Category: Contract

Canada Steamship Lines Ltd v The King: PC 21 Jan 1952

A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene torch by an employee led to a fire which destroyed the shed and contents. The question was whether the lessee could claim against the lessor for the loss of its goods that had been in the shed.
Held: The courts should not ordinarily infer that a contracting party has given up rights which the law confers upon him to an extent greater than the contract terms indicate he has chosen to do; and if the contract terms can take legal and practical effect without denying him the rights he would ordinarily enjoy if the other party is negligent, they will be read as not denying him those rights unless they are so expressed as to make clear that they do. An exclusion clause to be effective must satisfy these three tests ‘(1) If the clause contains language which expressly exempts the person in whose favour it is made (hereafter called the `the proferens’) from the consequences of his own servants, effect must be given to that provision (2) If there is no express reference to negligence, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence on the part of the servants of the proferens (3) If the words used are wide enough for the above purpose, the court must then consider whether `the head of damage may be based on some ground other than negligence’ . . . The `other ground’ must not be so fanciful or remote that the proferens cannot be supposed to have desired protection against it; but subject to this qualification, . . . the existence of a possible head of damage other then that of negligence is fatal to the proferens even if the words used are prima facie wide enough to cover negligence on the part of his servants.’

Judges:

Lord Morton of Henryton

Citations:

[1952] AC 192, [1952] UKPC 1, [1952] 1 TLR 261, [1952] 1 All ER 305, [1952] 1 Lloyd’s Rep 1

Links:

Bailii

Jurisdiction:

Canada

Cited by:

Approved – Smith v UMB Chrysler (Scotland) Ltd HL 9-Nov-1977
The principles set out in Canada Steamship apply to ‘clauses which purport to exempt one party to a contract from liability’. The principles should be applied without ‘mechanistic construction’.
Lord Keith of Kinkel said: The tests were . .
Cited – National Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
Restricted – Hollier v Rambler Motors (AMC) Ltd CA 19-Nov-1971
The plaintiff left his car with the defendant garage for repair. Whilst there it was substantially damaged by fire. The defendant sought to rely upon their terms which would negative liability, saying that the terms had been incorporated by . .
Explained – Lamport and Holt Lines v Coubro and Scrutton (M and I) Ltd, (The Raphael) 1982
. .
Limited – 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 . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – Gillespie Bros and Co Ltd v Roy Bowles Transport Ltd CA 1973
The court looked at how it should construe the Canada Steamship guidelines with regard to an exemption clause absolving one party of responsibility for negligence. There was a express reference to negligence by the words ‘save harmless and keep . . . .
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 . .
Applied – Toomey v Eagle Star Insurance Co Ltd (No 2) QBD 1995
Applying Canada Steamship Lines Ltd v The King, Colman J said: ‘Notwithstanding the commercial purpose of this transaction, the correct approach, as a matter of construction, is to conclude that in fact the effect of cl (a) is only to exclude the . .
Cited – Barclays Bank Plc v Kufner ComC 10-Oct-2008
barclays_kufnerComC2008
The bank sought summary judgment under a guarantee to secure a loan to purchase a luxury yacht which was to be hired out in business. The loan had been charged against the yacht, but when the yacht was re-registered, the bank failed to re-establish . .
Cited – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 June 2022; Ref: scu.185978

Hammersmith Hospitals NHS Trust and Others v Troup Bywaters and Anders (A Firm): TCC 12 Nov 1999

Contract – professional negligence – duty of care – general consulting engineers – advice to NHS trust whether negligent – expert evidence – admissibility of evidence in the same profession with specialist professional expertise.

Judges:

His Honour Judge John Toulmin Cmg Qc

Citations:

[1999] EWHC Technology 273

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Professional Negligence, Evidence

Updated: 08 June 2022; Ref: scu.185886

Government of Newfoundland v Newfoundland Railway: PC 7 Feb 1888

A railway company and its assignees brought action the Government. Under the contract the company was to build a railway subsidised by the government. The railway was not completed. The parties disputed whether the contract was ‘entire’ and no part of the subsidy was payable unless the railway as a whole was completed. The company succeeded on that. The government counterclaimed for the non-completion, and sought a set off from the subsidies.
Held: The Board emphasised the intertwined nature of the obligations, and said that it ‘had no hesitation in saying that in this contract the claims for subsidy and for non-construction ought to be set against one another.’ The set-off could not be made as against the assignees: that once notice of the assignment of the debt had been given, ‘the debt or claim is so severed from the rest of the contract that the assignee may hold it free from any counter-claim in respect of other terms of the same contract.’ However it distinguished between a set-off properly allowable under the contract itself, which bound an assignee of a debt due under that contract, and a cross-claim which might ‘arise from any fresh transaction freely entered into by [the government] after notice of assignment by the company.’ In the first case, ‘It would be a lamentable thing if it were found to be the law that a party to a contract may assign a portion of it, perhaps a beneficial portion, so that the assignee shall take the benefit, wholly discharged of any counter-claim by the other party in respect of the rest of the contract, which may be burdensome. There is no universal rule that claims arising out of the same contract may be set against one another in all circumstances . . Unliquidated damages may be set off as between the original parties, and also against an assignee if flowing out of and inseparably connected with dealings and transactions which also give rise to the subject of the assignment.’

Judges:

Lord Hobhouse

Citations:

(1888) 13 App Cas 199, [1888] UKPC 7

Links:

Bailii

Jurisdiction:

Canada

Cited by:

Cited – Smith v Muscat CA 10-Jul-2003
The tenant was sued by his landlord for arrears of rent, but sought an equitable set-off for damages for disrepair accruing under the previous landlord.
Held: If the entitlement to recover arrears of rent passes from assignor to assignee, and . .
Cited – Edlington Properties Limited v J H Fenner and Co Limited CA 22-Mar-2006
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in . .
Cited – Geldof Metaalconstructie Nv v Simon Carves Ltd CA 11-Jun-2010
The parties contracted for the supply and installation of pressure vessels by Geldof (G) for a building constructed by Simon Carves (SC). The contract contained a clause denying the remedy of set-off. G sued for the sale price, and SC now sought an . .
Cited – Dole Dried Fruit and Nut Co v Trustin Kerwood Ltd CA 1990
The defendant had an exclusive distributorship agency for the plaintiff in England. Under that agreement, the plaintiff sold its prunes and raisins to the defendant under separate contracts of sale. The plaintiff claimed the price of goods sold . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 08 June 2022; Ref: scu.185867

Coopers Payen Ltd and Another v Southampton Container Terminal Ltd and Another: CA 11 Jul 2003

The court considered the circumstances and practice where doubt was thrown on the evidence of a single joint expert.

Judges:

Lightman J, Schiemann, Clarke LJJ

Citations:

[2003] EWCA Civ 1223, [2004] 1 Lloyds Rep 331

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Litigation Practice

Updated: 08 June 2022; Ref: scu.185689

Jordan Grand Prix Limited v Vodafone Group Plc: ComC 4 Aug 2003

The claimant asserted that the defendant had agreed in the course of a telephone conversation, to provide sponsorship, and sought to enforce that agreement. There were considerable conflicts of evidence.
Held: Evidence given on behalf of the claimant was inconsistent and incredible. No contract was made, the person dealing for Vodaphone did not have authority to make any final agreement, and this was known to the claimant. The claim failed entirely.

Judges:

The Honourable Mr Justice Langley

Citations:

[2003] EWHC 1956 (Comm), [2003] 2 Lloyds Rep. 874

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – First Energy (UK) Ltd v Hungarian International Bank Ltd CA 16-Apr-1993
A manager, though he lacked actual authority to authorise and offer a particular loan facility to the plaintiff, still did so by sending him a letter of offer which was accepted.
Held: Albeit the manager lacked actual authority to make the . .

Cited by:

Cited – Three Rivers District Council and others v The Governor and Company of the Bank of England ComC 12-Apr-2006
The claimants had pursued compensation over many years from the defendants alleging various kinds of misfeasance in regulating the bank BCCI. The action had collapsed.
Held: ‘this was extraordinary litigation which came to an abrupt albeit . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 07 June 2022; Ref: scu.185226

Dole Dried Fruit and Nut Co v Trustin Kerwood Ltd: CA 1990

The defendant had an exclusive distributorship agency for the plaintiff in England. Under that agreement, the plaintiff sold its prunes and raisins to the defendant under separate contracts of sale. The plaintiff claimed the price of goods sold under the latest of such sale contracts. Three weeks later the plaintiffs commenced separate proceedings in which they claimed $735,000 for goods sold and delivered under several sales. The defendants did not dispute the plaintiff’s claim but claimed in equity to set-off their counterclaim for unliquidated damages for repudiation by the plaintiff of the distributorship agreement.
Held: The counterclaim could be set off, creating an arguable defence to the claim for the price of goods sold.
Lloyd LJ regarded the impeachment test and the Newfoundland Railway test as merely ‘the same test in different language’. Referred to the exceptional rule about no set-off against freight, he continued: ‘But for all ordinary purposes, the modern law of equitable set-off is to be taken as accurately stated by the Court of Appeal in Hanak v. Green . . It is not enough that the counterclaim is ‘in some way related to the transaction which gives rise to the claim’. It must be ‘so closely connected with the plaintiff’s demand that it would be manifestly unjust to allow him to enforce payment without taking into account the crossclaim’: see The Nanfri per Lord Denning . . The authority of these cases has not been diminished by The Dominique. They establish that the mere existence of a crossclaim is insufficient. The claim and crossclaim must arise out of the same contract or transaction, and must also be so inseparably connected that the one ought not to be enforced without taking into account the other.’
and ‘The sale contracts were thus concluded in fulfilment of the agency agreement.’ and ‘In those circumstances the claim and the counterclaim are sufficiently closely connected to make it unjust to allow the plaintiffs to claim the price of goods sold and delivered without taking account of the defendants’ counterclaim for damages for breach of the agency agreement. If that is right, then the defendants are entitled to rely on their counterclaim as a set-off. It follows that they have an arguable defence for the purposes of [Order 14]. Accordingly I would dismiss the plaintiffs’ appeal.’

Judges:

Lloyd LJ

Citations:

[1990] 2 Ll Rep 309, [1990] 2 Lloyd’s Rep 309

Jurisdiction:

England and Wales

Citing:

Approved – Hanak v Green CA 1958
A builder was sued for his failure to complete the works he had contracted for. The buider sought a set-off against that claim of three of his one claims. One, under the contract, was for losses from the defendant’s refusal to allow his workmen . .
Cited – Rawson v Samuel 15-Apr-1841
Cottenham LC said: ‘We speak familiarly of equitable set-off as distinguished from set-off at law, but it will be found that this equitable set-off exists in cases where the party seeking the benefit of it can show some equitable ground for being . .
Cited – Hanak v Green CA 1958
A builder was sued for his failure to complete the works he had contracted for. The buider sought a set-off against that claim of three of his one claims. One, under the contract, was for losses from the defendant’s refusal to allow his workmen . .
Cited – Bank of Boston Connecticut v European Grain and Shipping Ltd (‘The Dominique’) HL 1989
A shipping company and a shipper responsible for the freight disputed the effect of their contract. The ship was duly loaded with its cargo and set out for the voyage from India to Europe. The bills of lading were signed. When the ship called at . .
Cited – Federal Commerce Ltd v Molena Alpha Inc; (The ‘Nanfri’) CA 1978
The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire.
Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to . .
Cited – Government of Newfoundland v Newfoundland Railway PC 7-Feb-1888
A railway company and its assignees brought action the Government. Under the contract the company was to build a railway subsidised by the government. The railway was not completed. The parties disputed whether the contract was ‘entire’ and no part . .

Cited by:

Cited – Geldof Metaalconstructie Nv v Simon Carves Ltd CA 11-Jun-2010
The parties contracted for the supply and installation of pressure vessels by Geldof (G) for a building constructed by Simon Carves (SC). The contract contained a clause denying the remedy of set-off. G sued for the sale price, and SC now sought an . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 07 June 2022; Ref: scu.416757

Compensation Specialists Limited, Corry, Wright, Chapman v Compensation Claims Service Limited: CA 24 Jul 2003

The claimants acted as franchisees of the defendants, having agreed commission arrangements for the introduction of personal injury claimants. Following new rules, the sharing of such commissions became unlawful. The parties had failed to renegotiate a fee arrangement. The defendants appealed saying that the claimants had continuing duties to the lay clients.
Held: The duty of client care continued during the life of the claims. The fee payable was a single fee for that entire service. The defendants would accordingly be able to deduct from outstanding commissions the sums paid out fulfilling the obligations undertaken by the claimants.

Judges:

Lord Justice Brooke Mr Justice Holman Lord Justice Jonathan Parker

Citations:

[2003] EWCA Civ 1108, Gazette 02-Oct-2003

Links:

Bailii

Statutes:

Access to Justice Act 1999

Jurisdiction:

England and Wales

Contract, Commercial, Legal Professions

Updated: 07 June 2022; Ref: scu.184871

Polley v Warner Goodman and Streat (A Firm): CA 30 Jun 2003

A cause of action in negligence is complete once the claimant has suffered loss as a result of the negligence, even if the existence of the loss (and indeed of the negligence) is not, and could not be, known to him, and even where that loss is much less than the loss which he ultimately suffers as a result of the negligence. The the issues identified in Hatton should be added ‘a sixth proposition, namely: damage often occurs before it can be crystallised, and difficulties of quantification do not prevent damage from being said to have occurred.’

