Category: Contract

Hamilton v Watson: 1845

Although a would-be surety is, in general, expected to acquaint himself with the risk he is undertaking, the creditor is under an obligation to disclose to the intending surety ‘anything which might not naturally be expected to take place between the parties who are concerned in the transaction, that is, whether there be a contract between the debtor and the creditor, to the effect that his position shall be different from that which the surety might naturally expect.’

Judges:

Lord Campbell

Citations:

(1845) 12 Cl and F 109

Jurisdiction:

England and Wales

Cited by:

Cited – London General Omnibus Co Ltd v Holloway 1912
Lee was employed by the bus company in a position which involved receiving money on their behalf. The bus company required him to obtain a fidelity bond from a third party. The bond was given by Holloway, a relative of Lee, without either the bus . .
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 26 November 2022; Ref: scu.224825

Andrews v Smith: 1835

Hill was employed to work on a property, the defendant being retained by the building owner as surveyor to receive and pay over to Hill monies due to him. When Hill required materials for his work, these were supplied by the plaintiff on the defendant’s promise to pay the plaintiff for them out of the monies which he received to pay Hill. Although Hill himself agreed with this arrangement, the defendant nevertheless failed to pay the plaintiff out of the monies available. When the plaintiff then sued him for breach of the agreement the defendant sought to invoke s.4. The plaintiff’s argument was: ‘This is not a promise to answer for the debt or default of another, within the meaning of the Statute of Frauds. It is not a promise to be answerable out of the defendant’s own funds, but to pay out of the funds of another, on receiving his directions for that purpose. . . Such a contract is direct, and not collateral, and therefore binding without being in writing.’
Parke B said: ‘Even if there was an original debt from Hill the case is no more than a prospective assignment of a particular fund, with an attornment [an acknowledgment], so to speak, of the defendant to that assignment.’ The defendant’s counsel continued: ‘The general rule is, that the undertaking is collateral, wherever there is an original debt’ to which Parke B replied: ‘That is the general rule, but with exceptions . . ‘
Held: ‘Lord Abinger, C.B. On reading the declaration, the first thing that struck me was, that no debt necessarily appeared on the face of it to be due from Hill at all; it is quite consistent with all that is stated on the record, that he was never liable to the plaintiff. That alone is an answer to the objection raised by the defendant. But further, if the defendant contracted, not to pay Hill’s debt out of his own funds, but only faithfully to apply Hill’s funds for that purpose, when they should come to his hands, that contract would not be within the operation of the statute. Parke, B. I am of the same opinion. There is nothing on the face of the declaration to imply a contract by the plaintiff with Hill. If that be so, it is clear the defendant’s contract was an original, not a collateral one, and so not within the statute. But even if that were otherwise, this is nothing more than a prospective assignment of funds which were to come to the defendant’s hands for Hill, and an attornment, as it were, by the defendant to that assignment: and the authorities show that, in such case, the contract is not within the statute. On this ground also the plaintiff is entitled to the judgment of the court. Alderson and Gurney, Bs., concurred.

Judges:

Parke B, Lord Abinger CB

Citations:

(1835) 2 CM and R 627

Jurisdiction:

England and Wales

Contract

Updated: 26 November 2022; Ref: scu.199771

Fisher v Bridges: 1853

Citations:

[1853] 3 EL and BL 643

Jurisdiction:

England and Wales

Cited by:

Cited – Mahonia Limited v JP Morgan Chase Bankwest Lb Ag QBD 3-Aug-2004
The Claimant claimed on a letter of credit issued by the Defendant on behalf of Enron Ltd, who asserted it was not liable to pay there having been unlawful behaviour by Enron Ltd. Swap agreements had been entered into, and the defendant said the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 26 November 2022; Ref: scu.200483

Smurthwaite v Wilkins: 1862

The endorser of a bill of lading is not liable after he has endorsed over the bill of lading to another who is liable; the shipper remains liable as an original party to the contract. ‘Looking at the whole statute it seems to me that the obvious meaning is that the assignee who receives the cargo shall have all the rights and bear all the liabilities of a contracting party; but that if he passes on the bill of lading by indorsement to another, he passes on all the rights and liabilities which the bill of lading carries with it.’ Rejecting the argument that the endorser having passed on all his rights to the endorsee should retain all his liabilities in respect of the goods: ‘Such a construction might be very convenient for the shipowner but it would be clearly repugnant to one’s notions of justice.’ and ‘The contention is that the consignee or assignee shall always remain liable like the consignor although he has parted with all interest and property in the goods by assigning the bill of lading to a third party before the arrival of the goods. The consequences which this would lead to are so monstrous so manifestly unjust that I should pause before I consented to adopt this construction of the act of parliament.’

Judges:

Erle CJ

Citations:

(1862) 11 CB(ns) 842

Statutes:

Bills of Lading Act 1855

Jurisdiction:

England and Wales

Cited by:

Cited – Borealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Approved – Sewell v Burdick HL 1884
What does the word ‘property’ encompass in the context of the assignment of a bill of lading? Is it limited to the general property in the goods, that is, the legal title to the goods as is transferred by a sale? Or does it include the special . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 26 November 2022; Ref: scu.194565

Lester v Foxcroft: 1701

Entry into possession under agreement for lease and expenditure of money – Part performance

Citations:

(1701) Colles PC 108

Jurisdiction:

England and Wales

Cited by:

Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 26 November 2022; Ref: scu.193605

C P Henderson and Co v The Comptoir D’Escompte de Paris: PC 1873

The court considered a bill of lading in the usual form, save that the words ‘or order or assigns’ are omitted. The court was prepared to assume that such a bill was not a negotiable instrument. It was argued that, notwithstanding the omission of these words, this bill of lading was a negotiable instrument, and there was some authority at nisi prius for that proposition; but the general view of the mercantile world was that, in order to make bills of lading negotiable, some such words as ‘or order or assigns’ ought to be in them.

Citations:

(1873-74) LR 5 PC 253

Jurisdiction:

Commonwealth

Cited by:

Cited – J I MacWilliam Co Inc v Mediterranean Shipping Company S A, ‘The Rafaela S’ CA 16-Apr-2003
Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A . .
Cited – J I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
Lists of cited by and citing cases may be incomplete.

Commercial, Transport, Contract

Updated: 25 November 2022; Ref: scu.181885

De Mattos v Gibson: 1859

The purchaser of an interest in property may not use it so as to breach contractual rights of which he was aware when he acquired the interest.

Citations:

(1859) 4 De G and J 276

Jurisdiction:

England and Wales

Citing:

Cited – Lumley v Wagner 1852
A girl (under age) and her father contracted for her to perform at a theatre abroad, and later not to use her talents without the consent of her manager. She contracted with a competing theatre. She resisted an action by the manager saying that the . .

Cited by:

Cited – Den Norske Bank Asa v Acemex Management Company Ltd CA 7-Nov-2003
Money had been loaned for the purchase of three ships,and mortgages over the ships had been given given. The borrowers were in default, and the lender sought to arrest the vessels. The defendant argued that the way the arrest had been undertaken . .
Cited – Lady Navigation Inc v Lauritzencool Ab and Another CA 17-May-2005
The shipowner appealed the award against them of an injunction requiring them not to act inconsistently with a time charterparty. The company said that such a form of order was improper.
Held: The existence of the contract to do what was . .
Cited – Mainstream Properties Ltd v Young and others CA 13-Jul-2005
The claimant appealed refusal of his claim for inducing a breach of contract against the sixth defendant. It said that an intention to disturb a contract could be inferred.
Held: A mere recklessness as to whether contractual rights were . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 25 November 2022; Ref: scu.187669

TICC Limited v Cosco (UK) Limited: CA 5 Dec 2001

The claimants sought to have incorporated by notice into a contract of bill of lading, the terms of a freight surcharge. Notice had been given to the shipping agents in Hong Kong only. The shippers claimed the surcharge under the 1992 Act, saying the defendants inherited the notice from their shipping agents. The first court held that the parties were parties to the contract along with their agents.
Held: The company had not done enough to give notice to incorporate the surcharge within the contract. Appeal dismissed.

Judges:

Lord Justice Ward Lord Justice Kay And Lord Justice Rix

Citations:

[2001] EWCA Civ 1862

Links:

Bailii

Statutes:

Carriage of Goods by Sea Act 1992 3

Jurisdiction:

England and Wales

Citing:

Cited – Parker v South Eastern Railway Co CA 1877
The plaintiff took a parcel to a railway company depot for delivery, and received a ticket on which were printed conditions including a disclaimer. On the front of the ticket were printed the words ‘see back’. The jury was asked only if they . .
Cited – Hood v Anchor Line (Henderson Bros) Ltd HL 1-Jul-1918
An English court may exercise its jurisdiction in personam over the liquidator to enforce the contract between the chargee and the company, and may require the liquidator to pay the proceeds to the chargee, The Scottish courts did not recognise the . .
Cited – Thornton v Shoe Lane Parking Ltd CA 18-Dec-1970
The claimant had suffered damage at the defendant’s car park. The defendant relied upon an exemption clause printed on the ticket, and now appealed against rejection of its defence under the clause.
Held: The appeal failed. The more extreme an . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 25 November 2022; Ref: scu.167838

McCutcheon v David MacBrayne Ltd: HL 21 Jan 1964

The appellant had asked his brother-in-law to have a car shipped from Islay to the mainland. The appellant had personally consigned goods on four previous occasions. On three of them he was acting on behalf of his employer; on the other occasion he sent his own car; and each time he signed what was called a ‘ risk note”. The risk note made it plain that the respondents were accepting the goods on their ship on the condition that they would not be responsible for any damages by negligence that the goods might suffer during the course of the voyage. In that case, through negligence, the ship sank and the car was lost. The appellant’s brother-in-law, who took the car to be shipped on the occasion in question, had himself consigned goods of various kinds on a number of previous occasions. He said that sometimes he had signed a note, and sometimes he had not. On one occasion he sent his own car. He said that on the occasion in question no risk note was put before him. Apparently, unknown to him, the purser, by mistake, had taken the car on board without asking him to sign the risk note.
Held: There was no previous course of dealing from which the term of exclusion could be implied into the contract which had been made on behalf of the appellant by his brother-in-law. The appellant himself had only consigned goods on some four previous occasions, but he, ‘the appellant, had always signed a risk note. His brother-in-law had done so many times, sometimes after signing the risk note and sometimes not.’
Lord Reid quoted Gloag on Contract: ‘The judicial task is not to discover the actual intentions of each party; it is to decide what each was reasonably entitled to conclude from the attitude of the other.’

Judges:

Lord Reid

Citations:

[1964] 1 WLR 125, [1964] 1 All ER 430 HL (Sc), [1964] UKHL 4, [1964] UKHL 7

Links:

Bailii, Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – British Crane Hire v Ipswich Plant Hire CA 13-Nov-1973
A big earth-moving machine got stuck in the mud. It sank so far as to be out of sight. It cost much money to get it out. Who was to pay the cost?
Held: Lord Denning MR said: ‘I would not put it so much on the course of dealing, but rather on . .
Cited – Scheps v Fine Art Logistic Ltd QBD 16-Mar-2007
The claimant bought fine art sculptures by Anish Kapoor at auction. They were stored by the defendant who when called upon to deliver them, said they had possibly been thrown away as rubbish. The defendant sought to limit its liability to the sum . .
Cited – Lawrence v Financial Services Commission PC 14-Dec-2009
lawrence_fscPC2009
(Jamaica) The appellant challenged a fixed penalty notice issued in respect of a financial services allegation, saying that it had been made without him having been allowed opportunity to be heard by an impartial tribunal.
Held: Actions under . .
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 . .
Cited – White v Blackmore CA 15-Jun-1972
The plaintiff attended a jalopy car race and was injured. It was a condition of his entry that he agreed that motor racing was dangerous and that he would not hold the organisers or others responsible if injured. He was injured when a safety rope, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 25 November 2022; Ref: scu.180913

Hess v Horncastle Properties Limited WA Horncastle (Builders) Limited: CA 6 Nov 1998

It was alleged that signatures on plans attached to a conveyance were not those of the party. A witness said that only the document itself had been signed. They now appealed against a strike out of their claim.
Held: ‘it will be only in the most exceptional cases that it would be right to exercise the power in circumstances in which the plaintiff has confirmed, unequivocally and on oath, allegations which, if made good, would found a cause of action. The court should not do so unless it is able to say, before hearing oral evidence, that the sworn evidence of the plaintiff cannot be believed. ‘ The appeal was allowed.

