Category: Contract

R E Brown and others v GIO Insurance Limited: CA 6 Feb 1998

A reinsurance contact provided for an excess and limit of liability to be calculated on the basis of ‘each and every loss and/or series of losses arising out of one event.’ It also provided that ‘The Reassured shall be the sole judge as to what constitutes each and every loss and/or one event’.
Held: Where an excess loss re-insurance contract gives one party discretion acting as a ‘sole judge’ to decide mixed issues of fact and law, courts will not normally intervene.
Chadwick LJ stated: ‘The real question, as it seems to me, is not whether the parties intended that the plaintiff should be left to decide these matters; but whether that is a bargain which the law permits them to make. I start from the position that the courts should be slow to strike down a sensible commercial bargain, made between parties experienced in their field, unless there is some clearly identifiable element of public policy which requires that to be done.
I am satisfied that there is no rule of public policy which prevents parties from agreeing to submit to the final and conclusive decision of a third party some issue which involves questions of construction or of mixed fact and law . . It is necessary, therefore, to go on to consider whether different considerations must apply where the effect of their bargain is that the parties have sought to entrust the decision to one or other of themselves rather than to an independent expert. I can see no reason, in principle, why a different approach is required.
It is, of course, necessary to keep in mind that there are some questions of law which it would be repugnant to the very existence of a legally enforceable contract to leave to the exclusive determination of one party. An obvious example would be a decision as to the existence or otherwise of contractual liability in given circumstances. It must also be kept in mind that in many, if not most, situations it will be inherently unlikely that one party will intend to leave a question of law to be decided by the other party. Further an agreement wholly to oust the jurisdiction of the courts is against public policy and is void. But I can see no objection in principle to a bargain in which one party is left to decide (i) what the facts are in relation to some matter which is to arise in the future and which is plainly intended to have some contractual consequence under a provision of the agreement which they have made and (ii) whether or not that combination of facts does fall within that provision. The jurisdiction of the court is not ousted in those circumstances; provided that the agreement which the parties have reached on that matter allows the court to interfere if the decision-making party has acted unreasonably, perversely or in bad faith. It seems to me that the court will be ready (in the absence of express words to the contrary) to construe the agreement, if necessary by implying an appropriate term, so as to impose on the decision-making party an obligation to act reasonably and in good faith. An agreement which did not permit of such a construction would, I think, be void; but that is not an issue in the present case.’

Judges:

Chadwick LJ

Citations:

Times 18-Feb-1998, Gazette 05-Mar-1998, [1998] EWCA Civ 177, [1998] Lloyd’s Rep IR 201, [1998] CLC 650

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Skidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .
Cited – Charles Stanley and Co Ltd v Adams QBD 19-Jul-2013
The claimant stock broking firm sought to recover its uninsured losses after having paid out for what was said to have been negligent advice by the respondent, a self-employed broker working for them.
Held: The power to recover such losses . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 29 May 2022; Ref: scu.143655

Society of Lloyd’s v Leighs; Lyon and Wilkinson and Canadian Names Intervenors: CA 31 Jul 1997

Citations:

[1997] CLC 1398, [1997] 6 Re LR 289, Times 11-Aug-1997, Independent 06-Oct-1997, [1997] EWCA Civ 2283

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Society of Lloyd’s v D Leighs and Others; Society of Lloyd’s v D Wilkinson and Others ComC 20-Feb-1997
ComC Lloyd’s Litigation – issues relating to recovery from names.
Held: A name at Lloyd’s grants a power of attorney to the underwriting agent to execute that power which is irrevocable. . .
Appeal from – Society of Lloyd’s v D Leighs and Others; Society of Lloyd’s v D Wilkinson and Others (No. 2) ComC 23-Apr-1997
ComC Lloyd’s Litigation – Misrepresentation, fraudulent – Rescission, restitutio in integrum – Rescission, effect on third parties’ rights – Anti-set-off clauses, counterclaim for fraud – Pay now, sue later . .

Cited by:

Cited – BOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA 29-Apr-1999
The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 29 May 2022; Ref: scu.142680

Fisher v Waltham: 9 Jun 1843

No action can be maintained by A, against B on a wager, in which A bets that B will, and B that he will not, pass his examination as an attorney; inasmuch as B has the power of determining the wager in his own favour. So held, on demurrer to a declaration at the suit of A. against B on the wager.

Citations:

[1843] EngR 777, (1843) 4 QB 889, (1843) 114 ER 1132

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 29 May 2022; Ref: scu.306471

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 sought payment of sums remaining due under the contracts entered into by consumers, but the defendant counterclaimed saying that the decision to enter administration was a repudiation with associated losses. The claimant now sought summary judgment.
Held: The application was granted.

Judges:

Andrew Baker J

Citations:

[2018] EWHC 49 (Comm), [2018] WLR(D) 39

Links:

Bailii, WLRD, Judiciary, Judiciary Summary

Jurisdiction:

England and Wales

Citing:

Cited – Maple Flock Co v Universal Furniture Products (Wembley) Ltd CA 1934
The court considered the effect of a breach in a contract for delivery by instalments.
Held: The chief considerations are first, the ratio quantitatively which the breach bears to the contract as a whole, and secondly, the degree of . .
Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Cited – Key2Law (Surrey) Llp v De’Antiquis CA 20-Dec-2011
. .
Cited – Telford Homes (Creekside) Ltd v Ampurius Nu Homes Holdings Ltd CA 23-May-2013
. .
Cited – Monarch Airlines Ltd, Regina (on The Application of) v Airport Coordination Ltd CA 22-Nov-2017
. .
Cited – Boston Deep Sea Fishing and Ice Co v Ansell CA 1888
An employer having dismissed an employee (its managing director) later learnt of the employee’s fraud.
Held: The employer was allowed to rely upon that fraud to justify the dismissal. Where an agent is in wrongful repudiation of his contract . .
Cited – Yeoman Credit Ltd v Waragowski CA 1961
The defendant had paid the initial deposit for and took delivery on hire-purchase terms of a van, but made no monthly hire-purchase instalments. The plaintiff terminated, took possession of the van and sued for hire-purchase arrears and damages. . .
Cited – Financings Ltd v Baldock CA 1963
The hirer took delivery of a vehicle under an HP contract. he plaintiff exercised a contractual right to terminate the hiring and take possession of the vehicle when the defendant failed to pay the first two monthly instalments.
Held: Where an . .
Cited – Financings Ltd v Baldock CA 1963
The hirer took delivery of a vehicle under an HP contract. he plaintiff exercised a contractual right to terminate the hiring and take possession of the vehicle when the defendant failed to pay the first two monthly instalments.
Held: Where an . .
Cited – Lombard North Central v Butterworth CA 31-Jul-1986
The defendant entered into a hire-purchase contract for a computer, time being stipulated to be ‘of the essence’ in relation to the payment obligations. He defendant defaulted, and the plaintiff took possession of the goods, and and sought payment . .
Cited – Vitol Sa v Norelf Ltd HL 10-Jul-1996
(The Santa Clara) The seller was to deliver propane by a ship set to leave on a certain date. The market was falling. The buyer, when it was clear that the ship would be unable to leave on the day fixed, sent a telex to say that the contract was . .
Cited – Barrett v London Borough of Enfield HL 17-Jun-1999
The claimant had spent his childhood in foster care, and now claimed damages against a local authority for decisions made and not made during that period. The judge’s decision to strike out the claim had been upheld by the Court of Appeal.
Cited – Modern Engineering (Bristol) Ltd v Gilbert Ash (Northern) Ltd HL 1974
The court considered how to construe a clause in a contract which excluded a remedy provided by law. Lord Diplock said: ‘It is, of course, open to parties to a contract . . to exclude by express agreement a remedy for its breach which would . .
Cited – And So To Bed Ltd v Dixon 2001
The defendants, Mr and Mrs Dixon, were franchisees of an ‘And So To Bed’ shop. The franchise was terminated by the claimant, purportedly under a clause of the franchise agreement which entitled the claimant summarily to terminate the agreement for . .
Cited – 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 . .
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 – Leofelis Sa and Another v Lonsdale Sports Ltd 7 Ors ChD 8-Mar-2007
. .
Lists of cited by and citing cases may be incomplete.

Contract, Utilities

Updated: 29 May 2022; Ref: scu.606402

Holyoake and Another v Candy and Others: ChD 21 Dec 2017

Judges:

Nugee J

Citations:

[2017] EWHC 3397 (Ch)

Links:

Bailii, Judiciary

Jurisdiction:

England and Wales

Citing:

See Also – Holyoake and Another v Candy and Others ChD 27-Jul-2016
The claimants alleged several torts had been involved in a substantial fraud on them by means of a funding loan. . .
See Also – Holyoake and Another v Candy and Others ChD 29-Nov-2016
Application by the Defendants for security for costs. . .
See Also – Holyoake v Candy and Another QBD 24-Jan-2017
The claimant sought to have access to his personal information held by the defendant. The defendant relied upon the legal professional privilege exemption. . .
See Also – Holyoake and Another v Candy and Others ChD 27-Feb-2017
Applications for further disclosure on the grounds of collateral waiver. . .
See Also – Candy and Others v Holyoake and Another CA 28-Feb-2017
Appeal against grant of ‘notification injunction’ . .
See Also – Candy v Holyoake and Others QBD 2-Mar-2017
Mr Candy claimed remedies for what he alleged were completed or threatened wrongs in the form of breach of confidence, misuse of private information, and breach of the Data Protection Act 1998 (‘DPA’) against five defendants, one of whom had filmed . .
See Also – Candy v Holyoake and Others (No 2) QBD 22-Nov-2017
. .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Torts – Other

Updated: 29 May 2022; Ref: scu.602615

Bedfordshire County Council v Fitzpatrick Contractors Ltd: TCC 16 Oct 1998

Dyson J refused to imply a term of trust and confidence into a highway maintenance contract, stating: ‘the court should in any event be very slow to imply into a contract a term, especially one which is couched in rather general terms, where the contract contains numerous detailed express terms such as the contract in this case. In my judgment, in such a case, the court should only do so where there is a clear lacuna. The parties in this case took a great deal of trouble to spell out with precision and in detail the terms that were to govern their contractual relationships. The alleged implied term is expressed in broad and imprecise language. I can see no justification for grafting such a term onto a carefully drafted contract such as this.’

Judges:

Dyson J

Citations:

[1998] 62 Con LR 64, [1998] EWHC 1633 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Adopted – Jani-King (GB) Ltd v Pula Enterprises Ltd and others QBD 23-Oct-2007
. .
Cited – Mr H TV Ltd v ITV2 Ltd ComC 8-Oct-2015
The claimant had contracted with the defendant for the production of a series of reality TV shows featuring celebrities. After severe personal clashes between the people involved on the claimants side, the contract was terminated. The claim was that . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 29 May 2022; Ref: scu.443565

Midland Silicones Ltd v Scruttons Ltd: QBD 1959

A bailment arises when, albeit on a limited or temporary basis, the bailee acquires exclusive possession of the chattel or a right thereto.

