Category: Contract

European Dynamics Luxembourg and Others v EMA: ECFI 17 Feb 2017

ECJ (Judgment) Arbitration clause – Multiple framework contract in cascade EMA / 2012/10 / ICT – Provision of external services in the field of software applications – Request for the provision of services to the applicants – Rejection of the candidates proposed by the applicants – Proportionality – Partial reclassification Of the action – Non-contractual liability

Citations:

ECLI:EU:T:2017:104, [2017] EUECJ T-441/15

Links:

Bailii

Jurisdiction:

European

Contract

Updated: 31 January 2022; Ref: scu.575259

Islam and Another v Al-Sami and Another: CA 3 Feb 2011

The court was asked whether a loan agreement said to have been made between the appellant and the second respondent, Mrs Salma Begum, was of any effect and whether an equitable charge over her leasehold flat given as security under the agreement stands as security for any indebtedness.

Judges:

Arden, Elias, David Richards LJJ

Citations:

[2011] EWCA Civ 32

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 31 January 2022; Ref: scu.428531

Rixon v Edinburgh Northern Tramways Co and Others: HL 22 Jun 1893

A company incorporated by a private Act for the construction of a tramway, with a nominal capital, which was never offered to the public, but which was taken up partly by the promoters of the company, and to the extent of the remainder of the shares was acquired by the contractor in payment of the price of the work performed, entered into a contract for the remainder of the work with the same contractor.
A shareholder sought to reduce this contract (1) on the ground of fraud, alleging that the majority of the shareholders who voted in favour thereof were nominees of the contractor, and had obtained their shares gratuitously and for the purpose of voting in his favour; (2) on the ground of ultra vires, as the contract had not been offered to competition as required by a clause in a contract which was scheduled to the company’s Act.
Held (aff. judgment of the First Division) (1) that the contractor’s influence in the company had been legitimately acquired; and (2) that the pursuer not being a party to the contract, which provided for competition, he had no title to insist in the plea of ultra vires.

Judges:

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

Citations:

[1893] UKHL 944

Links:

Bailii

Jurisdiction:

Scotland

Contract, Company

Updated: 31 January 2022; Ref: scu.633302

Macrae v W and S Pollock and Co: HL 17 Jul 1922

In a contract between a firm of engineers and the owner of a fishing boat for the supply of a twin-screw set of motor engines, the sellers incorporated certain conditions providing, inter alia, that they should not be liable for ‘any direct or consequential damage arising from defective material or workmanship.’ The buyer having brought an action of damages against the sellers on the ground that the engines were disconform to contract, the sellers pleaded the conditions in defence. Held on the facts that there was such a congeries of defects as to destroy the workable character of the machine and amount to a total breach of contract; and on the law, that though the conditions might excuse from damage arising from the insufficiency of a part or parts, they had no application to damage arising from a congeries of defects amounting to a total breach of contract.
In a contract between a firm of engineers and the owner of a fishing boat for the supply of a twin-screw set of motor engines, the buyer retained the engines and claimed damages on the ground that they were disconform to contract. The sellers maintained that the buyer having in the first instance elected to reject the goods, could not now avail himself of the alternative remedy provided by the Sale of Goods Act 1893, sec. 11 (2), viz., of retaining the goods and claiming damages. Opinion that even if the buyer had rejected the engines he was not thereby barred from subsequently retaining them and claiming damages.

Judges:

Viscount Haldane, Viscount Cave, Lord Dunedin, Lord Parmoor, and Lord Wrenbury

Citations:

[1922] UKHL 11, 60 SLR 11

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 31 January 2022; Ref: scu.632808

Mason v Provident Clothing and Supply Co: HL 28 Jul 1913

Appellant had been engaged by the respondents under an agreement seriously curtailing his opportunities of earning his living. Held that inasmuch as the agreement embodied restrictions which were not reasonable or necessary for the protection of the respondents’ business it was void.

Judges:

Lord Chancellor (Haldane) and Lords Dunedin, Shaw, and Moulton

Citations:

[1913] UKHL 558, 51 SLR 558

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 31 January 2022; Ref: scu.632750

AMCHEM Products Incorporated v British Columbia (Workers’ Compensation Board): 24 Mar 1993

Supreme Court of Canada – Courts – Appropriate forum – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Principles governing the determination of appropriate forum and governing comity between courts – Whether or not an injunction appropriate.
Prerogative writs – Injunctions – Appropriate forum for bringing action – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Whether or not an injunction appropriate.
Conflict of laws – Courts – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Principles governing the determination of appropriate forum and governing comity between courts – Whether or not an injunction appropriate.
Sopinka J discussed the importance of comity considerations in anti-suit injunction applications and held: ‘the domestic court as a matter of comity must take cognisance of the fact that the foreign court has assumed jurisdiction. If, applying the principles relating to forum non conveniens . . the foreign court could reasonably have concluded that there was no alternative forum that was clearly More appropriate, the domestic court should respect that decision and the application [for an anti-suit injunction] should be dismissed.’