Citations:

[1998] EWCA Civ 1720

Jurisdiction:

England and Wales

Citing:

Cited – Wenlock v Moloney CA 1965
The plaintiff alleged a conspiracy to deprive him of his shares and interest in a company. Each side filed affidavit evidence raising issues of fact. With no oral evidence or cross examination on the affidavits, the Master, after a four day hearing, . .
Cited – Lawrence v Lord Norreys HL 1890
The plaintiff brought an action for recovery of possession of an estate, relying on events which had occurred 70 years earlier. The plaintiff had already brought a case which was dismissed on the grounds that it was statute-barred. The plaintiff . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 25 November 2022; Ref: scu.145199

E A Grimstead and Son Limited v McGarrigan: CA 13 Oct 1998

Judges:

Chadwick LJ

Citations:

[1998] EWCA Civ 1523

Statutes:

Misrepresentation Act 1967 3

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Cited – 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 . .
Preferred – Six Continents Hotels Inc v Event Hotels Gmbh QBD 21-Sep-2006
The claimant had licensed the defendant to use its trademarks in connection with the naming of their hotels in Germany. The defendants failed to pay their fees as agreed, the claimants terminated the license and now sought payment under the . .
Cited – Ahmed v Landstone Leisure Ltd ChD 30-Jan-2009
The claimant appealed against a refusal to set aside a statutory demand. He had given a cheque at a land auction, and it had bounced on his instructions, saying that the property had been misrepresented.
Held: The auctioneer had specifically . .
See Also – E A Grimstead and Son Ltd v McGarrigan CA 27-Oct-1999
The court considered the effect of an acknowledgement of non-reliance clause: ‘There are, as it seems to me, at least two good reasons why the courts should not refuse to give effect to an acknowledgement of non-reliance in a commercial contract . .
Lists of cited by and citing cases may be incomplete.

Contract, Commercial

Updated: 25 November 2022; Ref: scu.145002

Morris v Wentworth-Stanley: CA 4 Sep 1998

Two actions had been brought by a contractor against the partners in a farming partnership. Those actions were consolidated. One of the partners died and when the plaintiff found that out he discontinued his claims against the deceased partner and Mrs Wentworth-Stanley, the wife of that deceased partner, and proceeded solely against the third partner, O. The consolidated actions were settled for an agreed sum payable by O which O failed to pay. Thereafter the plaintiff accepted a lump sum from O’s son in final satisfaction of the judgment. The plaintiff then brought proceedings against Mrs Wentworth-Stanley for the same relief but reduced by the amount of pounds 45,000. The Divisional court had held that irrespective of its decision on accord and satisfaction the prosecution of the fresh proceedings against a defendant against whom the original proceedings had been discontinued was an abuse of process.
Held: The releasing of the party from the earlier proceedings amounted to an election and breach of that election by bringing a further action amounted to fraud. The principle underlying abuse of process decisions may be applied where a plaintiff fails to join a defendant who should have been joined in earlier proceedings.
A discharge of one joint debtor by accord and satisfaction, unless there is an expressed or implied agreement that the creditor’s rights against them are preserved, discharges all joint debtors in accordance with a general principle that a joint liability creates only a single obligation.

Judges:

Potter LJ

Citations:

[1998] EWCA Civ 1427, [1999] QB 1004, [1999] 2 WLR 470

Jurisdiction:

England and Wales

Citing:

Approved – MCC Proceeds Inc (Incorporated Under the Laws of the State of Delaware, USA As Trustee of the Maxwell Macmillan Realization Liquidating Trust) v Lehman Brothers International (Europe) CA 19-Dec-1997
The owner only of an equitable interest in goods may not assert his interest against a bona fide purchaser of the legal title to the goods. International Factors v. Rodriguez was decided per incuriam to the extent that it held that equitable rights . .
Cited – Hirachand Punamchand v Temple CA 1911
The defendant, a British army officer in India, had given a promissory note to the plaintiff moneylenders. Unable to pay, he suggested they apply to his father, Sir Richard Temple. In reply, Sir Richard Temple’s solicitors wrote saying they were . .

Cited by:

Mentioned – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Cited – Barrett v Universal-Island Records Ltd and others ChD 15-May-2006
The claimant was entitled to share in the copyright royalties of Bob Marley and the Wailers, and claimed payment from the defendants. The defendants said that the matters had already been settled and that the claim was an abuse of process, and also . .
Cited – Foster v Bon Groundwork Ltd EAT 17-Mar-2011
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 25 November 2022; Ref: scu.144906

Hendry v Chartsearch Ltd: CA 16 Sep 1998

An assignment of the benefit of a contract without the consent of the contractor and in breach of contract was effective between assignor and assignee but not as against the original contract other party.
The modern practice for the allowing of amendments was that the court had a general discretion and should not be restricted by hard and fast rules of practice or of law.
Millett LJ said that an assignment or a purported assignment of a contractual obligation in the face of a prohibition in the contract whether in the nature of a prohibition or promise, was unlikely to be a repudiation of the contract itself.

Judges:

Evans LJ, Henry LJ, Millett LJ

Citations:

Times 16-Sep-1998, [1998] EWCA Civ 1276, [1998] CLC 1382

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Norglen Ltd (In Liquidation) v Reeds Rains Prudential Ltd and Others; Circuit Systems Ltd (In Liquidation) and Another v Zuken-Redac HL 1-Dec-1997
An assignment of a cause of action by a company in liquidation was valid, even though the dominant purpose was to avoid having to give security for costs, and to get legal aid. In dismissing the argument that the transactions were a device to defeat . .

Cited by:

Cited – Rhodia International Holdings Ltd and Another v Huntsman International CA 11-Jun-2007
There was a challenge to the validity of a sale and purchase agreement which included an assignment of a contract which would require novation.
Held: A long standing acquiesecence in one breach of the contract did not amount to a grant pf . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 25 November 2022; Ref: scu.81319

Ivey v Genting Casinos (UK) Ltd (T/A Crockfords): SC 25 Oct 2017

The claimant gambler sought payment of his winnings. The casino said that he had operated a system called edge-sorting to achieve the winnings, and that this was a form of cheating so as to excuse their payment. The system exploited tiny variances in the appearance of the sides of playing cards, and the manipulation of the dealers to help identify cards as they were dealt.
Held: The claimant’s appeal failed. The Court considered what was the meaning of cheating and dishonesty. The game was intended as a game of pure chance. Identifying cards in this way fundamentally undermined the basis of the game. The manipulation of the croupier was dishonest.
The difference in the meaning of dishonesty as between civil and criminal contexts should no longer be maintained. The second limb of the test for dishonesty established on Ghosh, which was that the jury should ask whether the defendant thought himself that his actions were dishonest could no longer be maintained. The law should not excuse those who make a mistake about contemporary standards of honesty, one purpose of the criminal law is to set acceptable standards of behaviour. The tests settled for civil actions was solely an objective one, as to the standards of honesty of the lay objective standards of ordinary and reasonable people. That test should now be applied in both contexts.
‘When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.’

Judges:

Lord Neuberger, Lady Hale, Lord Kerr, Lord Hughes, Lord Thomas

Citations:

[2017] UKSC 67, UKSC 2016/0213, [2018] AC 391, [2018] 1 Cr App R 12, [2017] WLR(D) 708, [2017] LLR 783, [2018] 2 All ER 406, [2017] Lloyd’s Rep FC 561, [2017] 3 WLR 1212, [2018] Crim LR 395

Links:

Bailii, Bailii Summary, SC, SC Summary, SC am 13 Jul 17, SC pm 13 Jul 17, SC Summary video

Statutes:

Gambling Act 2005 334 335

Jurisdiction:

England and Wales

Citing:

At First Instance – Ivey v Genting Casinos UK Ltd (T/A Crockfords Club) QBD 8-Oct-2014
The claimant, a professional gambler, sued the defendant casino for his winnings. The club replied that the claimant’s methods amounted to a form of cheating, and that no liability arose to pay the winnings.
Held: The claim failed. ‘The fact . .
Cited – Regina v Governor of Brixton Prison, Ex parte Sjoland and Metzler CA 1912
The defendant was found guilty of cheating when winning a three card trick by the use of ‘sleight of hand’ . .
Appeal from – Ivey v Genting Casinos UK Ltd (T/A Crockfords Club) CA 4-Nov-2016
The claimant sought recovery of his substantial winnings from the defendant gaming club. The club had resisted saying that the methods used by the claimant at cards, called, ‘edge sorting’ was a form of cheating, a criminal offence within the . .
Cited – Welham v Director of Public Prosecutions HL 1961
The House considered what was required to establish an ‘intent to defraud’.
Held: Lord Radcliffe said: ‘Now, I think that there are one or two things that can be said with confidence about the meaning of this word ‘ defraud ‘. It requires a . .
Cited – Regina v Williams 1953
The defendant, a sup-post office mistress, appealed against her conviction for larceny by the use of of ‘false pretences’.
Held: When considering the word ‘fraudulently’ from the phrase ‘fraudulently and without claim of right made in good . .
Cited – Regina v Feely CACD 1973
In relation to a charge of theft where the issue of dishonesty is raised, the issue must be left to the jury. Dishonesty is not a matter of law, but a jury question of fact and standards. Except to the limited extent that section 2 of the Theft Act . .
Cited – Scott v Metropolitan Police Commissioner; Regina v Scott HL 20-Nov-1974
The defendant had been accused of conspiracy to produce pirate copies of films obtained by purchasing copies from cinema owners without the knowledge or consent of the copyright owners.
Held: To establish a conspiracy to defraud, it was not . .
Overruled – Regina v Ghosh CACD 5-Apr-1982
The defendant surgeon was said to have made false claims for payment for operations, and was charged under the 1968 Act. He claimed to have been entitled to the sums claimed, and denied that he had been dishonest. The court considered the meaning of . .
Cited – Hayes, Regina v CACD 21-Dec-2015
The defendant appealed from his conviction for conspiracy to defraud in connection with the alleged manipulation of the Yen LIBOR.
Held: The appeal failed: ‘the critical issue for the jury’s consideration in this case was whether they believed . .
Cited – Regina v Gilks CACD 27-Jun-1972
The appellant had placed a bet at a betting shop on a certain horse. A horse with a similar name won, but by mistake the shop paid out on the bet. The appellant knew of the mistake, but refused to return the winnings. He now appealed against his . .
Cited – Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) 27-Oct-1983
(High Court of Australia) Meaning of religion – scientology church application for tax exemption. The trend is towards a ‘newer, more expansive, reading’ of religion. However ‘Religious conviction is not a solvent of legal obligation.’
High . .
Cited – Barlow Clowes International Ltd and Another v Eurotrust International Ltd and others PC 10-Oct-2005
(Court of Appeal of the Isle of Man) Defendants appealed a finding of dishonest assistance in the activities of Barlow Clowes.
Held: The judge had been able to reach the conclusions on the basis of the evidence. The appeal of the deemster . .
Cited – Starglade Properties Ltd v Nash CA 19-Nov-2010
It is ultimately for the court to decide, as it must in the case of the standard of honesty to be expected in dealing of businessmen and trustees, whether or not conduct amounts to cheating. The standard is objective.
Leveson LJ identified the . .
Cited – Regina v Greenstein; Regina v Green CACD 1975
Meaning of dishonesty under the 1968 Act. . .
Cited – Cornelius, Regina v CACD 14-Mar-2012
The defendant appealed against his conviction for fraud under the 2006 Act, saying that the judge had wrongly failed to give a Ghosh direction. As a solicitor he had organised a scheme for buying properties, obtaining finance by the nomination of . .
Cited – Regina v McIvor CA 1982
The defendant had been refused a loan by his employers. He took the money anyway from the till and repaid it. On discovery he was charged with theft. He denied that he had been dishonest. He had always intended to repay it and had done so. He . .
Cited – Regina v Landy; Regina v White etc CACD 1982
The defendants appealed against convictions for conspiracy to defraud. The three were bank employees including the chairman, and between them managed to take money from the bank by different forms of malpractice. The defendants denied dishonesty, . .
Approved – Royal Brunei Airlines SDN BHD v Tan PC 24-May-1995
(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective . .
Cited – Twinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
Cited – Rostron and Another, Regina v CACD 16-Jul-2003
The defendants appealed from their conviction for theft having gone at night to a golf course to recover golf balls from a water hazard on the course. They said that the golf balls had been abandoned by their owners . .
Cited – Abou Rahmah and others v Abacha and others CA 8-Nov-2006
The appellants were victims of a fraud conducted via the respondent bank by one of their clients. They appealed from a decision that the bank was not liable to the victims either in the equitable tort of knowing or dishonest assistance in a breach . .