Judges:

Diplock J

Citations:

[1959] 2 QB 171

Jurisdiction:

England and Wales

Cited by:

Appeal from – Midland Silicones Ltd v Scruttons Ltd CA 1960
. .
At first instance – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 29 May 2022; Ref: scu.280441

Alexander Cunningham, Ws v Thomas Kinnear, Insurance Broker In Edinburgh, Alexander Brown and Son, Merchants, and William Hume, Merchant Upholsterer In Edinburgh: HL 27 Mar 1765

Partnership – Joint Adventure – Praepositus Negotiis.-
Where goods were purchased on individual account; and thereafter an interest purchased therein by another, as part of a cargo shipped for foreign trade; where also there was no contract, and no previous reputed partnership, anterior to the purchase of the goods shipped: Circumstances in which held, there was an existing copartnery, and that the deceased partner, in purchasing the goods, in ordering the insurances, and in receiving the returns, acted as pr positus negotiis of the company, and bound the other partners.

Citations:

[1765] UKHL 2 – Paton – 114, (1765) 2 Paton 114

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 29 May 2022; Ref: scu.560610

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

The builders had agreed as part of the planning process to indemnify the council against all claims incidental to the carrying out of the works for which permission was given. The council had to compulsorily purchase land, and sought repayment from the contractors of the compensation it had to pay.
Held: In the natural interpretation of the clause the liability to compensate the former owners of land was not described as incidental to the carrying out of the works. (Ward LJ dissenting)

Judges:

Ward, Clarke, Neuberger LJJ

Citations:

[2005] EWCA Civ 1087, Times 22-Sep-2005

Links:

Bailii

Statutes:

Land Compensation Act 1973, Highways Act 1980 38

Jurisdiction:

England and Wales

Citing:

Cited – Hammersmith and City Railway Co v Brand HL 13-Jul-1869
In the absence of negligence, damage caused by operations authorised by statute is not compensatable unless the statute expressly so provides. The wording of the sections, and in particular section 6 of the Railways etc Act, only entitled a claimant . .
Cited – Wildtree Hotels Ltd and others v Harrow London Borough Council HL 22-Jun-2000
The compensation which was payable for disturbance, when works were carried out on land acquired compulsorily, did not extend to the damage caused by noise dust and vibration arising from the works. Where however damage could be brought within the . .
Cited – Argyle Motors (Birkenhead) v Birkenhead Corporation HL 1974
The House described the way that the 1845 Act continued to affect the calculation of compensation: ‘The relevant section of the Act of 1845 (section 68) has, over 100 years, received through a number of decisions, some in this House, and by no means . .
Cited – Sirius International Insurance Company (Publ) v FAI General Insurance Limited and others HL 2-Dec-2004
The appellant had taken certain insurance risks on behalf of the respondents, subject to banking indemnities. Disputes arose and were settled under a Tomlin order, which was now itself subject to challenge.
Held: The appeal was allowed. The . .

Cited by:

See Also – Wiltshire County Council v Crest Estates Ltd and others CA 5-Aug-2005
. .
Lists of cited by and citing cases may be incomplete.

Construction, Contract

Updated: 29 May 2022; Ref: scu.229685

Mann and Beattie v Edinburgh Northern Tramways Co: HL 29 Nov 1892

M, the agent, and B, the engineer, of a newly incorporated cable tramways company, of which they had been the chief promoters, arranged on behalf of the company the contract for the construction of its works. By this contract the contractors undertook, besides constructing the works, to pay the expenses incurred by the company in obtaining their Act. M and B at the same time entered into an agreement with the contractors on their own behalf, whereby they bound themselves to relieve the contractors of their liability for the expenses of the Act in consideration of the payment of a sum of pounds 17,000, the balance of which they were to retain for their own behoof.
Five years afterwards the company called on M and B to account for the sum they had received under their agreement with the contractors. In answer the defenders maintained that the company were barred from challenging the agreement, in respect that everyone interested in the shares of the company knew of and had assented to the agreement, and the company’s shares had never been issued to the public.
Held (aff. the decision of the First Division) that the alleged knowledge and assent of those who represented the company had not been proved; but even assuming such knowledge and assent, the agreement was illegal, as it was ultra vires of promoters or directors or shareholders to apply the moneys of the company, which were devoted by statute to special purposes, to any purpose which was not sanctioned by the provisions of the Act of incorporation.

Judges:

Lord Chancellor (Lord Herschell), and Lords Watson, Ashbourne, and Morris

Citations:

[1892] UKHL 140, 30 SLR 140

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 28 May 2022; Ref: scu.634563

Hague v British Telcommunications Plc (Immunotherapy : Reasonableness of Treatment : Private Dictionary Principle): QBD 12 Sep 2018

The parties disputed whether the defendant was liable to pay for private immunotherapy treatment for the plaintiff under the terms of an agreement settling the claimant’s action for damages for having contracted malignant pleural mesothelioma after working for the defendant.

Citations:

[2018] EWHC 2227 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Personal Injury, Damages

Updated: 28 May 2022; Ref: scu.625530

The Shackleford: CA 2 Jan 1978

The Notice of Readiness was to discharge at the port of Constanza and was required ‘vessel also having been entered at the Customs House and the laydays will then commence on the next business day, whether in berth or not, whether in port or not, whether in free pratique or not’. The vessel arrived in Constanza Roads, immediately giving NOR on 15 October, which notice was accepted by the receivers on the same day by endorsing ‘accepted’ upon it. Customs entry could not be obtained until the vessel berthed and this did not occur until 26 November. The arbitrator held that the charterers were estopped from denying that they had accepted the NOR and made a finding that the owners and/or Master relied upon the acceptance of the NOR by the receivers in that they made no attempt to procure an earlier berth, such as a bunkering or watering berth, so that Customs entry might be obtained at an earlier date. Sir David Cairns said: ‘Acceptance of a notice of any kind usually means acceptance of the notice as an effective notice. The experienced arbitrator and the experienced commercial judge interpreted this acceptance without any indication that it had occurred to them that it could have any other meaning. In my judgment they were right to do so.’

Judges:

Sir David Cairns

Citations:

[1978] 2 Lloyds Rep 155

Jurisdiction:

England and Wales

Citing:

Appeal from – The Shackleford ChD 1978
The charterers by the receivers had ‘accepted’ a notice of readiness which was ‘premature’ when given because customs entry had not been obtained as required by the relevant clause of the charterparty and so were estopped by their conduct from . .

Cited by:

Cited – Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Contract

Updated: 28 May 2022; Ref: scu.277764

Leyland and Co v Cia Panamena Europea Navigacion: CA 1943

Goddard LJ said: ‘He, therefore, was unwilling to carry out the duty assigned by the contract to him. The defendants either were of the same opinion or adopted his view; for this purpose, it matters not which. Consequently, they neither required him to certify in accordance with the contract, nor did they appoint anyone else in his place’ and ‘Equally, it seems to me, [the Employers] must appoint someone who is willing to perform the duty assigned to him by the contract. If he will not or cannot perform that duty, they must appoint someone who will. Here it is clear that Dr Telfer refused to perform the simple duty of certifying whether the work was properly done….because he took the view, and I will assume honestly, that the contract enabled and, indeed, required him to do something else . . He, therefore, was unwilling to carry out the duty assigned by the contract to him. The defendants either were of the same opinion or adopted his view; for this purpose, it matters not which. Consequently, they neither required him to certify in accordance with the contract, nor did they appoint anyone else in his place. It is no answer to them to say that they had misinterpreted the contract. It is often the case that a person is guilty of a breach of contract because he has placed a wrong construction on it, but that affords him no defence.’

Judges:

Goddard LJ

Citations:

[1943] 76 Ll LR 113

Jurisdiction:

England and Wales

Cited by:

Appeal from – Panamena Europea Navigacion v Frederick Leyland and Co HL 1947
The parties had entered into an agreement providing for arbitration of any disputes. Lord Thankerton said: ‘By entering into the contract the respondents agreed that the appellant’s surveyor should discharge both these duties and therefore they . .
Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 28 May 2022; Ref: scu.185451

Alpenstow Ltd v Regalian Properties plc: ChD 1985

The parties agreed in writing for the sale of land, the agreement contained a right of pre-emption. In the event of the owner wishing to sell it was to offer to sell a share in the property by notice. Within 28 days of the notice, the grantee was to accept the offer ‘subject to contract’. Within seven days thereafter a draft contract was to be submitted; the draft was to be approved within 28 days, subject to any amendment reasonably required, and contracts were to be exchanged seven days thereafter.
Held: The agreement was binding. There was an incompatibility between the freedom to withdraw from the transaction which the words ‘subject to contract’ suggested, and the duty to submit a contract and to exchange it within a particular timetable.

Judges:

Nourse J

Citations:

[1985] 1 WLR 721

Jurisdiction:

England and Wales

Cited by:

Cited – Confetti Records (A Firm), Fundamental Records, Andrew Alcee v Warner Music UK Ltd (Trading As East West Records) ChD 23-May-2003
An agreement was made for the assignment of the copyright in a music track, but it remained ‘subject to contract’. The assignor later sought to resile from the assignment.
Held: It is standard practice in the music licensing business for a . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 28 May 2022; Ref: scu.183735

Eurodata Systems plc v Michael Gershon (Finance) plc: QBD 26 Apr 2002

A lease finance provider sent invoice instructions to the claimant company, but these were accompanied by oral instructions requiring the execution of the equipment leases first. The leases were not signed. The defendant issued a cheque but cancelled it.
Held: A contract had not been made and the defendant was not liable. The requirement that the equipment leases be signed was a necessary pre-condition to the contract coming into existence. There was no consideration given for the cheque and the defendant was not liable for its countermanding.

Judges:

Geddes J

Citations:

Times 25-Mar-2003

Jurisdiction:

England and Wales

Contract, Financial Services

Updated: 28 May 2022; Ref: scu.180049

Insurance Co of Africa v SCOR (UK) Reinsurance Co Ltd: CA 1985

An underlying insurance policy covered a warehouse in Liberia against fire, including $500,000 for buildings and $3 million for contents. The warehouse became a total loss. The owners of the warehouse brought proceedings in the Liberian courts. The insurers unsuccessfully defended, and as well as the sum insured, they had to pay general damages of $600,000 and $58,000 costs. The insurers could recover a proportion of the damages and costs from the re-insurers under an implied term of the re-insurance contract.
Held: There was no basis to imply a term that the re-insurers should bear a proportion of the costs of defending the claim on the ground of business efficacy. The contract worked effectively without any such implication, and if such a term was implied, the re-insurers’ potential liability would be increased beyond, and possibly far beyond, the sum insured under the contract of re-insurance. The effect of the words in the policy ‘to pay as may be paid thereon’ was to bind reinsurers to a compromise by the insurers of the question of the amount of a claim so that, provided that the insurers could establish a loss of the kind insured and reinsured, and that the reinsured had acted honestly and had taken all proper and businesslike steps to have the amount of the loss fairly and carefully ascertained, reinsurers were obliged to indemnify the insurers in respect of that amount.