Judges:

Clarke LJ

Citations:

[2003] EWCA Civ 1013, [2003] PNLR 40

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hatton v Messrs Chafes (A Firm) CA 13-Mar-2003
The defendant firm appealed against a refusal to strike out the claimant’s claim for professional negligence, asserting that the judge should have considered the limitation issue in the light of Khan v Falvey.
Held: By the time that the . .
Cited – Cave v Robinson Jarvis and Rolf (a Firm) HL 25-Apr-2002
An action for negligence against a solicitor was defended by saying that the claim was out of time. The claimant responded that the solicitor had not told him of the circumstances which would lead to the claim, and that deliberate concealment should . .
Cited – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .

Cited by:

Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Contract, Legal Professions

Updated: 07 June 2022; Ref: scu.184814

Dunblane Property Limited Anthony Richard Rand, v Motorcare Holdings Limited Motorcare Services Limited,: CA 29 Jul 2003

The claimants sought damages for breach of a share sale agreement. The decision concerned the particular terms of this agreement.

Judges:

Lord Justice Clarke Lord Justice Sedley The President

Citations:

[2003] EWCA Civ 1033

Links:

Bailii

Jurisdiction:

England and Wales

Company, Contract

Updated: 07 June 2022; Ref: scu.184855

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 at the time of the contract, and that the claimant was making an opportunistic attempt to overcharge.

Judges:

His Honour Judge Richard Seymour Q.C.

Citations:

[2003] EWHC 1739 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Contract

Updated: 07 June 2022; Ref: scu.184656

Okta Crude Oil Refinery A D v Mamidoil-Jetoil Greek Petroleum Company S A and Another: CA 17 Jul 2003

The parties had contracted to allow an exclusive right to deliver oil by tanker and to sell into Macedonia. The defendants claimed they were overborn, and claimed exemption under a force majeure clause.
Held: The acts which had made the contracts apparently impossible to be complied with were themselves not entirely outside the control of the defendants.

Judges:

Longmore, Arden LJJ

Citations:

[2003] EWCA Civ 1031, [2003] 2 All ER (Comm) 640, [2003] 2 Lloyd’s Rep 635

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – George Avery v Samuel Wilson Bowden 26-Nov-1855
The parties agreed a charterparty involving the ship arriving at a port and taking 45 days to unload and load up before leaving. The defendant ordered the boat to leave early and without the cargo. He pleaded that, war having been declared between . .
Cited – Czarnikow Ltd v Centrala Handlu Zagranicznego Rolimpex HL 1979
The sellers (Rolimpex), a state trading organisation, tried to rely on the actions of their own government as a defence to claims for non-performance of commercial contracts.
Held: The sellers were not an organ or department of the Polish . .
Cited – Stephens v Avery ChD 1988
The parties had been friends and had discussed their sex lives. The defendant took the information to a newspaper and its editor, the second and subsequent defendants who published it. The plaintiff sought damages saying the conversations and . .
Cited – Czarnikow Ltd v Centrala Handlu Zagranicznego Rolimpex HL 1979
The sellers (Rolimpex), a state trading organisation, tried to rely on the actions of their own government as a defence to claims for non-performance of commercial contracts.
Held: The sellers were not an organ or department of the Polish . .
Cited – Stephens v Avery ChD 1988
The parties had been friends and had discussed their sex lives. The defendant took the information to a newspaper and its editor, the second and subsequent defendants who published it. The plaintiff sought damages saying the conversations and . .

Cited by:

Cited – Dresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 June 2022; Ref: scu.184619

Bim Kemi Ab v Blackburn Chemicals Ltd: CA 24 Jun 2003

It had been argued by the claimant in written submissions (although not maintained orally) that an order for payment of pre-judgment interest on costs should never be made. As to an award of interest on costs:- ‘In any event in principle there seems no reason why the Court should not do so where a party has had to put up money paying its solicitors and been out of the use of that money in the meanwhile.’ It was ordered that the award of interest should run as from the date or dates of solicitors’ invoices.
The defendants had argued for a rate of interest of 6% per annum to reflect the fact that they would have had to pay 2% over base rate if they had borrowed the money from their bank. Waller LJ answered: ‘The question is whether the evidence in this case demonstrates that a rate greater than 1% above base rate should be applied. Evidence of what a bank might have charged if money had been borrowed is not we think sufficient. It is not clear to us what takes Blackburn outside the norm to which the 1% above base rate presumption applies. In our view the appropriate course in relation to these costs is to make an award of interest at 1% over base rate the interest to run from the date when the costs were paid.’

Judges:

Waller LJ

Citations:

[2003] EWCA Civ 889

Links:

Bailii

Statutes:

Civil Procedure Rules 44.3(6)(g)

Jurisdiction:

England and Wales

Citing:

See also – Bim Kemi Ab v Blackburn Chemicals Ltd CA 13-Feb-2003
. .
See also – Bim Kemi v Blackburn Chemicals Ltd CA 3-Apr-2001
The question was the degree of connection which must be shown between (1) a claim for unliquidated damages for breach of a contract and (2) a cross-claim for unliquidated damages for breach of a different contract between the same parties, in order . .
See also – Bim Kemi Ab v Blackburn Chemicals Ltd ComC 30-Jan-2002
. .
See also – Bim Kemi Ab v Blackburn Chemicals Ltd SCCO 24-Jun-2003
. .
Cited – Jaura v Ahmed CA 21-Feb-2002
The applicant sought damages for the wrongful termination of her lease by the respondent. The landlords re-entered in default of payment of the rent. The premises had been sub-let, and she sought damages for the loss of rental profits.
Held: . .

Cited by:

See also – Bim Kemi Ab v Blackburn Chemicals Ltd CA 13-Feb-2003
. .
Cited – Douglas and others v Hello! Ltd and others ChD 23-Jan-2004
. .
See also – Bim Kemi Ab v Blackburn Chemicals Limited ComC 6-Feb-2004
. .
See Also – Blackburn Chemicals Ltd v Bim Kemi Ab CA 10-Nov-2004
The parties entered into exclusive cross marketing agreements. The defendant resisted enforcement of the contract saying it was void under European law, being contrary to Article 81. The parties were alleged to have agreed to make cross purchases. . .
Cited – Jones and Others v Secretary of State for Energy and Climate Change and Another QBD 3-May-2013
The claimants sought an order for pre-judgment interest on the disbursements incurred in this group litigation. The clients were liable for payment of the disbursements under the conditional fee agreements, and in this case these amounted to over . .
Lists of cited by and citing cases may be incomplete.

Contract, Costs

Updated: 07 June 2022; Ref: scu.184063

Oscar Chess Ltd v Williams: CA 11 Nov 1956

Where somebody warrants something, the person giving the warranty binds himself or herself to it. Lord Denning suggested that the test of an interpretation was what an intelligent bystander would reasonably infer contracting parties had agreed upon. He said: The material distinction here is between a statement which is a term of the contract and a statement which is only an innocent misrepresentation. This distinction is best expressed by the ruling of Holt CJ, ‘Was it intended as a warranty or not?’, using the word ‘warranty’ there in its ordinary English meaning: because it gives the exact shade of meaning that is required. It is something to which a man must be taken to bind himself.
In applying this test, however, some misunderstanding has arisen by the use of the word ‘intended’. It is sometimes supposed that the tribunal must look into the minds of the parties to see what they themselves intended. That is a mistake. Lord Moulton made it quite clear in Heilbut, Symons and Co v Buckleton . . that ‘The intention of the parties can only be deduced from the totality of the evidence . .’ The question whether a warranty was intended depends on the conduct of the parties, on their words and behaviour, rather than on their thoughts. If an intelligent bystander would reasonably infer that a warranty was intended, that will suffice. And this, when the facts are not in dispute, is a question of law.’

Judges:

Denning, Hodson, Morris LJJ

Citations:

[1957] 1 WLR 370, [1956] EWCA Civ 5, [1957] 1 All ER 325

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 – Drake v Thos Agnew and Sons Limited QBD 8-Mar-2002
The claimant sought the return of money paid by him for a painting. He said it had been sold to his agent as by ‘Van Dyck’ but subsequently proved not to be so. He had employed an agent to acquire the painting, but the agent had not disclosed to him . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 June 2022; Ref: scu.183434

Merer v Fisher and Another: CA 13 May 2003

A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered right of pre-emption was, under the Act, only void as against a purchaser for value. The defendant sought to challenge the finding as to consideration.
Held: The question on appeal is whether the evidence on which the judge did not make findings, expressly or by implication, demonstrates that the judge’s conclusion on the question as to the existence of the arrangement was plainly wrong. That was not established, and that part of the judgement stood. The claimant sought specific performance, the judge had refused it, but Sudbrook was to be distinguished and an order for specific performance granted.

Judges:

Lord Justice Potter, Lord Justice Mummery And Lady Justice Arden

Citations:

[2003] EWCA Civ 747

Links:

Bailii

Statutes:

Land Charges Act 1925 4(6)

Jurisdiction:

England and Wales

Citing:

Distinguished – Pritchard v Briggs CA 1980
A conveyance of part in 1944 gave a right of pre-emption over retained land. The vendor’s successors the let the retained land to the plaintiff with an option to buy the freehold reversion. The retained land was sold to the defendants in purported . .
Cited – Todd v Adams and Chope (Trading as Trelawney Fishing Co) (The ‘Margaretha Maria’) CA 2002
Where the correctness of a finding of primary fact or of inference is in issue (on appeal), it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – SS Hontestroom v SS Sagaporack HL 1927
The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – In Re Duomatic Ltd ChD 1969
Payments were made by a company by way of remuneration to directors without complying with the company’s articles of association in that no resolution authorising the directors to receive remuneration had ever been passed in a general meeting of the . .
Distinguished – Sudbrook Trading Estate Ltd v Eggleton HL 1982
The grantors of an option, which contained a machinery for fixing the price, had refused to appoint a valuer and that made it impossible for the contractual machinery for the valuation of the option price to work. The House of Lords held that the . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Litigation Practice

Updated: 07 June 2022; Ref: scu.182592

Islam v Ali: CA 26 Mar 2003

For a costs appeal to succeed it must be established that the judge has exceeded the limits of his proper discretion by the order made. Auld LJ said that the Court should only intervene: ‘the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that [the exercise of] his discretion is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.’

Judges:

Auld LJ

Citations:

[2003] EWCA Civ 612

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Jones and Another v Ruth and Another CA 12-Jul-2011
The parties were neighbours. The claimants succeeded in their assertion of trespass and nuisance in building works carried out by the defendant. The claimant appealed against the judge’s failure to award damages for harassment, saying that though . .
Lists of cited by and citing cases may be incomplete.

Contract, Costs

Updated: 07 June 2022; Ref: scu.181930

Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society: HL 9 Nov 1970

The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The common law doctrine of non est factum has a very narrow and limited application. The transaction must be essentially different in substance or in kind from the transaction intended. The plea is available to a narrow class of persons, namely, those who are: unable to read owing to blindness or illiteracy; or permanently or temporarily unable, through no fault of their own, to have without explanation any real understanding of the purport of a particular document, whether that lack of understanding be from defective education, illness or innate incapacity.
Lord Wilberforce said: ‘leaving aside negotiable instruments to which special rules may apply, a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which, if neglected, prevents him from denying his liability under the document according to its tenor. I would add that the onus of proof in this matter rests upon him.’
Lord Reid said: ”the matter generally arises when an innocent third party has relied on a signed document in ignorance of the circumstances in which it was signed, and where he will suffer loss if the maker of the document is allowed to have it declared a nullity.’
. . And ‘The plea cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document. Many people do frequently sign documents put before them for signature by their solicitor or other trusted advisors without making any inquiry as to their purpose or effect. But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have had such a belief unless he had taken steps or been given information which gave him some grounds for his belief. The amount of information he must have and the sufficiency of the particularity of his belief must depend on the circumstances of each case.’

Judges:

Lord Wilberforce, Lord Reid

Citations:

[1971] AC 1004, [1970] UKHL 5, [1970] 3 All ER 961, [1970] 2 WLR 1078

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Howatson v Webb ChD 1907
The defendant, a solicitor’s clerk, pleaded non est factum to an action on a mortgage deed he had signed. He said that he had thought it to be a deed transferring property held as nominee for the solicitor.
Held: The court should make . .
Cited – Howatson v Webb CA 1908
The court accepted a plea of non est factum, approving the distinction made by the trial judge between the approval of the contents and the character of the deed executed. Cozens-Hardy MR said that he approved every word of Warrington J’s judgment. . .
Cited – Carlisle and Cumberland Banking Company v Bragg 1911
A party wishing to establish a plea of non est factum in order to avoid liability under a deed, must show that he had taken care in signing the document.
Held: There could not be negligence in the execution of a document unless a duty was owed . .
Cited – Thoroughgood’s case; Thoroughgood v Cole; Throwgood v Turnor, Moore 1584
Where a signatory is blind, and the document is read to him falsely either by the grantee or by a stranger, then the deed is not binding on him. An illiterate signatory need not execute the deed without it being read over to him, but where he . .
Cited – Muskham Finance Ltd v Howard CA 1963
Non est factum limited but effective
K instructed a dealer to sell a car which K held under an hire purchase agreement. The dealer found a who wanted hire purchase terms. K signed, at the dealer’s request, a document for the purposes of the transaction. Later, the dealer told K he had . .
Cited – Whelpdale’s Case 1604
Where a bond is delivered to somebody else to the use of the obligee, on being tendered is refused, the delivery of the deed was no longer effective, the obligee could not later agree to it, and the obligor could plead non est factum. . .
Cited – National Provincial Bank v Jackson CA 1886
Two sisters executed deeds relating to their property, but did not read them first or having them read out to them or explained. They said that they had relied on their brother, a solicitor.
Held: Cotton LJ said that they could not have been . .
Cited – Foster v MacKinnon 1869
The court considered a plea of non est factum.
Held: Byles J set out situations where the plea was available: ‘It seems plain, on principle and on authority, that, if a blind man, or a man who cannot read, or who for some reason (not implying . .
Cited – Whelpdale’s Case 1604
Where a bond is delivered to somebody else to the use of the obligee, on being tendered is refused, the delivery of the deed was no longer effective, the obligee could not later agree to it, and the obligor could plead non est factum. . .
Cited – Shulter’s Case 1611
Where a blind or illiterate person (here 115 years old) had a deed read over to him before it was signed, but he was mislead, he could plead non est factum. . .
Cited – In re Leighton’s Conveyance CA 1937
Rules of court provided that a person suing as a poor person should not be ordered to pay costs.
Held: The Order did not prevent the mortgagee adding to her security her costs in an action brought by the mortgagor suing as a poor person. Lord . .