Judges:

La Forest, Sopinka, Gonthier, Cory and McLachlin JJ

Citations:

[1993] 1 SCR 897, (1993) 102 DLR (4th) 96, [1993] 3 WWR 441, 77 BCLR (2d) 62, 150 NR 321, 23 BCAC 1, [1993] CarswellBC 47, JE 93-674

Links:

Canlii

Cited by:

Approved – Airbus Industrie G I E v Patel and Others HL 2-Apr-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was 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. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Jurisdiction, Contract, International

Updated: 31 January 2022; Ref: scu.228197

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. Proceedings were also begun in England, and the original Canadian claimant now appealed a refusal to restrain the action.
Held: The appeal failed. Whilst it was important to avoid a clash of jurisdictions, the autonomy of the parties to make their own contract was more important than the place of business or where the location was made: ‘no English court would expect a foreign court to grant a stay by reason of any provision of English law, if an action was proceeding in that foreign court by virtue of an agreement, governed by the law of that court, that proceedings were to be brought in the courts of that country. Conversely an English court would hope that a decision to retain an action brought in England, pursuant to an exclusive jurisdiction clause in a contract governed by English law, would be respected by any foreign court.’ However: ‘In the case of exclusive jurisdiction clauses, however, comity has a smaller role. It goes without saying that any court should pay respect to another (foreign) court but, if the parties have actually agreed that a foreign court is to have sole jurisdiction over any dispute, the true role of comity is to ensure that the parties’ agreement is respected.’

Judges:

Laws, Rix and Longmore LJJ

Citations:

[2005] EWCA Civ 710, Times 21-Jun-2005, [2006] 1 All ER (Comm) 32, [2005] 2 LLR 170, [2005] 2 Lloyd’s Rep 170, [2005] 1 CLC 923

Links:

Bailii

Statutes:

Contracts (Applicable Law) Act 1990

Jurisdiction:

England and Wales

Citing:

Cited – Donohue v Armco Inc and others HL 13-Dec-2001
The appellant had sought injunctions against the respondent US companies to restrain their commencing proceedings in the US against him. The parties had negotiated for the purchase of the run-off liabilities of a defunct insurance company. . .
Cited – The Eleftheria 1970
In general, and all other things being equal, it is more satisfactory (from the point of view of ensuring that justice is done) for the law of a foreign country to be decided by the courts of that country.
Brandon J said: ‘I further regard, . .
Cited – The El Amria 1981
The court set out the principles to be applied where a party seeks to enforce or act in breach of a choice of jurisdiction contract. If a party seek to sue here in breach of such a clause, the court has a discretion to stay, but a stay should be . .
Cited – Vita Food Products Inc v Unus Shipping Co Ltd PC 30-Jan-1939
(Nova Scotia) Goods were shipped from Newfoundland under a bill of lading which contained an exemption for loss caused by the servants of the carrier. This exemption was void by the law of Newfoundland, whose legislature had enacted the Hague Rules, . .
Cited – Adams v National Bank of Greece HL 1961
Questions of interpretation and enforcement of contracts are resolved by reference to the proper law. Although debt under a contract whose proper law is the law of another jurisdiction may, for the purposes of Scots law, be discharged by insolvency . .
Cited – Airbus Industrie G I E v Patel and Others HL 2-Apr-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
Cited – AMCHEM Products Incorporated v British Columbia (Workers’ Compensation Board) 24-Mar-1993
Supreme Court of Canada – Courts – Appropriate forum – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in . .
Cited – 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 . .
Cited – Sabah Shipyard (Pakistan) Ltd v The Islamic Republic of Pakistan and Another CA 14-Nov-2002
An order was sought to restrain proceedings in Pakistan.
Held: The agreement provided that it should be subject to the exclusive jurisdiction of England. The national state was also party to the agreement, and had waived sovereign immunity. It . .
Cited – Aggeliki Charis Compania Maritima SA v Pagnan SpA – The Angelic Grace CA 1995
On the charterers’ orders the Angelic Grace was required to tie up alongside another vessel which they owned. Whilst unloading the weather turned and the vessels collided. Each blamed the other and the owners claimed a salvage. The court considered . .
Cited – Continental Bank Na v Aeakos Compania Naviera Sa and Others CA 26-Nov-1993
The Bank was entitled to an injunction in the UK, by virtue of the jurisdiction given in their agreement, even though it was not the UK court which was first seised of the matter. Steyn LJ said: ‘. . a claim for damages for breach of contract would . .
Cited – Societe Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) PC 14-May-1987
Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a . .
Cited – The Fehmarn 1957
Willmer J said: ‘Clearly it requires a strong case to satisfy the court that the agreement [an express agreement to submit to a foreign tribunal] should be overridden.’ . .
Cited – The Fehmarn 1958
The effect of an agreement prorogating a foreign jurisdiction is to confer on the English court a discretion to stay the English proceedings. . .
Cited – Turner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
Cited – Turner v Grovit ECJ 27-Apr-2004
The claimant had been employed as a solicitor by the respondent at locations across Europe, and came to claim in England that they had wrongly implicated him in unlawful activity. The company sought to issue proceedings in Spain.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Leading Case

Updated: 31 January 2022; Ref: scu.226156

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 the TOA and an injunction to prevent the defendants proceeding in California. The defendants appealed. There were allegations of the withholding of information which would be treated differently in the two courts.
Held: If the agent had no obligation to disclose anything, his failure to do so could not be characterised as fraudulent or negligent, whatever his motives may have been. The agreement gave explicit preference to English law. The clause specifying what was to be disclosed was neither unfair nor unreasonable. The injunction was correctly granted.