Judges:

Robert Goff LJ, Fox LJ

Citations:

[1985] 1 Lloyd’s Rep 312

Jurisdiction:

England and Wales

Cited by:

Cited – Baker v Black Sea and Baltic General Insurance Co Ltd HL 20-May-1998
The question agreed to be before the court was ‘Where an insurer incurs costs in investigating settling or defending claims by his insured, can the insurer recover a proportion of these costs under a quota share or other form of proportional . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 28 May 2022; Ref: scu.179311

Marcq v Christe Manson and Woods (t/a Christies): QBD 29 Oct 2002

The claimant sought damages for conversion from the respondent auctioneers as bailees. The painting had been registered as stolen. It failed to achieve its reserve and had been returned.
Held: It was for a bailee to prove that he had acted in good faith. That meant that he was not aware that the person for whom he held the goods was not the true owner. The situation differed where the goods were purchased, and where ownership passed. A bailee could be liable if he did not act in good faith and without notice (Hollins). Christies had made enquiry in the art loss register, and been reassured that it was not stolen. In the circumstances the claimant had to be given an opportunity to deal with issues raised in the response. An auctioneer who receives goods from their apparent owner and simply redelivers them to him when they are unsold is not liable in conversion provided he has acted in good faith and without knowledge of any adverse claim to them.

Judges:

Jack J

Citations:

Times 25-Nov-2002, Gazette 28-Nov-2002

Statutes:

Limitation Act 1980 4

Jurisdiction:

England and Wales

Citing:

Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Hollins v Fowler HL 1875
One who deals with goods at the request of the person who has the actual custody of them, in the bona fide belief that the custodier is the true owner, or has the authority of the true owner, should be excused for what he does if the act is of such . .
Cited – National Mercantile Bank v Rymill 1881
The plaintiff owned horses subject to a bill of sale. The grantor of the bill sold the horses privately in the defendant’s auction yard and following the sale, on the grantor’s instructions, the auctioneer delivered the horses to the buyer.
Cited – Turner v Hockey 1887
The owner of a cow gave a bill of sale over it (and others) but then asked the defendant auctioneer to sell it. He did not inform the auctioneer of the bill of sale.
Held: An auctioneer who unknowingly but in the ordinary course of business . .
Cited – Willis and Son v British Car Auctions Ltd CA 1978
A car on hire purchase was sold and delivered by auctioneers on the instructions of the hirer. The court was asked whether the auctioneers’ liability was affected by the fact that the car had been sold under their provisional bid procedure.

Cited by:

Appeal from – Marcq v Christie, Manson and Woods Ltd CA 23-May-2003
The claimant’s stolen painting was put up for sale by the defendant. On being withdrawn, they returned it to the person who had brought it in. The claimant sought damages.
Held: There was no reported case in which a court has had to consider . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract, Torts – Other

Updated: 28 May 2022; Ref: scu.178298

Denaby and Cadeby Main Collieries, Ltd v Yorkshire Miners’ Association and Others: HL 14 May 1906

Where, in breach of existing contracts between employers and employees, the officials of a branch of a trade union brought about a strike contrary to the rules and regulations of the trade union as a whole, held that the latter was not liable in damages to the employers for the wrongful actings of the officials of the branch.
The central council of a trade union, in contravention of the rules and regulations of the union, granted strike pay to miners out on strike.
Held that the employers of the miners had no title to sue the trade union for damages, the wrong committed by the central council being one committed against its own members in dissipating their funds, and not against the employer, who had no interest in the funds

Judges:

Lord Chancellor (Loreburn), Lords Macnaghten, James of Hereford, Davey, Robertson, and Atkinson

Citations:

[1906] UKHL 596

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Employment

Updated: 26 May 2022; Ref: scu.625460

Ogdens Ltd v Weinberg: HL 26 Jul 1906

The trustee of a bankrupt trader assigned to a third party the goodwill of a bankrupt’s business, ‘and also all the book and other debts, securities, credits, effects, contracts, and engagements belonging or appertaining to the said business to which the vendor as such trustee is entitled.’ At the time of his bankruptcy the trader was in a position to bring an action of damages for breach of contract against a wholesale firm which had undertaken to divide a certain bonus and profits among its customers for a number of years, but had put it out of its power to fulfil its contract by going into voluntary liquidation and selling its business.
Held that the contract and right to sue upon it were conveyed by the assignation.

Judges:

Lord Chancellor (Loreburn), Lords Davey, James of Hereford, and Robertson

Citations:

[1906] UKHL 618, 44 SLR 618

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Contract

Updated: 26 May 2022; Ref: scu.625467

E Clemens Horst Co v Biddell Brothers: HL 3 Nov 1911

A contract for the sale of hops of specified quality provided that they should be shipped by the sellers from San Francisco to Sunderland, and paid for by the purchasers by weight c.i.f. ‘terms net cash.’ The purchasers declined to pay the price until after arrival at the port of destination and opportunity for examining the goods.
Held that the sellers in a c.i.f. contract were entitled to payment of the price upon tender of the bill of lading and insurance policy.

Judges:

Lord Chancellor (Loreburn), Lords Atkinson, Gorell, and Shaw of Dunfermline

Citations:

[1911] UKHL 680, 49 SLR 680

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 26 May 2022; Ref: scu.619215

Holyoake and Another v Candy and Others: ChD 27 Jul 2016

The claimants alleged several torts had been involved in a substantial fraud on them by means of a funding loan.

Judges:

Hodge QC HHJ

Citations:

[2016] EWHC 2119 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Holyoake and Another v Candy and Others ChD 29-Nov-2016
Application by the Defendants for security for costs. . .
See Also – Holyoake v Candy and Another QBD 24-Jan-2017
The claimant sought to have access to his personal information held by the defendant. The defendant relied upon the legal professional privilege exemption. . .
See Also – Holyoake and Another v Candy and Others ChD 27-Feb-2017
Applications for further disclosure on the grounds of collateral waiver. . .
See Also – Candy and Others v Holyoake and Another CA 28-Feb-2017
Appeal against grant of ‘notification injunction’ . .
See Also – Candy v Holyoake and Others QBD 2-Mar-2017
Mr Candy claimed remedies for what he alleged were completed or threatened wrongs in the form of breach of confidence, misuse of private information, and breach of the Data Protection Act 1998 (‘DPA’) against five defendants, one of whom had filmed . .
See Also – Candy v Holyoake and Others (No 2) QBD 22-Nov-2017
. .
See Also – Holyoake and Another v Candy and Others ChD 21-Dec-2017
. .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 26 May 2022; Ref: scu.570843

Candy and Others v Holyoake and Another: CA 28 Feb 2017

Appeal against grant of ‘notification injunction’

Judges:

Gloster VP CA, Jackson LJJ

Citations:

[2017] EWCA Civ 92

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Holyoake and Another v Candy and Others ChD 27-Jul-2016
The claimants alleged several torts had been involved in a substantial fraud on them by means of a funding loan. . .
See Also – Holyoake and Another v Candy and Others ChD 29-Nov-2016
Application by the Defendants for security for costs. . .
See Also – Holyoake v Candy and Another QBD 24-Jan-2017
The claimant sought to have access to his personal information held by the defendant. The defendant relied upon the legal professional privilege exemption. . .
Appeal from – Holyoake and Another v Candy and Others ChD 27-Feb-2017
Applications for further disclosure on the grounds of collateral waiver. . .

Cited by:

See Also – Candy v Holyoake and Others QBD 2-Mar-2017
Mr Candy claimed remedies for what he alleged were completed or threatened wrongs in the form of breach of confidence, misuse of private information, and breach of the Data Protection Act 1998 (‘DPA’) against five defendants, one of whom had filmed . .
See Also – Candy v Holyoake and Others (No 2) QBD 22-Nov-2017
. .
See Also – Holyoake and Another v Candy and Others ChD 21-Dec-2017
. .
Lists of cited by and citing cases may be incomplete.

Insurance, Torts – Other, Contract

Updated: 26 May 2022; Ref: scu.577495

Continental Illinois National Bank and Trust Company of Chicago v John Paul Papanicolaou (The Fedora): CA 1986

The court considered the effect of a guarantee clause.
Held: The provisions of the guarantee went to timing and cash flow rather than liability. A term excluding a right of set-off is not to be treated in the same way as an exclusion clause. The court declined to construe the provision relied upon by the creditor as if it were an exclusion clause because it did not affect the liability of the creditor, which the guarantor was free to pursue once he had paid the sum demanded by the creditor: ‘It would defeat the whole commercial purpose of the transaction, would be out of touch with the business realities and would keep the bank waiting for a payment, which both the borrowers and the guarantors intended that it should have, whilst protracted proceedings on the alleged counterclaim were litigated. We do not doubt that the court has a discretion to grant a stay but it should in our view be ‘rarely if ever’ exercised, as Lord Dilhorne said in relation to claims on bills of exchange (in Nova (Jersey) Knit Ltd. v Kammgarn Spinnerei G.m.b.H [l977] 1 WLR 713, 722).’

Judges:

Parker LJ

Citations:

[1986] 2 Ll Rep 441, [1986] 2 Lloyds Rep 441

Jurisdiction:

England and Wales

Cited by:

Cited – WRM Group Limited (Formerly Known As WRM Logistics Limited) v Wood; Burcher; Wood; Chick and Irving CA 21-Nov-1997
Breach of share sale agreement. . .
Cited – BOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA 29-Apr-1999
The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
Held: The appeal . .
Cited – Remblance v Octagon Assets Ltd CA 17-Jun-2009
A statutory demand was served against the guarantor of the lease after rent arrears arose. He applied for the demand to be set aside, and now appealed against its refusal. He said that the court would have set aside such a demand against the tenant, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 26 May 2022; Ref: scu.244718

Ladup Ltd v Yazbeck: QBD 14 May 1985

The Defendant had gambled and lost money at the Claimant’s clubs. andpound;29,000 was due on cheques drawn by him which had not been honoured. An agreement was reached under which he would pay andpound;13,500 in cash, and would reduce the rest of the balance by stages out of winnings.
Held: That was an illegal agreement under section 16, and it was not complied with except as to the andpound;13,500. However, the admitted illegality of the later agreement did not affect the Claimant’s existing right to reimbursement for the cheques which had been dishonoured. The court said: ‘I see no reason why that illegality in April 1977, as it were, should cast a shadow backwards on to the activities – lawful and legal activities – which had occurred before then.’

Judges:

Mr Patrick Bennett QC

Citations:

Unreported, 14 May 1985

Statutes:

Gaming Act 1968 16

Jurisdiction:

England and Wales

Cited by:

Cited – Aspinall’s Club Ltd v Al-Zayat CA 19-Oct-2007
The claimant had sued the defendant for non-payment under a cheque for andpound;2 million. The cheque had been issued to replace earlier cheques given but not met, for sums staked for gambling at the claimant’s casino. The defendant said that the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 26 May 2022; Ref: scu.259935

Euro-Diam Ltd v Bathurst: CA 1988

The court had found that securities had been registered misleadingly in the US. The court held that it could not aid illegality. The court considered the defence of ‘ex turpi cause non oritur actio’. Kerr L.J: ‘The ex turpi causa defence ultimately rests on a principle of public policy that the courts will not assist a plaintiff who has been guilty of illegal (or immoral) conduct of which the courts should take notice. It applies if in all the circumstances it would be an affront to the public conscience to grant the plaintiff the relief which he seeks because the court would thereby appear to assist or encourage the plaintiff in his illegal conduct or to encourage others in similar acts.’ and ‘it makes no difference whether the illegality is raised in the plaintiff’s claim or by way of reply to a ground of defence’ and ‘To grant relief in our case does not assist or encourage [the deceased] or others in his situation to continue in their disapproved conduct.’

