Category: Contract

St Albans City and District Council v International Computers Ltd: QBD 11 Nov 1994

A liability limitation in a computer contract was an unfair contract term since it was a standard term, and it restricted liability when there had been no attempt to justify the amount chosen for the limit by reference, for example, to a consideration of the cost of insurance.

Citations:

Times 11-Nov-1994, (1995) 21 FSR 686

Statutes:

Unfair Contract Terms Act 1977

Jurisdiction:

England and Wales

Cited by:

Appeal from – St Albans City and District Council v International Computers Ltd CA 14-Aug-1996
The council purchased software from the defendants to calculate council taxes. Mistakes in the software undercalculated the amounts required to be recovered causing the council substantial losses. The company sought to rely upon a clause in the . .
Cited – Overseas Medical Supplies Limited v Orient Transport Services Limited CA 20-May-1999
The appellant challenged a finding that it was responsible for the loss of medical equipment being transported from Tehran to the UK, and of failing to insure it as required, the contractual term exempting it from responsibility being an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 26 March 2022; Ref: scu.89465

Harris v Nickerson: QBD 25 Apr 1873

The defendant auctioneer advertised in the London papers that certain brewing materials, plant, and office furniture would be sold by him at Bury St Edmunds on a certain day and two following days. The plaintiff, a commission broker in London, having a commission to buy the office furniture, went down to the sale; on the third day, on which the furniture was advertised for sale, all the lots of furniture were withdrawn. Upon which the plaintiff brought an action against the defendant to recover for his loss of time and expenses. Held, that plaintiff could not maintain the action : for that the advertising the sale was a mere declaration and did not amount to a contract with any one who might act upon it, nor to a warranty that all the articles advertised would be put up for sale.
Blackburn J said: ‘In the case of Warlow v. Harrison, the opinion of the majority of the judges in the Exchequer Chamber appears to have been that an action would lie for not knocking down the lot to the highest bona fide bidder when the sale was advertised as without reserve; in such a case it may be that there is a contract to sell to the highest bidder, and that if the owner bids there is a breach of contract.’
Quain J said: ‘When a sale is advertised as without reserve, and a lot is put up and bid for, there is ground for saying, as was said in Warlow v. Harrison, that a contract is entered into between the auctioneer and the highest bona fide bidder.’

Judges:

Blackburn J, Quain J

Citations:

(1873) LR 8 QB 286, [1873] UKLawRpKQB 34

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Cited – Warlow v Harrison CExC 26-Nov-1859
Unless public notice of this was given, a bid from the seller himself was fraudulent. He appealed against rejection of his claim against the auctioneer.
Held: The appeal failed on the existing pleadings, but said that the plaintiff might . .

Cited by:

Cited – Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
Cited – Barry v Davies (T/A Heathcote Ball and Co) and Others CA 27-Jul-2000
The claimant sought damages from an auctioneer who had failed to accept his bid, and withdrawn the items from the sale.
Held: In an auction without reserve the auctioneer was not entitled to withdraw an item on the basis that the highest or . .
Cited – Barry v Davies (T/A Heathcote Ball and Co) and Others CA 27-Jul-2000
The claimant sought damages from an auctioneer who had failed to accept his bid, and withdrawn the items from the sale.
Held: In an auction without reserve the auctioneer was not entitled to withdraw an item on the basis that the highest or . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 25 March 2022; Ref: scu.267741

Spencer-Churchill v Faggionato Fine Arts Ltd and Others: ChD 7 Aug 2012

The claimant sought an interim injunction to restrain the defendant sales agents from selling a work of art. He had placed the painting for sale with them but with, he said, specific restrictions on a sale to certain individuals. A sale was made, but the claimed purchaser was said to be a disguise of the persons against whom a sale was restricted, and the claimant said that the defendants had taken a secret commission.
Held: An arguable case was presented, and the injunction granted.

Judges:

Robert Ham QC

Citations:

[2012] EWHC 2318 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 24 March 2022; Ref: scu.581950

Taylor v Van Dutch Marine Holding Ltd and Others: ChD 27 Mar 2017

Application by a secured creditor of a defendant against whom a freezing order has been made seeking an amendment to the freezing order to the effect that nothing in the order should prevent or restrict it from enforcing any rights it might have pursuant to its facility agreement and debenture.

Judges:

Mann J

Citations:

[2017] EWHC 636 (Ch), [2017] WLR(D) 213

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Contract, Insolvency, Litigation Practice

Updated: 24 March 2022; Ref: scu.581331

Inter Export Llc v Townley and Another: ChD 17 Mar 2017

Alleged failure by a company (‘NTL’) to pay the sum of US$1,203,099 to the claimant, a Ukrainian company, for a consignment of 1,028.29 metric tonnes of sunflower oil. The oil was delivered to a Ukrainian port, Berdyansk Commercial Port, by the claimant and then exported out of BCP by NTL. NTL was in the business of buying and selling commodities, principally sunflower seed oil and steel pipes. The claimant underwent an arbitration in Ukraine in respect of the cargo of oil against NTL, which is in liquidation, but now sues a director (the second defendant) and shareholders (both defendants) of NTL directly in fraud. The claimant says the first defendant is a shadow or de facto director of NTL.

Judges:

Proudman J

Citations:

[2017] EWHC 530 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Torts – Other, Contract

Updated: 24 March 2022; Ref: scu.581329

Mackinnon (Gilmour’s Trustee) v The Glasgow and South-Western Railway Co: HL 22 Jun 1886

A railway company agreed with certain coalmasters to carry their coal at so much per ton per mile when carried a distance exceeding six miles, and further, that if they should charge any other trader for distances above six miles for the same description of traffic ‘lower rates’ than those stipulated in the agreement, they should give the coal-masters who were parties to the agreement a corresponding reduction in the rates payable by them. Held ( aff. judgment of Second Division) that ‘lower rates’ meant lower rates per ton per mile, and therefore the company having charged another trader lower rates per ton per mile, held that the coalmasters were entitled to a corresponding reduction, though owing to the distance for which this trader’s coal was carried the lump sum payable by him was greater than that paid by the coalmasters who were parties to the agreement.

Judges:

Lords Blackburn, Fitzgerald, and Halsbury

Citations:

[1886] UKHL 728, 23 SLR 728

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Appeal from – Mackinnon (Gilmours Trustee) v The Glasgow and South-Western Railway Co SCS 15-Jul-1885
. .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 23 March 2022; Ref: scu.637736

Starbev GP Ltd v Interbrew Central European Holdings Bv: ComC 29 Apr 2014

Dispute between the seller and buyer of a business as to what, if any, further payments are due to the seller pursuant to the element of deferred consideration agreed between them.

Judges:

Blair J

Citations:

[2014] EWHC 1311 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Starbev GP Ltd v Interbrew Central European Holding Bv ComC 18-Dec-2013
Challenge to assertion of litigation privilege.
Hamblen J said:
’11. The legal requirements of a claim to litigation privilege may be summarised as follows:
(1) The burden of proof is on the party claiming privilege to establish it . .

Cited by:

See Also – Starbev Gp Ltd v Interbrew Central European Holdings Bv ComC 21-Aug-2014
Post judgment issues . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 March 2022; Ref: scu.524649

Exel Europe Ltd v University Hospitals Coventry and Another: TCC 21 Dec 2010

Akenhead J said: ‘For many years, the Courts of England and Wales have, with regard to interlocutory or interim injunctions, applied the principles and practice laid down in the well-known case of American Cyanamid Co v Ethicon [1975] AC 396. The first question which must be answered is whether there is a serious question to be tried and the second step involves considering ‘whether the balance of convenience lies in favour of granting or refusing interlocutory relief that is sought’ (page 408B). The ‘governing principle’ in relation to the balance of convenience is whether or not the claimant ‘would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial.’
It is quite clear that, prior to the amendments to Regulation 47 made by the 2009 Regulations (see above), Cyanamid principles were applied in considering whether or not an injunction should be granted to an unsuccessful or discontented tenderer preventing the placing of the relevant contract or agreement by the contracting authority. A good example is the recent case of Alstom Transport v Eurostar International Ltd and another [2010] EWHC 2747 (Ch), a decision of Mr Justice Vos. The Court of Appeal had upheld this approach in Letting International v London Borough of Newham [2007] EWCA Civ 1522.
The issue arises whether these principles apply following the imposition of the amendments to the Regulations. Regulation 47H addresses interim orders which the Court may make in circumstances, where, pursuant to Regulation 47G, the commencement of proceedings, as in this case, has meant that the contracting authority (the Defendant in this case) is statutorily required to refrain from entering into the framework agreement (in this case). In my judgment this is primarily simply a question of interpretation of Regulation 47H. Regulation 47H(1) gives the Court the widest powers in terms of what it may do with regard to entering into contracts. It is in Regulation 47H(2) that one finds what exercise the Court ‘must’ do: it must consider whether, if regulation 47G(1) was not applicable, ‘it would be appropriate to make an interim order requiring the contracting authority to refrain from entering into the contract’; it then goes on to say that it is ‘only if the Court considers that it would not be appropriate to make such an interim order may it make an order under paragraph (1)(a)’. This is saying in the clearest terms that the Court approaches the exercise of interim relief as if the statutory suspension in Regulation 47G(1) was not applicable. That means that one does not as such weight the exercise in some way in favour of maintaining the prohibition on the contracting authority against entering into the contract in question. What in practice it means is that the Court should go about the Cyanamid exercise in the way in which courts in this country have done for many years.
It is said that the Court should interpret national legislation, including Regulation 47, in the light of the wording and purpose of the Remedies Directive, 2007/66/EC, which in part at least, led to the 2009 Regulations. This Directive amended earlier Council Directives and was much concerned with establishing an effective standstill period between the submission of tenders and the entering into the relevant contract. That is not the problem here. The 2009 regulations extend the standstill period simply by the claiming tenderer issuing and serving proceedings; that has the advantage of involving the court which can then review what has happened to determine whether there is an actionable complaint and, if so, to do about it. The revised Article 1 requires measures to be taken ‘to ensure that . . decisions taken by contracting authorities may be reviewed effectively and, in particular, as rapidly as possible . .’ Article 2(1) says that measures should be taken in connection with the review procedures to provide powers to
‘(a) take at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority.
(b) either set aside or ensure the setting aside of decisions taken unlawfully . .
(c) award damages to persons harmed by an infringement.’
Article 5 goes on to say that, in effect the Court ‘may take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to grant such measures when their negative consequences could exceed their benefits.’ I see nothing in Regulation 47H or in the application of the Cyanamid principles which offends or is not consistent with the Remedies Directive. These principles are positively consistent with it. Even if the suspension is not maintained, the claimant is not without a remedy. Obviously, if damages were not an effective remedy, and there was clearly an arguable and serious issue on liability raised, it may well be that the suspension or other directive orders should be continued or made.’