Cited by:

Cited – ZC v Royal Free London NHS Foundation Trust QBD 26-Jul-2019
Defamation/privacy claims against doctors failed
The claimant, seeking damages for alleged defamation, now asked for the case to be anonymised.
Held: The conditions for anonymisation were not met. The anonymity would be retained temporarily until any time for appeal had passed.
As to . .
Lists of cited by and citing cases may be incomplete.

Crime, Contract

Updated: 25 November 2022; Ref: scu.597668

Francis Barker, Student of Wadham College, Oxford v John Vansommer, Silk-Throwster, James Vansommer And Peter Paul, Mercers, Peter Pritchard, Francis Rybot And Giles, Personal Representative Of-Alcan A Jew: 1782

Bond, given for silks taken up in order to sell to raise money, to be delivered up, upon payment of the sum really raised.

Citations:

[1782] EngR 6, (1782) 1 Bro CC 149, (1782) 28 ER 1046

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 25 November 2022; Ref: scu.372354

Fashion TV Russia Ltd v F.TV Ltd: ChD 1 Jun 2009

Application for an injunction to restrain the defendant pending trial or further order from imposing upon the claimant new working practices as a precondition to the continuation of the broadcasting of the claimant’s advertisements and programmes pursuant to a licence agreement between the claimant and the defendant

Citations:

[2009] EWHC 1570 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Media, Contract

Updated: 25 November 2022; Ref: scu.368633

Lovesy v Palmer: 1916

Solicitors for two parties corresponded and agreed for their clients about a proposed lease. The plaintiff said the agreement was to be on behalf of a company he was yet to form. The documents making up the memorandum made no mention of the company.
Held: The solicitor was not intended to be bound by the alleged contract, and therefore no evidence could be given that the he was agent of the intended company. No sufficient memorandum existed.

Citations:

[1916] 2 Ch 233, [1916-1917] All ER 1034

Jurisdiction:

England and Wales

Cited by:

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.

Contract, Landlord and Tenant, Legal Professions, Company

Updated: 25 November 2022; Ref: scu.188461

Spall v Owen: 1981

There was a description of a property as ‘the property known as plot number 1’.
Held: Peter Gibson LJ said that such a description cried aloud for evidence of the surrounding circumstances.

Judges:

Lord Justice Peter Gibson

Citations:

(1981) 44 P and CR 36

Jurisdiction:

England and Wales

Cited by:

Dictum Approved – Targett and Targett v Ferguson and Diver 1996
The common intention of the parties to a contract is to be construed objectively. The objective test to be satisfied is, what would the reasonable layman think he was buying? . .
Cited – Rogers and Another v Freeguard and Another CA 19-Oct-1998
The parties had drawn up and executed an option agreement. When a court considered an option to purchase ‘land known as . .’, it was able to consider extrinsic evidence to establish just what was included where the identification in the deed was . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 25 November 2022; Ref: scu.197729

Hamlin v Great Northern Railway Co: 19 Nov 1856

A plaintiff can recover whatever damages naturally resulted from the breach of contract, but damages cannot be given ‘for the disappointment of mind occasioned by the breach of contract.’

Judges:

Pollock CB

Citations:

(1856) 1 H and N 408, [1856] EngR 918, (1856) 156 ER 1261

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Not Followed – Jarvis v Swans Tours Ltd CA 16-Oct-1972
The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 25 November 2022; Ref: scu.180936

Holman v Johnson: 5 Jul 1775

Ex turpi causa non oritur actio

A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence failed. Knowledge on the part of the plaintiff that the defendant intended to smuggle the goods did not affect the plaintiff’s entitlement to recover the price of the goods, since he was not himself involved in the smuggling.
Mansfield LCJ set out the principle of ex turpi causa non oritur actio: ‘The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but is founded on general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is on that ground the court goes: not for the sake of the Defendant, but because they will not lend their aid to such a Plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.
The question therefore is, ‘Whether, in this case, the plaintiff’s demand is founded upon the ground of any immoral act or contract, or upon the ground of his being guilty of any thing which is prohibited by a positive law of this country.’

Judges:

Mansfield LCJ

Citations:

(1775) 1 Cowp 341, [1775] EngR 58, (1775) 98 ER 1120

Links:

Commonlii, Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Hall v Woolston Hall Leisure Limited CA 23-May-2000
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . .
Cited – Colen and Another v Cebrian (UK) Limited CA 20-Nov-2003
The company paid the claimant sales commission. Part was diverted and paid to his wife to reduce the tax payable. The employer had appealed a finding of unfair disamissal, the company arguing that the contract was illegal.
Held: The contract . .
Cited – 21st Century Logistic Solutions Limited (In Liquidation) v Madysen Limited QBD 17-Feb-2004
The vendor sold computers to the defendant, intending not to account to the commissioners for the VAT. The seller went into liquidation, and the liquidator sought payment. The purchaser had been unaware of the intended fraud and resisted payment. . .
Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – Soleimany v Soleimany CA 4-Mar-1998
The parties were Iranian Jews, father and son. The son arranged to export carpets from Iran in contravention of Iranian law. The father and son fell into dispute about their contracts and arranged for the issues to be resolved by the Beth Din . .
Cited – Hyde Park Residence Ltd v Yelland, News Group Newspapers Ltd, News International Ltd, Murrell CA 10-Feb-2000
The court considered a dispute about ownership and confidence in and copyright of of video tapes taken by Princess Diana before her death.
Held: The courts have an inherent discretion to refuse to enforce of copyright. When assessing whether . .
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – Chettiar v Chettiar PC 14-Feb-1962
(Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .
Mentioned – Collier v Collier CA 30-Jul-2002
Fraudulent Intent Negated Trust
The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been . .
Cited – Vellino v Chief Constable of Greater Manchester Police CA 31-Jul-2001
The police were not under any duty to protect someone who had been arrested from injuring himself in an attempt to escape. The claimant had a history of seeking to avoid capture by jumping from his flat window. On this occasion he injured himself in . .
Cited – Gray v Thames Trains Ltd and Another CA 25-Jun-2008
The claimant was a victim of the Ladbroke Grove rail crash. He later committed and was convicted of a manslaughter and detained under the 1983 Act. He said that the accident had caused a major personality change. The defendant relied on the defence . .
Cited – Enfield Technical Services Ltd v Payne and Another CA 22-Apr-2008
The appellant company appealed dismissal of their defence to a claim for unfair dismissal that the employment contract was tainted with illegality. The EAT had heard two cases with raised the question of the effect on unfair dismissal claims of . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
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 . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .
Cited – Henderson v Dorset Healthcare University NHS Foundation Trust CA 3-Aug-2018
Upon the allegedly negligent release of the claimant from mental health care, she had, while in the midst of a serious psychotic episode, derived from the schizophrenia, killed her mother and been convicted of manslaughter. She now sought damages in . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Leading Case

Updated: 25 November 2022; Ref: scu.189937

Francis v Cockrell: CEC 1870

The plaintiff was injured by the fall of a stand on a racecourse, for a seat in which he had paid. The defendant was part proprietor of the stand and acted as receiver of the money. The stand had been negligently erected by a contractor, though the defendant was not aware of the defect.
Held: The claim succeeded.

Judges:

Cleasby B

Citations:

(1870) LR 5 QB 501

Jurisdiction:

England and Wales

Citing:

Applied – George v Skivington 1869
There was an injury to the wife, from a hair wash purchased under a contract of sale with the husband.
Held: The wife had a good cause of action. There was a duty in the vendor to use ordinary care in compounding the article sold, and that . .
Cited – Langridge v Levy ExP 1836
A man sold a gun which he knew to be dangerous for the use of the purchaser’s son. The gun exploded in the son’s hands.
Held: The son had a right of action in tort against the gunmaker, but, Parke B said: ‘We should pause before we made a . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 25 November 2022; Ref: scu.192608

Robertson v Balfour: 1938

The rule against enforcing a gaming contract is so clear that the Court will not take cognizance of a supervening contract which is subsidiary to, and flows from, the original gaming contract. The court distinguished these contracts from, this case where the contract was not purely collateral or incidental to the gaming contract.

Judges:

Aitchison

Citations:

1938 SC 207

Jurisdiction:

Scotland

Cited by:

Cited – Robertson v Anderson IHCS 5-Dec-2002
The parties had agreed to share any winnings from their Bingo activities. One sought to reject the contract as an unenforceable gaming contract.
Held: The contention was rejected. It had been suggested that there had been no intention to . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 25 November 2022; Ref: scu.181868

Cumming v Mackie: 1973

The general law of Scotland as to sponsio ludicra is that an action for the recovery of a gaming debt is not maintainable against the party in the gaming contract with whom the bet or wager is made, and it makes no difference to the application of that rule that there does not exist any dispute as to who is the winner of the bet or wager, or as to the amount of his winnings.