Cited by:

Cited – Abacus Trust Company (Isle of Man) Colyb Limited v Barr, Barr, and Barr ChD 6-Feb-2003
The court considered the Rule in Hastings-Bass, and specifically (1) whether the trustee’s decision is open to challenge when the failure to take a consideration into account is not attributable to a breach of fiduciary duty on the part of the . .
Cited – Avon Finance Co Ltd v Bridger CA 1985
The son arranged finance for his parents to move near to him. He borrowed money to help finance it, secured by an expensive second loan. He deceived his parents into executing the loan. After the son defaulted, the plaintiff sought possession.
Cited – Peekay Intermark Ltd and Another v Australia and New Zealand Banking Group Ltd ComC 25-May-2005
The claimant alleged mis-selling of an emerging markets investment product. The defendant claimed that whilst there might have been a misrepresentation, by the time the contract was formed, correct information had been provided and incorporated in . .
Lists of cited by and citing cases may be incomplete.

Contract, Land, Undue Influence

Updated: 07 June 2022; Ref: scu.181653

Jeancharm Ltd (T/A Beaver International) v Barnet Football Club Ltd: CA 16 Jan 2002

The claimant contracted to supply football shirts to the defendant, but claimed that clauses in the contract with regards to late delivery and payment operated as penalties and so were void at common law.
Held: The sums set out were immodest and went far beyond any attempt to pre-estimate losses. They were invalid as a penalty. The court rejected a move to a more discretionary approach to deciding whether a clause was a penalty.

Judges:

Jacob J, Keene LJ

Citations:

[2003] EWCA Civ 58

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
Cited – 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 – 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 – AMEV-UDC Finance Ltd v Austin 1986
High Court of Australia – Contract – Damages – Penalty – Agreement for hire of chattel – Failure to pay instalments of hire – Termination by owner pursuant to contractual power – Damages – Instalments due but unpaid – Damages for loss of . .
Cited – Lordvale Finance plc v Bank of Zambia 1996
The parties’ contract provided for an uplift of 1% for late payment of a debt.
Held: This was a genuine pre-estimate on the basis that it indicated that the borrower was a risky borrower. It was not a penalty. . .

Cited by:

Cited – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 June 2022; Ref: scu.181292

Davis Turner and Co Ltd v Granville Oil and Chemicals Ltd: CA 15 Apr 2003

The time bar provision, now found in cl. 28(B) of BIFA, satisfied the requirements of reasonableness under UCTA.

Judges:

Lord Justice Potter Lord Justice Tuckey Mr Justice Hart

Citations:

[2003] EWCA Civ 570, [2003] 1All ER (Comm) 819, [2003] 2 Lloyd’s Rep 356

Links:

Bailii

Statutes:

Unfair Contract Terms Act 1977

Jurisdiction:

England and Wales

Cited by:

Cited – Frans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .
Cited – Regus (UK) Ltd v Epcot Solutions Ltd CA 15-Apr-2008
The appellant had contracted to provide office accomodation to the defendant. The air conditioning did not work and there were other defects. The appellant now challenged a finding of liability and that its contract terms which were said to totally . .
Lists of cited by and citing cases may be incomplete.

Contract, Commercial

Updated: 07 June 2022; Ref: scu.181392

Tesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited: ChD 14 Apr 2003

A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
Held: Mr Pook owed a duty to disclose the bribes that he had taken. He was in breach of that duty. The agreement had an implied a term that the holder of the option should not be entitled to exercise it if he had committed ‘a serious breach of the contract’.

Judges:

The Honourable Mr Justice Peter Smith

Citations:

[2003] EWHC 823 (Ch), [2004] IRLR 618

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Anangel Atlas Compania Naviera SA v Ishikawajima-Harima Heavy Industries Co Ltd 1990
The plaintiffs sought recovery of moneys paid by the defendants to one George Thomas Richardson Campbell, a distinguished naval architect on the ground that such payments has been made secretly while Mr Campbell has been acting for the plaintiffs in . .
Cited – Hovenden and Sons v Millhoff 1900
Romer LJ said: ‘The courts of law in this country have always strongly condemned and, when they could, punished the bribing of agents, and have taken a strong view as to what constitutes a bribe. I believe the mercantile community as a whole . .
Cited – Attorney General for Hong Kong v Reid and Others PC 24-Nov-1993
Principalhas proprietary interest in Trust assets
Bribes were taken by an employee, a crown prosecutor in Hong Kong, in a fraud on his employer. He then invested the proceeds in the purchase of property in New Zealand. The property had increased in value. The employer sought repayment of the bribes . .
Cited – Industries and General Mortgage Co Ltd v Lewis 1949
When arranging with the plaintiff company to obtain a loan for the defendant V stipulated that he should be paid half the procuration fee which the defendant would be charged for the company’s services. The company knew that V was to receive from . .
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 – 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 – Micklefield v SAC Technology Ltd 1990
A Share Option Scheme provided that the option could not be exercised if the option holder ceased to be an executive ‘for any reason’. The employer dismissed Mr Micklefield wrongfully, so that he ceased to be an employee before he was able to . .
Cited – Giovanni Mallone v BPB Industries Plc CA 19-Feb-2002
The claimant was a director of the respondent. On his dismissal, his share options were cancelled. He claimed this was in breach of his rights under the scheme. The company appealed a finding that they were so in breach. The scheme distinguished . .
Mentioned – Healey v Societe Anonyme Francais Rubastic 1917
A director of the company claimed arrears of salary for work done notwithstanding that he had been summarily dismissed for misconduct. There was no question of a claim for damages for breach of duty. . .
Cited – Sybron Corporation v Rochem CA 1983
There was an allegation that the employee had failed to disclose breaches of contract by fellow employees. This had taken place at a time when a decision was being taken as to the payment to be made to him under the terms of a pension scheme. The . .
Cited – Horcal Ltd v Gatland CA 1984
The court considered the arguments presented as to the duty of a director of a company to disclose his own breach of fiduciary duty: ‘Counsel . . submitted, as a general proposition, that, putting fraud on one side, there is no general duty on . .
Cited – Van Gestel v Can CA 7-Aug-1987
Directors have a positive duty to disclose their pre-existing breaches of fiduciary duty. . .

Cited by:

Cited – Crown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
Cited – Fassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
Cited – Michael Wilson and Partners Ltd v Emmott ComC 8-Jun-2011
The claimant challenged an arbitration award made concerning the agreement under which the defendant had been admitted to partnership. MWP contended that the Tribunal were guilty of a large number of serious irregularities in their conduct of the . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 07 June 2022; Ref: scu.181394

Darke v Strout: CA 28 Jan 2003

Abstention in exercising of a statutory right to apply for child maintenance may afford sufficient consideration to support a compromise of a contractual claim.

Citations:

[2003] EWCA Civ 176

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Lists of cited by and citing cases may be incomplete.

Family, Contract, Child Support

Updated: 07 June 2022; Ref: scu.181105

Esso Petroleum Co Ltd v Niad Ltd: ChD 22 Nov 2001

The court ordered an account of profits as a remedy for breach of a contractual scheme called ‘Pricewatch’ operated by the claimant with its dealers, who agreed to report competitors’ prices and to abide by prices set daily by Esso to match the competition. Dealers received financial support by Esso for this. The defendant repeatedly failed to maintain prices, but gave repeated assurances that he would do so. Damages were inadequate, since Esso could not attribute lost sales to breach by one dealer. Yet the obligation was fundamental to its operation, and the failure gave the lie to Esso’s advertising campaign. Account was also taken of the defendant’s repetition of its breaches, and of Esso’s legitimate interest in preventing the defendant profiting. The account of profits was also appropriate when the defendant had been receiving financial support from Esso to maintain Pricewatch.

Judges:

Sir Andrew Morritt V-C

Citations:

[2001] EWHC Ch 458, [2001] All ER (D) 324

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Esso Petroleum Co Ltd v Niad Ltd ChD 2001
Esso had entered into a solus agreement with Naid covering one filling station. Esso introduced a marketing scheme called ‘Pricewatch’ under which it made financial support available to its dealers in return for their selling petrol at recommended . .

Cited by:

Cited – Experience Hendrix LLC v PPX Enterprises Inc and Another CA 20-Mar-2003
The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 07 June 2022; Ref: scu.180882

Beswick v Beswick: HL 29 Jun 1967

The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating Act, the 1925 Act should not be read to change the common law.
Held: The House ordered specific performance of the contract on behalf of the estate though it was to make payments of money to a third party, recognising that the innocent party to the breach of contract had a legitimate interest in having the contract performed even though he himself would suffer no financial loss from its breach.
Lord Guest: ‘as this is a consolidating Act, if the words are capable of more than one construction, then the Court will give effect to that construction which does not change the law. ‘

Judges:

Lord Reid, Lord Hodson, Lord Guest, Lord Pearce, Lord Upjohn

Citations:

[1968] AC 58, [1967] 3 WLR 932, [1967] 2 All ER 1197 HL(E), [1967] UKHL 2

Links:

Bailii

Statutes:

Law of Property Act 1925 56(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Beswick v Beswick CA 1966
The court was asked as to breach of an agreement to pay a man’s widow an annuity for life.
Held: A plaintiff is entitled to no more than nominal damages in respect of the defendant’s breach of a contract where the plaintiff himself has . .
Cited – White v Bijou Mansions ChD 1937
The court heard an argument that section 56 of the 1925 Act had not changed the law to allow a third party to sue under a covenant to which he had not been party.
Held: Simonds J rejected an argument that section 56 enabled anyone to take . .
Cited – White v Bijou Mansions CA 1938
The court heard an rejected an argument that s56 worked to allow a third party to sue under a covenant to which he had not been party: ‘before he can enforce it he must be a person who falls within the scope and benefit of the covenant according to . .
Cited – In re Miller’s Agreement, Uniacke v Attorney-General ChD 1947
Two partners had covenanted with a retiring partner that on his death they would pay certain annuities to his daughters. The Revenue claimed estate duty.
Held: The claim was rejected. The daughters were not parties to the agreement, and had no . .
Criticised – Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board CA 1949
Benefit of Covenant Ran with Land
In 1938, landowners and the Catchment Board agreed that the Board would make good and maintain the banks of a stream, with the landowners contributing to the cost. The agreement was not said to be for the benefit of the landowner’s successors in . .
Cited – Chelsea Building Society v Armstrong ChD 1951
The court considered a claim to benefit under a contract.
Held: Being in fact a party to an agreement might not be enough; the person claiming a benefit must be named a party in the indenture. . .
Cited – Drive Yourself Hire Co (London) Ltd v Strutt CA 1954
The court discussed the doctrine of privity of contract. Lord Denning MR said: ‘It is often said to be a fundamental principle of our law that only a person who is a party to a contract can sue on it. I wish to assert, as distinctly as I can, that . .
Cited – In re Foster 1938
. .
Cited – Green v Russell CA 1959
The court rejected an argument that section 56 had altered the law to allow actions by third parties under a contract. . .
Mentioned – Midland Silicones Ltd v Scruttons Ltd CA 1960
. .
Mentioned – Midland Silicones Ltd v Scruttons Ltd HL 6-Dec-1961
The defendant stevedores, engaged by the carrier, negligently damaged a drum containing chemicals. When the cargo-owners sued in tort, the stevedores unsuccessfully attempted to rely on a limitation clause contained in the bill of lading between the . .
Cited – Keenan v Handley 1864
The court considered the availability of specific performance as a remedy to a personal representative. . .
Cited – Hohler v Aston 1920
A Mrs. Aston agreed with her nephew Mr. Hohler to make provision for her niece and her husband, Mr. and Mrs. Rollo. Mrs. Aston died before doing so. Mr. Hohler and Mr. And Mrs. Rollo sued the executors of Mrs. Aston for specific performance
Cited – Re Ecclesiastical Commissioner’s Conveyance 1936
. .
Cited – Grey and Another (Hunter’s Nominees) v Inland Revenue Commissioners; Orse Gray v IRC HL 2-Nov-1959
The House considered whether certain instruments which were presented for adjudication to stamp duty under section 13 of the Stamp Act 1891, are or are not chargeable with ad valorem duty.
Held: The word ‘disposition’ is to be given its . .
Cited – Tweddle v Atkinson, Executor of Guy, Deceased QBD 7-Jun-1861
An agreement was made by the fathers of a bride and groom to pay the groom a sum of money. When the bride’s father failed to pay, the groom sued.
Held: The claim failed. Wightman J said that no stranger to the consideration could take . .
Mentioned – 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 – Lloyd’s v Harper 1888
Lush LJ said: ‘ The next question which, no doubt, is a very important and substantial one, is, that Lloyds, having sustained no damage themselves could not recover for the losses sustained by third parties by reason of the default of Robert Henry . .
Mentioned – Drimmie v Davies 1899
. .
Cited – Coulls v Bagot’s Executor and Trustee Co Ltd 21-Mar-1967
(High Court of Australia) The court considered an action for damages by a party to a contract to enforce an obligation intended to benefit another.
Held: Windeyer J: ‘ I can see no reason why in such cases the damages which A would suffer upon . .
Cited – In re Englebach 1924
A man took out a policy payable to his daughter (then one month old) on her attaining 21. He died. She attained 21 and the policy monies were paid to her but she was then persuaded to pay them into the hands of a stakeholder pending a decision as to . .
Criticised – In re Shebsman ChD 1943
. .
Criticised – In re Shebsman CA 1944
. .
Cited – Swift v Swift PC 1863
A claim was made for specific performance of a contract for the payment of an annuity of pounds 40.00 per quarter.
Held: Specific performance was ordered. Lord Plunket LC: ‘ It is said she has a complete remedy at Law for the breach of this . .
Cited – Fortescue v Lostwithiel and Fowey Railway Coy 1894
The fact that there is a small element of personal service in a contract does not destroy the quality of mutuality want of which may in general terms properly be a ground for refusing a decree of specific performance. . .
Cited – Re Sinclair 1938
. .

