Gleeson v J Wippell and Co Ltd ChD 1977
The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. ‘Second, it seems to me that the sub-stratum of the doctrine is that a man ought . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Doe v The Earl of Derby 1834
For a plea of res judicata to arise as between claimants to the title to goods, the same title must have come into question in both actions, because there must be an identity of interest between the party to the first action and the party to the . .
Cited – Wytcherley v Andrews 1871
Lord Penzance said: ‘There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held, . .
Cited – Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) HL 1966
An agency had to be proved in a search to identify an entity which the law recognised (a) existed and (b) was legally responsible for the acts in issue in the proceedings. The House was asked whether the fact that an issue had already been . .
Cited – Westland Helicopters Ltd v Sheikh Al-Hejailan QBD 13-Jul-2004
. .
Cited – Hodson v Walker CEC 1872
Premises known as the Red Lion Inn, Grasmere and certain outbuildings were let. In February 1852, Walker allowed one Usher, who owned the Red Lion Inn, to build a shed on his (Walker’s) adjoining land in return for a rent of 1s. a year. In November . .
Cited – House of Spring Gardens v Waite CA 1991
The principle of abuse of process is capable of applying where the relevant earlier proceedings have taken place before a foreign court (Ireland). In this case the defendants argued that the judgment obtained in Ireland had been obtained . .
Cited – Pople v Evans ChD 1969
The court discussed the doctrine of res judicata: ‘ . . the title relied on to establish such privity must arise after the judgment on which the res judicata is based, or at any rate after the commencement of the proceedings in which that judgment . .
Cited – Mercantile Investment and General Trust Company v River Plate Trust, Loan and Agency Company 1894
Romer J said: ‘A prior purchaser of land cannot be estopped as being privy in estate by a judgment obtained in an action against the vendor commenced after purchase.’ . .
Cited – Re de Burgho’s Estate 1896
The court considered the necessary elements of issue estoppel: ‘According to the clear principles of the law of estoppel, it is necessary, in order to estop the objector, to show that he derives title under Dwyer by act or operation of law . .
Cited – Nana Ofori Atta (II) v Nana Abu Bonsra (II) PC 1958
(West Africa) Care must be taken in respect of the notion that merely standing by and waiting to see the outcome of a case in which the non-party has an interest, without more, involves an abuse of process. The parties now disputed title to land, . .
Cited – Brotherton and others v Aseguradora Colseguros S A and Another ComC 26-Feb-2003
. .
Cited – Hornsby v Greece ECHR 19-Mar-1997
Hudoc Violation of Art. 6-1; Preliminary objection rejected; Just satisfaction reserved – Judgment (Just satisfaction) Pecuniary damage – financial award; Non-pecuniary damage – financial award
The rights . .
Cited – Wenman v McKenzie 1855
Coleridge J, quoting Lord Chief Baron Gilbert: ‘nobody can take benefit by a verdict that had not been prejudiced by it, had it gone contrary’. . .

Cited by:

See also – Wiltshire v Powell and others (Costs) CA 7-May-2004
. .
Cited – Michael Wilson and Partners Ltd v Sinclair and Others ComC 21-Sep-2012
The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 10 June 2022; Ref: scu.196776

Morgan Grenfell Development Capital Syndications Ltd etc) v Arrows Autossports Ltd: ChD 11 May 2004

Liability under indemnity

Judges:

Lindsay The Honourable Mr Justice Lindsay

Citations:

[2004] EWHC 1015 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Burnand v Rodocanachi HL 1882
The respondents took valued insurance, including war risks, on a cargo which was later destroyed by the Confederate cruiser Alabama. The underwriters paid to the respondents as on an actual total loss the valued amounts, which were less than the . .
Lists of cited by and citing cases may be incomplete.

Contract, Insurance

Updated: 10 June 2022; Ref: scu.196707

Lamport and Holt Lines v Coubro, The Raphael: CA 1982

The court considered how it should treat the construction of a contractual clause claiming that one party should be exempt from liability for its own negligence: ‘Thus, if an exemption clause of the kind we are considering excludes liability for negligence expressly, then the Courts will give effect to the exemption. If it does not do so expressly, but its wording is clear and wide enough to do so by implication, then the question becomes whether the contracting parties so intended. If the only head of liability upon which the clause can bite in the circumstances of a given case is negligence, and the parties did or must be deemed to have applied their minds to this eventuality, then clearly it is not difficult for a Court to hold that this was what the parties intended – that this is its proper construction. Indeed to hold other wise would be contrary to commonsense. On the other hand if there is a head of liability upon which the clause could bite in addition to negligence then, because it is more unlikely than not that a party will be ready to excuse his other contracting party from the consequences of the latter’s negligence, the clause will generally be construed as not covering negligence. If the parties did or must be deemed to have applied their minds to the potential alternative head of liability at the time the contract was made then, in the absence of any express reference to negligence, the Courts can sensibly only conclude that the relevant clause was not intended to cover negligence and will refuse so to construe it. In other words, the Court asks itself what in all the relevant circumstances the parties intended the alleged exemption clause to mean.’

Judges:

May LJ

Citations:

[1982] 2 Lloyd’s Rep 42

Jurisdiction:

England and Wales

Cited by:

Cited – Industrie Chimiche v Nea Ninemia Shipping 1983
Construction of exemption clause in time charterparty: ‘Since it is inherently improbable that one party to a contract should intend to absolve the other party from the consequences of the latter’s own negligence, the court will presume a clause not . .
Cited – Stent Foundations Ltd v M J Gleeson Group Plc TCC 9-Aug-2000
The defendant company sought to rely upon an exemption clause.
Held: Applying standard rules for contract interpretation, the exemption clause was to be construed against the one proposing it. At best the clause was ambiguous, and the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 June 2022; Ref: scu.195682

Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos): ChD 1991

The ship was returned late from a charter. The court was asked whether or not the legitimacy of the last voyage fell to be established at the date when the order was given or at the time when the last voyage began.
Held: It was the second: ‘the charterer does commit a breach of contract by failing to redeliver at the end of the charter period and is liable in damages, if the market rate exceeds the charter rate, as well as for hire until redelivery takes place’.

Judges:

Evans J

Citations:

[1991] 2 LLoyds Rep 40

Jurisdiction:

England and Wales

Cited by:

Appeal from – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) CA 4-Jun-1993
The ship was returned by the charterer after the expiry of the time charter. The court was asked as to when the validity of the last order was to be tested.
Held: The legitimacy of the charterer’s final order was to be tested at the date it . .
At First Instance – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) HL 28-Oct-1994
In a continuing charter when it was clear that the time of the charter will be exceeded, the contract allows an action for an anticipatory breach. Any new redelivery order was to be obtained after after it first became impossible to meet the charter . .
Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 10 June 2022; Ref: scu.246862

Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd: CA 3 Mar 1965

When a person gives a promise or an assurance to another, intending that he should act on it by entering into a contract, and he does act on it by entering into the contract, it is binding.
Lord Denning MR said of a collateral warranty: ‘Looking at the cases once more, as we have done so often, it seems to me that if a representation is made in the course of dealings for a contract for the very purpose of inducing the other party to act upon it, and actually inducing him to act upon it, by entering into the contract, that is prima facie ground for inferring that it was intended as a warranty. It is not necessary to speak of it as being collateral. Suffice it that it was intended to be acted upon and was in fact acted on. But the maker of the representation can rebut this inference if he can show that it really was an innocent misrepresentation, in that he was in fact innocent of fault in making it, and that it would not be reasonable in the circumstances for him to be bound by it.’

Judges:

Lord Denning MR, Danckwerts, Salmon LJJ

Citations:

[1965] 1 WLR 623, [1965] EWCA Civ 2, [1965] 2 All ER 65

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Heilbut Symons and Co v Buckleton HL 11-Nov-1912
In an action of damages for fraudulent misrepresentation and breach of warranty, the plaintiff founded on a conversation between himself and the defendants’ representative. In this conversation the plaintiff said-‘I understand that you are bringing . .