Judges:

Kerr LJ

Citations:

[1990] 1 QB 1, [1988] 2 WLR 517

Jurisdiction:

England and Wales

Cited by:

Cited – Samuel Gyaniao v Design Corner Ltd EAT 15-Jun-2001
The employee sought to appeal a decision at a preliminary hearing that he had not been dismissed. He had asserted that the employment contract was illegal because income tax and NI contributions were not being deducted properly, and therefore was . .
Cited – Hewison v Meridian Shipping Pte, Coflexip Stena Offshore Ltd, Flex Installer Offshore Ltd CA 11-Dec-2002
The claimant was awarded damages for injuries suffered in his work as a seaman. The respondents claimed that he should not receive damages, since he had made false declarations as to his health in order to obtain employment, hiding his epilepsy . .
Cited – Sharma v Hindu Temple and others EAT 10-Oct-1991
. .
Disapproved – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 26 May 2022; Ref: scu.180847

Re Consort Deep Level Gold Mines ex parte Stark: 1897

Citations:

[1897] 1 Ch 575

Jurisdiction:

England and Wales

Citing:

Referred to – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Unilateral Contract Liability
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘pounds 100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 26 May 2022; Ref: scu.183110

Thomas Cook Tour Operations Ltd and Another v Louis Hotels SA: QBD 29 Jul 2013

The claimant tour operators had suffered assorted losses after two tourists died of carbo monoxide poisoning whilst staying at the defendant’s hotel. They sought repayment of their losses, and now summary judgment.
Held: The defendant’s arguments as to breacj of contract by the claimants were with no real substance. Summary judgment given.

Judges:

Swift DBE J

Citations:

[2013] EWHC 2139 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 26 May 2022; Ref: scu.513779

Yeoman’s Row Management Ltd v London Rent Assessment Committee Chairman: QBD 25 Feb 2005

The parties agreed in principle that there would be an application for planning permission, and that if granted the land would be bought and the profits shared. Considerable work was undertaken and permission achieved, but the seller then sought to vary the terms of the agreement.
Held: An estoppel had been created against the buyer. The minimum equity to do justice to Mr Cobbe required that he be awarded one-half of the increase in value of the property brought about by the grant of planning permission and that he be granted a lien over the property to secure that interest. He would have been entitled to relief on his constructive trust claim but that relief on the basis of proprietary estoppel was the more satisfactory way of satisfying the equity to which the facts of the case entitled him.

Judges:

Etherton J

Citations:

Unreported, 25 February 2005

Jurisdiction:

England and Wales

Cited by:

At First Instance – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Estoppel

Updated: 26 May 2022; Ref: scu.276427

Shropshire County Council (David Walker) v Simon Dudley Limited: Admn 17 Dec 1996

A customer’s description of the goods he required was a trade description for the future supply of those goods by the seller claiming to fulfil that specification. The trading standards officer appealed dismissal of his prosecution of the defendant on four informations alleging an unlawful supply of goods. The defendant had tendered successfully to a specification to supply a fire engine. Modifications of the specification were agreed, but the engine supplied matched neither specification.
Held: The supplier could be taken to have accepted a duty to supply the goods as described, and the representation as to his ability to make the supply continued at the time of supply.

Judges:

Hooper J

Citations:

Times 03-Jan-1997, [1996] EWHC Admin 376

Links:

Bailii

Statutes:

Trade Descriptions Act 1968 1(1)(b) 4(3)

Citing:

Cited – Cavendish Woodhouse Ltd v Wright 8-Mar-1985
If a salesman in a shop makes representations to say that he could supply goods identical to a sort described, the description becomes attached to the goods delivered for the purposes of the Act, and if it is false, it is a false description. The . .
Cited – Beckett v Cohen QBD 1972
. .
Cited – British Airways Board v Taylor HL 1976
Lord Wilberforce said: ‘My Lords, the distinction in law between a promise as to future action, which may be broken or kept, and a statement as to existing fact, which may be true or false, is clear enough. There may be inherent in a promise an . .
Cited – Regina v Ford Motor Company Limited QBD 1974
The alleged false trade description was that a car supplied to a garage was ‘new’, as ordered from Fords.
Held: (Appeal allowed on other grounds) The effect of the order was that Parkway was seeking the supply from Fords of a ‘new vehicle’. . .
Cited – Louis C Edwards (Manchester) Limited v Charles Miller CA 1981
A local County Council asked for tenders for meat. It specified the maximum depth of subcutaneous fat of pork. A school cook ordered pork without making any reference to the depth of the fat. A quantity of pork was thereafter delivered. The pork did . .
Cited – Denard v Smith and Dixons QBD 1991
A Christmas Dixons were offering, both in their brochures and by a placard in the store, a computer, joystick and four software packages, including Nintendo games, all for andpound;149.95. A Mrs Grover decided to buy this from Dixons, her son being . .
Lists of cited by and citing cases may be incomplete.

Crime, Consumer, Contract

Updated: 25 May 2022; Ref: scu.136924

Jones v Morgan: CA 28 Jun 2001

The claimant appealed against an order refusing him enforcement an agreement for the purchase of a one half share in a property. The judge had found the agreement to be unconscionable.
Held: The appeal was dismissed. The judge had wrongly attributed to the claimant an understanding of the amendments to the standard document for which there had been no evidence given. The doctrine that a mortgagee could not extract, under his charge, any collateral contract to purchase or stipulate for an option to purchase, any part of an interest in the mortgaged property, survived in English law but, that doctrine, against allowing anything to act as a clog on the equity of redemption, no longer serves a useful purpose in English law, and would be better if excised.
As to the former rule against a clog on the equity of a redemption, Chadwick LJ summarised the principles: ‘ (i) there is a rule that a mortgagee cannot as a term of the mortgage enter into a contract to purchase, or stipulate for an option to purchase, any part of or interest in the mortgaged property; (ii) the foundation of the rule is that a contract to purchase, or an option to purchase, any part of or interest in the mortgaged property, is repugnant to or inconsistent with the transaction of mortgage of which it forms part, and so must be rejected; (iii) the reason why the contract or option to purchase is repugnant to or inconsistent with the mortgage transaction is that it cannot stand with the contractual proviso for redemption or with the equitable right to redeem – the proviso for redemption (and, where the contractual date for redemption is past, the equitable right to redeem) requires the mortgagee to reconvey the mortgaged property to the mortgagor in the state in which it had been conveyed to him at the time of the mortgage; and (iv) it is essential, in any case to which the rule is said to apply, to consider whether or not the transaction is, in substance, a transaction of mortgage.’
Lord Phillips MR said: ‘the doctrine of a clog on the equity of redemption is, so it seems to me, an appendix to our law which no longer serves a useful purpose and would be better excised.’

Judges:

Lord Phillips of Worth Matravers MR, Pill LJ, Chadwick LJ

Citations:

Times 24-Jul-2001, [2001] EWCA Civ 995, (2001) 82 P and CR DG20, [2001] NPC 104, [2001] Lloyds Rep Bank 323, [2002] 1 EGLR 125

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Pao On and Others v Lau Yiu Long and Others PC 9-Apr-1979
(Hong Kong) The board was asked whether a contract of guarantee had been obtained by duress.
Held: Lord Scarman said: ‘Duress, whatever form it takes, is a coercion of the will so as to vitiate consent. Their Lordships agree with the . .
Cited – Universe Tankships Inc of Monrovia v International Transport Workers Federation HL 1-Apr-1981
A ship belonging to the appellants had been blacked by the defendant union. Negotiations to clear the threat resulted in payment by the appellants to a welfare fund of the defendant. The company sought its refund saying that it had been paid under . .
Cited – G and C Kreglinger v The New Patagonian Meat and Cold Storage Company HL 20-Nov-1913
Mortgagor’s collateral dvantage is not a clog
The appellant woolbrokers had lent the respondent andpound;10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The . .
Cited – Credit Lyonnais Bank Nederland Nv v Burch CA 20-Jun-1996
The defendant had charged her property to secure her employer’s debt. When the bank sought repossession, she said that the charge had been affected by the undue influence and that the terms of the charge were so harsh and inconscionable that a court . .
Cited – CTN Cash and Carry v Gallaher CA 15-Feb-1993
The buyer paid a sum demanded by the seller who threatened otherwise to withdraw the credit facilities it provided to the buyer. The sum was not in fact due, but the demand had been made honestly. The buyer said the agreement was voidable for . .
Cited – Alec Lobb (Garages) Ltd v Total Oil Ltd QBD 1983
To establish that a contract was unconscionable, a party had to have made an unconscientious use of its superior position or superior bargaining power to the detriment of someone suffering from some special disability or disadvantage. This weakness . .
Cited – Noakes and Co Ltd v Rice HL 17-Dec-1901
Rule Against Clog on equity of Redemption
A mortgage of a leasehold public house contained a covenant with the mortgagee, a brewery, that the mortgagor and his successors in title would not, during the continuance of the leasehold term and whether or not any money should be owing on the . .
Cited – Reeve v Lisle and others CA 1902
The parties had entered into a series of agreements for loans, and partnerships. The defendants resisted a request by the plaintiff to be allowed, under the agreement, into partnership on a failure to repay the loan.
Held: The appeal . .
Cited – Reeve v Lisle and others HL 1902
In 1896 the plaintiffs agreed to lend andpound;5,000 to the defendant to be secured by a ship mortgage (executed later), requiring that if at any time during the period of two years the plaintiffs should elect to enter into partnership with the . .
Cited – Bradley v Carritt HL 11-May-1903
Shares in a tea company had been mortgaged to secure a loan from a broker on terms that the mortgagor would seek to ensure that the mortgagee should thereafter have sale of the company’s teas. The mortgage contained a covenant that, if the company . .
Lists of cited by and citing cases may be incomplete.

Land, Equity, Contract, Banking

Updated: 25 May 2022; Ref: scu.136162

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 defendants claim for exemption failed. The clause did not satisfy the first two tests set down in the Canada Steamship case, and the controversial third test could be ignored.

Citations:

[2000] EWHC Technology 66

Links:

Bailii

Statutes:

Unfair Contract Terms Act 1977

Jurisdiction:

England and Wales

Citing:

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 – Lamport and Holt Lines v Coubro, The Raphael CA 1982
The court considered how it should treat the construction of a contractual clause claiming that one party should be exempt from liability for its own negligence: ‘Thus, if an exemption clause of the kind we are considering excludes liability for . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – E E Caledonia Ltd v Orbit Valve Plc CA 30-May-1994
A clause providing for an indemnity against any claim arising from the manner of performance was not to be construed to cover negligence. ‘The printed conditions in the agreement in this case were plainly drafted by a lawyer. Why was an express . .
Cited – E E Caledonia Ltd v Orbit Valve Plc QBD 1994
A clause which gave an indemnity against any claim arising from the manner of performance of the contract by one party was not to be construed to exempt negligence: ‘The principle is that in the absence of clear words the parties to a contract are . .
Cited – Industrie Chimiche v Nea Ninemia Shipping 1983
Construction of exemption clause in time charterparty: ‘Since it is inherently improbable that one party to a contract should intend to absolve the other party from the consequences of the latter’s own negligence, the court will presume a clause not . .
Cited – 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 – Walters v Whessoe CA 1968
The court looked at clauses exempting a party from liability for negligence.
Sellers LJ said: ‘It is well established that indemnity will not lie in respect of loss due to a person’s negligence or that of his servants unless adequate or clear . .
Limited – 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 . .
Cited – 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 . .
Mentioned – Lamport and Holt Lines v Coubro and Scrutton (M and I) Ltd, (The Raphael) 1982
. .
Lists of cited by and citing cases may be incomplete.