Judges:

Lord Justice Aldous, Lord Justice Clarke, And Lord Justice Laws

Citations:

[2001] EWCA Civ 658, [2001] 3 All ER 733

Links:

Bailii

Statutes:

Unfair Contract Terms Act 1977 2(2), Misrepresentation Act 1967 3

Jurisdiction:

England and Wales

Citing:

Cited – Reichhold Norway ASA and Reichhold Chemicals Inc v Goldman Sachs International CA 28-Jun-1999
An application was made to stay proceedings to await the decision of a foreign court. At first instance, Moore-Bick J had held that a Court has an interest in deciding the order in which related proceedings should be tried ‘not only because the . .
Cited – Sheffield v Oxford Controls Co Ltd EAT 18-Dec-1978
The company had been owned equally by Mr. Sheffield and Mr. Raison. The Raisons gained effective control of the company on the issue of shares. Mr. and Mrs. Sheffield had been employed, but after a row, she was told she would have to go. This . .
Cited – Societe Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) PC 14-May-1987
Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a . .
Cited – Continental Bank Na v Aeakos Compania Naviera Sa and Others CA 26-Nov-1993
The Bank was entitled to an injunction in the UK, by virtue of the jurisdiction given in their agreement, even though it was not the UK court which was first seised of the matter. Steyn LJ said: ‘. . a claim for damages for breach of contract would . .
Cited – Aggeliki Charis Compania Maritima SA v Pagnan SpA – The Angelic Grace CA 1995
On the charterers’ orders the Angelic Grace was required to tie up alongside another vessel which they owned. Whilst unloading the weather turned and the vessels collided. Each blamed the other and the owners claimed a salvage. The court considered . .
Cited – Airbus Industrie G I E v Patel and Others HL 2-Apr-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
Cited – Roger Thomas Donohue v Armco Inc and others CA 29-Mar-2000
The claimant sought an order restraining the defendants from pursuing a claim in America. The parties were party to a contract governed by English law, but the allegation was one of fraud, and the defendants said this was outside the provisions of . .
Cited – Canada Steamship Lines Ltd v The King PC 21-Jan-1952
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .
Cited – Smith v UMB Chrysler (Scotland) Ltd HL 9-Nov-1977
The principles set out in Canada Steamship apply to ‘clauses which purport to exempt one party to a contract from liability’. The principles should be applied without ‘mechanistic construction’.
Lord Keith of Kinkel said: The tests were . .
Cited – Phillips Products Ltd v Hyland CA 1987
To decide whether a clause is an exclusion clause it is necessary to look at the effect of the clause and not its form. ‘There is no mystique about `exclusion’ or `restriction’ clauses. To decide whether a person `excludes’ liability by reference to . .
Cited – de Dampierre v de Dampierre HL 1988
The existence and state of foreign proceedings are relevant to the exercise of the court’s discretion to stay an action on the ground of forum non conveniens. The essential test on which the court might exercise its discretion to stay the petition . .
Cited – 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 . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Stewart Gill Ltd v Horatio Myer and Co Ltd CA 1992
The ‘guidelines’ in Schedule 2 are usually regarded as of general application to the question of reasonableness under the 1977 Act. The effect of s13 which deals with exemption clauses, is to apply s3 inter alia to ‘no set off’ clauses. The . .
Cited – Thomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .

Cited by:

Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – Sheffield United Football Club Ltd v West Ham United Football Club Plc ComC 26-Nov-2008
The claimant sought an order to prevent the defendant company from pursuing further an appeal against a decision made by an independent arbitator in their favour as regards the conduct of the defendant in the Premier League in 2006/2007.
Held: . .
Lists of cited by and citing cases may be incomplete.

Banking, Jurisdiction, Contract

Updated: 31 January 2022; Ref: scu.135463

Various North Point Pall Mall Purchasers v 174 Law Solicitors Ltd: ChD 10 Jan 2022

Sale of land – Stakeholder – Off-plan fractional residential development scheme – Buyers’ deposits held by seller’s solicitor to order of buyer company established to protect buyers’ interests – Authority to release deposits – Construction of stakeholder contract – Estoppel by convention
Whether claim for breach of stakeholder contract sounding in debt or damages – Measure of damages
Contribution between stakeholder and buyers’ solicitors

Judges:

His Honour Judge Hodge QC
Sitting as a Judge of the High Court

Citations:

[2022] EWHC 4 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Legal Professions

Updated: 31 January 2022; Ref: scu.671015

Bowe and Christie v Hutchisons: SCS 13 Mar 1867

A guarantee given to a firm of wholesale sugar merchants for ‘sugar,’ to be sold by them to another dealer in sugar, held to cover furnishings of treacle and syrup, the firm stating in evidence that such was the construction of ‘sugar’ in the trade, and the defender leading no evidence to disprove that construction.

Citations:

[1867] SLR 5 – 380

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 30 January 2022; Ref: scu.574806

Security Trust Co v The Royal Bank of Canada: PC 1 Dec 1975

(Bahamas) A company, Fisher agreed to buy land with part of the purchase price to be paid by a fixed date and the balance secured by a mortgage to the vendor. A conveyance and a mortgage were duly executed and held in escrow pending payment of the agreed proportion of the price. Fisher failed to pay the stipulated sum on the fixed date. Fisher then granted a debenture, creating a fixed charge on its existing property and a floating charge on future property. A receiver was subsequently appointed under the debenture. The contract was eventually completed. In the subsequent litigation, the question arose whether the charge over the property created by the debenture took priority over the vendor’s mortgage. The Judicial Committee of the Privy Council, allowing the vendor’s appeal, held that Fisher’s interest in the land was merely an equity of redemption subject to the vendor’s mortgage, and that the mortgage accordingly took priority over the charge created by the debenture. Lord Cross limited the extent of the law of escrow: ‘On fulfilment of the condition subject to which it was delivered as an escrow, a deed is not taken to relate back to the date of its delivery for all purposes, but only for such purposes as are necessary to give efficacy to the transaction – ut res magis valeat quam pereat (see Butler and Baker’s case (1591) 3 CoRep 25a). Thus, the fact that the grantor has died before the condition of an escrow is fulfilled does not entail the consequence that the disposition fails. If and when the condition is fulfilled the doctrine of relation back will save it, but notwithstanding the relation back for that limited purpose the grantee is not entitled to the rents of the property during the period of suspense or to lease it or to serve notices to quit.’