Cited by:

Cited – Stewart v Perth and Kinross Council HL 1-Apr-2004
The claimant challenged refusal of a licence to sell second hand cars, saying that the licensing requirements imposed were outwith the Act under which they had been made. The licensing scheme imposed additional requirements.
Held: Though a . .
Cited – Evans and Son (Portsmouth) Ltd v Andrea Merzario Ltd CA 1976
The defendants had carried previously goods aboard ship for the plaintiffs. This time, they were asked for and gave an oral re-assurance to the plaintiffs that the goods would be carried below deck. This did not happen and the goods were swept . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 June 2022; Ref: scu.195476

Nweze and Another v Nwoko: CA 29 Mar 2004

The parties had settled their dispute in an oral compromise agreement under which it was agreed that land would be sold at the best price reasonably obtainable. One now argued this was unenforceable as an agreement for the disposal of land requiring writing.
Held: The agreement could be enforced. Section 2 concerns a contract between seller and purchaser of a plot of land. That did not apply here to the settlement of a dispute.

Judges:

Lord Justice Waller, Lord Justice Sedley And Lord Justice Carnwath

Citations:

[2004] EWCA Civ 379, Times 06-May-2004, [2004] 2 PandCR 33

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Citing:

Distinguished – Jelson Ltd v Derby City Council ChD 30-Jun-1999
Agreements under the planning acts remained subject to the general law requiring formalities for contracts for the sale of land. Where two landowners had an understanding as to the expectations for the division of responsibility for provision of . .
Cited – McCausland and Another v Duncan Lawrie Ltd and Another CA 18-Jun-1996
The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. . .
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Doubted – Jelson Ltd v Derbyshire County Council CA 1-Aug-1999
Section 2 of the 1989 Act had to bite at the point where a party could be compelled, in certain circumstances, which could or could not come about, to sell or dispose of an interest in land. The agreement here contained in effect an option for the . .

Cited by:

Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Cited – Orton v Collins and others ChD 23-Apr-2007
The court considered how a Part 36 offer could be treated as accepted when it involved an agreement to transfer land, because the offer and its acceptance would not operate under the 1989 Act.
Held: The agreement was enforceable. The Civil . .
Cited – Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others ChD 13-May-2010
The claimant sought a delaration that it had a right of way over an access road. The defendants said that the agreement fell foul of the 1989 Act.
Held: The claimant was not entitled to the declaration. Agreements under the 1990 Act are . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 10 June 2022; Ref: scu.195108

Dendron Gmbh and others v Regents of University of California and Another: PatC 23 Mar 2004

The claimants sought letters of request to obtain evidence to support applications they wished to make, including onme before the European Patents Office.
Held: The EPO when involved in opposition proceedings was not a domestic court, and letters were not available. The limited power under the regulation should be matched by limitations similar to those which would be imposed under English common law such as the duty not to use evidence obtained under letters of request without the permission of the court or of the witness.

Judges:

The Hon Mr Justice Laddie

Citations:

[2004] EWHC 589 (Pat), Times 24-May-2004

Links:

Bailii

Statutes:

Council Regulation (EC) No 1206/2001

Citing:

See Also – Dendron GmbH v The Regents of the University of California 2004
Pumfrey J said: ‘I would reject the suggestion that the right that is conferred by the grant of a licence is anything wider than a consent on behalf of the patentee to the doing of an act which absent that consent would be unlawful.’ . .

Cited by:

Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – CTB v News Group Newspapers Ltd and Thomas (2) QBD 23-May-2011
The claimant had obtained a privacy injunction, but the name of the claimant had nevertheless been widey distributed on the Internet. The defendant newspaper now sought to vary the terms. The second defendant did not oppose the injunction. . .
Lists of cited by and citing cases may be incomplete.

Evidence, Intellectual Property, Contract

Updated: 10 June 2022; Ref: scu.194838

Co-Operative Group (CWS) Ltd v International Computers Ltd: CA 19 Dec 2003

The judge at first instance had expressed the opinion that the claimant had little prospect of succeeding.
Held: The statement gave the impression that he had lost the ability to hear the ability to hear the case impartially.

Citations:

[2003] EWCA Civ 1955, Times 19-Jan-2004

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Co-Operative Group (Cws) Ltd (Formerly Co-Operative Wholesale Society Ltd) v International Computers Ltd TCC 13-Jan-2003
. .

Cited by:

Appealed to – Co-Operative Group (Cws) Ltd (Formerly Co-Operative Wholesale Society Ltd) v International Computers Ltd TCC 13-Jan-2003
. .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Contract

Updated: 10 June 2022; Ref: scu.193656

Royal Bank of Canada v Cooperative Centrale Raiffeisen-Boorenleenbank Binding Authority: ComC 2 Dec 2003

Judges:

Andrew Smith J

Citations:

[2003] EWHC 2913 (Comm)

Links:

Bailii, Bailii

Cited by:

Appeal from – Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank Ba CA 23-Jan-2004
The claimant sought an order to restrain proceedings in New York. The parties were based in Canada and the Netherlands, with places of business in New York and London also. The swap agreement underlying the claim provide for it to be governed . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 10 June 2022; Ref: scu.193728

Munro and Another v Premier Associates Ltd: ChD 16 Mar 2000

Property was agreed to be sold, but the land certificate was lost. A condition was added to the contract fixing the completion date as three days after notification of receipt of the new certificate. The parties agreed a date in anticipation of the certificate being received, but the purchaser did not wish to proceed for other reasons. A completion notice was served which he challenged, saying the notice had not been given. It was held that parties to such transactions were as much bound by estoppel and waiver as otherwise. The behaviour of the parties created such and the notice was effective.

Citations:

Gazette 16-Mar-2000

Jurisdiction:

England and Wales

Land, Contract

Updated: 10 June 2022; Ref: scu.84126

Vogon International Ltd v Serious Fraud Office: CA 4 Feb 2004

The defendant appealed a finding in which the judge had inferred against it serious imputations where neither party had made such an allegation, and the defendant had not been given forewarning of such a finding.
Held: The judge had correctly construed the contract, but had been wrong to make findings against the defendant which were otiose and not part of the claimant’s case.
May LJ said: ‘It is . . elementary common fairness that neither parties to litigation, their counsel, nor judges should make serious imputations or findings in any litigation when the person against whom such imputations or findings are made have not been given a proper opportunity of dealing with the imputations and defending themselves.’

Judges:

Lord Phillips Of Worth Matravers Mr, Lord Justice May Lord Justice Jonathan Parker

Citations:

[2004] EWCA Civ 104, Times 26-Feb-2004

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Vogon International Ltd v The Serious Fraud Office TCC 15-Jul-2003
The claimant sought payment of invoices for work carried out in recovering data from computers. The contract required payment for investigation ‘per database’ The defendant argued that the term database should be taken to refer to what was intended . .

Cited by:

Cited – London Borough of Haringey v Hines CA 20-Oct-2010
The authority sought rescission of a lease granted to the defendant under the right to buy scheme, saying that she had misrepresented her occupation when applying. The tenant replied that no adequate evidence had been brought that she was not a . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 June 2022; Ref: scu.193638

21st Century Logistic Solutions Limited (In Liquidation) v Madysen Limited: QBD 17 Feb 2004

The vendor sold computers to the defendant, intending not to account to the commissioners for the VAT. The seller went into liquidation, and the liquidator sought payment. The purchaser had been unaware of the intended fraud and resisted payment.
Held: The fraud did not make the contract unenforcable by the liquidator. The fraudulent intent was too far removed from the substance of the contract to taint it. Money received by a seller would not be held in trust for the Commissioners, and use of the money for other purposes did not conflict wit the tax payers duty later to account for an equivalent sum. The contract itself was lawful.