Contract, Construction, Consumer

Updated: 23 May 2022; Ref: scu.135712

The Owners And/Or Demise Charterer Of The Ship Or Vessel ‘Starsin’ v The Owners Of The Cargo Lately Laden Aboard The Ship Or Vessel ‘Starsin’: CA 23 Jan 2001

Citations:

[2001] 1 Lloyd’s Rep 437, [2001] EWCA Civ 56

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – The Owners And/Or Demise Charterer Of The Ship Or Vessel ‘Starsin’ v The Owners Of The Cargo Lately Laden Aboard The Ship Or Vessel ‘Starsin’ ComC 2000
. .

Cited by:

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

Transport, Contract

Updated: 23 May 2022; Ref: scu.135610

LHS Holding Ltd v Laporte Plc: CA 21 Jan 2001

Citations:

[2001] EWCA Civ 278, [2001] 2 All ER (Comm) 563

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Company, Contract

Updated: 23 May 2022; Ref: scu.135611

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 to permit the latter claim to be the subject of an equitable set-off against the former claim.
Held: The degree of closeness required for an equitable or transaction set-off was that of an ‘inseparable connection’, but it was not necessary that the cross-claim should arise out of the same contract. All that was required was that it should flow from the dealings and transactions which gave rise to the subject of the claim.
Potter LJ said: ‘Like the Judge, I consider that Mr. Turner’s submissions for Blackburn are correct. In so holding, again like the Judge, I regard it as appropriate to apply the test propounded by Lord Brandon in the Bank of Boston case unconstrained by the former concept, difficult to define and apply, of ‘impeachment of title’, which has since been replaced, or at least redefined, in terms of a cross-claim which ‘flows out of and is inseparably connected with the dealings and transactions giving rise to the subject in the claim’. While the circumstances of every case call for individual consideration, it seems to be that the Dole Fruit case provides a useful parallel with the situation in this case. There, the Court was satisfied there was a sufficiently close connection in the case of a claim for the price of goods sold and delivered pursuant to a contract made under the ‘umbrella’ of a distributorship agreement which had been repudiated.’

Judges:

Potter LJ, Sedley LJ, Jonathan Parker LJ

Citations:

[2001] 2 Ll Rep 93, [2001] EWCA Civ 457, [2001] CLC 1166, [2001] 2 Lloyd’s Rep 93

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See also – Bim Kemi Ab v Blackburn Chemicals Ltd ComC 30-Jan-2002
. .
See also – Bim Kemi Ab v Blackburn Chemicals Ltd CA 13-Feb-2003
. .
See also – Bim Kemi Ab v Blackburn Chemicals Ltd 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 . .
See also – Bim Kemi Ab v Blackburn Chemicals Limited ComC 6-Feb-2004
. .
Cited – Benford Ltd and Another v Lopecan Sl QBD 30-Jul-2004
The parties disputed the coverage agreed under a distribution agreement.
Held: ‘The counterclaim operated as a defence by way of set off. In order to establish that defence the defendant will have to prove the losses pleaded . . . Until the . .
Cited – Inveresk Plc v Tullis Russell Papermakers Ltd SC 5-May-2010
The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that . .
See Also – Bim Kemi Ab v Blackburn Chemicals Ltd SCCO 24-Jun-2003
. .
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 – 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.

Equity, Contract

Updated: 23 May 2022; Ref: scu.135513

Scottish and Newcastle Plc v G D Construction (St Albans) Ltd: TCC 29 Mar 2001

The defendant contracted to refurbish premises belonging to the claimant. A fire caused by a sub-contractor caused damage, and the cost was sought from the defendant. He claimed that the standard form contract excluded its liability, including damages for interruption of business. The contract required the employer to take out joint names insurance in respect of such risks, but did that obligation include an obligation to insure against business interruption. Where a party sought to be excused from his own negligence under the contract, he should show some consideration for that excuse. The reference to damage did not include damages for interruption to business, and the defendant was not excused liability.

Judges:

udge Richard Seymour Q.C.

Citations:

[2001] EWHC Technology 444

Links:

Bailii

Citing:

Cited – Co-operative Retail Services Ltd v Taylor Young Partnership, Hoare Lea and Partners (a Firm) and Others CA 4-Jul-2000
A building owner entered into a standard form of building contract for the construction of office premises. Under its terms the contractor was required to take out and maintain a policy in the names of the owner, the contractor and specialist . .
Lists of cited by and citing cases may be incomplete.

Construction, Contract

Updated: 23 May 2022; Ref: scu.135520

Stocznia Gdanska S A v Latvian Shipping Co and Others: HL 22 Jan 1998

The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: ‘In both actions the yard should now be allowed to amend its pleadings to set out the basis or bases on which it claims damages, and the buyers will, of course, be free to respond in the normal way. ‘

Judges:

Lord Goff of Chieveley, Lord Lloyd of Berwick, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton

Citations:

Times 27-Feb-1998, Gazette 16-Apr-1998, [1998] UKHL 9, [1998] 1 WLR 574, [1998] 1 All ER 883

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

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 – Latreefers Inc and others v Hobson and others ChD 25-Jul-2002
. .
Cited – Hyundai Heavy Industries Co Ltd v Papadopoulos HL 1980
A shipbuilding contract provided that the second instalment of the contract price should be payable on a day certain. It gave the builders the right to rescind the contract in the event of non-payment. The buyers failed to pay the second instalment, . .
Cited – Dies v British and International Mining and Finance Corporation Ltd 1939
Deposit forfeit requires Readiness to Complete
A seller’s title to retain a deposit or instalment is conditional upon his completing the contract. Rights of restitution for failure of consideration do not depend on the absence of fault of the plaintiff.
A party who commits a repudiatory . .
Cited – Modern Engineering (Bristol) Ltd v Gilbert Ash (Northern) Ltd HL 1974
The court considered how to construe a clause in a contract which excluded a remedy provided by law. Lord Diplock said: ‘It is, of course, open to parties to a contract . . to exclude by express agreement a remedy for its breach which would . .
Cited – White and Carter (Councils) Ltd v McGregor HL 6-Dec-1961
Contractor not bound to accept Renunciation
Mr McGregor contracted with the appellants for them to display advertisements for three years on litter bins. The contract was made on his behalf by an employee, without specific authority. On the day it was made, he sought to cancel the contract. . .
Cited – BP Exploration Co (Libya) Ltd v Hunt 1976
The fact that the contract was governed by English law was the predominating factor to be borne in mind when deciding jurisdiction.
The court should be careful before describing as non-disclosure as material not included in an affidavit in . .
Cited – BP Exploration Co (Libya) Ltd v Hunt (No 2) 1979
The contract between the parties relating to an oil concession in Libya had been frustrated by the nationalisation of the field.
Held: The court considered the setting of damages where the plaintiff had delayed in notifying the defendant of . .

Cited by:

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 – Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 May 2022; Ref: scu.135189

Sandoz Prodotti Farmaceutici v Commission: ECJ 11 Jan 1990

ECJ 1. The systematic dispatching by a supplier to his customers of invoices bearing the words ‘Export prohibited’ constitutes an agreement prohibited by Article 85(1 ) of the Treaty, and not unilateral conduct, when it forms part of a set of continuous business relations governed by a general agreement drawn up in advance, based on the consent of the supplier to the establishment of business relations with each customer prior to any delivery and the tacit acceptance by the customers of the conduct adopted by the supplier in their regard, which is attested by renewed orders placed without protest on the same conditions.
2. In order to constitute an agreement within the meaning of Article 85 of the Treaty it is sufficient that a provision is the expression of the intention of the parties (see judgment of 29 October 1980 in Joined Cases 209 to 215, and 218/78 Van Landewyck v Commission ((1980)) ECR 3125 ), without its being necessary for it to constitute a valid and binding contract under national law.
3. For the purpose of the application of Article 85(1 ) there is no need to take account of the concrete effects of an agreement when it has as its object the prevention, restriction or distortion of competition within the common market ( see judgment of 13 July 1966 in Joined Cases 56 and 58/64 Consten and Grundig v Commission ((1966)) ECR 299 ). In such a case the absence in the Commission’ s decision of any analysis of the effects of the agreement from the point of view of competition does not constitute a defect capable of justifying a declaration that it is void.
In the same way, the fact that a supplier may not have taken steps to ensure the observance by his customers of a contractual clause intended to restrict competition is not sufficient to remove that clause from the prohibition of Article 85(1 ) of the Treaty ( see judgment of 21 February 1984 in Case 86/82 Hasselblad v Commission (( 1984 )) ECR 883 ).
4. In determining the amount of fines to be imposed pursuant to Article 15(2 ) of Regulation No 17, it is necessary to take account of all matters relevant to an assessment of the seriousness of the infringement, as well as the conduct of the undertaking during the course of the administrative proceeding.

Judges:

C N Kakouris, P

Citations:

C-277/87, [1990] EUECJ C-277/87

Links:

Bailii

Jurisdiction:

European

Contract

Updated: 23 May 2022; Ref: scu.134713

Crawford and Law v Allan Line Steamship Co Ltd: HL 19 Dec 1911

Where a through bill of lading has been signed, inter alios, on behalf of the last carriers, the shipowners, providing that each carrier is only to be liable for damage occurring on his portion of the route, and acknowledging that the goods have been received in good order at the beginning of the transit, and the last carriers have taken no exception to the condition of the goods when handed over to them, they are liable for any damage discovered unless they prove it occurred previously.

Judges:

Lord Chancellor (Loreburn), Earl of Halsbury, Lord Atkinson, Lord Gorell, and Lord Shaw

Citations:

[1911] UKHL 117, 49 SLR 117

Links:

Bailii

Jurisdiction:

Scotland

Contract, Transport

Updated: 23 May 2022; Ref: scu.619221

Brown v Turner Brightman and Co: HL 30 Oct 1911

A time-charter of a ship contained the following exceptions -‘The owners and charterers shall be mutually absolved from liability in carrying out this contract in so far as they may be hindered or prevented by . . strikes.’ The charterers ordered the ship to the port of N. at a time when to their knowledge a strike was there in operation. Owing to the strike the ship could not obtain a cargo at N. Under the charter-party the charterers could have withdrawn the vessel from the area of the strike and traded with it elsewhere. The charterers refused to pay hire for the period of the ship’s stay at N.
Held that the charterers were not protected by the exception, and were bound to pay the hire.

Judges:

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

Citations:

[1911] UKHL 679

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 23 May 2022; Ref: scu.619213

Laird and Son v Bank of Scotland and Others: HL 1 Dec 1911

Circumstances in which their Lordships held, following the judgment of the Lord Ordinary who had taken a proof, that certain logs of timber lying in a store had been sufficiently identified and appropriated as belonging to a transferee so as to transfer the property to him.

Judges:

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

Citations:

[1911] UKHL 95

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 23 May 2022; Ref: scu.619225

Bruner v Moore: 1904

The seller had granted to the buyer a option in return for the payment of a sum of money. The option contract gave the grantee the right to require the grantor to sell if the grantee exercised the option within the stipulated period. The court considered the application of the rule as to actual acceptance in the postal rule in contract law in an option context.
Held: The parties must have contemplated that the post might be used as a means of communicating the exercise of the option and that therefore the option was exercised when the grantee sent a telegram to that effect addressed to the grantor.
Despite the option not being formally exercised, there was nothing to prevent the parties from coming to a subsequent agreement extending the period of the option.