Judges:

Lord Cross

Citations:

[1976] AC 503, [1975] UKPC 23, [1976] 1 All ER 381, [1976] 2 WLR 437

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In re Connolly Brothers Ltd (No. 2) CA 1912
A company had granted a debenture over all its assets, present and future, but wishing to acquire an additional property, it approached a third party who agreed to finance the purchase against a charge. It contracted to buy the property at pounds . .

Cited by:

Cited – Alan Estates Ltd v WG Stores Ltd and Another CA 1-Jul-1981
The proposed tenant wanted to get into possession, and was given a key and paid a quarter’s rent to the lessor’s solicitors to be held as stakeholders, before the lease had been formally granted. An undated lease and counterpart were executed and . .
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Cited – Lloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .
Lists of cited by and citing cases may be incomplete.

Land, Equity, Contract

Updated: 30 January 2022; Ref: scu.252352

Jomast Accommodation Ltd v G4S Care and Justice Services (UK) Ltd: ChD 9 Feb 2017

Assorted claims for breach of contract and fraudulent misrepresentation in sub-contract for provision of accomodation to asylum seekers.

Judges:

Lesley Anderson QC

Citations:

[2017] EWHC 200 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Torts – Other

Updated: 29 January 2022; Ref: scu.574095

TJH and Sons Consultancy Ltd v CPP Group Plc: CA 2 Feb 2017

The court was asked whether an additional fee referred to in clause 5.1 (a) of a consultancy agreement between TJH and Sons Consultancy Ltd (‘TJH’) and CPP Group plc (CPP’) is payable as of right or whether CPP has a discretionary power not to pay it. HHJ Gosnell held that CPP had a discretion to decline to pay.

Judges:

Elias, Lewison LJJ

Citations:

[2017] EWCA Civ 46

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 29 January 2022; Ref: scu.573870

TV1 v Commission: ECFI 26 Jan 2017

ECJ (Judgment) Public service contracts – Tender procedure – Provision of integrated audiovisual production, broadcasting and archiving services – Rejection of a tenderer’s offer – Award of the contract to another tenderer – Abnormally low tender – Obligation to request clarification – Obligation to state reasons – Transparency – Equal treatment and non-discrimination – Manifest error of assessment

Citations:

ECLI: EU:T:2017: 35, [2017] EUECJ T-700/14

Links:

Bailii

Jurisdiction:

European

Media, Contract

Updated: 29 January 2022; Ref: scu.573819

Surrey and Sussex Healthcare Nhs Trust v Logan Construction (South East) Ltd: TCC 13 Jan 2017

Applications for declarations as to the invalidity of an alleged Interim Payment Notice and the validity of an alleged Pay Less Notice.

Judges:

Alexander Nisses QC

Citations:

[2017] EWHC 17 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Construction, Contract

Updated: 28 January 2022; Ref: scu.573408

Worthington, and Mary, His Wife, v Wigley: 20 Jan 1837

To debt on a bond conditioned for payment of money, pleas, that after the day of payment, and before action, the obligee received certain bills of exchange not yet due, on account of part of the sum due on the bond, and certain monies in satisfaction of the residue.
Held: ill.

Citations:

[1837] EngR 417, (1837) 3 Bing NC 454, (1837) 132 ER 485

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 28 January 2022; Ref: scu.313534

Brown v Raphael: 1958

This was a sale of an absolute reversion in a trust fund. The particulars stated that: ‘Estate duty will be payable on the death of the annuitant who is believed to have no aggregable estate’ and the name of the solicitors who prepared the particulars was given. The solicitors made the statement of belief honestly but they had no reasonable grounds for so believing. The solicitors were better equipped with information or the means of information than the purchaser.
Held: A statement that a vendor is not aware of a defect in title carries with it an implied representation that he has taken reasonable steps to ascertain whether any exists. The statement of belief not merely implied that the solicitors held that belief, but also by implication that the solicitors knew facts which justified their opinion; that they had reasonable grounds for their belief.
Lord Evershed MR said: ‘a statement of opinion is always to this extent a statement of fact, that it is an assertion that the vendor does actually hold the opinion which he states.’

Judges:

Lord Evershed MR, Romer LJ, Ormerod LJ

Citations:

[1958] Ch 636, [1958] 2 WLR 647, [1958] 2 All ER 79

Jurisdiction:

England and Wales

Citing:

Applied – Smith v London and House Property Corporation CA 1884
Bowen LJ said: ‘In considering whether there was a misrepresentation, I will first deal with the argument that the particulars only contain a statement of opinion about the tenant. It is material to observe that it is often fallaciously assumed that . .