Judges:

Mr Justice Field

Citations:

[2004] EWHC 231 (QB), Times 27-Feb-2004, Gazette 25-Mar-2004, [2004] BVC 779, [2004] 2 Lloyds Rep 92, [2004] STC 1535, [2004] STI 497, [2004] BTC 5720

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – Hall v Woolston Hall Leisure Limited CA 23-May-2000
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . .
Cited – Skilton v Sullivan CA 18-Mar-1994
The seller of a quantity of Koi carp sent the buyer an invoice for trout. The supply of Koi carp is chargeable to VAT but the supply of trout is not. When the seller sued for the price, he was met with a plea that the contract was illegal as being a . .
Cited – Miller v Karlinski CA 1945
It was too plain for argument that a contract of employment under which the employee was paid a salary and also ‘expenses’ that included the income tax payable on the salary was against public policy and therefore unenforceable. . .
Cited – Napier v National Business Agency Ltd CA 1951
The plaintiff sought to sue for wrongful dismissal on a contract of employment under which he was paid andpound;13 salary per week and andpound;6 ‘expenses’, when his expenses could never exceed andpound;1 per week.
Held: The parties had made . .
Cited – St John Shipping Corporation v Joseph Rank Limited 1956
The defendants held a bill of lading for part of the cargo carried on the plaintiffs’ vessel from Mobile, Alabama, to Birkenhead. The vessel was over laden and the plaintiffs were guilty of an offence under the 1932 Act. The defendants relied on the . .
Cited – Pearce v Brooks 1866
The contract was for the hire of an ornamental brougham to a prostitute which was supplied with knowledge that it would be used ‘as part of her display’. She returned it in a damaged condition, and refused to make any payments under the contract as . .
Cited – Scott v Brown, Doering, McNab and Co 1892
The plaintiff sought rescission of a contract for the purchase of shares, but failed because the contract had been entered into with the sole object of rigging the market by inducing the public to believe that there was a real market for the shares . .
Cited – Alexander v Rayson CA 1936
The action was for arrears of rent. The evidence at trial was that the plaintiff granted a lease to the defendant at a rent of andpound;1200 and contracted that certain services in connection with the flat would be performed. The plaintiff sent the . .
Cited – Kearley v Thompson 1890
The plaintiff could claim a locus poenitentiae on the grounds of repentance because its confession to the fraud was the result of the frustration by others of its fraudulent purpose. Recovery under a contract performed unlawfully was barred once it . .

Cited by:

Cited – SQ v RQ and Another FD 31-Jul-2008
The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
Lists of cited by and citing cases may be incomplete.

Contract, VAT

Updated: 09 June 2022; Ref: scu.193579

Joyce v Rigolli: CA 2 Feb 2004

An agreement to resolve a boundary dispute does not need to comply with formalities of the Act.
Sir Martin Nourse said: ‘The agreement between the parties served merely to demarcate the boundary between their respective properties. It had not purported to be a contract to convey any land from the claimant to the defendant. Accordingly, there had been no requirement for the agreement to be evidenced in writing as provided for in s 2(1).’

Judges:

Sir Martin Nourse, Thorpe LJ, Arden LJ

Citations:

[2004] EWCA Civ 79

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Citing:

Cited – Scarfe v Adams CA 1981
Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was . .
Cited – Kingston v Phillips CA 1976
The court was asked to construe a parcels clause in a transfer: ‘It will be observed that the parcels as there set out are really almost devoid of any particularity; all that is said about the property conveyed is that it is part of the Chicklade . .

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

Registered Land, Contract

Updated: 09 June 2022; Ref: scu.193625

R McDonald v Coys of Kensington Ltd: CA 5 Feb 2004

The claimants were car auctioneers. They had been instructed to sell a car, but to withhold the cherished number plate. By mistake it was transferred with the car. Before the plate could be returned, the defendant had transferred it to his partner.
Held: The fact that it had been disposed of under circumstances where the purchaser could realise the benefit transferred, or recover it easily, meant that it should have been. Four questions were to be answered; had the defendant been unjustly enriched; was the enrichment at the expense of the claimant, was the enrichment unjust, and was there any defence available such as change of position.

Judges:

Lord Justice Mance Lord Justice Thorpe Mr Justice Wilson

Citations:

[2004] EWCA Civ 47, Gazette 11-Mar-2004, [2004] 1 WLR 2775

Links:

Bailii

Statutes:

Vehicle Excise and Registration Act 1994 21

Jurisdiction:

England and Wales

Cited by:

Cited – Charter Plc and Another v City Index Ltd and others ChD 12-Oct-2006
An employee of the claimant had fraudulently spent several million pounds of the claimant’s money on personal bets through the defendant company. The claimant said that the defendants knew the origin of the funds and were liable to repay them. . .
Cited – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Contract

Updated: 09 June 2022; Ref: scu.192640

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 specification should be amended to render the platform suitable for use in the newly discovered Roncador field instead. Disputes arose between the parties over the contractor’s right to recover additional sums in respect of the works. The judgment deals with a large number of preliminary issues relating to the construction of a memorandum of agreement which preceded the contracts, the construction of the contracts themselves and the subsequent dealings between the parties relating to claims for additional payments. They include issues relating to the formation of contracts, actual and apparent authority, estoppel by representation and estoppel by convention.

Judges:

Mr Justice Moore-Bick

Citations:

[2004] EWHC 127 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Petromec Inc v Petroleo Brasileiro S A Petrobras and others ComC 18-Feb-2003
. .

Cited by:

See Also – Petromec Inc v Petroleo Brasileiro S A Petrobras and others ComC 18-Feb-2003
. .
Appeal from – 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. . .
See Also – Petromec Inc v Etroleo Brasileiro Sa Petrobras and others ComC 6-Jul-2007
. .
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

Updated: 09 June 2022; Ref: scu.192594

Bottin (International) Investments Limited v Venson Group Plc Grant Scriven Clive Lawson Smith: ChD 3 Feb 2004

Judges:

The Honourable Mr Justice Peter Smith

Citations:

[2004] EWHC 135 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Appeal from – Bottin (International) Investments Ltd v Venson Group Plcgrant Scriven Clive Lawson Smith CA 22-Oct-2004
Under a share purchase agreement, ‘notice of the claim had to be made in writing ‘specifying such details of the event or circumstances giving rise to such claim as are available to the investor and an estimate (if capable of preparation by the . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 09 June 2022; Ref: scu.192611

Mussen v Van Diemen’s Land Company: ChD 1938

Land was to be sold in stages to the purchaser.
Held: Specific performance, with or without compensation, would be ordered at the suit of a purchaser wherever possible, so long as he was able and willing to complete. Farwell J said : ‘There are no doubt cases where there has been a failure to pay the instalments and to complete the contract, and the purchaser has then come forward and said: ‘I am here and now ready and willing to complete the contract and to pay the price originally stipulated by the contract and to carry out its terms,’ and then the Court has said that it is inequitable and against conscience that the vendor should refuse specific performance and claim to retain the money already paid. That is because the Court has said that if the plaintiff is willing to carry out his contract, notwithstanding the fact that temporarily at any rate he was unable to do so, if he is willing and able to carry out his contract, it being the primary intention of the parties that the sale should take place, it would be against conscience for the defendant to say: ‘I will not give effect to the primary intention of the parties, but I will refuse to complete, and I will retain the money which has been paid to me.”