Citations:

1973 SC 278

Jurisdiction:

Scotland

Cited by:

Cited – Robertson v Anderson IHCS 5-Dec-2002
The parties had agreed to share any winnings from their Bingo activities. One sought to reject the contract as an unenforceable gaming contract.
Held: The contention was rejected. It had been suggested that there had been no intention to . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 25 November 2022; Ref: scu.181867

Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd; The New York Star: PC 1980

A question arose, in the context of dispute between a consignee of goods and stevedores, whether the latter could rely on a time bar. It was argued that because of the fundamental nature of the breach, the stevedore had deprived itself of the benefit of clause 17 of the bill of lading – the time bar clause.
Held: Lord Wilbeforce said: ‘A breach of a repudiatory character, which he contended that the breach in question was, entitles the innocent party, unless he waives the breach, to claim to be released from further performance of his obligations under the contract . . One of these obligations, counsel proceeded to argue, was to bring any action upon the breach within a period of one year, and the innocent party was released from this obligation. An alternative way of putting it was that the bringing of suit within one year was a condition with which the innocent party was obliged to comply: the repudiatory breach discharged this condition . . Their Lordships’ opinion upon these arguments is clear. However adroitly presented, they are unsound, and indeed unreal.’ The clause was all embracing: ‘it is quite unreal to equate this clause with those provisions in the contract which relate to performance. It is a clause which comes into operation when contractual performance has become impossible, or has been given up: then, it regulates the manner in which liability for breach of contract is to be established. In this respect their Lordships find it relevantly indistinguishable from an arbitration clause, or a forum clause, which, on clear authority, survive a repudiatory breach’. And ‘Mr Hobhouse appealed for support to some observations by Lord Diplock in Photo Production Ltd v Securicor Transport Ltd, where reference is made to putting an end ‘to all primary obligations … remaining unperformed’. But these words were never intended to cover such ‘obligations’ to use Lord Diplock’s word, as arise when primary obligations have been put an end to. There then arise, on his Lordship’s analysis, secondary obligations which include an obligation to pay monetary compensation. Whether these have been modified by agreement is a matter of construction of the contract. The analysis, indeed, so far from supporting the consignee’s argument, is directly opposed to it. Their Lordships are of opinion that, on construction and analysis, clause 17 plainly operates to exclude the consignee’s claim.’

Judges:

Lord Wilbeforce

Citations:

[1981] 1 WLR 138, [1980] 3 All ER 257

Jurisdiction:

Australia

Citing:

Cited – Suisse Atlantique Societe d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale HL 1966
No magic in the words “fundamental breach”
There is no rule of law which prevents parties to a contract agreeing to limit their respective liabilities. It is a question of the construction of the particular clause as to whether it applies to a fundamental breach or not. The court doubted the . .
Cited – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
Cited – Heyman v Darwins Limited HL 1942
An arbitration clause will survive a repudiatory breach: ‘I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of . .

Cited by:

Cited – Super Chem Products Limited v American Life and General Insurance Company Limited and Others PC 12-Jan-2004
PC (Trinidad and Tobago) A fire occurred at premises in which the stock was insured under two policies. Both insurers denied the claims alleging arson, and that it was out of time. The claimant said that the . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 25 November 2022; Ref: scu.193398

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 was not paid.
Held: King’s Norton was unable to recover the goods or their value from the third party to whom the crook subsequently sold them. A dealer who is induced by a rogue acting through the post, to believe that the rogue is some other person, when that person in fact had no separate identity, contracts instead with the rogue. The contract is voidable, but until avoided it enables a good title to be passed to an innocent purchaser by the crook. ‘The question was, With whom, upon this evidence, which was all one way, did the plaintiffs contract to sell the goods? Clearly with the writer of the letters. If it could have been shown that there was a separate entity called Hallam and Co, and another entity called Wallis then the case might have come within the decision in Cundy v Lindsay . . In his opinion there was a contract by the plaintiffs with the person who wrote the letters by which the property passed to him. There was only one entity, trading it might under an alias, and there was a contract by which the property passed to him.

Judges:

A L Smith LJ

Citations:

(1879) 14 TLR 98

Jurisdiction:

England and Wales

Citing:

Cited – Cundy v Lindsay HL 1878
Cundy was asked to pay the linen manufacturers Lindsay and Co for 250 dozen cambric handkerchiefs which he had acquired from a crook who had acquired them from Lindsay by pretending to be the respectable business firm of Blenkiron.
Held: A . .

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 – 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 – 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 . .
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.

Contract

Updated: 25 November 2022; Ref: scu.188409

Aberfoyle Plantations Ltd v Cheng: PC 1959

A purchase had been made conditional on the renewal of certain leases. Accordingly the successful negotiation of those renewals with a third party had been made a condition of the contract. The consequences of failure had been spelt out in detail. All depended upon the true construction of the agreement in question. Until the condition was purified, there was no contract of sale to be completed.
Held: In the absence of any contrary indication, a date fixed by a contract subject to a condition precedent, for performance of a duty must be strictly adhered to, and the time allowed is not to be extended by reference to equitable principles.
Lord Jenkins said: ‘But, subject to this overriding consideration, their Lordships would adopt, as warranted by authority and manifestly reasonable in themselves, the following general principles: (i) Where a condition or contract of sale fixes a date for the completion of the sale, then the condition must be fulfilled by that date; (ii) where a condition or contract of sale fixes no date for completion of the sale, then the condition must be fulfilled within a reasonable time; (iii) where a condition or contract of sale fixes (whether specifically or by reference to the date fixed for completion) the date by which the condition is to be fulfilled, then the date so fixed must be strictly adhered to, and the time allowed is not to be extended by reference to equitable principles.’

Judges:

Lord Jenkins

Citations:

[1960] AC 115, [1959] 3 All ER 910 (PC)

Jurisdiction:

Commonwealth

Cited by:

Cited – Valentines Properties Limited and (Valentines Restaurant and Bar (NZ) Limited v Huntco Corporation Limited and Steeple Transport Holdings (1993 Limited PC 29-Mar-2001
PC (New Zealand) A conditional agreement had been reached for the development of land. There was a disagreement as to the fulfilment of the conditions. The local authority approved arrangements of the . .
Cited – Lorde (Administratrix of the Estate of Desmond Cave, Deceased) v The Transport Board PC 29-Mar-2001
(Barbados) The parties had contracted to construct a restaurant. It was claimed that a condition of the contract requiring approval of planning conditions imposed was not fulfilled.
Held: When the contract had been made, the clause was . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 25 November 2022; Ref: scu.193601

Eyestorm Ltd v Hoptonacre Homes Ltd: CA 19 Dec 2007

The appellant had agreed to take leases on a development of the defendant, hoping to sell the apartments on at a profit. After difficulties, the appellant refused to complete, and the defendant forfeited the deposits.
Held: Eyestorm’s appeal was dismissed. It had failed to show the breach of the contract by the defendant.

Judges:

Tuckey LJ, Lawrence Collins LJ, Rimer LJ

Citations:

[2007] EWCA Civ 1366

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2, Law of Property Act 1925 49(2)

Jurisdiction:

England and Wales

Citing:

Cited – Prosper Homes Ltd v Hambros Bank Executor and Trustee Co Ltd 1980
The court considered whether a contract had been validly rescinded. The validity of a completion notice was challenged on the ground that the vendors were not ready, able and willing to complete the sale when the notice was served because they were . .
Cited – McCausland and Another v Duncan Lawrie Ltd and Another CA 18-Jun-1996
The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. . .
Cited – Trego v Hunt HL 1896
The court defined the meaning of the goodwill of a business: ‘What ‘goodwill’ means must depend on the character and nature of the business to which it is attached. Generally speaking, it means much more than what Lord Eldon took it to mean in the . .
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Omar v El-Wakil CA 11-Jul-2001
The parties entered into two linked contracts providing for a property and a business to be transferred, a lease granted and otherwise. The transfer of the property was in the sum expressed in the sum and at the time the other agreement provided for . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 24 November 2022; Ref: scu.262931

Sleigh v Sleigh: 1850

The court considered a claim for an indemnity under a bill of exchange which was said to be unenforceable.

Citations:

(1850) 5 Exch 345

Jurisdiction:

England and Wales

Cited by:

Distinguished – Re Chetwynd’s Estate CA 1938
A liability arose on a joint and several promissory note, where it was clear that one of the two parties (C) was the principal debtor and the other (S) was, as between them, in the position of a guarantor. The note did not comply with the 1927 Act. . .
Mentioned – Scottish and Newcastle Plc v Raguz CA 6-Mar-2007
The claimant was the original tenant under two 99 year underleases granted in 1967, and assigned them to the defendant who then himself assigned them. The eventual assignee had become insolvent. The landlord recovered the rents from the claimant who . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 24 November 2022; Ref: scu.249881

South West Water Services Ltd v International Computers Ltd: 29 Jun 1999

The court looked at an allegation that there had been a total failure of consideration: ‘In my view the hardware did not have any significant value to SWW in itself (except for a minimal second hand value). Equally I am satisfied that the customer contact and workflow SRS did not have any intrinsic value to SWW which would prevent SWW claiming in restitution. In my view SWW did not get any part of that for which they paid the purchase money. They paid the purchase money for ICL to devise and install a computer system to conform to SWW’s URS. They did not receive any part of the Computer System. SWW did not contract in a vacuum to receive management know-how. They contracted to receive management services to enable the computer system to be delivered not as an end in itself.’

Judges:

HH Judge John Toulmin CMG QC

Citations:

Unreported, 29 June 1999, [1999] BLJ 420

Jurisdiction:

England and Wales

Cited by:

Cited – Astea (UK) Ltd v Time Group Ltd TCC 9-Apr-2003
The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 24 November 2022; Ref: scu.223525

Hill v Featherstonhaugh: 1831

Tindal CJ said: ‘If an attorney, through inadvertence or inexperience, – for I impute no improper motive to the plaintiff – incurs trouble which is useless to his client, he cannot make it a subject of remuneration . . Could a bricklayer, who had placed a wall in such a position as to be liable to fall, charge his employer for such an erection?’ Clearly not.’

Judges:

Tindal CJ

Citations:

(1831) 7 Bing 569

Jurisdiction:

England and Wales

Cited by:

Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 24 November 2022; Ref: scu.223352

Crofton v Ormsby: 1804

When the purpose of one party to a contract causing delay was to defeat the other party, if the other party then fails to complete, the delaying party cannot insist on performance of the contract: ‘The whole laches here consists in the not clothing an equitable estate with a legal title, and that by a party in possession. Now I do not conceive that this is that species of laches, which will prevail against the equitable title; if I should hold it so, it would tend to overset a great deal of property in this country, where parties often continue to hold under an equitable contract for forty or fifty years, without clothing it with the legal title. I conceive, therefore, that possession having gone with the contract, there is no room for the objection. … But, in the present case, there is nothing but a resting on the equitable estate by a person in possession, without clothing it with a legal title, which I think never was held to be that sort of laches that would prevent relief.’

Judges:

Lord Redesdale, Lord Chancellor in Ireland

Citations:

(1804) 2 Sch and Lef 604

Jurisdiction:

England and Wales

Cited by:

Cited – Williams v Greatrex CA 1956
A purchaser agreed to buy land to be laid out in building plots. On payment of a deposit and giving notice, the purchaser was to be entitled to enter onto a particular plot in order to build on it. The arrangement met with difficulties, with the . .
Lists of cited by and citing cases may be incomplete.

Northern Ireland, Contract

Updated: 24 November 2022; Ref: scu.223434

In Re Hall and Barker: 1878

‘If a man engages to carry a box of cigars from London to Birmingham, it is an entire contract, and he cannot throw the cigars out of the carriage half-way there, and ask for half the money; or if a shoemaker agrees to make a pair of shoes, he cannot offer you one shoe and ask you to pay one half the price.’

Judges:

Sir George Jessel MR

Citations:

(1878) 9 ChD 538

Jurisdiction:

England and Wales

Cited by:

Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 24 November 2022; Ref: scu.223351

Hart v Alexander: 1837

The test for novation is whether there has been an acceptance which can be inferred from the acts and conduct of the customer.