Cited by:

Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 07 June 2022; Ref: scu.180892

Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon): HL 24 Apr 1985

The plaintiff contracted to buy a cargo to be shipped on the defendant’s vessel. Because of poor stowage, the cargo was damaged. At the time of the damage the claimant was neither the owner nor possessor of the cargo, but under the terms of the purchase contract he had assumed the risk of damage to the cargo.
Held: For a person to claim in negligence for loss caused to him by reason of loss of or damage to property, he must have had either the legal ownership of or a possessory title to the property concerned at the time when the loss or damage occurred. It is not enough for him to have only had contractual rights in relation to such property which have been adversely affected by the loss of or damage to it. The House (obiter) rejected the argument that the duty of care owed by a party could be excluded by a contract between claimant and a third party.
Lord Brandon said: ‘In order to enable a person to claim in negligence for loss caused to him by reason of loss of or damage to property, he must have had either the legal ownership of or a possessory title to the property concerned at the time when the loss or damage occurred.’

Judges:

Lord Brandon of Oakbrook

Citations:

[1986] AC 785, [1985] UKHL 10, [1986] 2 Lloyd’s Rep 1, [1986] 2 WLR 902

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Cited – Borealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Cited – Precis (521) Plc v William M Mercer Ltd CA 15-Feb-2005
Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract, Negligence

Updated: 07 June 2022; Ref: scu.180951

Hoghton v Hoghton: CA 16 Apr 1852

When a person has made a large voluntary disposition the burden is thrown on the party benefitting to show that the disposition was made fairly and honestly and in full understanding of the nature and consequences of the transaction. Romilly MR discussed the ‘sacred’ nature of ‘without prejudice’ negotiation and that he would disregard ‘admissions made solely for the purpose of compromise’.

Judges:

Romilly MR

Citations:

(1852) 15 Beav 278, [1852] EngR 446, (1852) 15 Beav 278, (1852) 51 ER 545

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Barclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Ofulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity, Litigation Practice

Updated: 07 June 2022; Ref: scu.180576

Tavoulareas v Tsavliris and others: ComC 21 Mar 2003

Judges:

Tomlinson J

Citations:

[2003] EWHC 550 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Tavoulareas v Tsavliris CA 5-Feb-2004
The court held that Greek proceedings required service for the purposes of establishing seisin, and therefore priority of jurisdiction. Mance LJ said: ‘Professor Antapassis says that, as a matter of Greek domestic law, the effect of art. 221 is that . .
See Also – Tavoulareas v Tsavliris and Another ComC 12-Oct-2005
. .
See Also – Tavoulareas v Alexander G Tsavliris and Sons Maritime Company ComC 24-Nov-2005
. .
See Also – Tavoulareas v Tsavliris and others ComC 9-Mar-2006
Formal recognition of judgment from Greek court. . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 07 June 2022; Ref: scu.180448

A L Barnes Ltd v Time Talk (UK) Ltd: CA 26 Mar 2003

The claimant appealed a costs order which had denied him the substantial part of his costs despite feeling that he had won the case. The court had said that no order should be made for payment of the expert witness’ costs of either party.
Held: The judge had erred. He should first have asked which was the successful party, before then exercising his discretion, rather than first separating out one issue, and then making that judgment. The claimant was entitled in the circumstances of this case to recover 25% of his costs.

Citations:

[2003] EWCA Civ 402, Times 09-Apr-2003, [2003] BLR 331

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Costs, Contract

Updated: 07 June 2022; Ref: scu.180435

Staines v Walsh, Howard: ChD 14 Mar 2003

The claimant sought an account from the defendant share broker for the proceeds of share transactions. The defendant said the matter should be tried in Hong Kong.
Held: The claimant must show a good arguable case. Here there was evidence to support the claimant’s assertion of the use of an address in England, and a case was therefore shown. There were clear English connections, and the contract was asserted to have been made in England. England was the forum conveniens.

Judges:

The Hon Mr Justice Goldring

Citations:

[2003] EWHC 458 (Ch)

Links:

Bailii

Statutes:

Civil Procedure Rules 6.20, Contracts (Applicable Law) Act 1990, Rome Convention 3

Jurisdiction:

England and Wales

Citing:

Cited – Canada Trust Company and others v Stolzenberg and others (2) CA 29-Oct-1997
The court looked at questions relating to domicile and jurisdiction; standard of proof, date to be determined and duties before service.
Held: The court is endeavouring to find an imprecise concept which reflects that the plaintiff must . .
Cited – Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Civil Procedure Rules, Contract

Updated: 07 June 2022; Ref: scu.179918

Sun Life Assurance Company of Canada (A Company Established Pursuant To the Laws of Canada) v CX Reinsurance Company Limited (Formerly CNA Reinsurance Company Ltd): CA 6 Mar 2003

The claimant appealed a refusal to order that a dispute between insurer and re-insurer be referred to arbitration. One party sought to avoid liability under the policy, alleging misrepresentation. Discussions had been undertaking settling a revised form of agreement, but the forms had not been signed. The judge had held that the new document formal and was not intended to take effect until signed.
Held: In the insurance and reinsurance market the concern is usually upon the terms agreed and the necessity for signature at the outset when the insurance contract is made (usually by slip), rather than on any subsequent additional treaty terms which are regarded as a relative formality. Here the parties intended to be bound by the document signed unless and until replaced by any formal and signed addendum. Appeal dismissed.

Judges:

Lord Justice Potter Mr Justice Lawrence Collins Lord Justice Carnwath

Citations:

[2003] EWCA Civ 283

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – The Zephyr 1984
Whilst it is possible to make a contract which is partly oral and partly written, that is not the practice of the marine insurance market. The policy is the formal contractual document issued to the assured and unequivocally contains the terms of . .
Cited – New England Reinsurance Corporation v Messoghios Insurance Co 1992
Where, on the face of the documents the parties contemplate that, before being bound by a contract, they will execute a written contract the terms of which require careful negotiation, there is a distinction between a party who indicates his . .
Cited – First Energy (UK) Ltd v Hungarian International Bank Ltd CA 16-Apr-1993
A manager, though he lacked actual authority to authorise and offer a particular loan facility to the plaintiff, still did so by sending him a letter of offer which was accepted.
Held: Albeit the manager lacked actual authority to make the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 07 June 2022; Ref: scu.179549

Crawford, Regardless Limited and Crawford v Financial Institutions Services Limited: PC 6 Feb 2003

PC Jamaica – petition for special leave to appeal to Her Majesty in Council from a judgment of the Court of Appeal of Jamaica dated 31 July 2001. The petitioners are Donovan Crawford, Regardless Ltd and Alma Crawford, the defendants in the proceedings at trial and the appellants in the Court of Appeal.

Judges:

Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote

Citations:

[2003] UKPC 12

Links:

PC, Bailii, PC

Cited by:

See Also – Donovan Crawford Regardless Limited Alma Crawford v Financial Institutions Services Limited PC 19-Jun-2003
PC (Jamaica) The petitioners sought leave to appeal to the Privy Council. They had an appeal as of right. They now sought special leave, complaining that the Court in Jamaca had granted leave subject to them . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Contract

Updated: 07 June 2022; Ref: scu.179137

Habton Farms (an Unlimited Company) v Nimmo: CA 6 Feb 2003

The first defendant had arranged for the purchase of a racehorse from the claimant, wrongly claiming to be acting as agent for the second defendant. The claimant did not then put forward the horse for sale in subsequent auctions, but then the horse contracted peritonitis and died.
Held: The first defendant was liable for breach of warranty of authority. Since the claimant had decided not to put the horse in the auction because he considered the horse to have been sold already, the damages were not to be reduced by what might have been recovered at auction, because that failure derived from the sale itself.

Judges:

Auld, Clarke, Jonathan Parker, LJJ

Citations:

Times 07-Feb-2003, [2003] EWCA Civ 68, [2003] 3 WLR 633, [2004] QB 1

Links:

Bailii

Jurisdiction:

England and Wales

Animals, Contract, Damages, Agency

Updated: 07 June 2022; Ref: scu.178990

Sam Business Systems Ltd v Hedley and Company: TCC 19 Dec 2002

Judges:

Bowsher QC J

Citations:

[2002] EWHC 2733 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Saphena Computing Ltd v Allied Collection Agencies Ltd 1995
The court faced a claim as regards an undeveloped computer system which was sold with bugs ‘warts and all’.
Held: The court spoke of expert evidence that in a bespoke system, bugs were inevitable. . .
Cited – St Albans City and District Council v International Computers Ltd CA 14-Aug-1996
The council purchased software from the defendants to calculate council taxes. Mistakes in the software undercalculated the amounts required to be recovered causing the council substantial losses. The company sought to rely upon a clause in the . .
Lists of cited by and citing cases may be incomplete.

Negligence, Contract

Updated: 07 June 2022; Ref: scu.178970

Mamidoil-Jetoil Greek Petroleum Company Sa and Another v Okta Crude Oil Refinery AD: ComC 4 Nov 2002

One party had made a formal offer of settlement under the Rules, which had been declined, but the offer made was more favourable to him than the order which had eventually made.
Held: The rejecting party should normally pay costs on an indemnity basis and interest at a higher rate as from the date of rejection. This might be avoided where the rejecting party persuaded the court that it had a proper reason for the rejection for example its own inability to assess the claim because of the failure of the offering party to make adequate disclosure.

Judges:

Aikens J

Citations:

Times 27-Dec-2002, Gazette 30-Jan-2003, [2002] EWHC 2210 (Comm), [2003] 1 Lloyd’s Rep 1

Links:

Bailii

Costs, Civil Procedure Rules

Updated: 07 June 2022; Ref: scu.178935

Albright and Wilson UK Limited v Biachem Limited and others; Albright and Wilson UK Limited v Biachem Limited and others (conjoined appeals): HL 17 Oct 2002

The claimants ordered chemicals from the defendant, but there were errors in the order and subsequently. The chemical was mixed with others causing an explosion. The Court of Appeal accepted that the delivery of one load cannot be the performance of two contracts each for one load.
Held: The decision of the Court of Appeal could not be supported. Whether the load of sodium chlorite was delivered pursuant to the contract made by Berk or the contract made by Biachem was determined by reference to the contents of the tank, not the document which accompanied the contents of the tank. In each of the contracts, the primary obligation was to deliver a particular chemical; the obligation to hand over an accurate delivery note with the chemical was a subsidiary obligation. Therefore as the load which was delivered was a load of sodium chlorite, that delivery was made in pursuance of Berk’s contract notwithstanding that Biachem’s delivery note was handed to Albright and Wilson.

Judges:

Lord Nicholls of Birkenhead Lord Slynn of Hadley Lord Hoffmann Lord Hutton Lord Rodger of Earlsferry

Citations:

[2002] UKHL 37, [2002] 2 All ER (Comm) 753, [2003] 1 CLC 637

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Contract

Updated: 06 June 2022; Ref: scu.177449

Niru Battery Manufacturing Company and Another v Milestone Trading Ltd and others: ComC 11 Jul 2002

Judges:

Moore-Bick J

Citations:

[2002] EWHC 1425 (Commercial), [2002] All ER (Comm) 705

Links:

Bailii

Citing:

See Also – NIRU Battery Manufacturing Company and Another v Milestone Trading Ltd and others ComC 8-May-2003
There was a contract for the sale of lead ingots. The sale was supported by letters of credit but inaccurate certificates were issued to release payment. The parties sought now to amend the contributions in the light of the Royal Brompton Hospital . .

Cited by:

See Also – NIRU Battery Manufacturing Company and Another v Milestone Trading Ltd and others ComC 8-May-2003
There was a contract for the sale of lead ingots. The sale was supported by letters of credit but inaccurate certificates were issued to release payment. The parties sought now to amend the contributions in the light of the Royal Brompton Hospital . .
See Also – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 June 2022; Ref: scu.175502

Hemp v Garland, Administrator and Co: 1843

The Defendant gave a warrant of attorney to secure a debt payable by instalments, the plaintiff to be at liberty, in case of any default, to have judgment and execution for the whole, as if all the periods for payment had expired. Held that, in an action of assumpsit on the implied promise to pay according to the terms of the defeazance, defendant might shew, urider a plea of the Statute of Limitations, that the first default was made more than six years before action; and that this was a complete defence, not only as to instalments due more than six years ago, but also as to those due within that period.
The court found that ‘the cause of action accrued upon the first default for all that then remained owing of the whole debt.’
Lord Denman CJ continued: ‘(t)here was no other contract for forbearance or giving time than that which is expressed in or to be implied from the terms of the warrant of attorney.’