Cited by:

Cited – William Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Cited – Spice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Leading Case

Updated: 28 January 2022; Ref: scu.185663

NTN Corporation and Others v Stellantis Nv and Others: CA 7 Jan 2022

The Court was asked: ‘Where a supplier has, in breach of duty (tortious, contractual or otherwise), charged a purchaser too much for supplies (‘the overcharge’), can the supplier seek to defeat a claim for compensation brought by the purchaser by pleading that the purchaser has mitigated the overcharge by neutralising the sum in question by securing commensurately increased discounts on supplies to it from other suppliers (‘off-setting’)? In particular is it permissible to plead such a defence without any actual evidence that the claimant did in fact mitigate its loss in this manner but only upon the hypothetical basis that it is a ‘reasonable’ inference that can be drawn that the purchaser would have mitigated in this manner. ‘

Judges:

Sir Julian Flaux
Chancellor of the High Court
Lord Justice Green
And
Lady Justice Whipple

Citations:

[2022] EWCA Civ 16

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 28 January 2022; Ref: scu.671053

Young v Schuler: CA 19 Jun 1883

The issue was whether Schuler had signed an agreement simply under a power of attorney on behalf of one of the named parties or, additionally, on his own behalf as a guarantor. In the case of an equivocal agency signature, it was held that evidence was admissible that the signature was also a personal signature – ‘evidence that he intended to sign in both capacities . . does not contradict the document and is admissible’. Brett said: ‘But the questions whether a person has signed his name at the foot of a document, and if so, for what purpose, are questions of evidence, and any evidence on the subject which does not contradict the document is admissible . . This evidence does not contradict anything on the face of the document, and is, in my opinion, plainly admissible.’

Judges:

Cotton LJ, Sir William Brett MR

Citations:

(1883) 11 QBD 651, [1883] UKLawRpKQB 118

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 28 January 2022; Ref: scu.188451

Edmonds v Lawson, Pardoe, and Del Fabbro: CA 10 Mar 2000

A contract of apprenticeship is synallagmatic. The master undertakes to educate and train the apprentice (or pupil) in the practical and other skills needed to practise a skilled trade (or learned profession) and the apprentice (or pupil) binds himself to serve and work for the master and comply with all reasonable directions. In the case of a pupil barrister the freedom of the pupil to earn fees on her own account counted against her being an apprentice. The contract of pupillage did not require the pupil master to provide any work. The object of the Act was not to enlarge the categories of those entitled to be paid wages but to ensure that those entitled to be paid wages are not paid at anything less than a specified minimum level. A bar pupil was not a ‘worker,’ within the meaning of the Act, and was not therefore entitled to the national minimum wage. A pupil, though under contract, was not an apprentice. The pupil master was only one of several people for whom the pupil might carry out duties. The majority of obligations were set not by contract, but by regulations governing the profession, and there was insufficient mutuality.
Lord Bingham CJ said: ‘Whether the parties intended to enter into legally binding relations is an issue to be determined objectively and not by enquiring into their respective states of mind. The context is all important.’

Bingham LCJ, Pill, Hale, LJJ
Times 16-Mar-2000, Gazette 06-Apr-2000, [2000] All ER 31, [2000] EWCA Civ 69, [2000] 2 WLR 1091
Bailii
National Minimum Wage Act 1998 54, National Minimum Wage Regulations 1999 (SI 1999 No. 584) 12
England and Wales
Citing:
Cited – Wallace v CA Roofing Services Ltd 1996
An employer can less easily terminate an apprentice than other employees. An oral apprenticeship contract is enfoirceable, but only once it is acted upon. . .
Cited – Newell v Gillingham Corporation 1941
A contract of apprenticeship is, in law, less readily terminable by the employer than an ordinary contract of employment. . .
Cited – McDonald v John Twiname Ltd 1953
Apprenticeships are less easily terminable by the employer than an ordinary contract of employment. An executory apprenticeship contract must be in writing to be enforceable, though an employer who has acted upon an oral contract of apprenticeship . .
Cited – The Parish of St Pancras, Middlesex v The Parish of Clapham, Surrey 1860
An attorney’s clerk, articled by indenture, was held to be an apprentice and to gain a settlement as such for poor law purposes. In legal acceptation an apprentice is a person who is bound to and who serves another, for the purpose of learning . .
Cited – Kirkby v Taylor 1910
Though an apprenticeship contract need no longer be by deed, an executory apprenticeship contract must be in writing to be enforceable. . .
Cited – Waterman v Fryer 1922
Shearman J said: ‘The authorities show that in the early days there was the greatest reluctance to break any contract of apprenticeship. It was considered of very great importance that children should be taught a trade, and the Courts, in view of . .
Cited – Dunk v George Waller and Sons Ltd CA 1970
‘A contract of apprenticeship secures three things for the apprentice: it secures him, first, a money payment during the period of apprenticeship. . .’ the range of remedies may be wider than under standard form of employment contact. It is of a . .
Appeal From – Edmonds v Lawson QBD 13-Oct-1999
A pupil barrister was engaged in a form of apprenticeship, which had sufficient characteristics of employment to make the pupil a worker within the Act, and so entitled to payment of the minimum wage. The contract was either of employment or for . .

Cited by:
Cited – Parties Named In Schedule A v Dresdner Kleinwort Ltd and Another QBD 28-May-2010
The defendant merchant banks resisted two group claims for annual bonuses for 2008 made by the employee claimants. They now sought summary judgment against the claims. The employer had declared a guaranteed minimum bonus pool available to make the . .
Cited – Dresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .

Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions, Contract

Updated: 27 January 2022; Ref: scu.147102

Arcadia Group Ltd and Others v Telegraph Media Group Ltd: QBD 8 Feb 2019

Claimant’s application for leave to withdraw request for injunction to prevent publication of stories regarding matters subject to non-disclosure agreements.
Held: Granted. An junction had been granted, but Lord Hain had disclosed protected name in the House of Lords under the cover of parliamentary privilege.

Warby J
[2019] EWHC 223 (QB)
Bailii
England and Wales
Citing:
See Also – ABC and Others v Telegraph Media Group Ltd CA 23-Oct-2018
Human Rights balance in favour of Interim order
The Claimants, now Appellants sought an injunction to prevent the Defendant, from publishing what they say is confidential information about them which was disclosed in breach of confidence.
Held: The claimant’s appeal succeeded. The court . .
See Also – Arcadia Group Ltd and Others v Telegraph Media Group Ltd QBD 23-Jan-2019
. .
Cited – Castanho v Brown and Root (UK) Ltd HL 1981
A claim was made for an anti-suit injunction.
Held: The court is reluctant to make orders which would be ineffective to achieve what they set out to do, but the fear that the defendant will not obey an injunction is not a bar to its grant. The . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Aldi Stores Ltd v WSP Group Plc and others CA 28-Nov-2007
Aldi appealed against an order striking out as an abuse of process its claims against the defendant on a construction dispute. The defendant said the claims should have been brought as part of earlier proceedings.
Held: The appeal succeeded. . .
Cited – The High Commissioner for Pakistan In The United Kingdom v National Westminster Bank Plc and Others ChD 16-Jan-2015
The parties disputed management of a fund subject to a legal stalemate since 1948, and now worth some andpound;35 million pounds. Application to set aside discontinuance without permission.
Held: If, upon such an application, the Court is . .
Cited – Singh v The Charity Commission and Others ChD 22-Dec-2016
The court considered the circumstances under which a withdrawal of a case might be challenged: ‘(1) the rules do not prescribe any particular test for permitting discontinuance or, for that matter, for setting aside a notice of discontinuance; (2) a . .
Cited – Stati and Others v The Republic of Kazakhstan CA 10-Aug-2018
Appeal from an order setting aside a notice of discontinuance filed by the Appellants as claimants in proceedings under section 101 of the Arbitration Act 1996 to enforce a New York Convention award. He directed that the allegations made by the . .
Cited – Smithkline Beecham Plc/BASF AG v Generics (UK) Limited / Smithkline Beecham Plc CA 25-Jul-2003
The claimant had been involved in patent infringement proceedings. Papers had been disclosed to them under confidentiality conditions imposed by the judge. In these subsequent proceedings, they sought leave to use the material.
Held: An order . .

Lists of cited by and citing cases may be incomplete.

Media, Contract

Updated: 27 January 2022; Ref: scu.633233

Chisese v Eze: CA 15 Nov 2016

Renewed oral application for permission to appeal in relation to a judgment dismissing Mr Chisese’s claim against Prince Arthur Eze, based on alleged breach of an alleged oral agreement made between himself and Prince Arthur Eze.

Sales LJ
[2016] EWCA Civ 1240
Bailii
England and Wales

Contract

Updated: 27 January 2022; Ref: scu.572731

Rollerteam Ltd and Another v Riley and Another: CA 16 Dec 2016

The parties had been involved in a bitter family and commercial dispute. It had been settled, but it was now disputed whether that settlement was effective or was void for a failure to comply with section 2(1) of the 1969 Act. The judge below had held that though the requirements of section 2 had not been satisfied, the agreement did not fall within the ambit of the section, and was therefore not avoided.
Held: The appeal failed.

Tomlinson, David Richards, Henderson LJJ
[2016] EWCA Civ 1291
Bailii
Law of Property (Miscellaneous Provisions) Act 1989
England and Wales

Contract

Updated: 27 January 2022; Ref: scu.572418

Wright v The Jockey Club: QBD 15 May 1995

A jockey had been refused a jockey’s licence for medical reasons. He sought damages for his loss of earnings. The club applied to strike out the claim as showing no arguable cause of action.
Held: The duties of a body exercising a licensing function in connection with a member as implied by law were limited to acting fairly. There was no extra duty of care. The was no authority to say that a domestic tribunal of this nature owed any contractual duty of care to its members.

Sir Haydn Tudor Evans
Times 16-Jun-1995
England and Wales
Citing:
Cited – Regina v Disciplinary Committee of the Jockey Club, ex parte Aga Khan CA 4-Dec-1992
No Judicial Review of Decisions of Private Body
Despite the wide range of its powers, the disciplinary committee of the Jockey Club remains a domestic tribunal. Judicial review is not available to a member. Tne relationship is in contract between the club and its member. Sir Thomas Bingham MR: . .
Cited – The Moorcock CA 1889
Unless restricted by something else, an employer ought to find work to enable a workman to perform his part of the bargain, namely, to do his work. A term will be implied into a contract only to the extent required to give the contract efficacy: ‘if . .

Lists of cited by and citing cases may be incomplete.

Contract, Negligence

Updated: 27 January 2022; Ref: scu.90624

Matchmove Ltd v Dowding and Another: CA 7 Dec 2016

Appeal against a finding that an oral agreement for the purchase of land was effective through a proprietary estopple and a constructive trust.