Citations:

(1837) 2 M and W 483

Jurisdiction:

England and Wales

Cited by:

Cited – Telewest Communications Plc Telewest (Publications) Limited v Commissioners of Customs and Excise CA 10-Feb-2005
The taxpayers sold cable services which were liable to VAT through 28 subsidiaries, and supplied by a third party as part of the same service a listings magazine. They sought exemption from VAT for that part of the consideration related to the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 24 November 2022; Ref: scu.223207

Dumford Trading Ag v Oao Atlantrybflot: CA 26 Jan 2005

an appeal against summary judgment under CPR Part 24 for some pounds 1,890,000 under two contracts of guarantee.

Judges:

Lord Justice Rix Lord Justice Johnathan Parker Lord Justice Brooke

Citations:

[2005] EWCA Civ 24

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Dumford Trading Ag v Oao Atlantrybflot CA 17-Sep-2004
Applications for suspension of enforcement pending appeal and similar. . .

Cited by:

Main Judgment – Dumford Trading Ag v OAO Atlantrybflot (Costs) CA 26-Jan-2005
Costs order upheld – leave to appeal to the House of Lords refused. . .
Lists of cited by and citing cases may be incomplete.

Contract, Company

Updated: 24 November 2022; Ref: scu.221752

Venetian Glass Gallery Ltd v Next Properties Ltd.: 1989

The court considered the significance of a reservation that a letter was sent ‘subject to licence’. After considering case law: ‘All three go to show that there is a distinction recognised by the law between the relationships, such as those between landlord and tenant, where there is an existing set of legal obligations between the parties and there is sought within those obligations a consent, and relations between strangers in law, as between prospective purchaser and prospective vendor, where there is no present tie and the parties are in their negotiations. I accept that there is such a distinction and I agree that one does not regard the need for a formal licence, probably under seal, as being the essential step without which there can be no effective licence, whereas of course in the case of a contract for the sale of land, apart from the difficulties created by section 40 of the Law of Property Act 1925, if there is no written note or memorandum of the contract, it is plainly the normal expectation of the law that until a normal contract has been signed, either by both parties or in two parts, and exchanged between the parties, there will be no legal relationship. Nonetheless, accepting that principle, it is still a question, in my view, of construction of the various letters and reading the correspondence as a whole.’

Judges:

Harman J

Citations:

[1989] 2 EGLR 42

Jurisdiction:

England and Wales

Cited by:

Cited – Aubergine Enterprises Limited v Lakewood International Limited CA 26-Feb-2002
A sought confirmation that it had successfully rescinded a contract for the purchase of a leasehold property from L. Either party was to be able to rescind, if consent to the assignment had not obtained before three days before completion. There . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract

Updated: 24 November 2022; Ref: scu.221528

Corner v Munday: 7 Jan 1987

(Middlesborough County Court) The seller had left the house before marketing it. The buyer made an offer. In answer to the pre-contract enquiries, the seller told the buyer that the central heating was in good order, which was true at the time. Contracts were not exchanged until three months later when the water froze, cracking the pipes. The defendant was unaware of this. No further enquiry was made. The buyer sought damages in misrepresentation.
Held: The answer given was a continuing representation, and the defendant was liable under section 2(1) of the 1968 Act. If the representation was not true at the time of exchange, the defendant was liable unless he could avail himself of a statutory defence.

Judges:

Hewitt J

Citations:

(1987) CLY 479

Statutes:

Misrepresentation Act 1967 2(1)

Jurisdiction:

England and Wales

Contract

Updated: 24 November 2022; Ref: scu.219172

Van Lynn Developments Ltd v Pelvis Construction Co Ltd: 1969

A notice of an assignment of a debt need not state the date of the assignment.

Citations:

[1969] 1 QB 607

Statutes:

Law of Property Act 1925 136

Jurisdiction:

England and Wales

Citing:

Cited – W F Harrison and Co v Burke 1956
If a notice of assignment of a debt describes the assignment by reference to a wrong date, the notice is invalid because it has described a non-existent document. . .

Cited by:

Cited – Firstdale Ltd v Quinton ComC 5-Aug-2004
In the course of a long dispute, the defendant’s solicitors had indicated that they would accept service of proceedings. Just before the limitation period expired, the papers were served directly in the client. The defendants solicitors said that . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 24 November 2022; Ref: scu.219111

Weir v Bell: 1878

‘I think that every person who authorizes another to act for him in the making of any contract, undertakes for the absence of fraud in that person in the execution of the authority given, as much as he undertakes for its absence in himself when he makes the contract’.

Judges:

Bramwell LJ

Citations:

(1878) 3 Exch D 238

Jurisdiction:

England and Wales

Cited by:

Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 24 November 2022; Ref: scu.219297

Slingsby’s Case: 1587

Where two inconsistent provisions in a deed cannot be reconciled, the earlier provision prevails over the later.

Citations:

(1587) 5 Co Rep 186

Jurisdiction:

England and Wales

Cited by:

Cited – Forbes v Git HL 1922
If there are conflicting provisions in a deed and they cannot be reconciled, the court may apply as a last resort the ancient rule of thumb that the earlier provision prevails over the later one. . .
Cited – Taylor v Rive Droite Music Ltd ChD 6-Jul-2004
The claimant music producer and songwriter had entered into a publishers agreement with the defendant, agreeing to work for it. He now sought to be free to work for another company. The factual background was unclear, and the contract documentation . .
Cited – Slater v Simm ChD 27-Apr-2007
The deceased and her partner did not marry but owned three properties together. They could not agree on the interpretation of the documents setting out their interests, and whether they had been varied.
Held: The court set out the various . .
Explained – Martin v Martin 1987
A property was bought by parties as ‘beneficial joint tenants in equal shares’.
Held: The words ‘in equal shares’ had the effect of severing any joint tenancy created by the first words of the phrase. The law would apply the first of two . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 24 November 2022; Ref: scu.211396

Saunderson v Piper: 27 May 1839

Where there is an inconsistency in a contract between written words expressing a number and the same number expressed in figures, the written number will usually prevail.

Citations:

(1839) 5 Bing NC 425, [1839] EngR 726, (1839) 5 Bing NC 561, (1839) 132 ER 1215

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

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

Contract

Updated: 24 November 2022; Ref: scu.211395

Ladyman v Wirral Estates Limited: 1968

Though there was a presumption that ‘Where under a contract a period of time is expressed to run from a certain day, or to begin on a certain day, the day named is generally excluded in computing the period’, that presumption was rebuttable.

Judges:

Fisher J

Citations:

[1968] 2 All ER 197

Jurisdiction:

England and Wales

Contract

Updated: 24 November 2022; Ref: scu.216627

Smith and Another v Peter North and Partners: CA 8 Oct 2001

The claimants bought property at a price based upon a valuation provided by the defendants. They sought damages being the costs of repairing the property, the necessity of such repairs not having been revealed by the report. Expert valuation showed that the property, even unrepaired, exceeded in value the price paid. The defendants obtained summary judgment on the basis that no damages were payable. The claimant appealed.
Held: the damages in negligence would be nil, but in contract, the damages payable were what was required in order to put the claimants in the position they would have been in the absence of a breach. Even so, the ‘cost of repairs’ basis would be inappropriate. It was irreconcilable with restitutionary or compensatory principles underlying the award of damages.
The appellants claim damages against the respondent in respect of an allegedly negligent survey carried out by the respondent for the appellants of a dwellinghouse

Judges:

Judge LJ, Parker LJ, Bodey J

Citations:

Gazette 25-Oct-2001, [2001] EWCA Civ 1553, [2001] 42 EGCS 138, [2002] 1 P and CR 37, 82 Con LR 126, [2002] Lloyd’s Rep PN 111, [2002] PNLR 12

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence, Damages, Contract

Updated: 24 November 2022; Ref: scu.201441

The Lady Durham: 1835

‘The man by his contract has a lien on the vessel: he may proceed in rem … The court has every disposition to help this class of man’.

Citations:

(1835) 3 Hagg 196

Jurisdiction:

England and Wales

Contract

Updated: 24 November 2022; Ref: scu.199776

Ariston SRL v Charly Records Ltd: 13 Apr 1990

Penalty Clauses

Citations:

Independent 13-Apr-1990

Jurisdiction:

England and Wales

Cited by:

Cited – Philips (Hong Kong) Ltd v The Attorney General of Hong Kong PC 9-Feb-1993
After referring to two Australian cases on penalty clauses in contracts: ‘These statements assist by making it clear that the court should not adopt an approach to provisions as to liquidated damages which could, as indicated earlier, defeat their . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 24 November 2022; Ref: scu.200651

Gordon v M’Hardy: 1903

The pursuer sought to recover damages from a retail grocer on account of the death of his son by ptomaine poisoning, caused by eating tinned salmon purchased from the defender. The pursuer averred that the tin, when sold, was dented, but he did not suggest that the grocer had cut through the metal and allowed air to get in, or had otherwise caused injury to the contents.
Held: The action was irrelevant: ‘I do not see how the defender could have examined the tin of salmon which he is alleged to have sold without destroying the very condition which the manufacturer had established in order to preserve the contents, the tin not being intended to be opened until immediately before use.’

Judges:

Lord Justice-Clerk

Citations:

(1903) 6 F 210

Jurisdiction:

England and Wales

Cited by:

Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Lists of cited by and citing cases may be incomplete.

Negligence, Contract, Scotland

Updated: 24 November 2022; Ref: scu.197995

Gallemos (In Receivership) Ltd v Barratt Falkirk Ltd: 1989

Citations:

1989 SC 248

Jurisdiction:

England and Wales

Cited by:

Cited – Safdar v Shahid SCS 30-Apr-2004
The pursuer claimed repayments of loans made for the purchase of company shares. The defender denied any loan had been made, and claimed that any loans would require evidence in writing under the Act.
Held: The arguments should be allowed to . .
Lists of cited by and citing cases may be incomplete.

Contract, Scotland

Updated: 24 November 2022; Ref: scu.196583

Albacruz (Cargo Owners) v Albazero ‘The Albazero’: HL 1977

The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for breach of contract where he himself has suffered no loss by reason of the breach, there is an exception applicable to contracts of carriage: ‘that the consignor may recover substantial damages against the shipowner if there is privity of contract between him and the carrier for the carriage of goods; although, if the goods are not his property or at his risk, he will be accountable to the true owner for the proceeds of his judgment.’
Lord Diplock rationalised the rule in Lambert to fit into the pattern of English law by treating it: ‘as an application of the principle, accepted also in relation to policies of insurance upon goods, that in a commercial contract concerning goods where it is in the contemplation of the parties that the proprietary interests in the goods may be transferred from one owner to another after the contract has been entered into and before the breach which causes loss or damage to the goods, an original party to the contract, if such be the intention of them both, is to be treated in law as having entered into the contract for the benefit of all persons who have or may acquire an interest in the goods before they are lost or damaged, and is entitled to recover by way of damages for breach of contract the actual loss sustained by those for whose benefit the contract is entered into.’
He explained the common law approach underlying section 32 in terms of bailment: ‘The question who stood in relation of bailor to carrier and so was entitled to sue him for the full value of the goods lost or the full amount of the damage could only arise where the consignor and consignee were different persons. In such a case the presumption was that the bailor was the person named as consignee and that in delivering possession of the goods to the carrier the consignor was acting and purporting to act as agent only for a designated principal – the consignee.’

Judges:

Lord Brandon, Lord Diplock

Citations:

[1977] AC 774, [1976] 3 All ER 129

Statutes:

Sale of Goods Act 1979 32

Jurisdiction:

England and Wales

Citing:

Cited – Dawes v Peck 1799
Where there is a named consignee on a bill of lading it may be inferred that the contracting party is the consignee not the shipper. . .