Judges:

Lord Denman CJ

Citations:

[1843] EngR 33, (1843) 4 QB 519, (1843) 114 ER 994, 12 LJQB 134, 3 Gal and Dav 402

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Approved – Reeves v Butcher CA 1891
A five-year loan was granted by the plaintiff to the defendant under a written agreement, providing for a ‘power to call in the same at an earlier period in the events hereinafter mentioned’. The plaintiff agreed not to call in the money for the . .
Cited – BMW Financial Service (GB) Ltd v Hart CA 10-Oct-2012
This appeal is concerned with a point of limitation arising out of a standard hire purchase contract concerning a car. The respondent had failed to maintain his payments, and theappelleants issued a termination notice. He was abroad fr a while, and . .
Lists of cited by and citing cases may be incomplete.

Limitation, Contract

Updated: 06 June 2022; Ref: scu.305727

Meretz Investments Nv v ACP Ltd: QBD 27 May 2002

Meretz sued ACP for monies alleged to be due under agreements.

Judges:

HH Judge Richard Seymour QC

Citations:

[2002] EWHC 1019 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Britel Corporation NV v First Penthouse Ltd QBD 25-Jul-2002
The court refused to continue interim injunctions under a development agreement. . .
See Also – Britel Corporation Nv and Another v First Penthhouse Ltd and others CA 7-Aug-2002
Application for permission against judge’s refusal to continue interim injunctions.
Held: Leave was refused. . .
See Also – First Penthouse Limited/Channel Hotels and Properties (UK) Limited v Channel Hotels and Properties (UK) Limited/Fahad Al Tamimi First Penthouse Limited Varlet International Limited Ruth Gary Orbach Quallvile Limited Norval Holdings Limited ChD 14-Nov-2003
Several transactions had taken place with regard to a lease of a roof void, which was to be developed for penthouses. The lease had been charged to secure funding. The development did not proceed to schedule, and a s146 notice was served. It was . .
See Also – Channel Hotels and Properties (UK) Ltd v Fahad Al Tamimi and First Penthouse Ltd CA 30-Jul-2004
. .
See Also – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
See Also – Meretz Investments Nv and Another v ACP Ltd and others ChD 14-Nov-2007
The parties disputed the success of a sale by a mortgagee in possession of various properties. The parties disputed the apportionment of costs.
Held: The appeal failed. Where there is no express agreement concerning the division of costs, a . .
See Also – Meretz Investments Nv and Another v ACP Ltd and others CA 11-Dec-2007
The claimant alleged that when exercising its power of sale under a mortgage over its land, the mortgagee had done so in order to override the claimant’s intention of granting a sub-lease, and that this was a tortious intention to induce a breach of . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 June 2022; Ref: scu.175311

Otis Vehicle Rentals Ltd v Ciceley Commercials Ltd: CA 12 Jul 2002

Judges:

Peter Gibson, Potter LJJ< Sir Murray Stuart-Smith

Citations:

[2002] EWCA Civ 1064

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Leave – Otis Vehicle Rentals Ltd v Cicely Commercials Ltd CA 30-Jan-2002
Leave to appeal . .

Cited by:

Cited – PST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 June 2022; Ref: scu.175185

AON Risk Services (Uk) Limited v Edward John Mansell Child-Villiers: CA 26 Jul 2002

The employee claimed commission on the acquisition of a major corporate client. The company claimed that the commission agreement related only to private client work. The company now appealed a finding against it.
Held: The recorder had amended his judgement, which was doubtful as correct. He had awarded the same sum both on a quantum meruit basis, and on an incentive payment basis. This suggested a lack of understanding of the issues. The decision was set aside. The contract and background suggested that he was to introduce private client work, and incentive payments outside that scope did not apply. On a quantum meruit basis he would be entitled to a lesser sum calculated in a similar way to incentives payable to others within the corporate division.

Judges:

Lord Justice Laws, Lord Justice May, Lord Phillips Master of the Rolls

Citations:

[2002] EWCA Civ 1118

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Employment

Updated: 06 June 2022; Ref: scu.174423

Carlton Communications Plc, Granada Media Plc v The Football League: ComC 1 Aug 2002

The applicants sought a declaration that they had not provided guarantees to support a contract between a joint venture company owned by them, OnDigital, and the respondent to screen football matches. The company had become insolvent.
Held: The applicants had indicated in the initial bid document that they would guarantee the bid, but that guarantee had not been incorporated into the later documents. OnDigital was not able to bind the claimants. The bid had been renegotiated and reformulated before being signed. A guarantee had to be in writing, and the initial statement had been superceded. Subject to contract negotiations remain in negotiation until a formal contract is concluded. A company is not the agent of its shareholders. A declaration that the claimants had not guaranteed the contract was granted.

Judges:

The Honourable Mr Justice Langley

Citations:

[2002] EWHC 1650 (Comm)

Links:

Bailii

Statutes:

Statute of Frauds 1677 4

Citing:

Cited – Tiverton Estates Ltd v Wearwell Ltd CA 1975
“Subject to Contract” not to be diluted
‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in . .
Cited – Salomon v A Salomon and Company Ltd HL 16-Nov-1896
A Company and its Directors are not same paersons
Mr Salomon had incorporated his long standing personal business of shoe manufacture into a limited company. He held nearly all the shares, and had received debentures on the transfer into the company of his former business. The business failed, and . .

Cited by:

Cited – The Football League Ltd v Edge Ellison (A Firm) ChD 23-Jun-2006
The claimants operated football leagues, and asked the defendant solicitors to act in negotiating the sale of television rights to ONdigital. The broadcasts went ahead, but no guarantees were taken for the contract. The claimants alleged . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .
Lists of cited by and citing cases may be incomplete.

Contract, Media, Company

Updated: 06 June 2022; Ref: scu.174428

The Estate of Mohammed Sabir Raja (Deceased) v Austin Gray (A Firm): QBD 31 Jul 2002

The claimant sought damages for negligent valuation of properties belonging to the deceased, but taken into receivership under charges taken by a company who in turn charged its assets to a bank. When the debenture was enforced, the charges were also enforced. The defendants denied a duty of care to the deceased. The defendants knew that the claimant’s equity of redemption would be affected by the sale prices.
Held: Medforth said that a receiver had duties in equity to the chargor. Both foreseeability and proximity were satisfied, though the contracts did not form a sufficient contractual chain, to impose a duty in contract.

Judges:

Mr Justice Buckley

Citations:

[2002] EWHC 1607 (QB)

Links:

Bailii

Citing:

Cited – Bank of Credit and Commerce International (Overseas) Limited (In Liquidation); BCCI Holdings (Luxembourg) SA (In Liquidation); Bank of Credit and Commerce International SA (In Liquidation) v Price Waterhouse CA 13-Feb-1998
The special relationship between an auditor and a bank, meant that a duty of care could extend even to a second bank with its own auditors. In determining whether there had been an assumption of responsibility, the the relevant factors would include . .
Cited – Medforth v Blake and others CA 26-May-1999
A receiver appointed to manage a business had duties over and above those of mere good faith. A receiver who failed to obtain discounts normally obtainable for supplies to the business might be liable for that failure. when considering the position . .

Cited by:

Appeal from – Raja v Austin Gray (A Firm) CA 19-Dec-2002
A mortgagee is at all times free to consult his own interests alone as to whether and when to exercise his power of sale. The relationship and duties owed by the receiver are equitable only. Peter Gibson LJ said: ‘(1) A mortgagee with the power of . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Contract

Updated: 06 June 2022; Ref: scu.174431

Howard v Charlton: CA 25 Jul 2002

The applicant had a mobile home with the benefit of protection under the Act. He built a permanent porch for the home. The land owner appealed refusal of an order to say that she had lost her rights under the Act. He argued that it had lost its mobility.
Held: The judge had held that the essential nature of the dwelling had not changed. This was the wrong test. The agreement under which she had first occupied the land included the characterisation of the occupation as protected under the Act. The test was whether that agreement had been validly terminated. It had not.

Judges:

Lord Justice Ward, Lord Justice Clarke and Lord Justice Carnwath

Citations:

Times 19-Aug-2002, Gazette 26-Sep-2002, [2002] EWCA Civ 1086

Links:

Bailii

Statutes:

Mobiles Home Act 1983 29

Jurisdiction:

England and Wales

Citing:

Cited – Carter and Another v Secretary of State for the Environment and the Carrick District Council CA 6-Apr-1994
The District Council issued an established user certificate for a caravan on the appellants’ lands. The appellants then replaced the caravan with a ‘park home’ for which planning permission was refused and enforcement notices were issued by the . .
Lists of cited by and citing cases may be incomplete.

Housing, Contract

Updated: 06 June 2022; Ref: scu.174357

Hallam Land Management Ltd v UK Coal Mining Ltd and another: CA 30 May 2002

An option was granted for the sale of land subject to planning consent being granted. Eventually it was sought to exercise the option in respect of part only of the land.
Held: Though words in the contract made reference to all or part of the land, the references to the planning application were to the whole site, and in this context the option became exercisable only on the grant of permission for a substantial part of the site. This was not a substantial part. Landscaping works on other parts of the site would not count as development against this background and business context.

Judges:

Lords Justice Thorpe, Rix and Arden

Citations:

Gazette 20-Jun-2002, [2002] EWCA Civ 982

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Land, Contract

Updated: 06 June 2022; Ref: scu.174059

Latvian Shipping Company and Others v Stocznia Gdanska Sa: CA 21 Jun 2002

A payment condition was just that and that a failure to pay entitled the seller to terminate at common law. Rix LJ said: ‘It is established law that, where one party to a contract has repudiated it, the other may validly accept that repudiation by bringing the contract to an end, even if he gives a wrong reason for doing so or no reason at all’.
Rix LJ set out the policy considerations of the ‘wide ranging’ tort of inducing breach of contract: ‘The tort is an economic tort designed to place limits on the self-interested rough and tumble of the business world. Its philosophical basis appears to be that contracts should be kept rather than broken. Where, as here, A (Latco) procures B’s (Latreefers’) breach of his contract with C (the yard), adopting it as his own because he is interested to do so, seeking a benefit for himself or a fortiori a detriment for C, and does so deliberately, knowingly and intending the breach to take place, then A puts himself in the way of incurring a liability, even though not himself a party to the contract, unless (i) he does not directly procure the breach, and (ii) he uses no (relevant) unlawful means, or (iii) he can claim some justification. The significance of (i) is that where A directly procures a breach of contract he makes himself as it were directly privy to the breach. The significance of (ii) is that in the absence of making himself privy to the breach, he cannot be faulted as long as he acts as he is entitled to act, but if (deliberately, knowingly and intending the breach to take place) he commits an unlawful act, by which I have in mind an unlawful act of sufficient causative relevance, then he renders himself liable. It may be that unlawful means ought to be necessary even where there is direct procurement (see the wide-ranging work by Hazel Carty, An Analysis of the Economic Torts, 2001, at 82). The significance of (iii), an area which has not been clearly worked out in the cases, appears to be that there may be moral or perhaps economic factors which may mitigate even to the point of justifying conduct otherwise incurring a prima facie liability.’

Judges:

Lord Justice Aldous, Tuckey, Rix LJ

Citations:

[2002] EWCA Civ 889, [2002] 2 Lloyd’s Rep 436, [2002] 2 All ER (Comm) 768

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Stocznia Gdanska Sa v Latvian Shipping Company and others CA 23-Jul-2002
Application for leave to appeal to the House of Lords refused. . .
Appeal from – Stocznia Gdanska SA v Latvian Shipping Company and Others ComC 25-May-2001
When a claimant commenced litigating several issues, but succeeded only on some of the them, the rule allowing an award of costs to the generally successful party was not dependent upon questions of whether the party was reasonable to have raised . .
Considered – Millar and Others v Bassey and Another CA 26-Aug-1993
It was alleged that Miss Shirley Bassey had breached her contract with a record producer Dreampace (or with her own management company which had in turn contracted with Dreampace), as a result of which Dreampace had been unable to perform a contract . .
See Also – Stocznia Gdanska SA v Latreefers Inc; In re Latrefeers Inc; Stocznia Gdanska SA v Latvian Shipping Co and others (No 2) CA 15-Mar-2000
Possible claims against a foreign company for misfeasance, or wrongful or fraudulent trading might be sufficient to justify proceedings here to wind up a foreign registered company. A second requirement is that some person within this jurisdiction . .

Cited by:

Cited – Stocznia Gdanska Sa v Latvian Shipping Company and others CA 23-Jul-2002
Application for leave to appeal to the House of Lords refused. . .
Cited – OBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Cited – Astea (UK) Ltd v Time Group Ltd TCC 9-Apr-2003
The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
Cited – Mainstream Properties Ltd v Young and others CA 13-Jul-2005
The claimant appealed refusal of his claim for inducing a breach of contract against the sixth defendant. It said that an intention to disturb a contract could be inferred.
Held: A mere recklessness as to whether contractual rights were . .
Cited – Stocznia Gdynia Sa v Gearbulk Holdings Ltd CA 13-Feb-2009
Orders were placed for the construction of ships. They were not delivered. The buyer, the defendant, cancelled the orders. The defendants sought the loss of profit. The claimants said they were entitled only to the repayment of instalments. The . .
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
Cited – Jet2Com Ltd v SC Compania Nationala De Transporturi Aeriene Romane Tarom Sa ComC 15-Mar-2012
The parties had contracted for the defendant to maintain certain of the claimant’s aircraft. Each now asserted breach by the other.
Held: Neither the terms of the contract nor its character made time of the essence for the payments to be made . .
Cited – Phones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 06 June 2022; Ref: scu.174117

Hilton v Barker Booth & Eastwood (a Firm): CA 22 May 2002

The firm of solicitors acted for both parties in a conveyancing transaction, in a situation when they were permitted to do so. The firm had previously acted for one party in a case where he had been convicted of a crime. The other party said the solicitors had a duty to them to disclose this fact about the other party.
Held: The solicitors were not under a duty to disclose to their client something which had come to their knowledge in an unrelated earlier transaction. The duty of disclosure depended upon the extent of the retainer. He had a duty to keep confidential information derived from an earlier transaction. If a solicitor acted for two parties, he may become obliged to disclose to the other information obtained in the course of that retainer, and could not excuse his duty to one by reference to the duty to the other.