Sir Terence Etherton MR, Lloyd Jones LJ and Arnold J
[2016] EWCA Civ 1233
Bailii
Law of Property (Miscellaneous Provisions) Act 1989 2(5)
England and Wales

Land, Contract, Equity, Estoppel

Updated: 26 January 2022; Ref: scu.572005

Cantiere San Rocco, S A (Shipbuilding Co) v Clyde Shipbuilding and Engineering Co Ltd: HL 25 Jul 1923

Prior to the outbreak of war in 1914 an engineering firm in Scotland entered into a contract with an Austrian shipbuilding company to make and deliver a set of marine engines By the terms of the contract the price was to be paid in instalments, the first instalment being due on the signing of the contract and the remaining ones as the work progressed. All the instalments were to be merely payments on account of the supply of the completed engines, and were not allocated to any particular stage or the completion of any particular part of the work. After the first instalment had been paid war broke out and further performance of the contract became illegal, the foreign company having become an alien enemy. At that date no part of the engines had been constructed. After peace had been declared the shipbuilding company, which had become Italian, brought an action for repetition of the instalment paid. Held ( rev. the judgment of the First Division, diss. Lord Mackenzie) that as delivery of the subject of the contract had become impossible in consequence of the outbreak of war the consideration in respect of which payment was made had failed, and that accordingly the pursuers were entitled to repayment of the instalment in question, and appeal sustained.

Earl of Birkenhead, Viscount Finlay, Lord Dunedin, Lord Atkinson, and Lord Shaw
[1923] UKHL 635, 60 SLR 635
Bailii
Scotland

Contract

Updated: 26 January 2022; Ref: scu.633264

Tele2 International Card Company Sa and others v Post Office Ltd: QBD 25 Feb 2008

[2008] EWHC 158 (QB)
Bailii
England and Wales
Cited by:
Appeal from – Tele2 International Card Company Sa and others v Post Office Ltd CA 21-Jan-2009
Appeal against rejection of claim for novation of contract.
Held: Aikens LJ summarised the analysis by Lord Goff of the principles of affirmation by election in Kanchenjunga as follows: ‘i) If a contract gives a party a right to terminate upon . .

Lists of cited by and citing cases may be incomplete.

Contract, Commercial

Updated: 26 January 2022; Ref: scu.266047

Adam Opel Gmbh and Another v Mitras Automotive (UK) Ltd: QBD 18 Dec 2007

The parties had agreed for the supply of automotive parts by the defendant to the claimant under a sole supply arrangement. None were in fact ordered for the first few years. The manufacturer then changed its design and made a new arrangement with a third party. The claimant sought compensation and higher prices for its investment, threatening to withdraw supplies entirely. The defendant agreed under protest, but now claimed duress.

David Donaldson QC
[2007] EWHC 3205 (QB), [2008] Bus LR D55
Bailii
England and Wales
Citing:
Cited – DSND Subsea Ltd v Petroleum Geo Services Asa TCC 28-Jul-2000
Dyson J set out the principles applicable in establishing a pleading of commercial duress:
(i) Economic pressure can amount to duress, provided it may be characterised as illegitimate and has constituted a ‘but for’ cause inducing the claimant . .
Cited – Williams v Roffey Brothers and Nicholls (Contractors) Ltd CA 23-Nov-1989
The defendant subcontracted some of its work under a building contract to the plaintiff at a price which left him in financial difficulty and there was a risk that the work would not be completed by the plaintiff. The defendant agreed to make . .
Cited – Dimskal Shipping Co SA v International Transport Workers Federation (‘The Evia Luck’) HL 1991
The Plaintiff shipowners had been induced by industrial action against a vessel in Sweden, which actions would be lawful under Swedish law, to undertake to enter into written agreements with the ITF under which, inter alia, more generous agreements . .
Mentioned – Carillion Construction Ltd v Felix (UK) Ltd 2001
. .

Cited by:
Cited – Progress Bulk Carriers Ltd v Tube City IMS Llc ComC 17-Feb-2012
The claimant sought to set aside an arbitration saying that the arbitrator had misapplied the test for economic duress. . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 26 January 2022; Ref: scu.266629

Ciclat Soc Coop v Consip SpA and Others: ECJ 10 Nov 2016

ECJ (Judgment) Reference for a preliminary ruling – Directive 2004/18/EC – Article 45 – Articles 49 and 56 TFEU – Public procurement – Conditions for exclusion from a procedure for the award of public works contracts, public supply contracts and public service contracts – Obligations relating to the payment of social security contributions – Social security contributions payment certificate – Correction of irregularities

ECLI:EU:C:2016:853, [2016] EUECJ C-199/15
Bailii
Directive 2004/18/EC 45, TFEU 49 56
European

Administrative, Contract

Updated: 25 January 2022; Ref: scu.571265

McGill v The Sports and Entertainment Media Group and Others: CA 4 Nov 2016

The claimant football agent had claimed against a footballer client for breach of contract and against the client’s new agent for inducing a breach of contract.

Lloyd Jones LJ, Henderson J
[2016] EWCA Civ 1063, [2016] WLR(D) 571
Bailii, WLRD
England and Wales

Contract, Torts – Other, Damages

Updated: 25 January 2022; Ref: scu.571228

Leslie v Farrar Construction Ltd: CA 1 Nov 2016

Appeal by the funder and developer of multiple development projects against a decision that he owes the contractor andpound;139,428.16. The central issue in the appeal is whether the appellant is entitled to recover overpayments of building costs made on five completed projects. The judge held that he could not.