Judges:

Farwell J

Citations:

[1904] 1 Ch 305

Jurisdiction:

England and Wales

Cited by:

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

Contract

Updated: 22 May 2022; Ref: scu.276448

Nirah Holdings Ltd v British Agricultural Services Ltd and Another: ComC 11 Sep 2009

The parties entered into an option agreement giving the claimant a right to purchase the defendant’s land. The consideration would be affected by the costs of complying with a section 106 agreement to construct local ancillary services. The parties disputed whether the land owners were obliged to agree to the agreement requested.
Held: The claim succeeded, and the land-owners were obliged to proceed. The defendants had sufficient information to be able to decide their response, and the agreement required them to give the appropriate consent, and the claimants were not required to show which of several access routes would be chosen. The claimants had not wrongfully varied the planning application.

Judges:

Beatson J

Citations:

[2009] EWHC 2282 (Comm)

Links:

Bailii

Statutes:

Town and Country Planning Act 1990 106

Jurisdiction:

England and Wales

Citing:

Cited – Grampian Regional Council v City of Aberdeen District Council 1984
The extinguishment of a private right is not a proper matter for a condition attached to a planning permission, even though a negative condition preventing development until a highway has been stopped up is unobjectionable. . .
Cited – Tesco Stores Ltd v Secretary of State for the Environment and Others HL 11-May-1995
Three companies had applied for permission to build retail food superstores in Witney. The Inspector had recommended Tesco’s proposal, but the respondent rejected it. Tesco’s had offered to provide by way of a section 106 agreement full funding for . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 22 May 2022; Ref: scu.374711

Richard Pool v Council of the European Communities (Rec 1980,P 569) (Gr80-I 0295) (Judgment): ECJ 4 Mar 1980

Europa 1. Non-contractual liability – conditions – illegality – damage – chain of causality (EEC Treaty, art. 215, second paragraph)
2. Agriculture – common organization of the markets – beef and veal – price system – right of producers to precise price levels of community rules – none (regulation no 805/68 of the council)
1. The non-contractual liability of the community under the second paragraph of article 215 of the EEC Treaty depends on the coincidence of a set of conditions as regards the unlawfulness of the acts alleged against the institution, the fact of damage, and the existence of a direct link in the chain of causality between the wrongful act and the damage complained of.
2. The price system which is an integral part of the common organization of the market in beef and veal – established by regulation no 805/68 – does not have the effect of guaranteeing to individual traders that their produce will be disposed of at the precise price level determined by community rules. That level, expressed in units of account, does not therefore constitute a value which could be used as a basis for comparison with the prices obtained by a producer on the market with a view to demonstrating that certain damage has been caused.

Citations:

C-49/79, [1980] EUECJ C-49/79

Links:

Bailii

European, Contract, Agriculture

Updated: 21 May 2022; Ref: scu.132844

Jani-King (GB) Ltd v Pula Enterprises Ltd and others: QBD 23 Oct 2007

Judges:

Peter Coulson QC J

Citations:

[2007] EWHC 2433 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Approved – Martin v David Wilson Homes Ltd CA 28-Jun-2004
The court considered the construction of a restrictive covenant, and was asked whether an indefinite article ‘a private dwellinghouse’ was to be construed as a limitation of number or whether it was to be construed as being as to the manner of use. . .
Adopted – Bedfordshire County Council v Fitzpatrick Contractors Ltd TCC 16-Oct-1998
Dyson J refused to imply a term of trust and confidence into a highway maintenance contract, stating: ‘the court should in any event be very slow to imply into a contract a term, especially one which is couched in rather general terms, where the . .

Cited by:

Cited – Mr H TV Ltd v ITV2 Ltd ComC 8-Oct-2015
The claimant had contracted with the defendant for the production of a series of reality TV shows featuring celebrities. After severe personal clashes between the people involved on the claimants side, the contract was terminated. The claim was that . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 21 May 2022; Ref: scu.261567

Brennan v National Westminster Bank Plc: QBD 27 Nov 2007

The claimant, a customer of the defendant had been charged sums when he went overdrawn beyond his limit. He claimed that the sums were unlawful penalties under the Regulations. The bank said that it had refunded the charges. The claimant sought exemplary and aggravated damages.
Held: The claim should not proceed. The claimant had deliberately sought to prevent the bank repaying the charges, but the bank had repaid the sums deducted with additional sums. There was nothing in the bank’s behaviour to suggest a claim in tort which might found a claim for additional damages.
Pitchford J said: ‘The overriding objective requires the court to deal with a case proportionately, expeditiously and fairly and to allot to it an appropriate share of the court’s resources. It would be disproportionate, in my view, to permit this action to proceed to trial simply for the purpose of placing the bank and the claimant under the spotlight of publicity.’

Judges:

Pitchford J

Citations:

[2007] EWHC 2759 (QB)

Links:

Bailii

Statutes:

Unfair Terms in Consumer Contracts Regulations 1999, Council Directive 93/13

Jurisdiction:

England and Wales

Citing:

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 – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Cited – Garden Cottage Foods Ltd v Milk Marketing Board HL 1984
In English law a breach of statutory duty, is actionable as such by a private individual to whom loss or damage is caused by a breach of that duty. Lord Diplock said that it was quite unarguable: ‘that if such a contravention of Article 86 gives . .
Cited – Verein fur Konsumenteninformation v Karl Heinz Henkel ECJ 1-Oct-2002
Europa Brussels Convention – Article 5(3) – Jurisdiction in matters relating to tort, delict or quasi-delict – Preventive action by associations – Consumer protection organisation seeking an injunction to prevent . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract, Consumer, Damages

Updated: 21 May 2022; Ref: scu.261576

Mullins v Mcfarlane and the Jockey Club: QBD 5 May 2006

Whether horse had been wrongly disqualified in a race.

Judges:

Stanley Burnton J

Citations:

[2006] EWHC 986 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Mullins, Regina (on the Application of) v The Jockey Club Admn 17-Oct-2005
The claimant’s horse had been found after a race to have morphine in his system. It was not thought that the claimant was at fault, but the horse was disqualifed. He sought judicial review of the decision.
Held: The decision was a disciplinary . .

Cited by:

Cited – Stretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 21 May 2022; Ref: scu.241503

In re Southern Livestock Producers Ltd: 1964

In the absence of special agreement the agister has no lien upon the livestock as he merely takes care of them and supplies them with food. Pennycuick J referred to the distinction between improvement and repair. An obligation to take care of pigs was held to be no more than maintaining them and insufficient to found a worker’s lien.

Judges:

Pennycuick J

Citations:

[1964] 1 WLR 24

Jurisdiction:

England and Wales

Cited by:

Cited – Your Response Ltd v Datateam Business Media Ltd CA 14-Mar-2014
The claimant employed the defendant to manage subscription lists for the claimant’s magazines. The claimant came to seek damages, and the defendant for non-payment of its invoices. The court was now asked whether it was possible to assert a common . .
Lists of cited by and citing cases may be incomplete.

Contract, Animals

Updated: 20 May 2022; Ref: scu.559376

Howard v Shirlstar Container Transport Ltd: CA 1990

The parties contracted for the recovery from Nigeria of an aircraft owned by the defendants which was being detained by the Nigerian authorities at Lagos. Under the contract, the plaintiff was entitled to recover a fee of andpound;25,000 if he ‘successfully’ removed the aircraft from Nigerian airspace. He succeeded in so doing, in so far as he, at some risk to his life, flew the aircraft out of Lagos as far as the Ivory Coast, where however the aircraft was impounded by the authorities and returned by them to Nigeria. The plaintiffs claim for the balance of his fee was met by the defence of illegality, on the ground that he took off without obtaining the necessary clearance in breach of air traffic control regulations at Lagos; in fact he had left in a hurry, without obtaining clearance, because he had been warned that his and his wireless operator’s lives were in danger and that he would not be given permission to take off.
Held: The defence of illegality failed. The Court relied explicitly on the public conscience test, holding that the conscience of the court would not be affronted by enforcing the plaintiffs claim under the contract for the balance of his fee.
The presumption against surplusage is of little weight in the interpretation of commercial contracts.

Judges:

Staughton LJ

Citations:

[1990] 1 WLR 1292, [1990] 3 All ER 366

Jurisdiction:

England and Wales

Cited by:

Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 20 May 2022; Ref: scu.553658

Zenziper Grains and Feed Stuffs v Bulk Trading Corporation Ltd: CA 23 Jan 2001

Where a standard form free-on-truck (FOT) delivery contract provided for several possible destinations for delivery, the responsibility for specifying the place of delivery fell on the seller. There was no proper analogy with an FOB contract. The vessel would be chartered by the seller, and delivered to a port agreed between the seller and the ship-owner, and the characteristics of the ship itself could restrict and control the port of delivery. There would be likely to be other goods consigned also, and it would not make commercial sense for the buyer to specify the port of delivery.

Citations:

Times 23-Jan-2001, [2000] EWCA Civ 307

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Commercial, Transport

Updated: 20 May 2022; Ref: scu.90687

Watford Electronics Ltd v Sanderson CFL Ltd: CA 23 Feb 2001

The plaintiff had contracted to purchase software from the respondent. The system failed to perform, and the defendant sought to rely upon its exclusion and limitation of liability clauses.
Held: It is for the party claiming that a contract term satisfies the requirement of reasonableness to show that it does. To decide whether term was fair and reasonable having regard to the circumstances known to parties when the contract was made it is necessary to determine its scope and effect of that term as a matter of construction. The fact that the plaintiff had similar clauses in its own terms did not prevent them challenging the reasonableness of the defendant’s terms, but it did show that it was commercially aware of the nature and purpose of such provisions. The entire agreement clause coloured the intent to be ascribed to the limitation of liability clause, particularly when the parties had had the benefit professional help in negotiations. Because the judge had failed to allow for the effect of the entire agreement clause, his decision to strike down the limit of liability clause was flawed, and a declaration was made accordingly.
Chadwick LJ said that where experienced business men, representing substantial companies of equal bargaining power negotiate an agreement, they may be taken to have had regard to the matters known to them and to be the best judges of the commercial fairness and reasonableness of the agreement which they have reached including the fairness of each of the terms of the agreement.
Chadwick LJ said: ‘Where experienced businessmen representing substantial companies of equal bargaining power negotiate an agreement, they may be taken to have had regard to the matters known to them. They should, in my view be taken to be the best judge of the commercial fairness of the agreement which they have made; including the fairness of each of the terms in that agreement.’ In this case, a term excluding indirect loss, applicable in the circumstances described, was a fair and reasonable one to include in the contract.