Judges:

Farwell J

Citations:

[1938] Ch 253

Jurisdiction:

England and Wales

Cited by:

Considered – Stockloser v Johnson CA 1954
Romer LJ said that, in the absence of pressure or duress, or other vitiating elements, there was no jurisdiction to provide for relief against forfeiture in the event of the purchaser’s default in contracts other than those relating to land.
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 09 June 2022; Ref: scu.517568

East v Mawer: CA 1991

Citations:

[1991] 1 WLR 461

Statutes:

Misrepresentation Act 1967

Jurisdiction:

England and Wales

Cited by:

Cited – MCI Worldcom International Inc v Primus Telecommunications Inc ComC 25-Sep-2003
The claimant sought judgment, and the defendant leave to amend its defence. The question was whether the proposed defence had any reasonable prospect of success.
Held: The misrepresentation alleged was made by the claimant’s in-house . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 June 2022; Ref: scu.186452

Hood v Anchor Line (Henderson Brothers) Ltd: HL 1 Jul 1918

The prospective passenger on a steamer to cross the Atlantic, in exchange for his cheque, received an envelope containing a ticket. On the envelope, with a hand pointing to them, were these words printed in capitals – ‘Please read conditions of the enclosed contract.’ On the ticket itself was printed: ‘Notice. This ticket is issued to and accepted by the passenger subject to the following conditions,’ and, after the conditions, at the foot of the document, in capital letters: ‘Passengers are particularly requested to carefully read the above contract.’ Held (aff. judgment of the Second Division) that the steamship owners had done all that could reasonably be required of them to bring the conditions of the contract under the notice of the prospective passenger, who consequently was bound by them.

Judges:

Lord Chancellor (Finlay), Viscount Haldane, Lord Dunedin, and Lord Parmoor

Citations:

[1918] UKHL 605, 55 SLR 605

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 09 June 2022; Ref: scu.631482

International Fibre Syndicate Ltd v Dawson: HL 9 May 1901

A, the owner of a patent for a fibre decorticating machine, entered into an agreement with B, the owner of an estate in Borneo, whereby it was stipulated that A should supply and erect one of the machines on B’s estate, and if it proved satisfactory that B should pay for it a sum to cover cost, freight, and cost of erection, that terms should be arranged for the use of the decorticators on the estate, and that the area under fibre cultivation should be increased by 25 acres per three months up to 1000 acres. A decorticating machine was supplied and erected by A. Within a year after the date of this contract, and after the supply and delivery of the machine, he assigned his patent to a limited liability company, together with ‘licences, concessions, and the like,’ receiving certain shares in the company, inter alia, for the patent, and for ‘contracts and concessions.’ Thereafter the company with consent of A brought an action against B, in which they sued as assignees of the contract between A and B. They ultimately restricted their claim to the sum due for the machine supplied and erected by A. In defence B pleaded ‘No title to sue.’ Held (affirming the judgment of the Second Division) that this plea must be sustained, in respect (1) that the contract between A and B as a whole involved delectus personae, and was consequently not assignable; and (2) that any jus crediti for a money payment arising out of the contract, if there was any assignable claim of that kind which had become a complete debt before the date of the assignation, had not in fact been assigned.

Judges:

Lord Chancellor (Halsbury), and Lords Ashbourne, Shand, Davey, Brampton, and Robertson

Citations:

[1901] UKHL 578, 38 SLR 578

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 09 June 2022; Ref: scu.630990

Beximco Pharmaceuticals Ltd, Bangladesh Export Import Co Ltd, Rahman,and others v Shamil Bank of Bahrain Ec: CA 28 Jan 2004

A contract provided that it was to be governed by the law of England and Wales, but ‘subject to the principles of the Glorious Sharia’a’ It was a loan agreement made under the system of Morabha. The defendant said that since the agreements charged interest which was forbidden as Riba and contrary to the Sharia, the agreements were void.
Held: The governing law was that of England and Wales and the agreements were valid. The reference to the law of Sharia meant that the agreement was to be read so as to reflect the principles of Sharia but this could not work to operate against the very basis of the contract.

Judges:

Lord Justice Laws Lord Justice Potter Lady Justice Arden

Citations:

[2004] EWCA Civ 19, Times 03-Feb-2004, Gazette 26-Feb-2004, [2004] 1 WLR 1784

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Halpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
Cited – Halpern and others v Halpern and Another (No 2) CA 3-Apr-2007
The parties had settled by compromise a dispute about the implementation of a will before the Beth Din. It was now said that the compromise agreement had been entered into under duress and was unenforceable. The defendant said that rescission could . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 June 2022; Ref: scu.192292

Days Medical Aids Limited v Pihsiang Machinery Manufacturing Co Ltd, Pihsiang Wu (Also Known As Donald P H Wu), Chiang Ching-Ming Wu (Also Known As Jenny Wu): ComC 29 Jan 2004

Alleged repudiation of exclusive distribution agreement.
Held: The claim succeeded in part.

Judges:

The Honourable Mr Justice Langley

Citations:

[2004] EWHC 44 (Comm), [2004] Eu LR 477, [2004] UKCLR 384, [2004] 1 All ER (Comm) 991

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Days Medical Aids Ltd v Pihsiang Machinery Manufacturing Co Ltd and others CA 13-Jul-2004
. .
Lists of cited by and citing cases may be incomplete.

Contract, Agency, European

Updated: 09 June 2022; Ref: scu.192285

Kronos Worldwide Limited v Sempra Oil Trading S A R L: CA 23 Jan 2004

Judges:

Lord Justice Mance Lord Justice Pill Lord Justice Evans-Lombe

Citations:

[2004] EWCA Civ 3

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kolmar Group Ag v Traxpo Enterprises Pvt Ltd ComC 1-Feb-2010
The claimant sought damages in contract alleging economic duress. They said that at a late stage, when the defendant knew of the urgent needs of the caimant, he imposed an exorbitant change of price.
Held: The claim succeeded. The pressure . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 08 June 2022; Ref: scu.192103

Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank Ba: CA 23 Jan 2004

The claimant sought an order to restrain proceedings in New York. The parties were based in Canada and the Netherlands, with places of business in New York and London also. The swap agreement underlying the claim provide for it to be governed non-exclusively by the laws of England, but which envisaged other courts applying it.

Judges:

Lord Justice Mance Lord Justice Thorpe Mr Justice Evans-Lombe

Citations:

[2004] EWCA Civ 7

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Royal Bank of Canada v Cooperative Centrale Raiffeisen-Boorenleenbank Binding Authority ComC 2-Dec-2003
. .
Cited – South Carolina Insurance Co v Assurantie Maatschappij de Zeven Provincien NV HL 1987
There can be little basis for the grant of relief to a landowner providing protection from an action in nuisance if the landowner will not himself remedy the public nuisance. The House considered whether the circumstances gave the court power to . .
Cited – Turner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
Lists of cited by and citing cases may be incomplete.

International, Jurisdiction, Contract, Banking

Updated: 08 June 2022; Ref: scu.192101

Morin v Bonhams and Brooks Limited Bonhams and Brooks S A M: CA 18 Dec 2003

The claimant had bought a vintage Ferrari motor car through the defendant auctioneers in Monaco but sought rescission after it appeared that the odometer had been altered. The auction conditions purported to exclude any description of the car. He appealed against refusal of a request for leave to serve the defendant outside the jurisdiction.
Mance LJ said: ‘As to English law, the judge also concluded, obiter, that Mr Morin had a reasonable prospect of showing that [BandB Monaco] owed him and were in breach of a duty of care, despite cll 3 and 27 of the conditions of sale. He distinguished statements of Morison J in De Balkany v Christie Manson and Woods Ltd (1997) 16 Tr LR 163 as obiter and as concerned with differently worded conditions. The present conditions are at pains to exclude any warranty or guarantee, and to refer to catalogue statements as matters of ‘opinion’. But cl 3 is prefaced by the words ‘Whilst every effort is made to ensure the accuracy of the description of each Lot in any Catalogue’ and cl 27 says that the description and information in the catalogue ‘are given for guidance’. It is a usual implication in relation to any expression of opinion by a professional person that due diligence has been exercised in preparing and expressing the opinion, and the opening words of cl 3 are entirely consistent with this’.