Judges:

Akenhead J

Citations:

[2010] EWHC 3332 (TCC)

Links:

Bailii

Statutes:

Public Contracts Regulations 2006, Public Contracts (Amendment) Regulations 2009

Jurisdiction:

England and Wales

Cited by:

Cited – NATS (Services) Ltd v Gatwick Airport Ltd and Another TCC 2-Oct-2014
NATS had tendered unsuccessfully for a contract to provide air traffic control services at Gatrwick airport, and challenged the award. GAL denied that the Regulations applied and now sought disapplication of the automatic suspension from the award . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 March 2022; Ref: scu.427413

Stroud v Weir Associates: CA 1987

The court was asked to set pitch fees on a registered mobile home site. The site owner had sought to rely upon the fact of the order which cut from 15 per cent to 10 per cent the maximum commission chargeable by a site owner on an occupier’s assignment of his mobile home that reduction in his commission entitlement as a relevant factor on the pitch fee review. The court asked whether evidence of the pitch fees or rents charged at other sites was a relevant factor.
Held: Evidence of pitch fees at other caravan sites did not fall within the review clause, because the phrase ‘applicable to the operation of the park’ qualified the term ‘any other relevant factor’. Thus the court favoured a fairly narrow interpretation of sub-paragraph (iii) in that case. The phrase ‘applicable to the operation of the park’ applied equally to ‘any other relevant factors’ as to ‘the effect of legislation’.
Glidewell LJ said, however, that ‘Grammatically there is no break, no comma or any other indication to show that the phrase ‘applicable to the operation of the park’ is intended only to include the effect of legislation. The words make sense read as a whole, and for myself I would so interpret them.’ and ‘In my view the Court cannot merely decide whether relevant factors have been taken into account but it can also decide the figures themselves: in other words, in this respect the Court is acting as an arbitrator would do’ The judge had been right to hold that the loss of commission was a relevant factor applicable to the operation of the site. Evidence as to the rent charged on a new letting of a pitch on the same site ‘could be considered to be relevant’.

Judges:

Glidewell LJ, O’Connor LJ, Lloyd LJ

Citations:

[1987] 1 EGLR 190, (1987) 19 HLR 151

Statutes:

Mobile Homes Act 1983, Mobile Homes (Commissions) Order 1983

Jurisdiction:

England and Wales

Cited by:

Cited – Walker v Badcock CA 24-Jun-1997
The tenants on a registered mobile home site appealed a decision that they shoud contribute to the expenses of lopping trees at the edge of the site by including it in the pitch fee. The site owner said that it had been carried out for the benefit . .
Cited – Howard and others v Kinvena Homes Limited CA 19-Mar-1999
Application for leave to appeal – granted. . .
Cited – Warfield Park Homes Ltd v Warfield Park Residents Association CA 27-Mar-2006
Under the Act ‘the Recorder is given a wide discretion by the agreement. The width and unstructured nature of the discretion may seem surprising in relation to an issue as important to residents, and as potentially contentious, as that of pitch . .
Cited – Howard and others v Kinvena Homes Ltd CA 27-Jun-1999
An owner of a park for mobile homes increased the rent to allow for loss of profits after the home owners began to buy their liquid gas from other sources. He showed that profits from such sales were part of the normal profit structure of such parks . .
Cited – Du Plessis v Fontgary Leisure Parks Ltd CA 2-Apr-2012
The claimant, who owned a holiday mobile home on the respondent’s site challenged the raising of site fees, saying that the contract was unfair. Previously all site fees were equal within the site, but the respondent had introduced a scheme which . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract

Updated: 23 March 2022; Ref: scu.263955

Peter Long and Partners v Burns: CA 1956

The estate agency agreement at issue said that commission was payable on the agents ‘introducing a person ready, willing and able to enter into a binding contract to purchase’. The purchaser entered into the contract, but then resiled after discovery of a misrepresentation. The contract was cancelled by agreement between the parties on payment of a sum of money by the purchaser. The estate agents claimed their commission but the vendor refused to pay. The agent failed in their action for breach of contract. That action failed.
Held: In this context, a ‘binding contract’ meant one which was legally enforceable by the vendor against the purchaser. Since the contract had been rendered unenforceable by the vendor as a result of the innocent misrepresentation of the estate agents, no commission was payable. The estate agents argued that the vendor could not take advantage of the misrepresentation made by them to the purchaser since she herself had given the relevant information to the estate agents. Singleton LJ did not agree. The making of such a representation to the purchaser without checking the information given by the vendor bordered on recklessness.
Romer, LJ, said: ‘I have no doubt that the contract which [the purchaser] did sign was not a binding contract within the terms of the commission note. I agree . . that ‘a binding contract’ in this context is the same as a legally binding contract, and that means a contract binding on the purchaser and legally enforceable against the purchaser by the vendor. The contract which [the purchaser] signed was never legally enforceable against her by [the vendor] because of the innocent misrepresentation which was made to her by [the estate agents’ representative]. Moreover, the contract was voidable by [the purchaser], who could rescind it the moment that she discovered what the true facts were. Accordingly, it appears to me impossible to say that it was a binding contract within the meaning of that phrase as used in the commission note.
A voidable contract, when rescinded, is avoided ab initio.’
Morris LJ said: ‘The Plaintiffs further submit there was an estoppel. They plead as follows in paragraph 3 of the reply: ‘If it is found that the said contract was not binding on [the purchaser] [the estate agents] will further say that [the vendor] having innocently misled [the estate agents’ representative] who upon [the vendor’s] said instructions innocently misled [the purchaser], [the vendor] is estopped from setting up her own misrepresentation, resulting in the rescission of her contract with [the purchaser], to defeat [the estate agents’] claim for commission.’ But, in my judgment, this is not a case where the doctrine of estoppel can be relied upon. There was nothing to prevent [the purchaser] from proving that there had been an innocent misrepresentation and so from resiling from the contract. Upon proof that [the purchaser] did disaffirm the contract it was shown there had been no binding contract and so that commission had not been earned. There is no evidence, for no oral evidence was called, that had Mrs Pritchard known the true facts as to the road widening she might have purchased at a lower figure and so enabled [the estate agents] to earn some commission. There was no evidence to that effect.
What, then, is the legal basis of [the estate agents’] complaint? [The estate agents] may say that they wasted some time because they had some dealing with [the purchaser] which led to an abortive contract. But there is no claim against [the vendor] on that basis; nor do I see there could be. [The vendor] made no fraudulent misrepresentation to [the estate agents], and no sort of suggestion of that kind is or could be made. [The estate agents] do not suggest that [the vendor] gave any warranty to them of the truth of the representation which she made.’

Judges:

Romer LJ, Singleton LJ, Morris LJ

Citations:

[1956] 1 WLR 1083

Jurisdiction:

England and Wales

Cited by:

Cited – John D Wood and Co (Residential and Agricultural Ltd) v Craze QBD 30-Nov-2007
The claimant estate agents sought payment of its commission. The defendant appealed refusal of his request for the claim to be struck out. The agency said that the agency’s standard terms applied under which commission was payable on exchange. The . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 23 March 2022; Ref: scu.263806

Brian Cooper and Co v Fairview Estates (Investments) Ltd: CA 13 Mar 1987

A substantial property developer sought a tenant for its office block and agreed with his selling agent to pay ‘a full scale letting fee . . should you introduce a tenant by whom you are unable to be retained and with whom we have not been in previous communication and who subsequently completes a lease.’ There was an introduction but, after a number of months, a lease was completed by a company in respect of whose introduction the personnel in Fairview had no recollection, the tenant having been procured by other means.
Held: The agent was not an effective cause of the tenancy but the fee was payable. The court refused to imply the usual term requiring that the agent play an effective part was that an introduction was all that Fairview wanted; they had their own employers and lawyers who could do all the subsequent work and no further work after the introduction was expected of the agent. Woolf LJ thought the implied term would avoid the possibility of the client paying commission to more than one agent each of whom might be said to have ‘introduced’ a purchaser or lessee but only one of whom could be said to be the effective cause of the transaction, and said: ‘In a case where there are no express qualifications to be fulfilled other than that a purchaser should be introduced by the estate agent, then the need to imply a term as to effective cause can be readily appreciated, since otherwise if the vendor engages more than one agent there will be no way in which he can avoid being faced with an obligation to meet the claim for commission of more than one agent who each introduced the tenant. However, in this case there is virtually no danger of this happening because of the words ‘with whom we have not been in previous communication.’