Judges:

Lord Justice Jonathan Parker, Walker LJ

Citations:

Times 06-Jun-2002, Gazette 06-Jun-2002, [2002] EWCA Civ 723, [2002] Lloyds Rep PN 500

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Mortgage Express Ltd v Bowerman and Partners (A Firm) CA 1-Aug-1995
A solicitor acting for both a lender and a borrower was under a duty to disclose relevant information to the lender client. An incident of their duty to exercise reasonable care and skill, solicitors are obliged to advise their lender client in . .
Cited – Bristol and West Building Society v Baden Barnes and Groves CA 2000
cw Proposed amendments to a plaintiff’s pleadings failed to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or sought to introduce a . .
Distinguished – Moody v Cox and Hatt CA 1917
An action was brought for rescission of a contract of sale of a public house and four cottages, with a counterclaim for specific performance. The sellers, Hatt and Cox, were respectively a solicitor and his managing clerk. They were the trustees of . .

Cited by:

Appeal from – Hilton v Barker Booth and Eastwood HL 3-Feb-2005
The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and . .
Cited – Burkle Holdings Ltd v Laing TCC 23-Mar-2005
The parties had each instructed the same solicitor, but now disputed the entitlement of the other to see documents held by the solicitor. . .
Cited – Hosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence, Contract

Updated: 06 June 2022; Ref: scu.171276

Briscoe v Lubrizol Limited: CA 23 Apr 2002

The claimant had been employed by the respondents. Having been injured he claimed under a long-term disability scheme underwritten by insurers. They discontinued payment, and the company dismissed him. He now claimed damages for breach of contract. The issue centered on whether his benefit was governed by the company handbook or the insurance policy.
Held: The handbook governed the contract, but incorporated the terms and benefits of the policy. The company had tried to contact him to discuss a return to work. They claimed to be entitled to treat his failure to reply as repudiatory of the contract. Though it is necessary for an employee to co-operate, the employer had concealed the true reason for the meetings requested, and the behaviour did not amount to repudiation.

Judges:

Lord Justice Ward Lord Justice Potter And Mr Justice Bodey

Citations:

[2002] EWCA Civ 508, [2002] IRLR 607, [2002] Emp LR 819

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Villella v MFI Furniture Centres Limited 1999
. .
See Also – Briscoe v Lubrizol Ltd and Another CA 27-Oct-1999
Insurers underwriting a company’s permanent health insurance scheme had no duty of care directly to a company employee to ensure that his claim was processed properly. Their duty was owed to the company only. The employee was not a party to the . .

Cited by:

Cited – Mason v Huddersfield Giants Ltd QBD 15-Jul-2013
The claimant rugby league player complained of his dismissal under a clause allowing such for behaviour which might bring the club into disrepute. He had engaged in a celebratory evening out involving a naked run. . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 06 June 2022; Ref: scu.171217

P and O Overseas Holdings Ltd v Rhys Braintree Ltd and Another: CA 12 Mar 2002

The first defendant appealed the award of interest on an order for specific performance of a contract for the sale of land. It had declined to complete the purchase because the seller had not been registered as proprietor of the land, and the transfer to it had not been stamped.
Held: The transfer to the seller would not be stamped until after completion, and that was not a good reason for delaying completion. Interest was payable from the date requested for completion since the seller was able to complete on that date.

Judges:

Sir Andrew Morritt, Vice-Chancellor, Lord Justice Mantell and Lord Justice Tuckey

Citations:

Times 05-Apr-2002, [2002] EWCA Civ 296

Links:

Bailii

Statutes:

Land Registration Act 1925 37 110(5)

Jurisdiction:

England and Wales

Citing:

Cited – Urban Manor Limited v Sadiq CA 20-Feb-1997
Appeal by prospective purchaser of property from order that contract rescinded, and deposit forfeited. . .
Lists of cited by and citing cases may be incomplete.

Contract, Land, Registered Land

Updated: 05 June 2022; Ref: scu.168084

London Regional Transport, London Underground Limited v Mayor of London Transport for London: CA 24 Aug 2001

The claimants sought an interlocutory injunction restraining the defendants from publishing a report in breach of a contractual duty of confidence. This was granted but then discharged on the defendant undertaking only to publish a redacted version. On an application for permission to appeal, it was alleged that Sullivan J had wrongly conducted a balancing exercise that had regard to the requirements of Article 10 of the Convention notwithstanding that the publication was in breach of contractual obligations of confidence. The claimants had argued that because of a contractual confidentiality agreement the court had no option but to grant the injunction. The defendants had relied, successfully, on the argument that if, which was not admitted, publication of the redacted report would breach the confidentiality agreement, the injunction should none the less be set aside because of the strong public interest in the content of the report. Sullivan J had held that the public interest required the report to be published in it redacted form, even if an exceptional case had to be made for breaching the contractual duty of confidence. He held that the case was exceptional: ‘…this is not a case where some employee is seeking to pass confidential information to someone else for commercial gain, or where someone is trying to use confidential material to steal a march on a commercial rival. What the defendants seek to do is to disclose matters which are of genuine public concern…this is a most exceptional case. It could not properly be described as the normal run-of-the-mill breach of confidence case, whether it is in breach of an implied duty of confidence or an express duty of confidence contained in an agreement…’
Held: The court rejected the submission that a duty of confidence carried greater weight if it was contractual: ‘No authority has been cited to the court establishing that an apparent breach of a contractual duty of confidence is more serious, and is to be approached differently (as regards injunctive relief) than other apparent reaches the court adopts the same approach to both.’ (Walker LJ) The respondent argued that the judge had applied too stringent a test in requiring them to demonstrate that there was an exceptional case for publication. The court held that on the test applied by the judge his conclusions were amply justified.
Sedley J held that Convention rights introduced by the Human Rights Act lent force to Robert Walker LJ’s conclusion. Applying a test of proportionality furnished a more certain guide to the exercise of the court’s discretion than ‘the test of a reasonable recipient’s conscience’. The effect of section 3(1) of the Act was ‘…in the absence of any meaningful threatened breach of confidentiality, that it is unlawful by virtue of section 6(1) of the Human Rights Act 1998 for either claimant to seek, whether by contract or lawsuit, to interfere with Article 10 rights – whether those of the defendant or those of the public’.
Aldous LJ said that, although the hearing had been of an application for permission to appeal, as the court had heard full argument ‘we regard our judgments as making a modest extension to the law’.

Judges:

Sedley LJ, Aldous LJ, Robert Walker LJ

Citations:

[2003] EMLR 4, [2001] EWCA Civ 1491

Links:

Bailii

Statutes:

Greater London Authority Act 1999 210, European Convention on Human Rights 10(2)

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v London Underground Ltd and Another, ex parte Transport for London QBD 30-Jul-2001
The Act gave the power to the government to override the policy of the Mayor of London and the Transport for London authority, and to enter into private partnerships for the management of the underground system by the private sector. Although the . .
Cited – Saltman Engineering Co v Campbell Engineering Co Ltd CA 1948
The plaintiffs instructed the defendant to make tools for the manufacture of leather punches in accordance with drawings which the plaintiffs provided to the defendant for this purpose. The defendant used the drawings to make tools, and the tools to . .

Cited by:

Appealed to – Regina v London Underground Ltd and Another, ex parte Transport for London QBD 30-Jul-2001
The Act gave the power to the government to override the policy of the Mayor of London and the Transport for London authority, and to enter into private partnerships for the management of the underground system by the private sector. Although the . .
Cited – Mersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
Cited – Mersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
Cited – Associated Newspapers Ltd v Prince of Wales CA 21-Dec-2006
The defendant newspaper appealed summary judgment against it for breach of confidence and copyright infringement having published the claimant’s journals which he said were private.
Held: Upheld, although the judge had given insufficient . .
Lists of cited by and citing cases may be incomplete.

Administrative, Contract, Local Government, Information, Human Rights

Updated: 05 June 2022; Ref: scu.167766

Husain and Zafar v Bank of Credit and Commerce International SA: CA 31 Jan 2002

The appellants challenged the refusal of their claims for stigma damages following the collapse of their former employer.
Held: If a relevant breach of contract is established, and causation, remoteness and mitigation are satisfied, recovery of financial loss in respect of damage to reputation in employment cases is not excluded. Nevertheless, it will be difficult to prove. The claim was the same whether in tort or in contract. The judge had excluded certain evidence as to the damages suffered. The onus of proving causation lies on the plaintiff. The particular claimants in this case had failed to establish their case. It was not necessary to call similar the evidence sought to be admitted. To require it would exclude many proper claims.

Judges:

Lord Justice Pill, Lord Justice Robert Walker, And, Lord Justice Jonathan Parker

Citations:

[2002] EWCA Civ 82, [2002] 3 All ER 750, [2002] ICR 1258, [2002] IRLR 460, [2002] Emp LR 406, A3/2001/9016/CHANF

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Robinson v Harman 18-Jan-1848
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where . .
Lists of cited by and citing cases may be incomplete.

Damages, Employment, Contract, Torts – Other

Updated: 05 June 2022; Ref: scu.167559

Liberty Partnership Ltd v Tancred and Another: ComC 18 Oct 2018

Trial of a preliminary issue as to whether any and, if so, which of the Claimant’s claims should be allowed to proceed to further trial in the light of the expiry of a primary contractual limitation period. The primary contractual limitation period is 18 months but an alternative contractual limitation period applies to claims which arise or are delayed as a result of wilful concealment, which is the allegation in this case.

Citations:

[2018] EWHC 2707 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 05 June 2022; Ref: scu.625941

Webster and Others v Liddington and Others: CA 7 May 2014

The court was asked ‘whether clinicians are responsible for statements in manufacturers’ brochures for cosmetic treatment, which they give to prospective patients without any disclaimer. The second issue is whether certain statements in those brochures constitute misrepresentations, if they fail to disclose the presence of small traces of bovine material in the substance to be administered.’

Citations:

[2014] EWCA Civ 560

Links:

Bailii

Jurisdiction:

England and Wales

Health Professions, Contract

Updated: 05 June 2022; Ref: scu.525123

William Lewis v John Henry Bright and Charles Francis Browne: 27 Apr 1855

Where a clergyman engages in trade, contrary to the provisions of stat1 and 2 Vict c 106 s29, and makes a contract in the course of such trade, such contract may, under the proviso in sect 31, be enforced either against or by the clergyman, though both parties contract with knowledge of the facts constituting the illegality.

Citations:

[1855] EngR 398, (1855) 4 El and Bl 917, (1855) 119 ER 341

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 05 June 2022; Ref: scu.292320

Motemtronic Limited v Autocar Equipment Limited: CA 20 Jun 1996

The parties said: ‘Mrs Ford: Where would money come from if M [the principal debtor] had to repay andpound;1 million? Colin Searle [the second defendant, M’s chairman]: From wherever in the group the money was at the relevant time. I’ll make sure it is there. I am good for andpound;1 million.’ The judge had held that this was a collateral warranty under section 4 because Mr Searle’s promise ‘only required him to ensure that M would have the necessary funds to enable it to repay the first instalment. It was not a promise that M would pay nor that Mr Searle would himself pay Autocar.’
Held: The words were merely a statement of comfort, but in any event, even assuming that the words had contractual force, they also regarded such a promise as falling within section 4. An undertaking to make sure that a company would have the money to meet a contractual obligation was a promise to answer for the debt of another within section 4 of the Statute of Frauds, assuming that the undertaking was an enforceable contractual warranty.

Judges:

Aldous and Henry LJJ, Staughton LJ dissenting

Citations:

Unreported, 20 June 1996

Statutes:

Statute of Frauds 1677 84

Jurisdiction:

England and Wales

Cited by:

Cited – Actionstrength Limited v International Glass Engineering, In Gl En SPA, Saint-Gobain Glass UK Limited CA 10-Oct-2001
The claimant sought payment for works undertaken. They had been given a promise that in return for not withdrawing their workforce from the site, the second defendants would redirect payments due to the first defendant to the claimant. When it came . .
Cited – Associated British Ports v Ferryways Nv and Another Comc 13-Jun-2008
The parties had contracted for the provision of berths for ferry traffic through Ipswich. Various performance promises were given. . .
Cited – Associated British Ports v Ferryways Nv and Another CA 18-Mar-2009
The court considered whether a document was a guarantee requiring the formality of the 1677 Act, or an indemnity.
Held: The appeal failed. The letter agreement was properly a contract of guarantee which foundered on the subsequent variation. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 June 2022; Ref: scu.180429

Albion Stone Quarries v Natural Stone Quarries: TCC 5 Feb 2001

N purchased Portland stone from A. A’s terms and conditions incorporated a condition applying interest for late payment. Such stone is classified by the bed and quarry from which it was taken.
Held: A letter stating the terms upon which stone might be supplied did not create a contract, and the sales were governed by the later correspondence, incorporating the company’s terms. The sales were sales by description, but there was no evidence to suggest that stone for which payment was now claimed was substandard, subject to a small sum set off by agreement.

Judges:

His Honour Judge Richard Seymour Q.C.

Citations:

[2001] EWHC Technology 20

Links:

Bailii

Contract

Updated: 05 June 2022; Ref: scu.167227

Shyam Jewellers Limited v M Cheeseman: CA 29 Nov 2001

The parties contracted for building work to the claimant’s shop. The shop-keeper had been regularly late in making stage payments. Eventually the contractor repudiated the contract part way through. The judge proposed a decision on a preliminary issue as to who had repudiated the contract, but one party was not available to be examined in person. The judge proceeded in his absence.
Held: A judge hearing a Part 24 application for summary judgement must be careful about trying issues of fact, but both counsel had consented to the approach. The judge had held that the claimant had himself repudiated the contract by failing to make payments, and the claimant appealed said that such failure did not do to the root of the contract so as to amount to a repudiation. The difference is between a party merely dragging his heels in paying, and one whose late payments justify the conclusion of his inability or unwillingness to pay. Here the defendant had not made any formal demand sufficient to put the claimant on notice that his conduct would be treated as a repudiation.