Judges:

Lord Justice Keene Lord Justice Mance

Citations:

[2003] EWCA Civ 1802, [2004] 1 All ER (Comm) 880, [2004] 1 Lloyd’s Rep 702, [2004] ILPr 24

Links:

Bailii

Statutes:

Private International Law (Miscellaneous Provisions) Act 1995

Jurisdiction:

England and Wales

Citing:

Appeal from – Morin v Bonhams and Brooks Ltd and Another ComC 18-Mar-2003
Claim for rescission of contract for purchase of Ferrari car at auction after discovery of alteration to odometer.
Jonathan Hirst QC said (after discussing the Christie’s case): ‘Plainly this authority provides substantial ammunition for BandB . .
Cited – Protea Leasing Ltd v Royal Air Cambodge Company Ltd ComC 12-Dec-2002
The court should be careful before applying cases predating the 1995 Act on related issues. . .
Cited – Distillers Co Ltd v Thompson HL 1971
When asking where a tort occurred so as to give jurisdiction the court should ask: ‘where in substance did the cause of action arise, or . . what were the elements which constituted the gist of the relevant tort which it was alleged had been . .
Cited – Metall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc and another QBD 29-Mar-1988
The plaintiff had suffered damage when given negligent advice. It obtained a judgment but the company became insolvent, and it now sought to sue the US parent company in conspiracy. The defendant said that to establish conspiracy it was necessary . .
Cited – De Balkany v Christie Manson and Woods Ltd QBD 19-Jan-1995
Over-painting was deemed to be a forgery within the Christie terms and conditions. The exception was excluded. Christie’s was liable under the guarantee it had given. Morison J also considered (obiter) the defendant’s possible liability in tort, and . .

Cited by:

Cited – Avrora Fine Arts Investment Ltd v Christie, Manson and Woods Ltd ChD 27-Jul-2012
The claimants had bought a painting (Odalisque) through the defendant auctioneers. They now claimed that it had been misattributed to Kustodiev, and claimed in negligence and misrepresentation.
Held: Based on the connoisseurship evidence, the . .
Cited – VTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Lists of cited by and citing cases may be incomplete.

Contract, Jurisdiction

Updated: 08 June 2022; Ref: scu.191204

Giad Hamdo Pipes Complex Company Limited v Wilson Byard Limited (In Receivership) MacLennan for Interdict and Interdict Ad Interim: OHCS 30 Dec 2003

Judges:

Lord Brodie

Citations:

[2003] ScotCS 348

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Pagnan SpA v Feed Products Ltd ChD 1987
An agreement can be enforceable as an agreement on main terms only, with the detailed terms to be agreed later. Bingham J said: ‘The Court’s task is to review what the parties said and did and from that material to infer whether the parties’ . .
Cited – Pagnan SpA v Feed Products Ltd CA 2-Jan-1987
Contractually Bound – but Further Terms to Agree
The parties had gone ahead with performance of the arrangement between them, but without a formal agreement being in place.
Held: Parties may intend to be bound forthwith even though there are further terms still to be agreed. If they then . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 June 2022; Ref: scu.190782

Atlantic Computing Services (UK) Limited v Burns Express Freight Limited: IHCS 2 Dec 2003

A contract was made for the delivery of goods from England to Scotland. The lorry and goods were damaged by fire on the M25. The defenders appealed an order that the 1856 Act applied to allow recovery in Scotland.
Held: The Act precluded application outside Scotland. It was not appropriate to apply the Act by virtue of the fact that the carrier was Scottish.

Judges:

Lord Justice Clerk And Lord Johnston And Lord Osborne

Citations:

[2003] ScotCS 297, Times 29-Jan-2004

Links:

Bailii

Statutes:

Mercantile Law Amendment (Scotland) Act 1856 17, Private International Law (Miscellaneous Provisions) Act 1995

Jurisdiction:

Scotland

Contract

Updated: 08 June 2022; Ref: scu.190770

Lister v Romford Ice and Cold Storage Co Ltd: HL 1957

An employer may be civilly responsible for his employee’s breach even though it constitutes a crime, and a skilled employee in general owed a contractual duty of reasonable care to his employer in the performance of his employment. In determining the rights inter se of A and B, the fact that one them is insured is to be disregarded. A term will not be implied into a contract at common law unless it satisfies the requirement of certainty, under ‘the general principle that an implication must be precise and obvious’.
Viscount Simonds said: ‘as a general proposition it has not, I think, been questioned for nearly 200 years that in determining the rights inter se of A and B the fact that one or other of them is insured is to be disregarded’.

Judges:

Viscount Simonds, Lord Tucker

Citations:

[1957] 1 All ER 125, [1956] UKHL 6, [1957] AC 555

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Lister v Romford Ice and Cold Storage Co Ltd CA 1956
Where an employer is found vicariously liable for an employee’s actions, they are entitled to recover an indemnity from them, to cover such losses.
Held: An accident which occurred in the yard of a slaughterhouse did not arise out of use on . .

Cited by:

Cited – Majrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
Cited – Westminster (Duke of) and others v Guild CA 30-Mar-1983
The landlord brought an action for non-payment of rent. The tenant sought to set off a failure by the landlord to repair the building of which his flat was part and which failure had caused him loss. The landlord said that it had no express duty to . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Contract

Updated: 08 June 2022; Ref: scu.190003

Lumley v Wagner: 1852

A girl (under age) and her father contracted for her to perform at a theatre abroad, and later not to use her talents without the consent of her manager. She contracted with a competing theatre. She resisted an action by the manager saying that the contracts should be read together and that an injunction was not available to enforce the positive covenants.
Held: Although it was a foreign contract, the plaintiff was entitled to his injunction.

Citations:

(1852) 1 De G M and G 604, [1852] EWHC Ch J96

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – De Mattos v Gibson 1859
The purchaser of an interest in property may not use it so as to breach contractual rights of which he was aware when he acquired the interest. . .
Cited – Lady Navigation Inc v Lauritzencool Ab and Another CA 17-May-2005
The shipowner appealed the award against them of an injunction requiring them not to act inconsistently with a time charterparty. The company said that such a form of order was improper.
Held: The existence of the contract to do what was . .
See Also – Lumley v Gye 1853
Inducing breach of contract is a Tort
An opera singer (Miss Wagner) and the defendant theatre owner were joint wrongdoers. They had a common design that the opera singer should break her contract with the plaintiff theatre owner, refuse to sing in the plaintiff’s theatre and instead . .
Cited – Torquay Hotel v Cousins CA 17-Dec-1968
The plaintiff contracted to buy oil for his hotel from Esso. Members of the defendant trades union blocked the deliveries of oil by Esso to the Hotel because of a trade dispute they had with the management of the hotel. The hotel sued for an . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 08 June 2022; Ref: scu.190009

Lalji v Post Office Limited: CA 19 Dec 2003

Appeal by the claimant against an order striking out certain paragraphs of his particulars of claim and directing that summary judgment be entered for the defendants, on his for remuneration during his suspension and on his claim for losses arising from the closure of his business.

Judges:

Lord Justice Brooke VP, Lord Justice Sedley

Citations:

[2003] EWCA Civ 1873

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 08 June 2022; Ref: scu.189920

BP Refinery (Westernport) Pty Ltd v The Shire of Hastings: PC 1977

(Victoria) The Board set out the necessary conditions for a clause to be implied into a contract.
Held: Lord Simon of Glaisdale said: ‘Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a term in a contract which the parties have not thought fit to express. In their view, for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that ‘it goes without saying’; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.’
Lord Bingham: ‘The courts’ usual role in contractual interpretation is, by resolving ambiguities or reconciling apparent inconsistencies, to attribute the true meaning to the language in which the parties themselves have expressed their contract. The implication of contract terms involves a different and altogether more ambitious undertaking: the interpolation of terms to deal with matters for which, ex hypothesi, the parties themselves have made no provision. It is because the implication of terms is so potentially intrusive that the law imposes strict constrains on the exercise of this extraordinary power. . whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear. Tempting, but wrong.’