Judges:

Woolf LJ

Citations:

[1987] EGLR 18

Jurisdiction:

England and Wales

Cited by:

Cited – The County Homesearch Company (Thames and Chilterns) Ltd v Cowham CA 31-Jan-2008
The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed from a finding that they were obliged to pay his commission. The judge found . .
Cited – Foxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 23 March 2022; Ref: scu.264094

Holwell Securities Ltd v Hughes: CA 5 Nov 1973

An option was to be exercised ‘by notice in writing’ before a certain date. The solicitors’ letter doing so was addressed to the defendant at his residence and place of work, the house which was the subject of the option to purchase, was posted by ordinary post and enclosed a copy of the letter of the same date delivered by hand to the defendant’s solicitors. The letter went astray, and the acceptance was not received before the date.
Held: An acceptance had to be communicated to the seller before the relevant time.

Judges:

Russell LJ, Buckley LJ, Lawton LJ

Citations:

[1973] EWCA Civ 5, [1974] 1 WLR 155, [1974] 1 All ER 161

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Holwell Securities Ltd v Hughes 1973
The court considered how the postal rule applied to the acceptance of an offer contained in an option. The option was to be exercised ‘by notice in writing to’ the grantor within the stipulated time.
Held: The exercise of the option was . .
Cited – British American Telegraph C v Colson 1871
. .
Cited – Dickinson v Dodds 1876
An offeree cannot accept a withdrawable offer after he has learnt, by whatever means, that it has been withdrawn. The communication of acceptance of an offer need not come from the offeree himself. . .
Cited – in Re 88 Berkeley Road, NW 9 1971
When considering the meaning of service of a notice under an option agreement, ‘served’ must mean ‘given’. . .
Cited – Household Fire Insurance Co v Grant CA 1879
. .
Cited – Hare v Nicoll CA 1966
In an option for the renewal of a lease, or for the purchase or re-purchase of property, the contractual right must be exercised strictly within the time limited for the purpose, otherwise it will lapse. Danckwerts LJ said: ‘The authority cited for . .
Cited – Bruner v Moore 1904
The seller had granted to the buyer a option in return for the payment of a sum of money. The option contract gave the grantee the right to require the grantor to sell if the grantee exercised the option within the stipulated period. The court . .
Cited – Henthorn v Fraser 1892
Definition of postal acceptance of offer
The parties had discussed the sale of properties to the plaintiff. The defendant wrote out an offer to sell and handed it to the buyer, who took it away to consider it. A new buyer turned up and a contract was concluded, the defendant writing to the . .

Cited by:

Cited – Carmarthen Developments Ltd v Pennington SCS 24-Sep-2008
carmarthen_penningtonSCS2008
Contracts had been entered into for the sale of plots of land, which were conditional on planning permissions being approved by the purchaser. The buyer could waive the conditions to remove the sellers’ rights to resile. The buyer obtained the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 March 2022; Ref: scu.262742

Regina v Knightsbridge London Crown Court ex parte Marcrest Properties Ltd: CA 1983

The court was asked not to renew a gaming licence on the basis that the company was not a fit and proper person. They had a practice of repeatedly accepting cheques from persons whose previous cheques had been dishonoured, and in circumstances in which the licence holder knew that the new cheques would be dishonoured on first presentation.
Held: This amounted to a breach of section 16.
Ackner LJ said: ‘The course of dealing between Marcrest and its customers over a long period and involving numerous cheques demonstrated that it was the intention of the parties that there was to be no legal right to have a cheque honoured when it was presented. The only lawful cheque contemplated by s 16(2) and (3) is one in which there is a common expectation of payment on presentation within two days. What was provided was a ‘sham’; it was no better than, if as good as, a postdated cheque. As the Lord Justice rightly commented, its function was merely to record a loan of money or tokens to that value.’ and ‘The clear purpose of section 16 is to protect the punters against themselves. They are not to be given by the casinos so much rope that they eventually hang themselves, figuratively or otherwise.’

Judges:

Ackner LJ

Citations:

[1983] 1 WLR 300, [1983] 1 All ER 1148

Statutes:

Gaming Act 1968 16

Jurisdiction:

England and Wales

Cited by:

Cited – Aspinall’s Club Ltd v Al-Zayat CA 19-Oct-2007
The claimant had sued the defendant for non-payment under a cheque for andpound;2 million. The cheque had been issued to replace earlier cheques given but not met, for sums staked for gambling at the claimant’s casino. The defendant said that the . .
Cited – Aspinall’s Club Ltd v Al-Zayat ComC 3-Sep-2008
The claimant sought payment on a cheque in respect of gamblig debts incurred by the defendant. Teare J said: ‘The ordinary and natural meaning of credit in the context of section 16 of the Act is ‘time to pay’, in the sense of deferring or . .
Cited – The Ritz Hotel Casino Ltd v Al Daher QBD 15-Aug-2014
The claimant sought to recover andpound;1m on unpaid cheques. The cheques represented half of the sum gambled away by the defendant in one evening. She now alleged that the claimant had not complied with its duties under the 2005 Act to act . .
Lists of cited by and citing cases may be incomplete.

Contract, Magistrates, Licensing

Updated: 23 March 2022; Ref: scu.259933

The Peonia: CA 1991

The ship had been returned beyond the charter date. The court was asked whether, when the vessel was sent on a legitimate last voyage but, through no fault of the charterers, was then redelivered after the final terminal date, the owners were entitled in respect of the overrun period to hire at the market rate (if higher than the charterparty rate) or only at the charterparty rate.
Held: The owners could claim the market rate. In relation to an illegitimate last voyage Lord Justice Bingham said that the owner: ‘was entitled to payment of hire at the charterparty rate until redelivery of the vessel and (provided he does not waive the charterer’s breach) to damages (being the difference between the charter rate and the market rate if the market rate is higher than the charter rate) for the period between the final terminal date and redelivery’.
Lord Justice Slade: ‘The judgments of Lord Denning MR and Lord Justice Browne in The Dione . . are, in my opinion, on a proper analysis, authority binding this Court for the proposition that if charterers send a vessel on a legitimate last voyage and the vessel is thereafter delayed for any reason (other than the fault of the owners) so that it is redelivered after the final terminal date, the charterers will (in the absence of agreement to the contrary) be in breach of contract and accordingly, if the market rate has gone up, will be obliged to pay by way of damages the market rate for any excess period after the final termination date up to redelivery . . ‘

Judges:

Lord Justice Bingham, Lord Justice Slade

Citations:

[1991] I Lloyd’s Rep 100

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 . .
Cited – Digital Integration Limited v Software 2000 CA 16-Jan-1997
The parties had entered into a contract for the distribution of software by the plaintiff. The contract was terminated by the plaintiff and the defendant argued that this was in breach of the agreement, and that a sub-clause which apparently gave . .
Lists of cited by and citing cases may be incomplete.

Damages, Transport, Contract

Updated: 23 March 2022; Ref: scu.246745

The “Nukila”: CA 1987

Hobhouse LJ said: ‘Turning to the authorities it must at the outset be recognised that, whether or not they are strictly binding on us, they must, insofar as they represent the existing authoritative statements of the law only be departed from if they are clearly wrong. This principle has been stated on a number of occasions in the field of commercial law where it is recognised that the parties enter into contracts on the basis of the law as it has been stated in the applicable authorities. For a Court, in deciding a dispute under a commercial contract, later to depart from those authorities risks a failure to give effect to a contractual intention of those parties as evidenced by their contract entered into on a certain understanding of the law. ‘

Judges:

Hobhouse LJ

Citations:

[1987] 2 Lloyd’s Rep 146

Jurisdiction:

England and Wales

Citing:

Cited – Atlantic Shipping and Trading Co v Louis Dreyfus and Co HL 1921
Lord Dunedin said: ‘My Lords in these commercial cases it is I think of the highest importance that authorities should not be disturbed and if your lordships find that a certain doctrine has been laid down in former cases and presumably acted upon . .

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 March 2022; Ref: scu.246866

Green v Russell: CA 1959

The court rejected an argument that section 56 had altered the law to allow actions by third parties under a contract.

Citations:

[1959] 2 QB 226

Statutes:

Law of Property Act 1925 56

Jurisdiction:

England and Wales

Cited by:

Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 March 2022; Ref: scu.251045

Sydall v Castings Ltd: CA 1967

There is a presumption that the words in the contract are used in a sense that they bear as legal terms of art, if they are reasonably capable of bearing such meaning in their context.

Judges:

Diplock LJ

Citations:

[1967] 1 QB 302

Jurisdiction:

England and Wales

Cited by:

Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 March 2022; Ref: scu.251071

In re Young and Harston’s Contract: CA 1885

The court set out what was meant by the term ‘wilful default’ when used in a contract for the sale of land. Bowen LJ said: ‘Wilful is a word of familiar use in every branch of law, and although in some branches of the law it may have a special meaning, it generally, as used in courts of law implies nothing blameable, but merely that the person of whose action or default the expression is used, is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knew what he was doing, and intends to do what he is doing, and is a free agent.’