Cited by:

Cited – Borealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Cited – 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 . .
Cited – Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .
Cited – Darlington Borough Council v Wiltshier Northern Ltd and Others CA 29-Jun-1994
The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance . .
Cited – Stora Enso Oyj v Port of Dundee OHCS 8-Mar-2006
Two consignments were destroyed by a fire in the defendaers warehouse. The defender asserted that the pursuer had no title to the goods because under the ‘CIP’ contract, title had passed already to the consignee.
Held: The 1979 Act provided . .
Cited – Scottish and Newcastle International Limited v Othon Ghalanos Ltd HL 20-Feb-2008
The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Cited – Helmsley Acceptances Ltd v Hampton CA 11-Mar-2010
The claimant lender sought damages from an allegedly negligent valuation by the defendant. It had syndicated its loan, and the defendant now argued that it could only claim for that part of the loan for which it retained ownership.
Held: The . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Cited – SS (Sri Lanka), Regina (on The Application of) v The Secretary of State for The Home Department CA 15-Jun-2018
The court was asked whether, in cases heard by the First-tier Tribunal (Immigration and Asylum Chamber) where the credibility of the appellant is in issue, there is a rule that a delay of more than three months between the hearing of oral evidence . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract, Damages

Updated: 24 November 2022; Ref: scu.194553

Tarner v Walker: 1867

The court considered whether the judge had properly left to the jury the issue of whether the plaintiff was entitled to recover an advertised reward which was to be paid to ‘any person who will give such information as shall lead to the apprehension and conviction of the thieves’.

Citations:

(1867) LR 2 QB 301

Jurisdiction:

England and Wales

Cited by:

Cited – Churchhouse, Regina (on the Application of) v Inland Revenue Admn 4-Apr-2003
The taxpayer was a revenue informer one whose trade is described by Coke as ‘viperous vermin [who] under the reverend mantle of law and justice instituted for protection of the innocent, and the good of the Commonwealth, did vexe and depauperize the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 24 November 2022; Ref: scu.194955

Walters v Morgan: 1861

A person may make a representation by conduct if he fails to correct an impression given by his conduct.

Citations:

(1861) 3 De G F and J 718

Jurisdiction:

England and Wales

Cited by:

Cited – Spice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 24 November 2022; Ref: scu.194205

Schneider v Heath: 1813

A ship was sold ‘to be taken with all faults’. In fact the vendor knew that she was unseaworthy. The particulars of sale stated that her hull was ‘nearly as good as when launched’. In fact the hull was rotten and the captain took her to a place where he kept her constantly afloat. Held The knowledge of the captain should be imputed to the owner of the ship, and that the contract should be set aside for misrepresentation.

Judges:

Mansfield CJ

Citations:

(1813) 3 Camp 506

Jurisdiction:

England and Wales

Cited by:

Cited – Spice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 24 November 2022; Ref: scu.194203

Darlington Borough Council v Wiltshier Northern Ltd and Others: CA 29 Jun 1994

The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance company then assigned to the council its rights under the building contracts, and the council claimed damages from the builders for breach of the contracts. The builders took the point that the council, as assignee, had no greater rights under the contracts than the finance company had and that, as the finance company did not own the site, it had suffered no loss.
Held: A third party may sue on a contract to recover damages for defects if the benefit of a building contract was intended for them and had been assigned to him. Where there is a right to have an assignment of any cause of action accruing to the employer against the contractor, the exception in Albazero may still apply so as to enable the assignee to recover substantial damages. The fact that the innocent party did not receive the bargain for which he contracted is itself a loss: ‘he suffers a loss of bargain or of expectation interest.’
Steyn LJ: ‘in the case of a building contract, the prima facie rule is cost of cure, i.e., the cost of remedying the defect: East Ham Corporation v. Bernard Sunley and Sons Ltd. [19661 A.C. 406. But where the cost of remedying the defects involves expense out of all proportion to the benefit which could accrue from it, the court is entitled to adopt the alternative measure of difference of the value of the works . . .’

Judges:

Dillon, Waite and Steyn LJJ

Citations:

Times 04-Jul-1994, Independent 29-Jun-1994, Gazette 12-Oct-1994, [1995] 1 WLR 68

Jurisdiction:

England and Wales

Citing:

Cited – Albacruz (Cargo Owners) v Albazero ‘The Albazero’ HL 1977
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for . .
Applied – Dunlop v Lambert HL 16-Jun-1839
A cargo of whisky was lost in carriage by sea between Leith and Newcastle. A second shipment was made and the loss was claimed. The House was asked whether ‘in a question between a carrier and the person to whom the carrier is responsible in the . .
Cited – East Ham Corporation v Bernard Sunley and Sons Ltd HL 1965
In cases in which the plaintiff is seeking damages for the defective performance of a building contract, which is a contract for labour and materials, the normal measure of his damages is the cost of carrying out remedial work, or re-instatement. . .

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 . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.

Contract, Construction

Updated: 24 November 2022; Ref: scu.79806

Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine: HL 8 Dec 1993

A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: The benefit of a contract may be assigned to a third party without the consent of the other contracting party. If this is not desired, it is open to the parties to agree that the benefit of the contract shall not be assignable by one or either of them, either at all or without the consent of the other party. The JCT conditions providing for a prohibition against assignment of obligations under the contract, was not contrary to public policy, and a purported assignment in breach of that condition was ineffective. The House made available a remedy as a matter of law to solve the problem of transferred loss in the case before them. Both contractor and employer were aware that the property was going to be occupied and possibly purchased by third parties.
Held: It could be foreseen that a breach of the contract might cause loss to others than the employer. A court will have to examine a contract to see if the exception identified in Albazero applied in a contract.
Lord Griffiths said: ‘In cases such as the present the person who places the contract has suffered financial loss because he has to spend money to give him the benefit of the bargain which the defendant had promised but failed to deliver. I therefore cannot accept that it is a condition of recovery in such cases that the plaintiff has a proprietary right in the subject matter of the contract at the date of breach.’
Lord Browne-Wilkinson said: ‘On the contrary, McAlpine had specifically contracted that the rights of action under the building contract could not without McAlpine’s consent be transferred to third parties who became owners or occupiers and might suffer loss. In such a case, it seems to me proper, as in the case of the carriage of goods by land, to treat the parties as having entered into the contract on the footing that Corporation would be entitled to enforce contractual rights for the benefit of those who suffered from defective performance but who, under the terms of the contract, could not acquire any right to hold McAlpine liable for breach. It is truly a case in which the rule provides ‘a remedy where no other would be available to a person sustaining loss which under a rational legal system ought to be compensated by the person who has caused it.’ The Corporation, faced with a breach by McAlpine of their contractual duty to perform the contract with sound materials and with all reasonable skill and care, would be entitled to recover from McAlpine the cost of remedying the defect in the work as the normal measure of damages. There were two possible objections. First, it should not matter that the work was not being done on property owned by Corporation. Where a husband instructs repairs to the roof of the matrimonial home it cannot be said that he has not suffered damage because he did not own the property. He suffers the damage measured by the cost of a proper completion of the repair: ‘In cases such as the present the person who places the contract has suffered financial loss because he has to spend money to give him the benefit of the bargain which the defendant had promised but failed to deliver.’ The second objection, that Corporation had in fact been reimbursed for the cost of the repairs was answered by the consideration that the person who actually pays for the repairs is of no concern to the party who broke the contract, but ‘The court will of course wish to be satisfied that the repairs have been or are likely to be carried out but if they are carried out the cost of doing them must fall upon the defendant who broke his contract.’

Judges:

Lord Browne-Wilkinson, Lord Griffiths

Citations:

Times 23-Jul-1993, Gazette 08-Dec-1993, Independent 30-Jul-1993, [1994] 1 AC 85, [1993] UKHL 4, [1993] 3 All ER 417

Links:

Bailii

Statutes:

Insolvency Act 1986 286 306 436

Jurisdiction:

England and Wales

Citing:

Cited – Albacruz (Cargo Owners) v Albazero ‘The Albazero’ HL 1977
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for . .
Cited – Dawes v Peck 1799
Where there is a named consignee on a bill of lading it may be inferred that the contracting party is the consignee not the shipper. . .
Appeal from – Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others CA 9-Oct-1990
The claimants had taken an assignment of leasehold premises. They sought to recover for building defects.
Held: The assignment was effective to transfer to Linden Gardens the causes of action for subsisting breaches of contract by M and H and . .

Cited by:

applied – South v Chamberlayne ChD 7-Sep-2001
The claimant occupied a house under a 75 year lease. She obtained an order requiring the landlord to sell the freehold reversion to her, and then set out to sell on her interest. She contracted to sell her interest in the property and her statutory . .
Cited – Mulkerrins v Pricewaterhouse Coopers HL 31-Jul-2003
The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, . .
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 . .
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Cited – Regina v Medicines Control Agency ex parte Smith and Nephew (Primecrown Ltd intervening) ChD 1999
The court considered liability to third partries under a cross-undertaking given to the court: ‘Whether the recoverable damage is that which is foreseeable by the plaintiff or that which is directly caused by the injunction is not in point. None of . .
Cited – Orion Finance Ltd v J D Williams and Company Ltd CA 23-Jun-1995
The finance company had taken an assignment of the benefit of a lease of computer equipment and sought payment from the defendants. . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Cited – Barbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
Cited – CEP Holdings Ltd, CEP Claddings Ltd v STENI As QBD 9-Oct-2009
The claimants asserted breach by the defendant of an exclusive distributor agreement. The defendants said that the claimants had failed, as required by the contract, to use all reasonable endeavours to promote the product.
Held: There was no . .
Cited – Helmsley Acceptances Ltd v Hampton CA 11-Mar-2010
The claimant lender sought damages from an allegedly negligent valuation by the defendant. It had syndicated its loan, and the defendant now argued that it could only claim for that part of the loan for which it retained ownership.
Held: The . .
Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.

Construction, Contract

Updated: 24 November 2022; Ref: scu.83075

EMW Law Llp v Halborg: ChD 14 Oct 2016

The claimant solicitors had been instructed under a conditional fee agreement, to act in litigation for the defendant solicitor, himself acting for his parents and a company owned by him. Though the case was one the defendant in the case refused to pay the legal bill, but then, the claimant said, paid those costs across to the now defendant.

Judges:

Master Clark

Citations:

[2016] EWHC 2526 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – EMW Law Llp v Halborg ChD 22-May-2015
. .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 23 November 2022; Ref: scu.570339

Willson v Love: 1896

The lessees of a farm covenanted not to sell hay or straw off the premises during the last twelve months of the term, and a provision that an additional rent of 3 l. per ton should be payable by way of penalty for every ton of hay or straw so sold. The manurial value of straw and of hay were known ascertainable quantities as at the time of the bargain, and radically different, so that the damage resulting from the want of one could never be the same as the damage resulting from the want of the other.
Held: The sum so made payable was a penalty and not liquidated damages.

Judges:

Lord Esher

Citations:

[1896] 1 QB 626

Jurisdiction:

England and Wales

Cited by:

Cited – Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 November 2022; Ref: scu.440842

MMP Gmbh v Antal International Network Ltd: ComC 6 May 2011

The claimant had purchased and conducted a franchise recruitment agency under the style and by agreement with the defendant. An employee of the claimant was accused of harassment, and the defendant sought to terminate the franchise agreement, saying that this tainted the franchise name. The claimant now sought damages for repudiation of the contarct by the defendant.