Judges:

Lord Simon of Glaisdale

Citations:

(1978) 52 ALJR 20, (1977) 180 CLR 266, [1977] UKPC 13

Links:

Bailii, Bailii

Jurisdiction:

Australia

Cited by:

Cited – Robin Ray v Classic FM Plc PatC 18-Mar-1998
Contractor and Client Copyrights
The plaintiff had contributed a design for a system of classifying and selecting tracks to be played on a radio station. He did so under a consultancy contract.
Held: A Joint authorship claim required that the contributor had made some direct . .
Cited – John Roberts Architects Ltd v Parkcare Homes (No. 2) Ltd TCC 25-Jul-2005
The defendant had taken a dispute to adjudication, but then abandoned those proceedings, upon which the adjudicator awarded costs against the defendant which the claimant now sought to enforce. The defendant argued that the award was outside the . .
Approved – Philips Electronic Grant Public Sa and Another v British Sky Broadcasting Ltd CA 31-Oct-1994
The implication of an additional term into a contract is dependant on it being the sole solution. As to the implication of terms generally: ‘The question whether a term should be implied, and if so what, almost inevitably arises after a crisis has . .
Cited – Bradmount Investments Ltd v Williams De Broe Plc and others ChD 10-Nov-2005
The claimants alleged that the defendants had wrongfully induced a breach of contract. There had been a proposal to float a company on the AIM. It was put to the defendant under protection of an agreement so that they might consider working as . .
Cited – Donington Park Leisure Ltd v Wheatcroft and Son Ltd ChD 7-Apr-2006
Leave to apply was pursued under the provisions of a Tomlin order. The parties had disputed the extent to which parts of the order should be exhibited to the court.
Held: The Tomlin order should be amended to add terms necessary to give effect . .
Cited – Aitken v Standard Life Assurance Ltd SCS 3-Dec-2008
The pursuer averred that the defendant, his pension provider, had wrongfully reduced its final bonus by ten per cent without notifying him. He sought to imply a term into the contract to provide such an effect, saying that the contract promised an . .
Cited – Attorney General of Belize and others v Belize Telecom Ltd and Another PC 18-Mar-2009
(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was . .
Cited – R Griggs Group Ltd, R Griggs and Co Ltd, Airwair Ltd v Evans, Raben Footwear Pty Ltd, Lewy, Lewy CA 25-Jan-2005
The claimants distributed Doc Marten footwear. They asked an agency to prepare a logo. The agency paid an independent contractor to prepare it, but did not take an assignment of copyright to it. The contractor sold the rights in the logo to the . .
Cited – Margerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .
Cited – Unique Pub Properties Ltd v Broard Green Tavern Ltd and Another ChD 26-Jul-2012
The claimant freeholder sought to install in the tenant’s pub, equipment to monitor sales. It claimed a right for this in the lease. The tenant refused access, saying that the proposed system was inaccurate. The claimant now sought summary relief. . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Cited – Philips Electronique v British Sky Broadcasting Ltd CA 1995
There is a presumption against adding terms to a contract. The presumption is stronger where the contract is in writing and represents an apparently complete bargain between the parties. Sir Thomas Bingham MR set out Lord Simon’s formulation, and . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 June 2022; Ref: scu.188601

Pratt Contractors Limited v Transit New Zealand: PC 1 Dec 2003

PC (New Zealand) The claimant sought damages arising from the defendant’s management of a bidding process. It had submitted the lowest tender, but that had been rejected. The tender document allowed rejection of the lowest bid.
Held: The findings of fact justify a conclusion that there was a breach of the express or implied terms of the preliminary procedural contract at either of the tender rounds. They also agree with the Court of Appeal that even if there was such a breach in the first round, it would have had no causative effect on Pratt’s failure to obtain the contract.

Judges:

Lord Nicholls of Birkenhead, Lord Slynn of Hadley, Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe

Citations:

[2003] UKPC 83

Links:

PC, Bailii

Commonwealth, Contract

Updated: 08 June 2022; Ref: scu.188446

Ingram v Little: 27 Jul 1960

Two ladies had a car for sale. A buyer came along. He fooled them into believing him to be someone else, and they sold him the car, after checking the name in the telephone directory. Before the cheque bounced, the rogue sold the car to the defendant from whom the ladies now sought the return of the car.
Held: Applying the rule nemo debt quod non habet, the car remained the property of original owners. Phillips v Brooke differed in that property had passed before the misrepresentation (majority). Devlin LJ dissenting: ‘The true spirit of the common law is to override theoretical distinctions when they stand in the way of doing practical justice. For the doing of justice, the relevant question in this sort of case is not whether the contract was void or voidable, but which of two innocent parties shall suffer for the fraud of a third. The plain answer is that the loss should be divided between them in such proportion as is just in all the circumstances. If it be pure misfortune, the loss should be borne equally; of the fault or imprudence of either party has caused or contributed to the loss, it should be borne by that party in the whole or in the greater part.’

Judges:

Pearce LJ and Devlin LJ

Citations:

[1961] 1 QB 31, [1960] EWCA Civ 1

Links:

Bailii

Citing:

Distinguished – Phillips v Brooks Ltd 1919
A jeweller had a ring for sale. The buyer pretended to be somebody else: ‘I am Sir George Bullough of 11 St. James’s Square.’ The jeweller had heard of Sir George Bullough and checked he lived at the address given. He released the jewellry against . .

Cited by:

Followed – Lewis v Averay CA 22-Jul-1971
A private seller had parted with his car in return for a worthless cheque to a rogue who persuaded him that he was the well-known actor who played Robin Hood on television, and who sold it on to the defendant.
Held: ‘When two parties have come . .
Cited – Norman Hudson v Shogun Finance Ltd CA 28-Jun-2001
A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
Held: The dealer had not taken all the steps he might have done to check the identity of the . .
Cited – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Cited – Adelson and Another v Associated Newspapers Ltd CA 9-Jul-2007
The claimant sought to add the name of a further claimant. The defendant objected, saying that it was after the expiry of the limitation period.
Held: The claimant was seeking to use the rules for substitution of parties to add a party. In . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 June 2022; Ref: scu.188418

Cine Bes Filmcilik Ve Yapimcilik and Another v United International Pictures and Others: CA 21 Nov 2003

The parties entered into agreements licensing the exclusive distribution of encrypted television channels within Turkey. A clause provided a calculation of damages for a breach amounting to the balance of licence fees due, and other penalties, including the return of proprietary rights. On a breach the licensors sought to enforce the contract. On an application for summary judgment, the judge refused to accept as arguable a suggestion that the clause was a penalty.
Held: The judge was wrong to focus on only one element of the damages clause, and to grant summary judgment. There was a triable issue as to whether the clause was a penalty. However, a particular clause might be commercially justifiable provided that its dominant purpose was not to deter the other party from breach. There are clauses which may operate on breach, but which fall into neither category and may be commercially justifiable and therefore enforceable.

Judges:

Lord Justice Mance, Lord Justice Peter Gibson, Lord Justice Thomas

Citations:

[2003] EWCA Civ 1669, [2004] 1 CLC 401

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
Approved – Lordsvale Finance Plc v Bank of Zambia QBD 20-Mar-1996
The court looked at a facility agreement opened by a bank in favour of the defendant which provided that in the event of default the defendant should pay interest during the period of default at an aggregate rate equal to the cost to the bank of . .
Cited – Workers Trust and Merchant Bank Ltd v Dojap Investments Ltd PC 22-Feb-1993
(Jamaica) The purchaser at an auction had been obliged under the terms of the auction contract to pay a deposit of 25%. He failed to complete, and the vendor took the deposit by way of forfeit. The standard deposit payable would be 10%. The Court of . .
Cited – Philips (Hong Kong) Ltd v The Attorney General of Hong Kong PC 9-Feb-1993
After referring to two Australian cases on penalty clauses in contracts: ‘These statements assist by making it clear that the court should not adopt an approach to provisions as to liquidated damages which could, as indicated earlier, defeat their . .
Cited – Robophone Facilities Ltd v Bank CA 1966
Parties to a contract should be free to stipulate not only primary obligations and rights but also the secondary rights and obligations, ie those which arise upon non-performance of any primary obligation by one of the parties to the contract, but . .
Cited – Oresundsvarvet AB v Marcos Diamantis Lemos (The ‘Angelic Star’) CA 1988
As part of a contract for ship-building, a delivery credit was made available to the purchaser as an ‘option’, in default of exercise of which the full price was payable in cash. The option was taken. The loan was to be repaid by bills of exchange . .