Judges:

Bowen LJ

Citations:

[1885] 80 Ch D 168

Jurisdiction:

England and Wales

Cited by:

Cited – CP (A Child) v Royal London Mutual Insurance Society Ltd CA 30-Mar-2006
A mill had burned down when children had lit a fire. They had not intended the fire to get out of hand as it did. The insurance company refused to pay out on the basis that the policy did not cover damage arising from ‘any wilful malicious or . .
Cited – Ronson International Ltd v Patrick CA 30-Mar-2006
The insurance company appealed a finding of liability under a household poliicy where the defendant had set a fire in a factory, but had not intended the eventual disastrous consequences.
Held: To avoid liability under an exclusion clause the . .
Cited – Porter v Zurich Insurance Company QBD 5-Mar-2009
The claimant insured his house with the defendants. Severely depressed, drunk and delusional, he set fire to it and now claimed after refusal to pay out. He said that he was not acting as a free agent.
Held: A claimant who seeks to recover . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 March 2022; Ref: scu.241561

Euro-Diam Ltd v Bathurst: CA 1990

The illegality defence was invoked in response to a claim on a property insurance.
Held: The court noted the extension of the concept of ex turpi causa non oritur actio: ‘It applies if in all the circumstances it would be an affront to the public conscience to grant the Plaintiff the relief which he seeks because the court would thereby appear to assist or encourage the Plaintiff in his illegal conduct or to encourage others in similar acts.’ He expressed that principle at by saying that the test was whether ‘in all the circumstances it would be an affront to the public conscience to grant the plaintiff the relief which he seeks because the court would thereby appear to assist or encourage the plaintiff in his illegal conduct or to encourage others in similar acts.’ That question needed to be approached ‘pragmatically and with caution, depending on the circumstances.’

Judges:

Kerr LJ

Citations:

[1990] 1 QB 1

Jurisdiction:

England and Wales

Cited by:

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

Contract, Torts – Other

Updated: 23 March 2022; Ref: scu.235293

Newbigging v Adam: CA 1886

A party seeking rescission of a contract must give back all that he received. The purpose of rescission is still to restore the parties as nearly as possible to the position in which they were before the contract was made. Bowen LJ said: ‘when you come to consider what is the exact relief to which a person is entitled in a case of misrepresentation it seems to me to be this, and nothing more, that he is entitled to have the contract rescinded, and is entitled accordingly to all the incidents and consequences of such rescission. It is said that the injured party is entitled to be replaced in statu quo. It seems to me that when you are dealing with innocent misrepresentation you must understand that proposition that he is to be replaced in statu quo with this limitation – that he is not to be replaced in exactly the same position in all respects, otherwise he would be entitled to recover damages, but is to be replaced in his position so far as regards the rights and obligations which have been created by the contract into which he has been induced to enter. That seems to me to be the true doctrine, and I think it is put in the neatest way in Redgrave v Hurd .’

Judges:

Bowen LJ

Citations:

(1886) 34 Ch D 582

Jurisdiction:

England and Wales

Cited by:

Appeal from – Adam v Newbigging HL 1988
There was a sale of a share in a partnership, which had become insolvent since the contract.
Held: The House ordered rescission and mutual restitution, though the misrepresentation was not fraudulent, and it gave ancillary directions so as to . .
Cited – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
Lists of cited by and citing cases may be incomplete.

Company, Contract, Contract

Updated: 23 March 2022; Ref: scu.214456

Gallie v Lee: CA 1969

A deed bearing a false signature is a forgery and creates no rights at all. ‘If the deed was not his deed at all (non est factum), he is not bound by his signature any more than he is bound by a forgery. The document is a nullity just as if a rogue had forged his signature. No one can claim title under it, not even an innocent purchaser who bought on the faith of it, nor an innocent lender who lent his money on the faith of it. No matter that this innocent person acted in the utmost good faith, without notice of anything wrong, yet he takes nothing by the document.’

Judges:

Denning Mr Lord Justice Phillimore
And
Lord Justice Megaw

Citations:

[1969] 2 Ch 17 (CA)

Jurisdiction:

England and Wales

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 . .
Appeal from – Gallie v Lee HL 1971
Lord Wilberforce said that the principles of non est factum are designed to protect also innocent third parties who may rely upon a document signed apparently correctly. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 March 2022; Ref: scu.188411

Mercantile Credit Co Ltd v Hamblin: CA 1964

Pearson LJ said: ‘There is no rule of law that in a hire purchase transaction the dealer never is, or always is, acting as agent for the finance company or as agent for the customer.Nevertheless, the dealer is to some extent an intermediary between the customer and the finance company, and he may well have in a particular case some ad hoc agencies to do particular things on behalf of one or the other or, it may be, both of those two parties.’ and ‘In a typical hire purchase transaction the dealer is a party in his own right, selling his car to the finance company, and he is acting primarily on his own behalf and not as general agent for either of the other two parties. There is no need to attribute to him an agency in order to account for his participation in the transaction. Nevertheless the dealer is to some extent an intermediary between the customer and the finance company, and he may well have in a particular case some ad-hoc agencies to do particular things on behalf of one or other or it may be both of those two parties.’
An advocate should draw the attention of the court to the fact that an act relied on by a party is unlawful, if that is the case.

Judges:

Pearson LJ

Citations:

[1965] 2 QB 242, [1964] 1 WLR 423

Jurisdiction:

England and Wales

Cited by:

Approved – Branwhite v Worcester Works Finance Ltd HL 1969
A dealer may for some ad hoc purpose be the agent of a finance company. In relation to a purchase of a motor vehicle through a motor dealer, where the prospective purchaser completes an application for hire purchase in the office of the motor . .
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 – London Borough of Lewisham v Malcolm and Disability Rights Commission CA 25-Jul-2007
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 23 March 2022; Ref: scu.188420

Decro-Wall International SA v Practitioners in Marketing Limited: CA 1971

Once the court has concluded that a ‘reasonable notice’ requirement was to be implied into a contract, the question of what notice period was reasonable must be judged as at the time the notice was given.
Buckley LJ also set out the test for fundamental breach, saying: ‘the . . breach must be such as to deprive the injured party of a substantial part of the benefit to which he is entitled under the contract . . Will the consequences of the breach be such that it would be unfair to the injured party to hold him to the contract and leave him to his remedy in damages’.

Judges:

Buckley LJ

Citations:

[1971] 1 WLR 361, [1971] 2 All ER 216

Jurisdiction:

England and Wales

Cited by:

Cited – Shyam Jewellers Limited v M Cheeseman CA 29-Nov-2001
The parties contracted for building work to the claimant’s shop. The shop-keeper had been regularly late in making stage payments. Eventually the contractor repudiated the contract part way through. The judge proposed a decision on a preliminary . .
Cited – Future Publishing Ltd v The Edge Interactive Media Inc and Others ChD 13-Jun-2011
The claimant said that the defendant had infriged its rights by the use of its logo on their publications. . .
Cited – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Lists of cited by and citing cases may be incomplete.

Contract, Commercial

Updated: 23 March 2022; Ref: scu.182995

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 to a contract – or rather what appears, on the fact of it, to be a contract – the fact that one party is mistaken as to the identity of the other does not mean that there is no contract, or that the contract is a nullity and void from the beginning. It only means that the contract is voidable, that is, liable to be set aside at the instance of the mistaken person, so long as he does so before third parties have in good faith acquired rights under it.’ and Mr. Lewis made a contract under which he sold the car to the rogue, delivered the car and the logbook to him, and took a cheque in return. The contract is evidenced by the receipts which were signed. It was, of course, induced by fraud. The rogue made false representations as to his identity. But it was still a contract, though voidable for fraud. It was a contract under which this property passed to the rogue, and in due course passed from the rogue to Mr. Averay, before the contract was avoided.’

Judges:

Denning MR, Philimore LJ, Megaw LJ

Citations:

[1972] 1 QB 198, [1971] 3 All ER 907, [1971] EWCA Civ 4, [1971] 3 WLR 603

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Followed – Ingram v Little 27-Jul-1960
Two ladies had a car for sale. A buyer came along. He fooled them into believing him to be someone else, and they sold him the car, after checking the name in the telephone directory. Before the cheque bounced, the rogue sold the car to the . .
Cited – Phillips v Brooks Ltd 1919
A jeweller had a ring for sale. The buyer pretended to be somebody else: ‘I am Sir George Bullough of 11 St. James’s Square.’ The jeweller had heard of Sir George Bullough and checked he lived at the address given. He released the jewellry against . .
Cited – King’s Norton Metal Co Ltd v Edridge Merrett and Co Ltd CA 1879
A crook ordered some brass rivet wire from a metal manufacturer. On his stationery he represented falsely that he was in business in a big way, running a large factory and having several depots and agencies. The manufacturer supplied the goods but . .
Cited – 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 . .
Criticised – Sowler v Potter 1939
The defendant had been convicted of an offence of permitting disorderly conduct in a cafe, under her proper name of Ann Robinson. She then assumed the name of Ann Potter. The plaintiff’s evidence was that, if he had known that she was Ann Robinson, . .