Judges:

Flaux J

Citations:

[2011] EWHC 1120 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 23 November 2022; Ref: scu.434894

The Laconian Confidence: 1997

Charterers appealed against the decision of the arbitrator on the meaning of the phrase ‘any other cause’. The performance of the contract had been interrupted by the intervention of the authorities in Chittagong.
Held: The appeal failed. The arbitrators were correct to decide that the vessel was not off-hire. Rix J said: ‘ In my judgment it is well established that those words, in the absence of ‘whatsoever’, should be construed either ejusdem generis or at any rate in some limited way reflecting the general context of the charter and clause . . A consideration of the named causes indicates that they all relate to the physical condition or efficiency of either vessel (including its crew) or, in one instance, cargo. There is, moreover, the general context . . that it is for the owners to provide an efficient ship and crew. In such circumstances it is to my mind natural to conclude that the unamended words ‘any other cause’ do not cover an entirely extraneous cause, like the boom in Court Line, or the interference of authorities unjustified by the condition (or reasonably suspected condition) of ship or cargo. Prima facie it does not seem to me that it can be intended by a standard off-hire clause that an owner takes the risk of delay due to the interference of authorities, at any rate where that interference is something beyond the natural or reasonably foreseeable consequence of some named cause. Where, however, the clause is amended to include the word ‘whatsoever’, I do not see why the interference of authorities which prevents the vessel performing its intended service should not be regarded as falling within the clause, and I would be inclined to say that that remains so whether or not that interference can be related to some underlying cause internal to the ship, or is merely capricious. That last thought may be controversial, but it seems to me that if an owner wishes to limit the scope of causes of off-hire under a clause which is deliberately amended to include the word ‘whatsoever’, then he should be cautious to do so.’
In the absence of the word ‘whatsoever’ in the clause, the unexpected and unforeseeable interference by the authorities at the conclusion of a normal discharge was: ‘a totally extraneous cause . . unconnected with, because too remote from, the merely background circumstance of the cargo residues of 15.75 tonnes. There was no accident to cargo, and there was nothing about the vessel herself, her condition or efficiency, nor even anything about the cargo, which led naturally or in the normal cause of events to any delay. If the authorities had not prevented the vessel from working, she would have been perfectly capable of discharging the residues or of sailing and dumping them without any abnormal delay.’

Judges:

Rix J

Citations:

[1997] 1 Lloyd’s Rep 139

Jurisdiction:

England and Wales

Cited by:

Distinguished – Cosco Bulk Carrier Co Ltd and Another v M/V ‘Saldanha’ C/P Dated 25/06/08 ComC 11-Jun-2010
The court considered the effect of a ship being taken by pirates at sea on the obligations in the charterparty contract. The insurers said that a claim for ‘average accident’ must include an element of physical damage – absent in this case.
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 23 November 2022; Ref: scu.416719

Hildron Finance Ltd v Sunley Holdings Ltd: ChD 6 Jul 2010

Whether the appellant, Sunley Holdings Limited is entitled to receive an overage payment pursuant to the terms of an agreement which it entered into when it sold the freehold interest in a large block of flats

Judges:

Mr Justice Henderson

Citations:

[2010] EWHC 1681 (Ch), [2010] 40 EG 104, [2010] 28 EG 85

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 23 November 2022; Ref: scu.420238

7E Communications Ltd v Vertex Antennentechnik Gmbh: CA 25 Feb 2007

The claimant had rejected satellite antennae it had bought from the defendants, and sought damages. The defendant said the English court did not have jurisdiction, since the order terms contained an exclusive jurisdiction clause. The claimant sought to appeal the oder refusing jurisdiction. The county court judge had refused permission to appeal to the High Court, but directed that the claimants appeal to the Court of Appeal.
Held: Though the judge had power when granting permission to appeal, to order the transfer of the appeal to the Court of Appeal, he could not do so and at the same time withhold permission to appeal.

Judges:

Lord Justice Dyson Lady Justice Arden Sir Anthony Clarke MR

Citations:

[2007] EWCA Civ 140, Times 19-Mar-2007, [2007] 1 WLR 2175, [2008] Bus LR 472, [2007] 2 Lloyd’s Rep 411

Links:

Bailii

Statutes:

Civil Procedure Rules 52.14

Jurisdiction:

England and Wales

Litigation Practice, Contract

Updated: 23 November 2022; Ref: scu.249234

Credit Suisse First Boston (Europe) Ltd v Seagate Trading Co Ltd: 1999

An oral contract for the sale of Russian Notes was followed by a Trade confirmation with an English jurisdiction clause. It was said that this document was fraudulently presented by Credit Suisse as a mere perfunctory confirmation (which it was not) and that the oral contract was not with Credit Suisse Europe but with Credit Suisse US and that there was a specific agreement that the deal was to be centred in New York where Credit Suisse US had its centre of business.
Held: The English jurisdiction clause could not be relied on, whether or not the allegations of fraud were, in the event, made out.

Judges:

Rix J

Citations:

[1999] 1 Lloyds Rep 784

Jurisdiction:

England and Wales

Cited by:

Cited – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Lists of cited by and citing cases may be incomplete.

Contract, Jurisdiction

Updated: 23 November 2022; Ref: scu.248227

Ethiopian Oil Fields v Rio del Mar: 1990

A dispute about rectification came within the words ‘any dispute arising out of or under this contract’. The phrase ‘out of’ must add something to ‘under’, even though the words ‘out of ‘ were in fact the words which appeared first in the clause. The words ‘arising out of’ were virtually synonymous with the words ‘arising in connection with’.

Judges:

Hirst J

Citations:

[1990] 1 Lloyds Rep 86

Jurisdiction:

England and Wales

Cited by:

Cited – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 November 2022; Ref: scu.248224

The Dione: 1975

Charterers should have redelivered the vessel by a certain date but failed to do so.
Held: They were held liable in damages for the difference between the market and charterparty rate for the overrun period. Lord Denning said that where the charterer had an obligation to redeliver by a stated date: ‘If he does not do so – and the market rate has gone up – he will be bound to pay the extra. That is to say he will be bound to pay the charter rate up to the end of the stated period and the market rate thereafter, see Watson v Merryweather’.

Judges:

Lord Denning

Citations:

[1975] I LLR 117

Jurisdiction:

England and Wales

Cited by:

Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 23 November 2022; Ref: scu.246743

Mondel v Steel: 1841

The court considered a claim for a set off. Parke B: ‘Such cases are confined to those concerned with goods sold and delivered with a warranty, goods agreed to be supplied according to a contract and actions for work and labour done.’

Judges:

Parke B

Citations:

(1841) 8 M and W 858

Jurisdiction:

England and Wales

Cited by:

Cited – British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 November 2022; Ref: scu.247740

Slater v Hoyle and Smith Ltd: 1920

Cotton cloth was sold. The buyer was to use it to fulfil his own contract with a sub-buyer. The cloth was not of the contractual quality but the buyer was able to perform the sub-contract by delivering the same cloth. The sub-buyers paid the full price.
Held: The normal measure of damages applied namely the difference between the market price at the time and place of delivery of cloth of the contractual quality and the market price at the time and place of delivery of the cloth actually delivered.

Citations:

[1920] 2 KB 11

Jurisdiction:

England and Wales

Cited by:

Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Distinguished – Bence Graphics International Ltd v Fasson UK Ltd CA 24-Oct-1996
Bench sold vinyl film to Fasson for decals to identify sea-borne bulk containers. A term required the film to be legible condition for at least five years. Fasson sold them to container manufacturers who supplied the containers marked with the . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 23 November 2022; Ref: scu.246956

Rightside Properties Ltd v Gray: ChD 1975

The vendor had served an invalid notice to complete on the purchaser. When the purchaser did not comply with the notice the vendor purported to terminate the contract by accepting the purchaser’s alleged repudiation. Walton J held that it was in fact the vendor who had repudiated, and that the purchaser was entitled to accept that repudiation and recover damages without having to show that it was at any stage itself RWA to perform its own contractual obligations.
Walton J said: ‘In my judgment, in equity as well as at common law the wrongful repudiation by one party of his obligations under the contract entitles the other to accept such repudiation, and thereby put an end to the contract, and such other is, as a consequence, discharged from performing any conditions precedent which it would otherwise fall upon him to discharge . .
. . There was at all times until, and there was persisted in during, the trial, a wrongful repudiation. It appears to me that in consequence the plaintiffs were never at any time under any obligation to show that they were ‘able’ to perform their part of the contract. ‘Ability,’ in this connection, means arranging the finance, which, under modern conditions, could be done either by arranging a mortgage or a sub-sale, and doubtless there are other methods as well. But they all involve some form of preparation on the part of the person raising the finance; and it appears to me pessimi exempli if the vendor was in a position to say, ‘Because you were not on a particular day ready with your finance, you cannot claim damages against me. True it is that it would have been perfectly useless for you to make the preparations because I told you I was not going to complete, but I can now huff you for having failed to carry out this perfectly useless exercise.’ This is the morality of a game, not of a serious legal contest.’

Judges:

Walton J

Citations:

[1975] Ch 72, [1974] 2 All ER 1169

Jurisdiction:

England and Wales

Cited by:

Cited – Country and Metropolitan Homes Surrey Ltd v Topclaim Ltd 1996
The issue was the proper construction and effect of condition 6.8 of the Standard Conditions of Sale, 2nd edition, in relation to the giving of a notice to complete a contract for the sale of land.
Held: The condition provided exclusively for . .
Cited – Astea (UK) Ltd v Time Group Ltd TCC 9-Apr-2003
The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 23 November 2022; Ref: scu.223520

Joseph v Knox: 1813

Citations:

(1813) 3 Camp 320

Jurisdiction:

Scotland

Cited by:

Relied upon – Dunlop v Lambert HL 16-Jun-1839
A cargo of whisky was lost in carriage by sea between Leith and Newcastle. A second shipment was made and the loss was claimed. The House was asked whether ‘in a question between a carrier and the person to whom the carrier is responsible in the . .
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: 23 November 2022; Ref: scu.218904

The Arawa: 1977

Judges:

Brandon J

Citations:

[1977] 2 Lloyd’s Rep 416

Statutes:

Hague-Visby Rules III r2

Jurisdiction:

England and Wales

Citing:

Applied – Pyrene Co Ltd v Scindia Navigation Co Ltd QBD 1954
The fob contract has become a flexible instrument and it does not necessarily follow that the buyer is an original party to the contract of carriage. The effect of article III, r. 2 of the Hague-Visby Rules was not to override freedom of contract to . .

Cited by:

Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 23 November 2022; Ref: scu.219879

Foulkes v Metropolitan District Railway Co: 1880

The court considered the liability of a railway company where the plaintiff had bought his ticket from one railway company, but claimed liability from another which had undertaken responsibility for part of the services to be rendered to the plaintiff under the contract evidenced by the ticket.

Citations:

(1880) 5 CPD 157

Jurisdiction:

England and Wales

Cited by:

Cited – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Contract

Updated: 23 November 2022; Ref: scu.214713

Marzetti v Williams: 1830

A finding of a beach of contract implies that some remedy will be available.

Citations:

(1830) 1 B and Ad 415

Jurisdiction:

England and Wales

Cited by:

Cited – Neville v London Express Newspaper HL 1919
The question was whether, in order to recover damages for the tort which existed, it was necessary to show specific loss.
Held: An action for damages for maintenance will not lie in the absence of proof of special damage. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 November 2022; Ref: scu.199939

Royscot Trust Ltd v Rogerson: 1991

Doyle -v- Olby (Ironmongers) Ltd was an appropriate way of assessing damages for an action under the Act, and damages are calculated on the basis of fraud.
A client misled into an investment is entitled to the measure of damages he would receive for a fraud.