Cited by:

Cited – Murray v Leisureplay Plc QBD 5-Aug-2004
The claimant sought payment of three years’ salary after termination of his service contract. He said that an agreement had been made by the company to purchase a ‘financial institution’, which would trigger the additional payments. The defendants . .
Cited – Euro London Appointments Ltd v Claessens International Ltd CA 6-Apr-2006
The court considered whether a clause in an employment agency’s terms and conditions amounted to a penalty and was unenforceable. The contract provided that if the offer was withdrawn by the eventual employer after acceptance but before the . .
Cited – Tullett Prebon Group Ltd v El-Hajjali QBD 31-Jul-2008
The defendant signed an employment contract to join the claimants as a senior broker. He changed his mind and decided to stay in his existing job. The new employers sued for breach of contract. The defendant said that the claimants had refused to . .
Cited – Azimut-Benetti Spa (Benetti Division) v Healey ComC 3-Sep-2010
The claimant sought summary judgment under a guarantee. The defendant said that the liquidated damages clause under which the claim was made was a penalty clause and unenforceable.
Held: The request for summary judgment was granted.
Cited – Parkingeye Ltd v Beavis CA 23-Apr-2015
The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of 85.00 pounds. The judge had found that the appellant was in breach of a . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Media, Contract

Updated: 08 June 2022; Ref: scu.188048

Colen and Another v Cebrian (UK) Limited: CA 20 Nov 2003

The company paid the claimant sales commission. Part was diverted and paid to his wife to reduce the tax payable. The employer had appealed a finding of unfair disamissal, the company arguing that the contract was illegal.
Held: The contract was illegal in its performance only. A contract illegal in its formation or where it was intended from the outset to be performed illegally would be unenforceable. Where the illegality arrived later, the contract was not automatically made unenforceable. The burden was on the company to show the illegality. The appeal succeeded. The tribunal had jurisdiction to give effect to the contract.
Waller LJ said: ‘an analysis needs to be done as to what the party’s intentions were from time to time. If the contract was unlawful at its formation or if there was an intention to perform the contract unlawfully as at the date of the contract, then the contract will be unenforceable.’ Where the illegality arose only after the inception of the contract, thegeneral rule does not apply, with the test instead, being: ‘whether the method of performance chosen and the degree of participation in that illegal performance is such as to ‘turn the contract into an illegal contract’

Judges:

Lord Justice Waller Lord Justice Peter Gibson Lord Justice Carnwath

Citations:

[2003] EWCA Civ 1676, Times 27-Nov-2003, Gazette 15-Jan-2004, [2004] ICR 568

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Mensah v East Hertfordshire NHS Trust CA 10-Jun-1998
An industrial tribunal should be helpful to litigants to help establish clearly whether issues which had been raised on the papers were not being pursued. An employee claiming racial discrimination but not pursuing it at the tribunal was not allowed . .
Cited – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – St John Shipping Corporation v Joseph Rank Limited 1956
The defendants held a bill of lading for part of the cargo carried on the plaintiffs’ vessel from Mobile, Alabama, to Birkenhead. The vessel was over laden and the plaintiffs were guilty of an offence under the 1932 Act. The defendants relied on the . .
Cited – Ashmore, Benson, Pease and Co v A V Dawson Ltd CA 1973
By acquiescing in the unlawful overloading of the hauliers’ lorries, the consignors’ assistant transport manager and his assistant made the haulage contract unenforceable at the instance of the consignors, who were unable to recover when a lorry . .
Cited – Coral Leisure Group Ltd v Barnett EAT 1981
The court was asked whether any taint of illegality affecting part of a contract necessarily rendered the whole contract unenforceable by a party who knew of the illegality. In the case of a contract not for an illegal purpose or prohibited by . .
Cited – Newland v Simons and Willer (Hairdressers) Ltd 1981
The court was asked whether an employee could complain of unfair dismissal where the tribunal had held that the employee knew or ought to have known that her employer had failed to pay tax and national insurance contributions in respect of her . .
Cited – Wetherell v Jones 1832
The plaintiff sold spirits, misstating the strength to reduce the tax.
Held: A failure only to comply with regulations, which would result in a penalty, did not render void a sale of goods, and the plaintiff was entitled to recover the . .
Cited – B and B Viennese Fashions v Losame CA 1952
Jenkins J considered tha illegal performance of a valid contract saying: ‘It is plain from Anderson Ltd. v. Daniel that illegality in the performance of a contract may avoid it although the contract was not illegal an initio. That being so, one has . .

Cited by:

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

Employment, Contract

Updated: 08 June 2022; Ref: scu.188051

Commissioner of Public Works v Hills: PC 24 May 1906

(Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable for work done as a guarantee fund to answer for defective work and also certain security money deposited with the Government. The amount of that retained money depended on the progress of contracts other than the one in suit.
Held: The clause was a penalty. The principle to be deduced from the Clydebank case was that the criterion of whether a sum was a penalty or damages was to be found in whether the sum in question ‘can or cannot be regarded as a ‘genuine pre-estimate of the creditor’s probable or possible interest in the due performance of the principal obligation.’ The question of whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not as at the time of breach.
The Clydebank case was decided according to ‘the rules of a system of law where contract law was based directly on the civil law and no complications in the matter of pleading had ever been introduced by the separation of common law and equity.’
Lord Dunedin formulated the test: ‘The general principle to be deduced from that judgment seems to be this, that the criterion of whether a sum – be it called penalty or damages – is truly liquidated damages, and as such not to be interfered with by the Court, or is truly a penalty which covers the damage if proved, but does not assess it, is to be found in whether the sum stipulated for can or can not be regarded as a ‘genuine pre-estimate of the creditor’s probable or possible interest in the due performance of the principal obligation’. The indicia of this question will vary according to circumstances. Enormous disparity of the sum to any conceivable loss will point one way, while the fact of the payment being in terms proportionate to the loss will point the other. But the circumstances must be taken as a whole, and must be viewed as at the time the bargain was made.’

Judges:

Lord Dunedin

Citations:

, (1906) 22 TLR 589, [1906] UKPC 35, [1906] AC 368

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

Cited – Commissioner of Public Works v Hills PC 24-May-1906
(Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable . .
Explained – Clydebank Engineering Co v Castaneda HL 19-Nov-1904
The House considered a contract for the construction by a Scottish shipbuilder of four torpedo boats for the Spanish government. The contract provided that: ‘The penalty for late delivery shall be at the rate of andpound;500 per week for each . .

Cited by:

Cited – Workers Trust and Merchant Bank Ltd v Dojap Investments Ltd PC 22-Feb-1993
(Jamaica) The purchaser at an auction had been obliged under the terms of the auction contract to pay a deposit of 25%. He failed to complete, and the vendor took the deposit by way of forfeit. The standard deposit payable would be 10%. The Court of . .
Cited – Commissioner of Public Works v Hills PC 24-May-1906
(Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable . .
Cited – Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 June 2022; Ref: scu.187690

Cyprotex Discovery Ltd v University of Sheffield: TCC 21 Feb 2003

Copyright in a Java-based software program partly adapted and derived from an earlier MathCAD-based program. Interpretation of uncertain and potentially nonsensical terms of a commercial contract and effect of ICS v West Bromwich Building Society and United Camp Chemicals Limited v ACE Insurance; retrospective effect of a contract and effect of Trollope and Colls v Atomic Power Station and Northern and Shell Plc v John Laing Construction Limited; retention of copyright and Warwick Film Production Ltd v Eisinger; joint authorship and Fylde Microsystems Ltd v Key Radio Systems Ltd and implication of terms governing copyright and Ray v Classic FM.