Judges:

Lord Justice Peter Gibson, Lord Justice Chadwick And Mr Justice Buckley

Citations:

Gazette 03-May-2001, [2001] EWCA Civ 317, [2001] 1 All ER (Comm) 696, [2001] BLR 143, [2002] FSR 19, (2001) 3 TCLR 14, [2001] Masons CLR 57

Links:

Bailii

Statutes:

Misrepresentation Act 1967, Unfair Contract Terms Act 1977 3

Jurisdiction:

England and Wales

Citing:

Cited – George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd HL 1983
A seedsman sought to rely upon an exclusion clause preventing any claim by a purchaser by way of set off against its sales invoices. The House was asked whether a contractual term was ‘fair and reasonable’ within the meaning of section 55 of the . .
Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
Cited – Victoria Laundry (Windsor) Ltd v Newman Industries CA 1949
The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses . .
Cited – Cullinane v British ‘Rema’ Manufacturing Co Ltd CA 1954
The court considered the possibility of a claim in breach of contract for damages for both capital loss and loss of profit.
Lord Evershed MR said: ‘It seems to me, as a matter of principle, that the full claim of damages in the form in which . .
Cited – E A Grimstead and Son Limited v McGarrigan CA 13-Oct-1998
. .
Cited – Lowe v Lombank Ltd CA 1960
A false statement made about a matter of past fact could not operate either as an estoppel by representation or (where the fact is expressed as an agreement) a contractual estoppel. The court set out three criteria for an evidential estoppel: it . .
Cited – Thomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .

Cited by:

Cited – Kingsway Hall Hotel Ltd v Red Sky IT (Hounslow) Ltd TCC 6-May-2010
The claimant said that the software supplied to it was not fit for purpose. The defendant said that the company had relied on its own inspections of what was a standard package, and had not made known its desire to use it in a specific context. The . .
Cited – Morgan and Another v Pooley and Another QBD 7-Oct-2010
The claimants had bought a property from the defendants and now sought damages in misrepresentation saying that the defendants had failed to disclose a planning application for an adjacent farm as regards a track bordering the property.
Held: . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 20 May 2022; Ref: scu.90319

Total Gas Marketing Ltd v Arco British Ltd and Others: HL 20 May 1998

A contract to purchase supplies over a long period of time, with a condition precedent that a particular facility would be provided was terminable when the facility had not been provided.

Judges:

Lord Slynn of Hadley, Lord Nolan, Lord Steyn, Lord Hope of Craighead, Lord Hutton

Citations:

Times 08-Jun-1998, [1998] UKHL 22

Links:

House of Lords, Bailii

Contract

Updated: 20 May 2022; Ref: scu.89925

Lambert v Lewis: HL 1981

A farmer was sued when a towing hitch on his Landrover came loose, releasing the trailer which then caused a serious accident. When sued for the damage, the farmer brought proceedings against the garage proprietor who supplied the towing hitch, relying on the warranty. By the time the accident occurred, the farmer had been aware that the locking mechanism on the towing hitch was faulty, but he had continued to use it.
Held: The farmer’s claim against the garage was rejected.
Lord Diplock said: ‘I would accept that in the case of the coupling the warranty was still continuing up to the date, some three to six months before the accident, when it first became known to the farmer that the handle of the locking mechanism was missing. Up to that time the farmer would have had a right to rely upon the dealers warranty as excusing him from making his own examination of the coupling to see if it were safe . . After it had become apparent to the farmer that the locking mechanism of the coupling was broken, and consequently that it was no longer in the same state as when it was delivered, the only implied warranty which could justify his failure to take the precaution either to get it mended or at least to find out whether it was safe to continue to use it in that condition, would be a warranty that the coupling could continue to be safely used to tow a trailer on a public highway notwithstanding that it was in an obviously damaged state. My Lords, any implication of a warranty in these terms needs only to be stated, to be rejected . . In the state in which the farmer knew the coupling to be at the time of the accident, there was no longer any warranty by the dealers of its continued safety in use on which the farmer was entitled to rely.
. . The farmer’s liability arose, not from the defective design of the coupling but from his own negligence in failing, when he knew that the coupling was damaged, to have it repaired or to ascertain if it was still safe to use. The issue of causation, therefore, on which the farmer’s claim against the dealers depended, was whether his negligence resulted directly and naturally, in the ordinary course of events from the dealer’s breach of warranty. Manifestly it did not.’

Judges:

Lord Diplock

Citations:

[1982] AC 225, [1981] 1 All ER 1185, [1981] RTR 346, [1981] 2 Lloyds Rep 17, [1981] 2 WLR 713

Jurisdiction:

England and Wales

Cited by:

Cited – Borealis Ab v Geogas Trading Sa ComC 9-Nov-2010
The parties had contracted for sale and purchase of butane for processing. It was said to have been contaminated. The parties now disputed the effect on damages for breach including on causation, remoteness, mitigation and quantum.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 20 May 2022; Ref: scu.425893

Vyse v Wakefield: 1840

The declaration stated, that, by indenture, the defendant covenanted that he would, at any time or times thereafter, appear at an office or offices for the insurance of lives within London, or the bills of mortality, and answer such questions as might be asked respecting his age, and, in order to enable the plaintiff to ensure his life, and would riot afterward do or permit to be done any act whereby such insurance should be avoided or prejudiced. It then alleged, that the defendant, in part performance of his covenant, did, at the plaintiff’s request, appear at the office of the Rock Life Insurance Company, and did answer certain questions asked of him ; and that the plaintiff insured the defendant’s life with that Company, by a policy containing a proviso, that if the defendant went beyond the limits of Europe, the policy should be null and void : – Breach, that the defendant went beyond the limits of Europe, to wit, to the province of Canada, in North America :- Held, on special demurrer, that the declaration was bad, for not averririg that the defendant had notice that the policy was effective.
Lord Abinger CB said: ‘The rule to be collected from the cases seems to be this, that where a party stipulates to do a certain thing in a certain specific event which may become known to him, or with which he can make himself acquainted, he is not entitled to any notice, unless he stipulates for it; but when it is to do a thing which lies within the peculiar knowledge of the opposite party, this notice ought to be given.’

Judges:

Lord Abinger CB

Citations:

[1840] EngR 276, (1840) 6 M and W 442, (1840) 151 ER 485

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Vyse v Wakefield CExC 1840
A writ of error having been brought an the judgment of the Court of Exchequer in this case (6 M. and W 442), it now came on for argument. The Court, however, on reading the record, were unanimously of opinion, that an averment of notice to the . .

Cited by:

Cited – Edwards v Kumarasamy SC 13-Jul-2016
The claimant sub-tenant had been injured entering the block of apartments. He said that the freeholder was responsible despite no report of the disrepair having been made. The lease excused the landlord from unnotified liability. The parties . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 20 May 2022; Ref: scu.309702

Vyse v Wakefield: CExC 1840

A writ of error having been brought an the judgment of the Court of Exchequer in this case (6 M. and W 442), it now came on for argument. The Court, however, on reading the record, were unanimously of opinion, that an averment of notice to the defendant that the policy had been affected was necessary to make the declaration good, arid that the judgment must he affirmed.
Judgment affirmed.

Citations:

[1840] EngR 277, (1840) 7 M and W 126, (1840) 151 ER 706 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See Also – Vyse v Wakefield 1840
The declaration stated, that, by indenture, the defendant covenanted that he would, at any time or times thereafter, appear at an office or offices for the insurance of lives within London, or the bills of mortality, and answer such questions as . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 20 May 2022; Ref: scu.309703

Raffety v Schofield: 1897

Duty of vendor of land between exchange and completion to keep property in reasonable state of repair and as it was when contract was made.

Citations:

[1897] 1 Ch 937

Jurisdiction:

England and Wales

Cited by:

Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 May 2022; Ref: scu.223745

Bensaude v Thames and Mersey Marine Insurance Co Ltd: HL 1897

Citations:

[1897] AC 609

Jurisdiction:

England and Wales

Cited by:

Cited – Limit (No 3) Ltd and others v PDV Insurance Company CA 11-Apr-2005
There had been substantial oil leaks in Venezuela, which had been insured and then re-insured in London. Permission had been given to serve the defendant out of the jurisdiction, but that permission had been set aside. The claimant now appealed.
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 19 May 2022; Ref: scu.225891

Davis and Jordan v James: 1770

Citations:

(1770) 5 Burr 2680

Jurisdiction:

England and Wales

Cited by:

Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 May 2022; Ref: scu.218903

Hector v Lyons: 1988

The appellant contracted to buy a house but used his under-aged son’s name. He sought specific performance when the vendor failed to complete.
Held: Since he was neither the purchaser nor the purchaser’s agent, specific performance was refused. In unilateral mistake case goods are sold by V, to P, believing P to be X. P may fraudulently represent that he is X. In a face to face sale, the fact that V mistakes the identity of X does not render the contract void for mistake. It is a unilateral mistake as to a quality of the purchaser; only in cases where the identity of the purchaser is of direct and important materiality in inducing the vendor to enter into the contract is a mistake of that kind capable of avoiding the contract. Those principles have no application where the contract is wholly in writing. The identity of the parties is established by the names put in the contract. Once there, the court’s only task is to identify who they are. ‘In the present case the deputy judge has found as a fact that the party named in the written contract was Mr. Hector junior. It follows, in my judgment, that in the absence of rectification, which has not been claimed, or Mr. Cogley’s alternative argument based on agency the only person who can enforce that contract is the party to it, namely Mr. Hector junior.’

Judges:

Sir Nicolas Browne-Wilkinson V-C

Citations:

(1988) 58 PandCR 156

Jurisdiction:

England and Wales

Citing:

Cited – Lewis v Averay CA 22-Jul-1971
A private seller had parted with his car in return for a worthless cheque to a rogue who persuaded him that he was the well-known actor who played Robin Hood on television, and who sold it on to the defendant.
Held: ‘When two parties have come . .
Cited – King’s Norton Metal Co Ltd v Edridge Merrett and Co Ltd CA 1879
A crook ordered some brass rivet wire from a metal manufacturer. On his stationery he represented falsely that he was in business in a big way, running a large factory and having several depots and agencies. The manufacturer supplied the goods but . .

Cited by:

Cited – Norman Hudson v Shogun Finance Ltd CA 28-Jun-2001
A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
Held: The dealer had not taken all the steps he might have done to check the identity of the . .
Cited – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Lists of cited by and citing cases may be incomplete.

Land, Equity, Contract

Updated: 19 May 2022; Ref: scu.188421

Toepfer v Continental Grain Co: CA 1974

Cairns LJ said: ‘When parties enter into a contract on terms that the certificate of some independent person is to be binding as between them, it is important that the Court should not lightly relieve one of them from being bound by a certificate which was honestly obtained and not vitiated by fraud or fundamental mistake on the part of the certifier. When, for instance, as in this case, the certificate called for by the contract is one relating to the quality of the goods sold, the business purpose is to avoid disputes about quality, and that purpose is defeated unless it is made difficult for a party to go behind a valid certificate.’

Judges:

Lord Justice Cairns

Citations:

[1974] 1 Lloyds Reports 11

Jurisdiction:

England and Wales

Cited by:

Cited – Veba Oil Supply and Trading Gmbh v Petrotrade Inc CA 6-Dec-2001
A dispute between parties to a contract was to be determined by an independent expert. It was claimed that his report was not binding on the parties, since he had departed from his instructions in a material way. In this context, what constituted a . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 May 2022; Ref: scu.183018

Jewson Ltd v Kelly: QBD 2 Aug 2002

The claimant sought payment for some boilers. The defendant argued that they were not of a satisfactory quality. The boilers were bought to be installed in new dwellings, but could not be shown to meet the standards advertised.
Held: The goods having been sold in the course of a business, there was a term as to satisfactory quality. That was to be judged according to the standards of a reasonable person viewing the goods in the hands of an individual buyer with the individual’s characteristics and with the background of his particular needs. In this case the goods failed to meet that standard.