Citations:

[1991] 2 QB 297, [1991] EWCA Civ 12

Links:

Bailii

Statutes:

Misrepresentation Act 1967 2(1)

Jurisdiction:

England and Wales

Citing:

Applied – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .

Cited by:

Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – Spice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .
Not relied upon – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Doubted – Peekay Intermark Ltd and Another v Australia and New Zealand Banking Group Ltd ComC 25-May-2005
The claimant alleged mis-selling of an emerging markets investment product. The defendant claimed that whilst there might have been a misrepresentation, by the time the contract was formed, correct information had been provided and incorporated in . .
Doubted – Cheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
Lists of cited by and citing cases may be incomplete.

Damages, Torts – Other, Contract, Damages

Updated: 23 November 2022; Ref: scu.191181

With v O’Flanagan: CA 1936

When negotiating to enter into a contract, a person may have a duty to disclose material facts which come to his notice before the conclusion of a contract if they falsify a representation previously made by him. A representation as to the profits of a medical practice made with a view to inducing purchasers to buy the practice was a continuing representation. The vendor had a duty to communicate a change in circumstances to the purchaser. When a party makes a statement that is true at the time, there is an obligation to rectify if that statement becomes untrue in the course of negotiations.
Lord Wright MR observed that ‘a representation made as a matter of inducement to enter into a contract is to be treated as a continuing representation’, and added: This question only occurs when there is an interval of time between the time when the representation is made and when it is acted upon by the party to whom it was made, who either concludes the contract or does some similar decisive act; but the representation remains in effect and it is because that is so, and because the court is satisfied in a proper case on the facts that it remained operative in the mind of the representee, that the court holds that under such circumstances the representee should not be bound.’

Judges:

Lord Wright MR, Romer LJ

Citations:

[1936] Ch 575, [1936] 1 All ER 727

Jurisdiction:

England and Wales

Citing:

Approved – Brownlie v Campbell; Brownlie v Miller HL 1880
Silence where there is a duty to speak, may amount to a misrepresentation. Lord Blackburn said: ‘where there is a duty or an obligation to speak, and a man in breach of that duty or obligation holds his tongue and does not speak, and does not say . .

Cited by:

Cited – Spice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .
Cited – Director of Public Prosecutions v Ray HL 25-Jul-1973
The defendant ordered a meal at a restaurant believing his companion would lend him the money to pay. He later decided to seek to avoid payment and took a opportunity to escape.
Held: The appeal was allowed and the conviction restored. The . .
Cited – Wickens v Cheval Property Developments Ltd ChD 8-Sep-2010
The buyer of land sought a reduction in the purchase price complaining of the removal of several items (worth possibly andpound;300,000) by intruders after exchange. The seller said that the fixtures had been excluded under the contract.
Held: . .
Cited – Cramaso Llp v Ogilvie-Grant, Earl of Seafield and Others SC 12-Feb-2014
The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 November 2022; Ref: scu.194206

Smith v London and House Property Corporation: CA 1884

Bowen LJ said: ‘In considering whether there was a misrepresentation, I will first deal with the argument that the particulars only contain a statement of opinion about the tenant. It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of fact. In a case where the facts are equally well known to both parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such opinion is in a sense a statement of a fact, about the condition of the man’s own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion’

Judges:

Bowen LJ

Citations:

(1884) 28 ChD 7

Jurisdiction:

England and Wales

Cited by:

Applied – Brown v Raphael 1958
This was a sale of an absolute reversion in a trust fund. The particulars stated that: ‘Estate duty will be payable on the death of the annuitant who is believed to have no aggregable estate’ and the name of the solicitors who prepared the . .
Cited – Spice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 November 2022; Ref: scu.194209

Robertson v Wait: 1853

Citations:

(1853) 8 Ex 299

Jurisdiction:

England and Wales

Cited by:

Approved – Les Affreteurs Reunis SA v Leopold Walford (London) Ltd HL 1919
With regard to Robertson -v- Wait: ‘My Lords, so far as I am aware, that case has not before engaged the attention of this House, and I think it right to say plainly that I agree with that decision and I agree with the reasoning, shortly as it is . .
Cited – Nisshin Shipping Co Ltd v Cleaves and Company Ltd and others ComC 7-Nov-2003
One party sought a declaration that arbitrators should have no jurisdiction to determine claims for commission said to be due to the Respondent chartering brokers.
Held: Because he has in effect become a statutory assignee of the promisee’s . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 23 November 2022; Ref: scu.187708

Rapalli v K L Take Ltd: 1958

Citations:

[1958] 2 Lloyd’s Rep 469

Jurisdiction:

England and Wales

Citing:

Cited – 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: 23 November 2022; Ref: scu.183117

Rayfield v Hands: 1958

Citations:

[1958] 2 All ER 194

Jurisdiction:

England and Wales

Citing:

Cited – 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: 23 November 2022; Ref: scu.183116

Anon: 1458

The plaintiff had taken the defendant’s daughter in marriage, accepting the latter’s offer to be paid 100 marks for the purpose.
Held: A cause of action was disclosed. Although it was not on a contract, it was so in effect. There had been a quid pro quo. By the espousal, the plaintiff has discharged his part of the bargain, and should now be paid.

Judges:

Danvers and Moyle JJ

Citations:

(1458) YB 37 Hen 6 p8 pl18

Jurisdiction:

England and Wales

Contract

Updated: 23 November 2022; Ref: scu.183120

Voice and Script International Ltd v Alghafar: CA 8 May 2003

The court has a wide discretion whether to order the assessment of costs on an indemnity basis and the court of Appeal will rarely disturb the judge’s order as to costs.
Judge LJ said: ‘By treating the absence of allocation to track as conclusive in my judgment District Judge Jenkins misdirected himself. The omission may have meant that the small claims costs regime did not follow as a virtual automatic starting point, but it did not preclude the Court even from considering whether it would be reasonable to make an assessment consistent with the small cost regime, or for that matter to apply the regime for a claim which it should never have exceeded and never was anything more than a small claim. If that approach is not expressly stated in the Civil Procedure Rules, it follows from two essential principles. First, the discretionary nature of costs orders; and secondly, the overriding requirement of proportionality in civil litigation generally and also as an essential agreement for consideration when any question of costs arises. See Home Office v Lownds [2002] EWCA 365.’

Judges:

Judge LJ

Citations:

[2003] EWCA Civ 736

Links:

Bailii

Statutes:

Civil Procedure Rules 44.4.2

Jurisdiction:

England and Wales

Cited by:

Cited – John Louis Carter Fourie v Allan Le Roux and others CA 7-Mar-2005
The defendant’s company in South Africa had become insolvent and the claimant had recovered judgment for arrears of rent. They obtained a freezing order against the defendant. The defendant appealed saying the court did not have jurisdiction, and . .
Cited – O’Beirne v Hudson CA 9-Feb-2010
The matter had been settled by a consent order providing for costs on a standard basis, however the costs judge had decided that the matter would if it had proceeded, have been allocated to the small claims track, and therefore limited his costs . .
Lists of cited by and citing cases may be incomplete.

Contract, Costs

Updated: 23 November 2022; Ref: scu.182596

Feldman v Always Travel: 15 Oct 1957

The plaintiff complained that the holiday he had booked had been altered by the operator in several ways which inconvenienced and distressed him.
Held: The correct measure of damages was the difference between the amount he paid and the value of what had in fact been furnished, allowing for his feelings of annoyance and frustration.

Judges:

Alan Pugh Judge

Citations:

Unreported, October 15 1957

Jurisdiction:

England and Wales

Contract, Consumer, Damages

Updated: 23 November 2022; Ref: scu.183092

Pharmed Medicare Private Ltd v Univar Ltd: CA 5 Nov 2002

An issue was raised that contracts entered into by the defendant by an ‘Industry Manager’ and an ‘Inside Sales Manager’ were not so entered as the two individuals had no authority and because the contracts were for substantial quantities of the goods in question. Longmore LJ said: ‘Here all Mr Waksman could rely on was the fact that the contract for 8 metric tons per month for a year (96 tons in all) was considerably greater than any previous contract. This is undoubtedly true but no suggestion is or can be made that Pharmed knew that Mr Somerville did not have authority to make such an agreement. The most that can be said is that they ought to have suspected he might not have such authority. But why? Previous transactions, albeit for smaller amounts, had been performed. Mr Waksman says that if Pharmed had only insisted on a Purchase Contract form for the full amount, the lack of authority would have become apparent. But if, as the Deputy Judge held (and this is not now challenged), there was no positive requirement derived from previous transactions that the contract be on Univar’s Purchase Contract form, there was nothing to suggest to Mr Aurora that the transaction might not be authorised. If there were a plausible assertion that Mr Aurora did in fact suspect that the transaction was beyond Mr Somerville’s authority, there might then have to be a trial. But no ground exists to support the existence of any such suspicion on his part.
The question whether such suspicion ought to have existed is a matter that can be decided without the need for oral evidence since Mr Aurora (and still less Mr Somerville) could give no relevant admissible evidence on that question. That is for the court and the Deputy Judge correctly decided he could determine the matter on the material before him.
For my part I cannot see why any grounds for suspicion should have existed. Previous transactions had been honoured. No one in Univar had made any suggestion that Mr Somerville’s authority was, in any way, limited. There was no reason to think that Univar would not want to acquire or be unable to distribute 8 metric tons per month, if the price was right. No complaint was, in fact, made about the transaction until Univar realised the price had not risen as far as they had expected. The authorities cited by Mr Waksman were entirely different from the facts of the present case. In Houghton the fact that should have put the third party on inquiry was the fact that the money of one company was being used to pay the debts of another; in Underwood it was the fact that the agent was paying into his own account a cheque made out to his principal. These were, on any view, surprising facts which truly rendered the transactions suspicious. There is nothing remotely comparable in the present case.
In these circumstances, despite the caution which a court must exercise before giving summary judgment, it seems to me that the Deputy Judge was right to conclude that it was clear that Mr Somerville had ostensible authority to conclude the contract of 14th August and that Univar was bound by it.’

Judges:

Lord Justice Chadwick, Lord Justice Longmore

Citations:

[2002] EWCA Civ 1569, [2003] 1 All ER (Comm) 321

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – CRJ Services Ltd v Lanstar Ltd (T/A CSG Lanstar) TCC 19-Apr-2011
The claimant hired out recycling plant and equipment and the defendant had been a customer. A local agent of the defendant had properly entered into certain contracts with the claimant acting as the company’s agent, but then created three long term . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 23 November 2022; Ref: scu.178110

Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Company Jordan Inc and Another: CA 13 Feb 2003

The question was whether a carrier is liable to cargo owners when the latter, or their stevedores, perform their duties improperly or carelessly; whether an agreement which transfers responsibility for these operations from the shipowners to shippers, charterers or consignees, is invalidated by article III, r. 8 of the Rules. The charterparty purported to transfer responsibility for loading, stowage and discharge from the shipowners to shippers, charterers and consignees. It was questioned whether the assignment was valid under the Rules

Citations:

[2003] EWCA Civ 144, [2003] 2 Lloyd’s Rep 87, [2003] 1 All ER (Comm) 747

Links:

Bailii

Statutes:

Hague-Visby Rules A2

Jurisdiction:

England and Wales

Cited by:

Appeal from – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 23 November 2022; Ref: scu.181128