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 . .
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 – 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 – 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 – Director of Public Prosecutions v Gomez HL 3-Dec-1992
The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of . .
See Also – Lewis v Averay (No 2) CA 1973
The defendant had been unable to obtain legal aid, and resorted to the Automobile Association which indemnified him for his costs of his successful appeal. The respondent was legally aided on the appeal and the appellant sought an order for his . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 March 2022; Ref: scu.188412

Aries Tanker Corp v Total Transport Ltd; The Aries: HL 1977

Claims for freight charges are an exception to the general rule that all claims between parties must be resolved in one action. A claim for freight cannot be a claim ‘on the same grounds’ as a counter-claim for loss or damage arising out of the carriage, for there is no set off against freight. The purpose of providing for discharge of claims under the rules after 12 months meets an obvious commercial need, namely to allow shipowners after that period to clear their books. The underlying cause of action was extinguished and could not be revived.
Lord Wilberforce said: ‘The contract contemplates the possibility of a cross-claim by the charterers in respect of loss or damage to the cargo and it expressly provides by incorporation of article III, r.6 of the Hague Rules that the carrier and the ship shall be discharged unless suit is brought within one year after the date of delivery or the date when delivery should have been made. This amounts to a time bar created by contract. But, and I do not think that sufficient recognition to this has been given in the courts below, it is a time bar of a special kind, viz., one which extinguishes the claim (cf. article 29 of the Warsaw Convention 1929) not one which, as most English statutes of limitation (e.g. the Limitation Act 1939, the Maritime Conventions Act 1911), and some international conventions (e.g. the Brussels Convention on Collisions 1910, article 7) do, bars the remedy while leaving the claim itself in existence.’ and
‘One thing is certainly clear about the doctrine of equitable set-off – complicated though it may have become from its involvement with procedural matters – namely, that for it to apply, there must be some equity, some ground for equitable intervention, other than the mere existence of a cross-claim (see Rawson v. Samuel (1839) Cr. and Ph. 161, 178 per Lord Cottenham L.C., Best v. Hill (1872) L.R. 8 C.P. 10, 15, and the modern case of Hanak v. Green But in this case counsel could not suggest, and I cannot detect, any such equity sufficient to operate the mechanism, so as, in effect, to over-ride a clear rule of the common law on the basis of which the parties contracted.’

Judges:

Lord Wilberforce, Lord Simon of Glaisdale

Citations:

[1977] 1 WLR 185, [1977] 1 All ER 398

Statutes:

Hague Visby Rules

Jurisdiction:

England and Wales

Citing:

Cited – Hanak v Green CA 1958
A builder was sued for his failure to complete the works he had contracted for. The buider sought a set-off against that claim of three of his one claims. One, under the contract, was for losses from the defendant’s refusal to allow his workmen . .
Cited – Rawson v Samuel 15-Apr-1841
Cottenham LC said: ‘We speak familiarly of equitable set-off as distinguished from set-off at law, but it will be found that this equitable set-off exists in cases where the party seeking the benefit of it can show some equitable ground for being . .
Cited – Best v Hill CCP 14-Nov-1872
To a declaration for money lent and paid and commission the defendant pleaded for a defence on equitable grounds, that it was agreed between the plaintiffs and himself, on the following terms, viz., that he should consign certain rice to the . .

Cited by:

Cited – Trafigura Beheer Bv v Golden Stavraetos Maritime Inc CA 15-May-2003
The owners of cargo claimed damages from the carriers for a cargo of jet oil rejected at the port of destination because of contamination suffered on board.
Held: In interpreting the rules, the court must adopt a process of construction which . .
Cited – Schenkers Limited v Overland Shoes Limited and Schenkers International Deutschland Gmbh v Overland Shoes Limited CA 12-Feb-1998
A clause in a shipping freight contract using the standard British International Freight Association terms disallowing a set-off was not unreasonable. The clause read ‘The customer shall pay to the company in cash or as otherwise agreed all sums . .
Cited – Mellham Ltd v Collector of Taxes CA 17-Jan-2003
Buxton LJ: ‘The issue therefore is one of simple statutory construction. Can the expression ‘payment’ when used in section 87 of the 1970 Act, or ‘pays’ when used both in section 246N(2) of the 1988 Act and section 239 of the 1988 Act, encompass a . .
Cited – Burton (Collector of Taxes) v Mellham Ltd HL 15-Feb-2006
The claimant sought interest on an overpayment of Advance Corporation Tax. The tax itself had been paid late, and the Collector claimed a set off.
Held: The claim to DTR could not be described as an attempt at self-help. It had a statutory . .
Cited – Laroche v Spirit of Adventure (UK) Ltd CA 21-Jan-2009
Hot Air balloon was an aircraft: damages limited
The claimant was injured flying in the defendant’s hot air balloon. The defendant said that the journey was covered by the 1967 Regulations and the damages limited accordingly. The claimant appealed against a decision that the balloon was an . .
Cited – Inveresk Plc v Tullis Russell Papermakers Ltd SC 5-May-2010
The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that . .
Cited – Inveresk Plc v Tullis Russell Papermakers Ltd SC 5-May-2010
The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that . .
Cited – Geldof Metaalconstructie Nv v Simon Carves Ltd CA 11-Jun-2010
The parties contracted for the supply and installation of pressure vessels by Geldof (G) for a building constructed by Simon Carves (SC). The contract contained a clause denying the remedy of set-off. G sued for the sale price, and SC now sought an . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 23 March 2022; Ref: scu.185987

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 form of damages awarded.
Held: She was entitled to repayment of the legal costs paid by her to her solicitors, and also a sum which would represent the additional vexation, anxiety and distress through absence of her remedy. She was not entitled to an award in respect of the stress of herself conducting the action against her former solicitors. Lord Denning described that negligence: ‘I am afraid that the solicitors were much at fault. They ought not to have left this matter to a young junior clerk with no qualifications – with no supervision by any partner. In his hands mistakes were made from beginning to end.’ Lord Denning listed a series of dreadful mistakes. ‘The upshot of it all was that the proceedings were absolutely useless to her. . That brings me to the law. . The judge approached the case on this footing: Mrs Heywood was entitled to damages for negligence, but the solicitors were entitled to their costs which they could set off against her damages. He said that the defendants ‘are not precluded from setting off what is properly due to them for their costs.’ He then calculated the set off in this way: On the one hand Mrs Heywood was entitled to damages for negligence which he set out under [a number of subparagraphs]. . He then awarded the plaintiff damages under [some of those paragraphs]. He did not quantify those damages, but said that as against them the defendants could set off all the costs recoverable by them save for [one certified exception]. . . . So the judge held that they could set off their costs against her damages, with the result that she was not entitled to any damages and they were not entitled to their costs… But as she had already paid them andpound;175 on account of those costs, she was entitled to have the money repaid to her. . . . Now I think the judge was in error in thinking that the solicitors were entitled to recover any costs at all. There are two reasons. In the first place, the contract of the solicitors was an entire contract which they were bound to carry on to the end; and, not having done so, they were not entitled to any costs . . . In the second place, the work which they did do was useless. It did nothing to forward the object which the client had in view. It did nothing to protect her from molestation. It being thus useless, they can recover nothing for it . . .’ The other two Lords Justices delivered concurring judgments.

Judges:

Lord Denning MR, James and Bridge LJJ

Citations:

[1976] QB 446, [1976] 2 WLR 101, [1976] 1 All ER 300, [1976] 2 Lloyd’s Rep 88, (1976) 120 SJ 9, Times 15-Nov-1975, [1975] EWCA Civ 11

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
Cited – Underwood, Son and Piper v Lewis CA 11-May-1894
Solicitors had declined to continue to act for their client before the litigation in which they were acting had been completed. They brought an action for the amount of their bill of costs for work done to date. The trial judge held that a solicitor . .
Cited – 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 . .
Distinguished – Cook v Swinfen CA 1967
The plaintiff could not recover damages for the mental distress of conducting litigation. The court found it difficult to draw the line as to where such damage could be identified. In this case the damage could not reasonably be said to have flowed . .
Applied – Jackson v Horizon Holidays Ltd CA 5-Feb-1974
A family claimed damages for a disappointing holiday. The generous measure of damages given to the father was that the father was being fully compensated for his own mental distress, but the rule of privity of contract operated to bar the claim for . .
Applied – 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, . .
Cited – 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 . .
Cited – In re Massey and Carey 1884
A solicitor cannot recover his costs from his client where his negligence has rendered the work ineffective. . .
Cited – Underwood, Son and Piper v Lewis CA 11-May-1894
Solicitors had declined to continue to act for their client before the litigation in which they were acting had been completed. They brought an action for the amount of their bill of costs for work done to date. The trial judge held that a solicitor . .
Cited – 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 . .
Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
Cited – Cox v Philips Industries Ltd 15-Oct-1975
Damages for distress, vexation and frustration, including consequent ill-health, could be recovered for breach of a contract of employment if it could be said to have been in the contemplation of the parties that the breach would cause such distress . .
Cited – Groom v Crocker 1939
An action by a client against a solicitor alleging negligence in the conduct of the client’s affairs, is an action for breach of contract. A solicitor is not entitled to payment of his costs by his client where his own negligence makes the work he . .