Judges:

Lord Justice Potter, And, Sir Martin Nourse

Citations:

[2001] EWCA Civ 1818

Links:

Bailii

Statutes:

Civil Procedure Rules Part 24

Jurisdiction:

England and Wales

Citing:

Cited – Ross T Smyth and Co Ltd v Bailey Son and Co HL 1940
The court looked to what had to be shown for one party to a contract to take the actions of the other as a repudiation.
Lord Wright said that: ‘repudiation of a contract is a serious matter, not to be lightly found or inferred’ and ‘I do not . .
Cited – Decro-Wall International SA v Practitioners in Marketing Limited CA 1971
Once the court has concluded that a ‘reasonable notice’ requirement was to be implied into a contract, the question of what notice period was reasonable must be judged as at the time the notice was given.
Buckley LJ also set out the test for . .
Lists of cited by and citing cases may be incomplete.

Construction, Contract, Litigation Practice, Civil Procedure Rules

Updated: 05 June 2022; Ref: scu.166953

Robertson v The Balmain New Ferry Company Ltd: PC 10 Dec 1909

High Court of Australia – The Plaintiff paid a penny on entering the wharf to stay there till the boat should start and then be taken by the boat to the other side. The Defendants were admittedly always ready and willing to carry out their part of this contract. Then the Plaintiff changed his mind, and wished to go back. The rules as to the exit from the wharf by the turnstile required a penny for any person who went though. This the Plaintiff refused to pay, and he was by force prevented from going through the turnstile. He then claimed damages for assault and false imprisonment.
Held: This was not imprisonment as there was an exit route and he had agreed to the terms.
Otherwise: Robinson v Balmain New Ferry Co Ltd

Citations:

[1909] UKPC 1, [1909] UKPC 58, [1910] AC 295, [1909] UKLawRpAC 62

Links:

Bailii, Bailii, Commonlii

Jurisdiction:

Australia

Cited by:

Cited – Secretary of State for Justice v MM SC 28-Nov-2018
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a . .
Cited – Jalloh, Regina (on the application of) v Secretary of State for the Home Department SC 12-Feb-2020
Claim for damages for false imprisonment brought in judicial review proceedings challenging the legality of a curfew imposed upon the claimant, purportedly under paragraph 2(5) of Schedule 3 to the Immigration Act 1971.
Held: The Court of . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract, Torts – Other

Updated: 05 June 2022; Ref: scu.245719

Diane Modahl v British Athletic Federation: CA 12 Oct 2001

The claimant had been banned from competing as an athlete after failing a drugs test which she said was faulty. Her appeal was upheld, but she claimed damages for breach of contract in failing to provide an unbiased hearing. She appealed dismissal of her action.
Held: Though there was no written contract between her and the defendant, they had accepted an obligation to appoint a panel in accordance with their rules. They were not however liable for any breach of the rules of natural justice by individual panel members because they had provided the appeal.

Judges:

Lord Justice Mance Lord Justice Latham And Lord Justice Jonathan Parker

Citations:

Gazette 08-Nov-2001, [2001] EWCA Civ 1447, [2002] 1 WLR 1192

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Flaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .
Cited – Watson v University of Strathclyde EAT 1-Feb-2011
EAT UNFAIR DISMISSAL – Constructive dismissal
Apparent bias. Whether Employment Tribunal had erred in failing to find that there was apparent bias where a member of the panel (the University Secretary) . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Contract

Updated: 04 June 2022; Ref: scu.166646

WWF -World Wide Fund for Nature (Formerly World Wildlife Fund), World Wildlife Fund Inc v World Wrestling Federation Entertainment Inc: ChD 1 Oct 2001

The Fund sought summary relief against the use of the sign ‘WWF’ by the defendants, in breach of a contract. The defendants urged that the contract operated in restraint of trade. There had been long running and widespread trade mark disputes, resolved eventually by an agreement where the defendants undertook not to use the initials. That agreement came to be ignored by the defendants, and eventually the plaintiffs began this action. They argued that any contract in restraint of trade was void unless shown to be reasonable, and that in this case there was no prospect of confusion. The agreement was void. Arguments as to restraint of trade in intellectual property disputes must show some real and unreasonable fetter on trade. In this case though the Fund showed a reasonable need for such restraint. The court thought it would be odd if breach of an ordinary restraint of trade covenant (not to work in a defined area at a defined job for a defined time) did not attract an account, whereas breach of a lesser restraint (not to use a trademark in a trade otherwise permitted) did, and refused an account.

Judges:

The Hon Mr Justice Jacob

Citations:

Times 13-Nov-2001, [2002] FSR 32, [2001] EWHC Ch 482

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Doubted – Experience Hendrix LLC v PPX Enterprises Inc and Another CA 20-Mar-2003
The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form . .
Appeal from – WWF – World Wide Fund for Nature (Formerly World Wildlife Fund); World Wildlife Fund Inc v World Wrestling Federation Entertainment Inc CA 27-Feb-2002
The claimant sought enforcement of a contract restricting the use by the appellant defendant of the initials ‘WWF’ in their trading. The agreement had been reached in settlement of an action for breach of the claimant’s trade mark rights. The . .
First Instance – Liability – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract, Damages

Updated: 04 June 2022; Ref: scu.166235

Ridgewood Properties Group Ltd and Another v Kilpatrick Stockton Llp and Others: ChD 25 Jul 2014

Application by the Defendants to strike out a paragraph of the Particulars of Claim on the ground that it is an abuse of process because it amounts to a collateral attack upon findings made by Proudman J in three judgments in previous proceedings, alternatively for summary judgment on the ground that the plea has no real prospect of success.

Judges:

Arnold J

Citations:

[2014] EWHC 2502 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, land

Updated: 04 June 2022; Ref: scu.535303

Mace and Others v Rutland House Textiles Ltd (In Administrative Receivership): ChD 1 Dec 1999

Company pension trustees granted a sub-lease to the company, and the same solicitor acted for both parties. The company sought rectification of what it claimed was a mistake in the lease. Despite the absence of any clear evidence of the precise nature of the mistake, without any outward expression of accord from which a common intention could be derived, rectification was available where the mistake was as to the language. The trustees should not be prevented from seeking to show their case. The absence of any outward and explicit instructions was not enough to defeat an application for rectification of the agreement, provided there was convincing proof of the common intention asserted.

Citations:

Gazette 01-Dec-1999, Times 11-Jan-2000

Jurisdiction:

England and Wales

Contract, Equity

Updated: 04 June 2022; Ref: scu.83272

Sinochem International Oil (London) Co Ltd v Fortune Oil Co Ltd: ComC 3 Aug 1999

ComC Appointment of arbitrator: applications to set aside appointment on the ground of no binding agreement to . . (under section 17(3) of the Arbitration Act) and applications challenging on arbitrator’s jurisdiction (under section 67(1) of the Arbitration Act: need for a procedure appropriate to the issue whether there was a binding agreement being determined by the Court instead of the arbitrators.

Judges:

Colman J

Citations:

[1999] EWHC Commercial 204, [2000] 1 Lloyd’s Rep 682

Links:

Bailii

Arbitration, Contract

Updated: 04 June 2022; Ref: scu.163044

Amoco (UK) Exploration Company (a Company Incorporated In Delaware, Usa) and others v Teesside Gas Transportation Ltd and v Imperial Chemical Industries Plc and others (Consolidated Appeals): HL 4 Apr 2001

The parties contracted for the use of excess capacity in a pipeline. The party contracting to use the excess did not ever need it, but was claimed to have committed itself to payment for the facility. They said that the facility was not ready, and therefore the contract had not commenced. Valves at the end of the pipes where the connection would be made, leaked. The contract required the pipe to be made available, but that did not mean they had to be instantly ready. The commencement date brought obligations for both parties, and this suggested that it could be available despite a remediable defect later becoming apparent.

Judges:

Lord Bingham of Cornhill Lord Hoffmann Lord Hope of Craighead Lord Hobhouse of Wood-borough Lord Scott of Foscote

Citations:

[2001] UKHL 18, [2001] 1 All ER (Comm) 865

Links:

Bailii, House of Lords

Jurisdiction:

England and Wales

Contract

Updated: 04 June 2022; Ref: scu.162828

Metalmeccanica Fracasso SpA, Leitschutz Handels- und Montage GmbH v Amt der Salzburger Landesregierung fur den Bundesminister fur wirtschaftliche Angelegenheiten: ECJ 16 Sep 1999

Where a tendering process completed leaving only one tender remaining, the contracting authority was not required to award the contract to the only tenderer judged to be suitable: ‘In a context different from that of the present case (there were several tenderers, not just one) the Court of First Instance stated that ‘the contracting authority is not bound to follow through to its end a procedure awarding a contract’ observing that in that respect the contracting authority enjoys a broad discretion provided that its decision is in no way arbitrary.’

Citations:

C-27/98, [1999] EUECJ C-27/98, [1999] ECR I-5697, [2002] CMLR 1150

Links:

Bailii

Jurisdiction:

European

Citing:

Cited – Embassy Limousines and Services v Parliament Europeen ECFI 17-Dec-1998
ECJ 1 Procedure – Reference to the Court of Justice on the basis of an arbitration clause – Condition – Existence of a valid contract – Contract governed by Directive 92/50 requiring a written agreement – . .

Cited by:

Cited – Community Care North East (A Partnership) v Durham County Council QBD 29-Apr-2010
The parties had settled their dispute and sealed it in a Tomlin Order. The court now asked as to its power to vary such an order. The order required the defendant to reopen a tendering process, but other tenderers now objected, and the council felt . .
Cited – Montpellier Estates Ltd v Leeds City Council QBD 24-Jun-2010
The defendant sought to strike out certain parts of the claim against it relating to the tendering process for works on a substantial development. It was said that the defendant had given improper preference for the development of its own site.
Lists of cited by and citing cases may be incomplete.

Administrative, Contract

Updated: 04 June 2022; Ref: scu.162320

Spiro v Glencrown Properties Ltd and Another: ChD 1991

The court considered the nature of an option to buy land. Hoffman J said: ‘The granting of the option imposes no obligation upon the purchaser and an obligation upon the vendor which is contingent upon the exercise of the option. When the option is exercised, the vendor and purchaser come under obligations to perform as if they had concluded an ordinary contract of sale . . The exercise of an option is a unilateral act. It would destroy the very purpose of the option if the purchaser had to obtain the vendor’s counter signature to the notice by which it was exercised.’
The exercise of an option by notice does not make the notice a contract. The courts have moved away from construing an option as an irrevocable offer as opposed to a conditional contract which arises only when the grantee seeks to exercise unilaterally the option.
Hoffman J spoke as to the Law Commissions report leading to the 1989 Act: ‘The recommendation that contracts relating to land should be incorporated in a signed document which contains all the terms was, clearly, intended to promote certainty. There is no reason why certainty should be any less desirable in relation to arrangements for security over land than in relation to any other arrangements in respect of land. The present case itself illustrates the need to be able to identify the obligation which is to be secured. I do not find it surprising that Parliament decided to enact legislation which would be likely to have the effect of avoiding disputes on oral evidence as to the obligations which the parties intended to secure’.

Judges:

Hoffman J

Citations:

[1991] Ch 537, [1991] 1 All ER 600, [1991] 2 WLR 931

Statutes:

Law of Property Act 1925 40, Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Cited by:

Cited – Irwin v Wilson and Others ChD 23-Feb-2011
The claimant sought a declaration that his contract for the sale of leasehold property to the defendants had been lawfully terminated by a letter from his solicitors. The defendants had moved in before completion, but the claimant found himself . .
Cited – United Bank of Kuwait Plc v Sahib and Others CA 2-Feb-1996
The bank appealed against a decision that the simple deposit of deeds with a bank did not take effect as an equitable charge.
Held: Depositing deeds with a bank is not sufficient to create a charge over them. The old law as to the creation of . .
Cited – Sharma and Another v Simposh Ltd CA 23-Nov-2011
The parties created an oral (and therefore void) contract for a development, the claimants paid a deposit, expressed to be non-refundable, and the defendant builders completed the building work. The buyers backed out. The developer now appealed . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 04 June 2022; Ref: scu.430311

Edwards v Lloyd’s TSB Bank plc: ChD 2004

A contract in which one co-owner’s signature has been forged by the other is not a nullity but remains valid in relation to the fraudulent co-owner.

Citations:

[2004] EWHC 1745 (Ch)

Jurisdiction:

England and Wales

Cited by:

Cited – Bowling and Co Solicitors v Edehomo ChD 2-Mar-2011
The court was asked ‘when an innocent vendor whose signature is forged on the documents for the conveyance of land suffers damage, for the purposes of limitation of an action arising from a solicitor’s breach of duty. Is it on the exchange of . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 04 June 2022; Ref: scu.430276

Wilander and Another v Tobin and Another: ChD 15 Jul 1996

The Lawn Tennis Association’s anti-doping rules are arguably void since they did not give any effective right of appeal.