Judges:

David Foskett QC

Citations:

Times 03-Oct-2002

Statutes:

Sale of Goods Act 1979 14(2), Sale and Supply of Goods Act 1994 1(1)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Jewson Limited v Boyhan as Personal Representative of the Estate of Thomas Michael Kelly CA 28-Jul-2003
The company appealed a finding that it was in breach of the 1979 Act. The deceased had bought boilers from the appellant. They were said not to be satisfactory, in that they were not as energy efficient as they had been described to be.
Held: . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 May 2022; Ref: scu.177315

O Palomo Sa v Turner and Co; Turner and Co v O Palomo Sa: CA 28 Jul 1999

A solicitor’s bill could only be taxed within one year of its delivery, but the common law right to challenge a bill on the grounds that the amount charged was unreasonable could continue after that time limit. The common law right to object to paying more than was reasonable was not displaced by the Act, and could allow a court to tax a bill outside the one year limit.
Evans LJ said: ‘the position apart from the Act is broadly as follows. If the solicitor wishes to be paid and is not in funds he will need to sue and prove that his charges were either expressly agreed or are reasonable charges. If he is in funds and purports to deduct the amount of his bill but the client challenges the deduction, the solicitor will still need to prove that the charges were either expressly agreed or were reasonable charges. The question is whether the client loses these rights to challenge the amount of the bill after the period for taxation has passed . . a client who is sued by his solicitor for the amount of his charges is entitled to challenge the reasonableness of the sum claimed, notwithstanding that the period during which he may apply for an order for taxation under what is now s. 70 of the 1974 Act has expired. .
Nor do we consider that the solicitor is disadvantaged by the possibility that the client is entitled to have the reasonableness of the charges assessed by the court after the statutory periods for taxation have expired. He can himself claim an order for taxation under s. 70(2), without any time limit, and obtain a form of summary judgment when the taxation certificate is issued . .
We do not see any difficulty in holding that the solicitor’s claim is for a reasonable sum, whether by statute or at common law, and not for a liquidated sum. Again in accordance with general principles, the burden of proving that the sum is reasonable rests upon him. This is supported, if authority is needed, by the judgments in Re Park [Re Park, Cole v. Park (1889) 41 Ch D 326] and Jones and Son v. Whitehouse [[1918] 2 KB 61] . . ‘

Judges:

Evans LJ

Citations:

Times 30-Aug-1999, Gazette 08-Sep-1999, [1999] EWCA Civ 2007, [2000] 1 WLR 37

Links:

Bailii

Statutes:

Solicitors Act 1974 70

Jurisdiction:

England and Wales

Citing:

Approved – Thomas Watts and Co (a Firm) v Smith CA 16-Mar-1998
The court considered the status of an untaxed solicitor’s bill of costs against a client for whom he had acted in defamation proceedings. Sir Richard Scott V-C said: ‘It is a fact that [the client] never entered into any contract to pay the sums as . .

Cited by:

Cited – Truex v Toll ChD 6-Mar-2009
The bankrupt appealed against an order in bankruptcy made against her on application by her former solicitors in respect of their unpaid costs. The bankrupt said that since the bill was yet untaxed, it might be altered and could not base a statutory . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 19 May 2022; Ref: scu.84402

Modahl v British Athletics Federation: HL 23 Jul 1999

An athlete’s governing body was not in breach of contract to a member athlete by suspending her in accordance with its rules after a positive drug test. It was accepted that the faults in the registration of the drug testing centre with another governing body were not known to the defendants, and would not directly affect the suspension under this contract.

Judges:

Lord Chancellor Lord Nicholls of Birjkenhead Lord Hoffmann Lord Clyde Lord Millett

Citations:

Times 23-Jul-1999, [1999] UKHL 37

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Modahl v British Athletic Federation Limited CA 28-Jul-1997
Lord Woolf MR said: ‘The question of whether a complaint about the conduct of a disciplinary committee gives rise to a remedy in public law or private law or is often difficult to determine. However the complaint in both cases would be based on an . .
Lists of cited by and citing cases may be incomplete.

Contract, Administrative

Updated: 19 May 2022; Ref: scu.83781

Mohammed v Alaga and Co (A Firm): CA 2 Nov 1998

(Application for Leave) An agreement between solicitors and non-solicitors for the payment of a fee for introductions was illegal and unenforceable. Where however the non-solicitor provided services as part of the arrangement, a claim against the solicitors for a quantum meruit rather than in restitution would stand.

Judges:

Lord Justice Simon Brown, Lord Justice Mantell

Citations:

Times 29-Jul-1999, [1998] EWCA Civ 1654

Statutes:

Solicitors Practice Rules 1990

Jurisdiction:

England and Wales

Citing:

Appeal from – Mohammed v Alaga and Co (A Firm) ChD 2-Apr-1998
A party to an agreement to share in solicitors’ fees contrary to professional rules was unable to enforce it in any way. . .

Cited by:

Leave to Appeal – Mohammed v Alaga and Co (A Firm) CA 30-Jun-1999
A party appealed against a finding that an agreement as to fee sharing with a solicitors’ firm, being in breach of the Solicitors Practice Rules, was unenforceable and void.
Held: The appeal failed as to illegality, but succeeded on a quantum . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 19 May 2022; Ref: scu.83793

HM Attorney-General v Associated Newspapers Ltd and Others: HL 4 Feb 1994

Following the acquittal of a prominent politician on a charge of conspiracy to murder, the New Statesman magazine published an article, based on an interview with one of the jurors, which gave an account of significant parts of the jury’s deliberations. It was submitted on behalf of the publisher, the editor and the journalist that the subsection was intended to apply to direct contact by or with the jury, and that three types of conduct only were prohibited: obtaining information from a member of the jury, disclosing the information as a member of the jury and soliciting information from a member of the jury. The issue was whether it also prohibited publication of the information in a newspaper. The argument that the word ‘disclose’ had a narrower and more restricted meaning than that was rejected.
Held: The appeal failed. The restriction on disclosure of information about the deliberations of a jury applies to and includes information innocently received, and its publication is an offence. The House sought to identify the mischief which the Act was designed to remedy, drawing attention to the Report of the Departmental Committee on Jury Service ‘we agree with those of our witnesses who argued that if such disclosures were to be made, particularly to the Press, jurors would no longer feel free to express their opinions frankly when the verdict was under discussion, for fear that what they said later might be made public.’

Lord Widgery LCJ: ‘The evidence before us shows that for a number of years the publication of jury room secrets has occurred on numerous occasions. To many of those disclosures no exception could be taken because from a study of them it would not be possible to identify the persons concerned in the trials. In these cases, jury secrets were revealed in the main for the laudable purpose of informing would-be jurors what to expect when summoned for jury service. Thus, it is not possible to contend that every case of post-trial activity of the kind with which we are concerned must necessarily amount to a contempt.
Looking at this case as a whole, we have come to the conclusion that the article in the ‘New Statesman’ does not justify the title of contempt of court. That does not mean that we would not wish to see restrictions on the publication of such an article because we would. But our duty is to say what the law is today and to see whether today the activity in question is a contempt of court. We are unable to say that it is and we would therefore refuse the application.’
Lord Lowry discussed the 1981 Act: ‘the mischief which was thought to need a remedy is seen to have included publication of the forbidden particulars as well as their disclosure by individual jurors, which confirms the plain and ordinary meaning of ‘disclosure’ as the correct meaning in section 8.’

Judges:

Lord Lowry, Lord Widgery LCJ

Citations:

Gazette 02-Mar-1994, Independent 09-Feb-1994, Times 04-Feb-1994, [1994] 2 AC 238, [1994] UKHL 1, [1994] 1 All ER 556, [1994] COD 275, [1994] 2 WLR 277, (1994) 99 Cr App R 131

Links:

Bailii

Statutes:

Contempt of Court Act 1981 8

Citing:

Appeal from – HM Attorney General v Associated Newspapers Ltd and Others QBD 9-Dec-1992
A newspaper was held to have been in contempt of court for publishing details of the deliberations of a jury, even though it had not solicited the information. Beldam LJ said of the word ‘disclosure’: ‘It is a word wide enough to encompass the . .

Cited by:

Appealed to – HM Attorney General v Associated Newspapers Ltd and Others QBD 9-Dec-1992
A newspaper was held to have been in contempt of court for publishing details of the deliberations of a jury, even though it had not solicited the information. Beldam LJ said of the word ‘disclosure’: ‘It is a word wide enough to encompass the . .
Cited – Regina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
Cited – Attorney General v Scotcher HL 19-May-2005
Following a trial, a juror wrote to the defendant’s mother to say that other jury members had not considered the case in a proper manner. He had been given written advice that he was not free to discuss a case with anyone. He appealed his conviction . .
Cited – HM Attorney General v Seckerson and Times Newspapers Ltd Admn 13-May-2009
The first defendant had been foreman of a jury in a criminal trial. He was accused of disclosing details of the jury’s votes and their considerations with concerns about the expert witnesses to the second defendant. The parties disputed the extent . .
Appeal from – Associated Newspapers Ltd v United Kingdom ECHR 30-Nov-1994
The newspaper said that a finding against it of contempt of court for publishing material derived from a jury’s deliberations infringed its rights of free speech.
Held: The complaint was declared inadmissible. ‘The Commission agrees with the . .
Cited – Seckerson and Times Newspapers Ltd v The United Kingdom ECHR 24-Jan-2012
The first applicant had been chairman of a jury and had expressed his concerns about their behaviour to the second applicant who published them. They were prosecuted under the 1981 Act. They had said that no details of the deliberations had been . .
Lists of cited by and citing cases may be incomplete.

Contract, Media, Contempt of Court

Updated: 19 May 2022; Ref: scu.81404

Hichens v General Guarantee Corporation Ltd: CA 20 Feb 2001

The customer signed a hire-purchase contract and obtained confirmation of the leasing company’s agreement by telephone. She took delivery of the car, and sold it on immediately, and before the contract was signed by the finance company six days later. It was held that the company had completed the contract in the telephone call, and the signing was by way of confirmation. This was so particularly where the contract did not provide that it could only be created on the signing.

Judges:

Peter Gibson, Mummery, Rix LJJ

Citations:

Times 13-Mar-2001, [2001] EWCA Civ 359

Links:

Bailii

Statutes:

Hire Purchase Act 1964 24

Jurisdiction:

England and Wales

Consumer, Contract

Updated: 19 May 2022; Ref: scu.81398

Depositors Protection Board v Dalia and Another: ChD 18 Nov 1992

Equitable assignees of deposits in a bank where those deposits were protected under the scheme, were entitled to the compensation which would have been paid to the beneficial owners.

Citations:

Gazette 18-Nov-1992

Statutes:

Banking Act 1987 59(1)(a)

Cited by:

Appeal from – Depositors’ Protection Board v Dalia and Another CA 11-May-1993
The Board was liable to pay compensation claims from equitable assignees of depositors with a failed bank. They were not to be excluded from making claims. . .
At First Instance – Depositors’ Protection Board v Dalia HL 20-May-1994
The House was asked as to the meaning of the word ‘depositor’. Regulations were prayed in aid which were made four years after the date of the enactment.
Held: The protection given by the Depositor Protection Scheme does not extend to . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking, Financial Services

Updated: 19 May 2022; Ref: scu.79917