Cited by:

Cited – Crowther v C B Gallon Cuthbertson Solicitors CA 31-Jul-2001
The claimant had succeeded in his action against his former solicitors, but sought now to appeal saying he wanted a retrial with a jury.
Held: There was no prospect of the court ordering a retrial, and leave to appeal was not granted. . .
Cited – Cleveland Ambulance National Health Service Trust v Blane EAT 19-Feb-1997
An Industrial Tribunal can award damages for injured feelings on a complaint of action which fell short of a dismissal.
Held: Judge Peter Clark said: ‘It is nothing to the point that an award for injury to feelings cannot be recovered in a . .
Cited – Young or Logan v Falkirk and District Royal Infirmary NHS Trust SCS 3-Aug-1999
. .
Cited – Farley v Skinner CA 6-Apr-2000
A surveyor was engaged to report on a property, and was specifically requested to advise on the levels of aircraft noise from a nearby airport which might affect the property. He failed to report on the proximity of a navigation beacon.
Held: . .
Cited – Farley v Skinner HL 11-Oct-2001
The claimant sought damages from the defendant surveyor. He had asked the defendant whether the house he was to buy was subject to aircraft noise. After re-assurance, he bought the house. The surveyor was wrong and negligent. A survey would not . .
Cited – Lowes and Another v Clarke Whitehill (a Firm) CA 21-Nov-1997
. .
Cited – Crowther v C B Gallon Cuthbertson Solicitors CA 31-Jul-2001
The claimant had succeeded in his action against his former solicitors, but sought now to appeal saying he wanted a retrial with a jury.
Held: There was no prospect of the court ordering a retrial, and leave to appeal was not granted. . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence, Contract, Damages

Updated: 23 March 2022; Ref: scu.223350

Sotheby’s v Mark Weiss Ltd and Others: CA 23 Nov 2020

Sothebys instructed an expert to consider whether a Franz Hals painting was forged; if the expert concluded that the it was, Sothebys would rescind the sale contract and it is was argued litigation would be in reasonable contemplation. Teare J held, rejecting the claim to litigation privilege, that the correspondence had two purposes: one to decide whether the painting was a fake and whether to rescind, a second to enable Sothebys to defeat the arguments of Mark Weiss in the anticipated litigation.

Judges:

Lady Justice Carr DBE

Citations:

[2020] EWCA Civ 1570

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kyla Shipping Co Ltd and Another v Freight Trading Ltd and Others ComC 22-Feb-2022
Litigation Privilege
Defendants challenged the claimants assertion of litigation privilege and contended for a waiver of any privilege which entitles them to disclosure of additional materials referred to in a witness statement.
Held: ‘I dismiss the waiver of . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 March 2022; Ref: scu.656228

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 the common understanding which is to be derived from the conduct of the parties, namely, that the hiring is to be on the terms of the plaintiff’s usual conditions.’
and ‘in view of the relationship between the parties, when the defendants requested this crane urgently and it was supplied at once-before the usual form was received-the plaintiffs were entitled to conclude that the defendants were accepting it on the terms of the plaintiffs’ own printed conditions-which would follow in a day or two. It is just as if the plaintiffs had said: ‘We will supply it on our usual conditions’ and the defendants had said ‘Of course, that is quite understood

Judges:

Lord Denning MR

Citations:

[1973] EWCA Civ 6, [1975] QB 303, [1974] 1 All ER 1059

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .

Cited by:

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

Contract

Updated: 23 March 2022; Ref: scu.262741

Bache and Co (London) Ltd v Banque Vernes et Commerciale de Paris SA: CA 1973

London Commodity Exchange brokers demanded a bank guarantee before entering into buying and selling transactions on behalf of their customer, a French trading company. The defendants, the trading company’s bankers, gave the guarantee which contained a conclusive evidence clause: ‘Notice of default shall from time to time, be given by [plaintiffs] to [defendants] and on receipt of any such notice [defendants] will forthwith pay . . the amount stated therein as due, such notice of default being as between [plaintiffs and defendants] conclusive evidence that [defendants’] liability hereunder has accrued in respect of the amount claimed.’
Held: The clause was not contrary to public policy, and so remained valid.
Lord Denning MR said: ‘The question is whether that conclusive evidence clause is conclusive against the party who signs the guarantee. Is he compelled to pay under it even though he alleges that the accounts are erroneous? As matter of principle I should think the clause is binding according to its terms.’
Scar man LJ agreed: ‘[I]t is, I think, clear beyond dispute that the words ‘conclusive evidence’ in this contract of guarantee are to be a bar to any evidence being tendered to show that the statements in the notice of default were not correct.’

Judges:

Lord Denning MR, Megaw LJ, Scarman LJ

Citations:

[1973] 2 Lloyd’s Rep 437

Jurisdiction:

England and Wales

Cited by:

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

Contract

Updated: 25 February 2022; Ref: scu.261297

Smith v Eric S Bush, a firm etc: HL 20 Apr 1989

In Smith, the lender instructed a valuer who knew that the buyer and mortgagee were likely to rely on his valuation alone. The valuer said his terms excluded responsibility. The mortgagor had paid an inspection fee to the building society and received a copy of the report, and relying on it, had bought the house. In Harris, the plaintiffs applied to the council for a mortgage, and paid the inspection fee. The form said that the valuation was confidential, and solely for the benefit of the council, which itself denied responsibility for the valuation or condition. The plaintiffs were advised to obtain their own survey. The council instructed their own employee valuer, who recommended it subject to minor repairs. His report was not shown to the plaintiffs. When the plaintiffs came to sell, the same valuer recommended a structural survey. Extensive structural repairs were required, and the property was uninhabitable and unsaleable. The plaintiffs claimed against the council and the valuer.
Held: The valuers each owed a duty of care to the buyer: ‘In what circumstances should a duty of care be owed by the adviser to those who act upon his advice? I would answer – only if it is foreseeable that if the advice is negligent the recipient is likely to suffer damage, and there is a sufficiently proximate relationship between the parties and that it is just and reasonable to impose the liability.’ The court did not think that ‘voluntary assumption of responsibility is a helpful or realistic test of liability.’
Lord Templeman said: ‘the relationship between the valuer and the purchaser is ‘akin to contract’. The valuer knows that the consideration which he receives derives from the purchaser and is passed on by the mortgagee, and the valuer also knows that the valuation will determine whether or not the purchaser buys the house.’ and ‘in my opinion the valuer assumes responsibility to both mortgagee and purchaser by agreeing to carry out a valuation for mortgage purposes knowing that the valuation fee has been paid by the purchaser and knowing that the valuation will probably be relied upon by the purchaser in order to decide whether or not to enter into a contract to purchase the house.’
Lord Griffiths: ‘The phrase ‘assumption of responsibility’ can only have any real meaning if it is understood as referring to the circumstances in which the law will deem the maker of the statement to have assumed responsibility to the person who acts upon the advice’ and ‘I have already given my view that the voluntary assumption of responsibility is unlikely to be a helpful or realistic test in most cases. I therefore return to the question in what circumstances should the law deem those who give advice to have assumed responsibility to the person who acts upon the advice or, in other words, in what circumstances should a duty of care be owed by the adviser to those who act upon his advice? I would answer – only if it is foreseeable that if the advice is negligent the recipient is likely to suffer damage, that there is sufficient proximate relationship between the parties and that it is just and reasonable to impose the liability.’ and
With regard to sections 11(3) and 13(1) of the 1977 Act, Lord Griffiths said: ‘I read these provisions as introducing a ‘but for’ test in relation to the notice excluding liability. They indicate that the existence of the common law duty to take reasonable care, referred to in section 1(1)(b), is to be judged by considering whether it would exist ‘but for’ the notice excluding liability.’
Lord Jauncey: ‘The words `liability’ for negligence in section 2(2) must be read together with section 13(1) which states that the former section prevents the exclusion of liability of `notices which exclude or restrict the relevant obligation or duty’. These words are unambiguous and are entirely appropriate to cover a disclaimer which prevents a duty coming into existence. It follows that the disclaimers here given are subject to the provisions of the Act and will therefore only be effective if they satisfy the requirements of reasonableness.’ The terms were unfair under the Act.
Also Harris v Wyre Forest District Council;
Orse Smith v Bush

Judges:

Lord Griffiths, Lord Jauncey, Lord Templeman

Citations:

[1989] 2 WLR 790, [1990] 1 AC 831, [1989] 17 EG 68, [1989] 2 All ER 514, [1990] UKHL 1

Links:

Bailii

Statutes:

Unfair Contract Terms Act 1977 1 2 11(3) 13(1)

Jurisdiction:

England and Wales

Citing:

Approved – Ross v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .

Cited by:

Cited – Merrett v John RH Babb CA 15-Feb-2001
The applicant had been employed as a surveyor by a firm which had subsequently become insolvent. The firm’s run off professional indemnity insurance had lapsed. He had provided the negligent survey, and he was sued in person.
Held: He was . .
Cited – Merrett v John RH Babb CA 15-Feb-2001
The applicant had been employed as a surveyor by a firm which had subsequently become insolvent. The firm’s run off professional indemnity insurance had lapsed. He had provided the negligent survey, and he was sued in person.
Held: He was . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – National Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
Cited – Platform Home Loans Ltd v Oyston Shipways Ltd and others HL 18-Feb-1999
The plaintiffs had lent about 1 million pounds on the security of property negligently valued at 1.5 million pounds. The property was sold for much less than that and the plaintiffs suffered a loss of 680,000 pounds. The judge found that the . .
Cited – Commissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
Cited – Customs and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
Cited – First National Commercial Bank Plc v Loxleys (a Firm) CA 6-Nov-1996
The plaintiff claimed damages from the seller of land and from their solicitors for misrepresentation in the replies to enquiries before contract. He appealed a striking out of his claim.
Held: A lawyer’s disclaimer placed on his Replies to . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Farraj and Another v King’s Healthcare NHS Trust and Another QBD 26-May-2006
The claimants sought damages after the birth of their child with a severe hereditary disease which they said the defendant hospital had failed to diagnose after testing for that disease. The hospital sought a contribution from the company CSL who . .
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Cited – Welton, Welton v North Cornwall District Council CA 17-Jul-1996
The defendant authority appealed a finding that it was liable in negligence from the conduct of one of its environmental health officers. The plaintiff had set out to refurbish and open a restaurant. He said the officer gave him a list of things he . .
Cited – Platform Funding Ltd v Bank of Scotland Plc (Formerly Halifax Plc) CA 31-Jul-2008
The parties disputed the extent of duty owed by a surveyor to a lender relying on his valuation of a property to be loaned.
Held: The valuer’s appeal failed. The valuer had valued the wrong property, after being misled by the borrower. The . .
Cited – Glaister and Others v Appelby-In-Westmorland Town Council CA 9-Dec-2009
The claimant was injured when at a horse fair. A loose horse kicked him causing injury. They claimed in negligence against the council for licensing the fair without ensuring that public liability insurance. The Council now appealed agaiinst a . .
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 . .
Cited – Steel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .
Cited – Banca Nazionale Del Lavoro Spa v Playboy Club London Ltd and Others SC 26-Jul-2018
The Playboy casino required a reference for a customer, but asked for this through a third party. The bank was not aware of the agency but gave a good reference for a customer who had never deposited any money with them and nor to whom it had issued . .
Cited – Poole Borough Council v GN and Another SC 6-Jun-2019
This appeal is concerned with the liability of a local authority for what is alleged to have been a negligent failure to exercise its social services functions so as to protect children from harm caused by third parties. The principal question of . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Contract

Leading Case

Updated: 11 February 2022; Ref: scu.192619

Singla v Hedman and Others: ChD 28 Apr 2010

The claimant sought an order for wrongful trading against the former directors of a company in liquidation, and to set aside agreements entered into after the liquidation, but backdated to before. The agreements related to the proposed making of a film.
Held: The first defendant had not been truthful.

Judges:

Peter Smith J

Citations:

[2010] EWHC 902 (Ch), [2010] BCC 684, [2010] 2 BCLC 61

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Singla v Hedman and Others ChD 27-Nov-2009
. .
Cited – Messager v British Broadcasting Association Co HL 1929
M composed of the music for a French opera ‘Le Petit Michus’. An English version was to be produced in London on the terms of an agreement, describing itself as a licence, between the composer and the authors of the opera, between the licensors, and . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company, Contract

Updated: 09 February 2022; Ref: scu.408672

British Actors Film Company Limited and Co v Glover: 1918

Under a written agreement the owners of the copyright in a dramatic and the musical work agreed to let to the defendant the right of professionally performing the work in the provinces of the United Kingdom, reserving to themselves full liberty to permit amateur performance. While this agreement was in force the same owners, in consideration of payments of royalties, granted to the plaintiffs a licence for 5-years to produce the work in moving picture films and to lease the film for exhibitions in the United Kingdom and elsewhere, and agreed that the plaintiffs should have the right while showing the films to render instrumentally, but not a vocally, any portions of the music of the work. The plaintiffs produced a film of the work and had made arrangement for exhibiting the film with the orchestral music of the work, when the defendant published an announcement in various periodicals papers, stating that the entire provincial rights in the work and in the music in connection with any stage performance or moving pictures display other than amateur performances, where vested in him, and the was again proprietor or in. the plaintiffs claimed a decoration that they were entitled to the exclusive right of producing the work by cinematographe in the United Kingdom and of Performing a music instrument Lee in connection with the display of any film. The court ordered a speedy trial of the question of title between the plaintiffs and the defendant.
Held: there had been a partial assignment of the copyright to the defendant and he had become the owner of that particular right mentioned in his agreement, and was entitled to take steps to prevent any improvement of that right by the plaintiffs in performing the music of the work.
A copyright licence involves permission to do what would otherwise constitute an infringement. A mere licence to make copies is not an assignment of copyright.

Judges:

Lush, McArdle JJ

Citations:

[1918] 1 KB 299, 87 LJKB 689, 118 LT 626, 34 TLR 362, 62 Sol Jo 192

Jurisdiction:

England and Wales

Cited by:

Cited – Profile Software Ltd v Becogent Ltd OHCS 16-Feb-2005
The pursuers claimed for breach of copyright and of a software licence. The defendants disputed the title or right of the pursuers to claim.
Held: The assignation of the rights in the software carried with it the rights to enforce intellectual . .
Cited – Messager v British Broadcasting Association Co HL 1929
M composed of the music for a French opera ‘Le Petit Michus’. An English version was to be produced in London on the terms of an agreement, describing itself as a licence, between the composer and the authors of the opera, between the licensors, and . .
Cited – Jonathan Cape Ltd v Consolidated Press Ltd 1954
. .
Lists of cited by and citing cases may be incomplete.

Contract, Intellectual Property

Updated: 09 February 2022; Ref: scu.242250

Hughmans (A Firm) v Dunhill: CA 8 Mar 2017

The claimant solicitors firm sought payment of their fees. The defendant cross claimed in negligence. Th defendant appealed against summary judgment on claim and counterclaim against her.
Held: Dismissed

Judges:

Sir Terence Etherton MR, Sir Ernest Ryder SPT, Macyr LJ

Citations:

[2017] EWCA Civ 97

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Professional Negligence

Updated: 09 February 2022; Ref: scu.579606

Ministry of Sound (Ireland) Ltd v World Online Ltd: ChD 2003

Judges:

N Strauss QC HHJ

Citations:

[2003] EWHC 2178

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ivory v Palmer CA 1975
The employee was a carpenter occupying a tied property. He was dismissed.
Held: The loss of the tied property on his dismissal, as a fringe benefit, was not as such a debt upon which he could sue. The licence to occupy the property came to an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 February 2022; Ref: scu.536770

Lickbarrow v Mason: 28 Nov 1794

Citations:

[1794] EngR 2347, (1794) 6 TR 131, (1794) 101 ER 473

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Lickbarrow And Another v Mason And Others 9-Nov-1787
The consignor may stop goods in transit before they get into the hands of the consignee, in case of the insolvency of the consignee : but if the consignee assign the bills of lading to a third person for a valuable consideration, the right of the . .
See Also – Mason And Others v Lickbarrow And Others 11-Feb-1790
. .
See Also – Lickbarrow v Mason 1793
. .
See Also – William Nowell Lickbarrow, And Another v Edward Mason, And Others (In Error) 14-Jun-1793
. .
See Also – Lickbarrow v Mason 2-Jul-1794
The attornment of a bill of lading is transferrable and therefore the indorsement and delivery of the bill of lading is capable of transferring the endorser’s right to the possession of the goods to the endorsee. . .

Cited by:

See Also – Lickbarrow And Others v Mason And Others HL 1827
Direction for venire facias de novo granted . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 09 February 2022; Ref: scu.371279

The Good Law Project, Regina (on The Application of) v Minister for The Cabinet Office: CA 18 Jan 2022

The Minister for the Cabinet Office appeals against the decision of O’Farrell J to allow (in part) a claim for judicial review of his decision to award a contract to Public First Limited without public notice or competition, relying on Regulation 32(2)(c) of the Public Contracts Regulations 2015.

Judges:

The Lord Burnett of Maldon
Lord Chief Justice of England and Wales
Lord Justice Coulson
And
Lady Justice Carr

Citations:

[2022] EWCA Civ 21, [2022] WLR(D) 54

Links:

Bailii, WLRD

Statutes:

Public Contracts Regulations 2015 32

Jurisdiction:

England and Wales

Administrative, Contract

Updated: 09 February 2022; Ref: scu.671303

Canadian Dyers Ass Ltd v Burton: HL 1920

There can be no contract of sale without an offer to sell and an acceptance of the offer. A quotation of price on its own does not constitute an offer to sell; it is no more than an invitation to treat. The courts will look at the language used in the light of the circumstances in which it is used and into the subsequent actions of both parties to determine if what is said by the seller is a mere quotation of price or an offer to sell

Citations:

(1920) 47 OLR 259

Jurisdiction:

England and Wales

Contract

Updated: 07 February 2022; Ref: scu.224940

F and G Sykes (Wessex) v Fine Fare Ltd: CA 1967

There was an agreement by which the plaintiffs agreed to breed and provide chicks to nominated growers, the number of chicks to be provided to be ‘not less than 30,000 per week nor more than 80,000 per week during the first year of the agreement and thereafter such other figures as may be agreed between the parties’. The agreement provided for a reference to an arbitrator in the event that there was a dispute between the parties.
Held: The agreement was binding.
Danckwerts LJ contrasted a difference between the parties which was a mere failure to agree, with a dispute.
Lord Denning said of the contract: ‘The provision that figures were ‘to be agreed’ does not nullify the contract’. In a commercial agreement the further the parties have gone on with their contract, the more ready are the courts to imply any reasonable term so as to give effect to their intentions: ‘When much has been done the courts will do their best not to destroy the bargain.’