Citations:

[2003] EWHC 760 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property, Contract

Updated: 08 June 2022; Ref: scu.187336

Butts Park Ventures (Coventry) Limited v Bryant Homes Central Limited: ChD 29 Oct 2003

Judges:

The Vice-Chancellor

Citations:

[2003] EWHC 2487 Ch

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Tiffany Investments Ltd and Another v Bircham and Co Nominees (No 2) Limited and others CA 4-Dec-2003
The tenancy was a long lease at a low rent under the 1954 Act, and so had continuing protection under the 1977 Act whilst occupied by the original tenant. The lease was assigned and registered. It had been conditional upon an application to purchase . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 08 June 2022; Ref: scu.187282

Amiri Flight Authority v BAE Systems Plc: CA 17 Oct 2003

The appellant had contracted to purchase maintenance from the defendant of aircraft it had also purchased from them. They sought damages for negligence, saying the defendants had failed to prevent a known risk of corrosion. The defendants argued that its contract excluded liability, and under the Act, that clause was not subjected to a test of reasonableness, being an international supply contract.
Held: The exclusion clause was clear and unambiguous. The Act required the contract to govern the supply of goods delivered abroad. The scheme of section 26 leads to narrow or even arbitrary distinctions. The history of the legislation did not suggest that the effect of the simple words should be departed from. The contract was not a contract for the delivery of goods, and so was not exempt. Appeal allowed.

Judges:

Lord Justice Potter, Lord Justice Mance And Lord Justice Rix

Citations:

[2003] EWCA Civ 1447

Links:

Bailii

Statutes:

Unfair Contract Terms Act 1977 26

Jurisdiction:

England and Wales

Citing:

Cited – Thornton v Shoe Lane Parking Ltd CA 18-Dec-1970
The claimant had suffered damage at the defendant’s car park. The defendant relied upon an exemption clause printed on the ticket, and now appealed against rejection of its defence under the clause.
Held: The appeal failed. The more extreme an . .
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 – Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd HL 26-Nov-1981
Even though a shipowner who had carried cargo on deck was not entitled to rely on the exceptions to liability in his contract, a limitation clause was different and should not be construed by reference to the specially exacting standards applicable . .
Cited – HIH Casualty and General Insurance Limited v New Hampshire Insurance Company Independent Insurance Company Limited Axa Reinsurance S A CA 21-May-2001
A claim was made under a re-insurance policy which supported film finances. The re-insurers resisted the claim on the grounds of misrepresentation. Rix LJ: ‘In principle it would seem to me that it is always admissible to look at prior contracts as . .
Cited – Attorney-General v Prince Earnest Augustus of Hanover HL 1957
‘legislative antecedents’ may in some circumstances constitute relevant background for the interpretation of statutes in pari materia. Words in a preamble cannot of themselves restrict the scope of enacting words, where the latter are wider or more . .
Mentioned – Regina v Schildkamp HL 1971
The defendant was accused of defrauding the company’s creditors.
Held: Not guilty. When interpreting a statute, the words of a heading cannot have equal weight with the words of the Act. The courts sometimes have to fill lacunae in . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Appeal from – Amiri Flight Authority v BAE Systems Plc and Another ComC 20-Nov-2002
. .
Lists of cited by and citing cases may be incomplete.

International, Contract

Updated: 08 June 2022; Ref: scu.186816

Downtex v Flatley: CA 2 Oct 2003

The claimants sought damages for defamation and breach of contract. The claimants had purchased a business from the defendant, which contract included a clause requiring the defendant to say nothing damaging about the business. The defendant asserted qualified privilege. The defendant was alleged to have told suppliers, by means of anonymous letters, that they were in financial difficulties.
Held: The defence of qualified privilege is highly fact sensitive. The test of whether the defence had a real rather than fanciful prospect of success is clear and needs no amplification. The test of whether qualified privilege exists is a matter for the judge rather than jury, and it is therefore more appropriate for a judge on a strike out application to make his assessment. The Court will look at the underlying facts in order to determine whether the statements made were objectively justified so as to require the protection of qualified privilege. The defence was bad in law, and struck out.
Potter LJ said: ‘the summary procedure should not involve the conduct of a mini-trial in a case where the defence advanced is ‘fact sensitive’ and there is reason to think that further facts may emerge or require investigation at trial before a fair and/or final conclusion can be reached. However, where there is sufficient material before the court on the pleadings or in evidence to allow the court to form a confident view upon the prospects of success for the defence advanced and the case is not fact sensitive in the sense that the essentials have all been deployed and there is no reason to think that the defendant will be in a position to advance his case to any significant extent at trial, then the court should not shy away from careful consideration and analysis of the facts relied on in order to decide whether the line of defence advanced is indeed no more than fanciful.’

Judges:

Lord Justice Chadwick, Lord Justice Potter, Mr Justice Cresswell

Citations:

[2003] EWCA Civ 1282

Links:

Bailii

Statutes:

Civil Procedure Rules 24

Jurisdiction:

England and Wales

Citing:

Cited – Toogood v Spyring 1834
Qualified Privilege of Bona Fide Words Under Duty
The defence of qualified privilege arises where the statement in question was bona fide and without malicious intent to injure: ‘In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the . .
Cited – Adam v Ward HL 1917
The plaintiff, Major Adam MP, falsely attacked General Scobell in a speech in the House of Commons, thus bringing his charge into the national arena. The Army Council investigated the charge, rejected it and directed their secretary, Sir E Ward, the . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Kearns and Others v The General Council of the Bar CA 17-Mar-2003
The claimants had sought to recover from the General Council of the Bar damages for libel in a communication from the head of the Bar Council’s Professional Standards and Legal Services Department to all heads of chambers, their senior clerks and . .
Cited – James Gilbert Ltd v MGN Ltd 2000
The test to be applied to the question of summary disposal under s.8 of the 1996 Act is the same as that under CPR Part 24. . .
Cited – Comarek v Ramco Energy QBD 2002
A company in business in Prague had sent a document defamatory of the claimants with whom they were in a business relationship to the British Ambassador in Prague and asked for his assistance.
Held: On the relevance of ‘common interest ‘ to . .
Cited – Hebditch v MacIlwaine CA 1894
On the defence of common interest such as to establish qualified privilege: ‘The defendant cannot create a privilege for himself because of honest belief on his part that the person to whom he made a slanderous communication had an interest or duty . .

Cited by:

See Also – Downtex Plc v Flatley QBD 27-Feb-2004
. .
Cited – Clift v Slough Borough Council and Another QBD 6-Jul-2009
The claimant sought damages for defamation. The council had decided that she had threatened a member of staff and notified various people, and entered her name on a violent persons register. She alleged malice, the council pleaded justification and . .
Cited – Ernst and Young Llp and Others v Coomber and Another QBD 8-Nov-2010
The claimants, Coomber, claimed in conspiracy, and the defendants claimed in defamation. Various applications were made. The claimants had promoted a development project, but their bankers went into administration. The bank being unable to promise . .
Cited – Kordowski v Hudson QBD 21-Oct-2011
The claimant alleged that the defendant, the chief executive of the Law Society had slandered him in a conversation with another senior lawyer. The claimant now sought summary judgment against the claimant, saying that the defence had no realistic . .
Lists of cited by and citing cases may be incomplete.

Defamation, Contract, Civil Procedure Rules

Updated: 08 June 2022; Ref: scu.186626