Citations:

Times 15-Jul-1996

Statutes:

Anti-Doping Convention 1989 (European Treaty Series I35)

Jurisdiction:

England and Wales

Citing:

See Also – Wilander and Another v Tobin and Another CA 8-Apr-1996
The reversal of the burden of proof was not unfair for sportsmen once they had tested positive for drugs under the sports anti-doping policies. The policies were neither an unlawful restraint on trade nor contrary to natural justice. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 June 2022; Ref: scu.90495

Courage Limited v Crehan: ChD 25 Nov 1998

Citations:

[1998] EWHC Ch 281

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Crehan v Courage Limited and Byrne and Inntrepreneur Beer Supply Co Ltd and Langton v Inntrepreneur Beer Supply Co Ltd CA 27-May-1999
The court considered the validity of beer ties affecting public houses. . .
Appeal from – Courage Ltd v Crehan; The Inntrepreneur Beer Supply Co Ltd v Byrne; Same v Langton; Greenalls Management Ltd v Smith; Walker Cain Ltd v McCaughey CA 14-Jun-1999
There is not to be read into a beer tie term any implied provision that the beer to be supplied under the term was to be supplied at any kind of advantageous price. A tenant seeking damages for failure to supply under such a term was not entitled to . .
See Also – Courage Ltd and Crehan v Crehan and Courage Ltd and Others ECJ 20-Sep-2001
The company had leased a public house to the respondent. The lease was subject to a tie, under which the respondent had to purchase supplies from the company. The company came to sue for the price of beer supplied. The respondent asserted that the . .
See Also – Courage Ltd v Crehan CA 12-Nov-2001
. .
See Also – Crehan v Inntrepreneur Pub Company (Cpc), Brewman Group Limited ChD 26-Jun-2003
The landlord had signed agreements tieing him to sales of beers. After falling into debt, he challnged the prices he had been obliged to pay as contravening the Treaty. The European Court had held that there was a possible claim under the Treaty. . .
See Also – Crehan v Inntrepreneur Pub Company (CPC) CA 21-May-2004
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .
See Also – Inntrepreneur Pub Company (CPC) and others v Crehan HL 19-Jul-2006
The tenant had taken on pub leases with ties requiring him to buy beer from companies associated with the landlords. The European Commission had issued a decision and the House was asked whether this was binding on the parties.
Held: . .
Lists of cited by and citing cases may be incomplete.

Contract, Commercial, European

Updated: 04 June 2022; Ref: scu.135872

Aero Properties Ltd and Another v Citycrest Properties Ltd and Another: ChD 6 Feb 2002

Contracts were entered into for the sale of five flats. Completion of each contract was conditional upon simultaneous completion of the others. Completion did not occur, and the defendant sellers issued a notice to complete, then rescinded the contract, and forfeited the deposits. The claimants requested a declaration that the completion notices were invalid, and sought specific performance. They appealed a dismissal of the claim.
Held: The sellers did not have to be exactly able to complete when the notice to complete was issued; it was sufficient that the vendor should ‘be able within the time reasonably required to do so to set up the necessary administrative arrangements to enable completion to take place.’ It was for the purchaser to show that the seller was in some way in breach of the contract, or would not be able to complete within the time set. The evidence did not meet that standard.

Judges:

Blackburne J

Citations:

Gazette 21-Feb-2002, [2000] 2 P and CR 21

Jurisdiction:

England and Wales

Citing:

Considered – Edwards v Marshall Lee ChD 1975
The parties contracted for the sale and purchase of land. A mortgage receipt was executed by a different company (Barclays Bank Trust Co ltd, not Barclays Bank Ltd) and therefore did not operate as a statutory receipt to discharge it. The plaintiff . .
Cited – Dimsdale Developments (South East) Ltd v De Haan 1983
The court considered the interpretation of clauses allowing a notice to complete a contract for the sale of land. Godfrey QC said: ‘In my judgment this notice, served as it was under cover of the letter of November 10, 1981, referring to the . .

Cited by:

Cited – Kalatara Holdings Ltd v Benedict Thomas Andersen and Another Chd 25-Jan-2008
The claimant sought specific performance of a contract to buy land from the defendant. The defendant sought summary dismissal of the claim and forfeiture of the deposit. It had been intended that the property would be ‘rolled over’ on a sub-sale. . .
Cited – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 04 June 2022; Ref: scu.167652

Yeoman Credit Ltd v Latter: CA 1961

The distinction between contracts of guarantee and indemnity are real and important and to be retained.

Judges:

Harman LJ

Citations:

[1961] 1 WLR 828

Jurisdiction:

England and Wales

Cited by:

Cited – Scottish and Newcastle Plc v Raguz CA 24-Jul-2003
Leases had been granted. They had been assigned to the defendant who had assigned them again. The last assignee became insolvent and statutory demands were served on the claimant under the 1995 Act for rent. The claimant paid the sums due and now . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 03 June 2022; Ref: scu.186109

In re Regent Hotels (UK) Ltd v Pageguide Ltd: CA 10 May 1985

The court was concerned with a long-term management contract for the Dorchester Hotel between Regent as managers and Pageguide. When Regent sold the hotel to Pageguide the management contract would continue and be novated (with some amendment) as between Regent and Pageguide. Pageguide sought to cancel the management contract alleging serious and fundamental breach. Injunctive relief was granted restraining Pageguide ‘from taking any steps to prevent or hinder [Regent] from performing their function of the management and operation of the Dorchester Hotel in accordance with the management agreement’. It was conceded that there was no rule of law precluding specific performance, but counsel for Regent identified principles based on public policy, fairness and practical convenience which militated against the relief sought. Under the heading of public policy, he identified both moral and economic grounds, referring in each context to the breakdown of trust and confidence which Pageguide was asserting.
Held: The Court of Appeal refused to accept counsel’s argument that no injunction was appropriate because there had been a breakdown of trust and confidence was that this was in issue. Regent’s case was the Pageguide was acting cynically and in bad faith, for pure financial or business motives. But the court also said this: ‘Leaving aside the factual issue as to whether Pageguide would be able to establish that they have lost confidence in the Regent companies, in regard to which there is, in my judgment, a serious question to be tried, this action raises the further serious question, as yet unresolved by English authority, as to the extent to which a commercial arrangement of this kind between two independent companies, which does not provide for the employment of any named individuals and is part of a larger package including the sale of the hotel itself, can be properly treated as analogous to a contract of personal service. There are, however, two commonwealth decisions, one from Canada and one from Singapore, both of which were concerned with attempts by hotel owners to terminate long-term management contracts and in both cases the courts granted interlocutory relief. The Canadian case went to the Court of Appeal of Montreal which affirmed the decision: Loewess Hotel Montreal v Concordia City Properties [1979]. In the Singapore case, Holiday Inns v Holiday Enterprises [1975] the court expressly contemplated that specific performance was available.’

Citations:

Times 13-May-1985, Unreported, 10 May 1985

Jurisdiction:

England and Wales

Cited by:

Cited – Warren v Mendy CA 1989
A boxing manager and promoter sought injunctive relief to restrain the defendant from interfering with a management contract between himself and B, a talented young boxer, and from acting for B in B’s professional career. B was at his request joined . .
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 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 02 June 2022; Ref: scu.225449

Goker (Ali) v NSW Bank: CA 23 May 1990

In the case of a hire purchase agreement, the court has a power to grant relief from forfeiture, but will not normally exercise that power unless there is no real prejudice to the owner of the goods.

Citations:

Times 23-May-1990

Jurisdiction:

England and Wales

Citing:

Cited – Chandless-Chandless v Nicholson 1942
Relief from forfeiture. . .
Cited – Barton, Thompson and Co v Stapling Machines Co CA 1966
. .

Cited by:

Cited – Transag Haulage Ltd (In Admin Receivership) v Leyland Daf Finance Plc and Another ChD 31-Jan-1994
Hire-purchase agreements for the hire of three lorries were entered into by Transag, a haulier, between January and May 1991. The price for the three lorries was andpound;177,333, with down payments totalling andpound;69,333 and the balance (for . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 June 2022; Ref: scu.199784

Berezovsky v Abramovich (Summary): ChD 31 Aug 2012

Gloster J summarised what had faced her in this complex and substantial claim: ‘at the core of the dispute between the parties were four highly contentious alleged oral agreements, relating to substantial assets which, if established, had serious financial and commercial consequences for the alleged parties to those agreements. Every, or almost every, aspect of the alleged agreements was in dispute. Significantly there were no contemporaneous notes, memoranda or other documents recording the making of these alleged agreements or referring to their terms. Such documents as were relied upon by Mr. Berezovsky as circumstantial evidence supporting his case, were usually (but not invariably) considerably later in origin than the alleged agreements; not documents that were communicated to Mr. Abramovich or his representatives; and were documents which were open to various interpretations as to whether they were supportive of Mr. Berezovsky’s case.
Second, the oral evidence relating to such claims was extremely stale. The court was being asked, in effect, to make findings based on limited direct evidence relating to events which occurred many years ago. In a case which is dependent upon establishing oral agreements, evidence relating to events which occurred a long time ago necessarily gives rise to particular problems. Apart from the fact that, not surprisingly, it is often difficult for witnesses to remember what happened many years ago, and they can rarely be expected to remember the specific words which they used, witnesses can easily persuade themselves that their recollection of what happened is the correct one.
Third, that problem was compounded in this case by the fact there had been substantial summary judgment proceedings, followed by the appeal to the Court of Appeal, during the course of which round after round of evidence was produced by various witnesses on each side. Given the substantial resources of the parties, and the serious allegations of dishonesty, the case was heavily lawyered on both sides. That meant that no evidential stone was left unturned, unaddressed or unpolished. Those features, not surprisingly, resulted in shifts or changes in the parties’ evidence or cases, as the lawyers microscopically examined each aspect of the evidence and acquired a greater in-depth understanding of the facts. It also led to some scepticism on the court’s part as to whether the lengthy witness statements reflected more the industrious work product of the lawyers, than the actual evidence of the witnesses.
Fourth, the lapse of time and staleness of the claims also gave rise to the inevitable problem that the court did not have before it all the evidence which it might otherwise have done, had the dispute been resolved nearer the time that the alleged oral agreements had been made, rather than 16 years after they were alleged to have been concluded.
Fifth, the burden of proof was on Mr. Berezovsky to establish his claims. As the only witness, on his side, who could give direct oral evidence of the making of the alleged agreements or the alleged threats, the evidential burden on him was substantial. Ultimately, it was for Mr. Berezovsky to convince the court, on the balance of probabilities, that the alleged oral agreements and threats had indeed been made, not for Mr. Abramovich to convince the court otherwise.
Fifth, in the event this case fell to be decided almost exclusively on the facts; very few issues of law were involved. Because of the nature of the factual issues, the case was one where, in the ultimate analysis, the court had to decide whether to believe Mr. Berezovsky or Mr. Abramovich. It was not the type of case where the court was able to accept one party’s evidence in relation to one set of issues and the other party’s evidence in relation to another set of issues.’
The court preferred the evidence of Mr Abramovich.

Judges:

Gloster J

Citations:

[2012] EWHC B15 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Torts – Other, Contract

Updated: 02 June 2022; Ref: scu.463798

Whitbread and Co Ltd v Watt: ChD 1901

The purchaser contracted to purchase a plot on a building estate belonging to the vendor. The contract provided that ‘the purchase is to be completed as soon as 300 houses shall have been erected on the said estate’. Thus the contract was one under which completion was conditional. It also contained a provision entitling the purchaser to rescind the contract by giving notice to that effect ‘if 300 houses shall not be erected on the said estate within two years from the date of this agreement’. The purchaser rescinded the contract and claimed a lien to secure repayment to him of the deposit paid by him on signing the contract. The vendor contended that there was no lien as the contract had not gone off due to any default of his.
Held: It was not necessary for the purchaser to show any fault on the part of the seller. Farwell J said: ‘The lien is created by the contract under which the money is paid as part of the purchase-money, and on the faith that the contract will be carried out, and not by default of the vendor. The default gives rise to the necessity for enforcing the lien, but the lien arises from the contract. I see no reason why a condition that, if 300 houses are not built, the purchaser may rescind should be held to differ in any way from the ordinary condition in a contract that, if the purchaser makes or insists upon any requisition or objection to the title which the vendor is unable or unwilling to comply with, the vendor may rescind.’

Judges:

Farwell J

Citations:

[1901 1 Ch 911

Jurisdiction:

England and Wales

Cited by:

Appeal from – Whitbread and Co Ltd v Watt CA 1902
The buyer agreed to buy a house when the developer had finished 300 houses on the site, but now sought return of his deposit.
Held: The developer’s appeal against an order for the return of the deposit failed.
Williams LJ said: ‘The lien . .
Cited – Chattey and Another v Farndale Holdings Inc and others CA 11-Oct-1996
The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 02 June 2022; Ref: scu.259717

Criminal proceedings against Di Pinto: ECJ 14 Mar 1991

ECJ 1. A trader canvassed with a view to the conclusion of an advertising contract concerning the sale of his business is not to be regarded as a consumer protected by Council Directive 85/577 to protect the consumer in respect of contracts negotiated away from business premises.
It follows from Article 2 of that directive that the criterion for the application of protection lies in the connection between the transactions which are the subject of the canvassing and the professional activity of the trader: the latter may claim that the directive is applicable only if the transaction in respect of which he has been canvassed lies outside his trade or profession. Acts which are preparatory to the sale of a business are connected with the professional activity of the trader; although such acts may bring the running of the business to an end, they are managerial acts performed for the purpose of satisfying requirements other than the family or personal requirements of the trader.
2. Directive 85/577 does not preclude national legislation on canvassing from extending the protection which it affords to cover traders acting with a view to the sale of their business.
Article 8 of that directive, which leaves Member States free to adopt or maintain more favourable provisions to protect consumers in the field covered by the directive, cannot be interpreted as precluding those States from adopting measures in an area with which it is not concerned, such as that of the protection of traders.

Citations:

C-361/89, [1991] EUECJ C-361/89, [1991] ECR I-1189

Links:

Bailii

European, Contract, Consumer

Updated: 01 June 2022; Ref: scu.160386