Judges:

Danckwerts LJ, Lord Denning MR

Citations:

[1967] 1 Lloyds Rep 53

Jurisdiction:

England and Wales

Cited by:

Cited – Amec Civil Engineering Ltd v Secretary of State for Transport CA 17-Mar-2005
The contractors appealed a decision that an arbitrator had jurisdiction to hear a claim against them in respect of works carried out on the Thelwall viaduct. The contractors denied that there had been a dispute which could found a reference, and no . .
Cited – MRI Trading Ag v Erdenet Mining Corporation Llc CA 8-Mar-2013
The Commercial Court had found the result of an arbitration award ‘obviously wrong’, and ineed bizarre.
Held: The appeal failed. The award was flawed, in failing to take account of the trading context between the parties: ‘The overall . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 February 2022; Ref: scu.224302

McGahon v Crest Nicholson Regeneration Ltd: CA 21 Jul 2010

The claimants contracted to purchase an apartment ‘off-plan’. The contract was conditional on the grant of a head lease. Notice to complete was served by the developers did not disclose that the head lease had not been granted until after the date required but before the purported rescission. The claimants appealed against a decision that they had lost the right to rescind.
Held: The appeal failed. The date for the acquiring of a head lease was not of the essence, and the contract could still beome unconditional on a later grant, as had happened. The existence or otherwise of the head lease was discoverable from HMLR.

Judges:

Longmore LJ, Sullian LJ, Sir Mark Waller

Citations:

[2010] EWCA Civ 842

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Distinguished – Mardorf Peach and Co Ltd v Attica Sea Carriers Corporation of Liberia (The Laconia) 1977
A right of withdrawal had been granted to a shipowner under a time charterparty if the charterer failed to make a punctual monthly payment of hire.
Held: If the monthly hire had not been punctually paid, the right of withdrawal remained even . .
Cited – Miller’s Wharf Partnership v Corinthia Column Ltd 1991
The contract for a lease was conditional on several matters, with a provision that the sellers would use their best endeavours to satisfy the conditions. A notice to rescind was served. The conditions had been satisfied only after the de fixed, but . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 06 February 2022; Ref: scu.420995

Re OCM Singapore Njord Holdings Hardrada Pte Ltd and Others: ComC 11 Jan 2022

Six applications being (a) applications by each of the claimants for summary judgment and (b) the defendant’s applications for permission to amend its defences in each claim

Judges:

His Honour Judge Mark Pelling QC
Sitting as a Judge of the High Court

Citations:

[2022] EWHC 57 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 05 February 2022; Ref: scu.671500

James Scott and Sons, Ltd v R and N Del Sel and Another: SCS 22 Jun 1922

Frustration of Contract – Arbitration – Contract to Ship Jute – Order in Council Prohibiting Export of Jute – Suspension or Termination of Contract – Application of Arbitration Clause.

Citations:

[1922] SLR 446

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Bank Line Ltd v Arthur Capel and Co HL 12-Dec-1918
The defendant ship-owners contracted to lease the ship on charter to the plaintiffs. Before the term, the ship was requisitioned for the war effort. The plaintiffs did not exercise the contractual right given to them to cancel the charterparty. The . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 February 2022; Ref: scu.577993

CPL Ltd v CPL Opco (Trinidad) Ltd and Another: ChD 27 Feb 2017

Application for trial of preliminary issue

Judges:

Clark M

Citations:

[2017] EWHC 381 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – CPL Ltd v CPL Opco (Trinidad) Ltd and Another ChD 21-Dec-2017
Dispute as to rights in management of cricket tournament. . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 04 February 2022; Ref: scu.577825

Grizzly Business Ltd v Stena Drilling Ltd and Another: CA 24 Feb 2017

Judges:

Longmore, Lloyd Jones, Tracy LJJ

Citations:

[2017] EWCA Civ 94

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Grizzly Business Ltd v Stena Drilling Ltd and Another ComC 13-Jun-2014
The parties disputed the existence of a sales agency agreement. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 03 February 2022; Ref: scu.577496

Lord Mayor and Corporation of Bristol v John Aird and Co: HL 13 Mar 1913

In an application to stay an action on a contract brought by the respondents on the ground that the contract contained a clause of reference, held that though an arbiter need not be independent of the parties, the fact that questions of moment were involved in the case to which he must be a principal witness warranted the Court in refusing to stay proceedings in an action regarding matters falling under the reference.

Judges:

Lords Atkinson, Shaw, Moulton, and Parker

Citations:

[1913] UKHL 959, 50 SLR 959

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 03 February 2022; Ref: scu.632741

Dolphin Maritime and Aviation Services Ltd v Sveriges Angartygs Assurans Forening: ComC 2 Apr 2009

The defendant sought to strike out the claim for want of jurisdiction and that it had no prospect of success.

Judges:

Christopher Clarke J

Citations:

[2009] EWHC 716 (Comm), [2009] 1 CLC 460, [2009] 2 Lloyds Rep 123

Links:

Bailii

Statutes:

Brussels Convention 1968

Jurisdiction:

England and Wales

Cited by:

Cited – Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd CA 2-Apr-2009
The appellant entered into two aircraft leasing agreements but were unable to maintain payments. They appealed against rejection of their argument that the agreements were not exempt from the controls under the 1977 Act by being international supply . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Updated: 03 February 2022; Ref: scu.331162

Erich Gasser GmbH v MISAT Srl: ECJ 9 Dec 2003

The claimant Austrian company had for many years sold goods to the defendant an Italian company. Eventually it presented a claim before the court in Italy. Having obtained judgement, it later sought to enforce the order through the Austrian court relying upon a choice of forum term to that effect in the trading terms.
Held: The country first seised of the matter retained jurisdiction in preference to a country of choice under the contract. A national court could refer to the European court a request for interpretation of the Brussels Convention where it thought this necessary, and even though it had not yet made an assessment of the merits of the case. Such Conventions are based on the mutual trust and confidence which each contracting state accords to the legal systems and judicial institutions of the other contracting states. A court of a Member State on which exclusive jurisdiction has been conferred pursuant to article 23 cannot issue an injunction to restrain a party from prosecuting proceedings before a court of another Member State if that court was first seised of the dispute.

Judges:

V Skouris, P

Citations:

C-116/02, Times 12-Dec-2003, [2004] 1 Lloyd’s Rep 222, [2003] EUECJ C-116/02, [2003] ECR I-14693, [2005] 1 QB 1, [2003] ECR 14, [2004] 3 WLR 1070, [2004] ILPr 7, [2005] All ER (EC) 517, [2005] 1 All ER (Comm) 538

Links:

Bailii

Statutes:

Brussels Convention 17

Jurisdiction:

European

Cited by:

Cited – Speed Investments Ltd and Another v Formula One Holdings Limited and Others (No 2) ChD 20-Jul-2004
The defendants sought a stay of the action, arguing that proceedings had begun first in Switzerland.
Held: An English court became seised of an action for the purposes of the Convention at the time when the proceedings were served. Under the . .
Cited – OT Africa Line Ltd v Magic Sportswear Corporation and others CA 13-Jun-2005
The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .
Cited – Nussberger and Another v Phillips and Another (No 4) CA 19-May-2006
A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
Cited – West Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa and others (The Front Comor) HL 21-Feb-2007
A ship had foundered, and the owners disputed their insurance claim. The policy provided for arbitration in London, and one party sought an order to prevent the other commencing proceedings in another EU state in breach of the arbitration agreement. . .
Cited – Allianz Spa (Anciennement Riunione Adriatica Di Sicurta) v West Tankers Inc (‘the Front Comor’) ECJ 10-Feb-2009
ECJ (Judgment) A West Tankers ship damaged a jetty in Syracuse. An agreement provided for an arbitration in London. The insurers having paid out brought a subrogated action in Italy. West Tankers sought an order . .
Cited – Starlight Shipping Co v Allianz Marine and Aviation Versicherungs Ag and Others CA 20-Dec-2012
The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Updated: 03 February 2022; Ref: scu.189894

Phillips Electronique Grand Public SA v British Sky Brodcasting Ltd: CA 1995

The court warned against being less than stringent when seeking to imply a term into a contract: ‘The courts’ usual role in contractual interpretation is, by resolving ambiguities or reconciling apparent inconsistencies, to attribute the true meaning to the language in which the parties themselves have expressed their contract. The implication of contract terms involves a different and altogether more ambitious undertaking: the interpolation of terms to deal with matters for which, ex hypothesi, the parties themselves have made no provision. It is because the implication of terms is so potentially intrusive that the law imposes strict constraints on the exercise of this extraordinary power . .
The question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear. Tempting, but wrong . .
And it is not enough to show that had the parties foreseen the eventuality which in fact occurred they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred’

Judges:

Sir Thomas Bingham MR

Citations:

[1995] EMLR 472

Jurisdiction:

England and Wales

Cited by:

Cited – Donington Park Leisure Ltd v Wheatcroft and Son Ltd ChD 7-Apr-2006
Leave to apply was pursued under the provisions of a Tomlin order. The parties had disputed the extent to which parts of the order should be exhibited to the court.
Held: The Tomlin order should be amended to add terms necessary to give effect . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 February 2022; Ref: scu.241558

Grizzly Business Ltd v Stena Drilling Ltd and Another: ComC 13 Jun 2014

The parties disputed the existence of a sales agency agreement.

Judges:

Teare J

Citations:

[2014] EWHC 1920 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Grizzly Business Ltd v Stena Drilling Ltd and Another CA 24-Feb-2017
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 February 2022; Ref: scu.526715

Balogun v Boyes Sutton and Perry (A Firm): CA 21 Feb 2017

The cliamant appealed against the rejection of his claim alleging professional negligence and beach of contract against his former solicitors.

Judges:

Gloster VP CA, Lloyd Jones, King LJJ

Citations:

[2017] EWCA Civ 75

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence, Contract

Updated: 31 January 2022; Ref: scu.575331