Jackson, McCombe LJJ
[2016] EWCA Civ 1041
Bailii
England and Wales

Contract

Updated: 24 January 2022; Ref: scu.570872

Nemzeti Fogyasztovedelmi Hatosag v Invitel Tavkozlesi Zrt: ECJ 6 Dec 2011

ECJ Opinion – Consumer protection – Directive 93/13/EEC – Article 3(1) in combination with points 1(j) and 2(d) of the annex – Articles 6 and 7 – Unfair terms in consumer contracts – Contract term that entitles the seller or supplier to amend contractual provisions unilaterally without a valid reason and without explicitly describing the method by which prices vary – Unfair nature of the term – Legal effects of a finding that a term is unfair as a result of an action in the public interest – Actio popularis – Erga omnes effect of national findings of unfairness

Trstenjak AG
[2011] EUECJ C-472/10
Bailii
European
Cited by:
Opinion – Nemzeti Fogyasztovedelmi Hatosag v Invitel Tavkozlesi Zrt ECJ 26-Apr-2012
ECJ Directive 93/13/EEC – Article 3(1) and (3) – Articles 6 and 7 – Consumer contracts – Unfair terms – Unilateral amendment of the terms of a contract by a seller or supplier – Action for an injunction brought . .

Lists of cited by and citing cases may be incomplete.

Consumer, Contract

Updated: 24 January 2022; Ref: scu.570505

JEB Recoveries Llp v Binstock: CA 19 Oct 2016

Appeal by the defendant, Mr Binstock, against the order of His Honour Judge Barker QC, sitting as a judge of the High Court, made on 8 May 2015, declaring that the court had jurisdiction to hear what has been described as the third claim of the claimant, JEB Recoveries LLP (‘JEB’), and dismissing an application by Mr Binstock that the claim should be struck out on the ground that it was founded upon a champertous assignment.

Moore-Bick VP CA, Tomlinson, Kitchin LJJ
[2016] EWCA Civ 1008
Bailii
Council Regulation (EC) No 44/2001
England and Wales

Jurisdiction, Contract

Updated: 24 January 2022; Ref: scu.570175

National Private Air Transport Services Company (National Air Services) Ltd v Creditrade Llp and Another: ComC 24 Aug 2016

NAS seeks to recover arrears of rent and other expenses totalling around US$2m which it says is owed by the defendants under sub-leases of two Embraer 195 AR aircraft. The defendants deny that they are liable to pay the sums claimed, and assert that, if anything, a positive credit balance is owing to them.

Blair J
[2016] EWHC 2144 (Comm)
Bailii
England and Wales

Contract

Updated: 24 January 2022; Ref: scu.570151

Menzies v Highland Railway Coy: SCS 8 Jun 1878

A railway passenger on a Friday afternoon took a first-class return ticket from A to P, the ticket having on its face ‘Saturday fare.’ The passenger noticing this, made inquires, and was informed by the company’s station-master at A that the ticket was available, according to the account of the latter, for all trains on Saturday and Monday; according to the passenger’s account, by all mailtrains. There was no train to A on Sunday, A being a station on a branch line, but trains stopped at a junction about twelve miles off. The ticket was not available on Sunday, regulations to that effect being posted up in the station at A, though ex facie of the ticket there was no intimation of that fact. On Sunday morning the passenger took his seat in a carriage at P; being asked to show his ticket, he did so at once, when he was told that it was not available, and that he must get another. This he refused to do, stating that the ticket was sufficient, and that he had been told so by the stationmaster at A. Being again told that he must get another ticket, or that he would be taken out of the carriage, he still refused, and accordingly was removed from the carriage by the officials, but with no undue violence. After the train started he hired a post-chaise and drove in it to the junction named above.
In an action of damages, and for payment of the expenses incurred in the hire, at his instance against the company, held ( per Lords Ormidale and Gifford) that the company were not liable in damages in respect?(1) that the ticket was not available on Sunday, and that this was sufficiently intimated to the passenger by the words ‘Saturday fare’ and the posters in the station; and (2) that therefore the passenger was in the position of having no ticket, and notwithstanding that he had no fraudulent intent the company were entitled to expel him from the carriage, under the 96th and 97th sections of the Railways Clauses Consolidation (Scotland) Act 1845; and ( per Lord Justice-Clerk) that the passenger, having been informed at Perth by the company’s servants that he was wrongfully in the carriage, should have at once yielded, and trusted to his after remedy.

[1878] SLR 15 – 608
Bailii
Railways Clauses Consolidation (Scotland) Act 1845 96 97
Scotland

Contract

Updated: 24 January 2022; Ref: scu.577401

Grand China Logistics Holding (Group) Co Ltd v Spar Shipping As: CA 7 Oct 2016

Is charterers’ failure to pay an instalment of hire punctually under a time charterparty a breach of condition, strictly so called? Or, without more, does such a failure ‘merely’ entitle shipowners to withdraw the vessel from service under the charterparty in accordance with the express provisions of a withdrawal clause?

Sir Terence Etherton MR, Gross, Hamblen LJJ
[2016] EWCA Civ 982
Bailii
England and Wales

Transport, Contract

Updated: 23 January 2022; Ref: scu.569918

Datec Electronics Holdings Ltd and others v United Parcels Services Ltd: HL 16 May 2007

The defendants had taken on the delivery of a quantity of the claimant’s computers. The equipment reached one depot, but then was lost or stolen. The parties disputed whether the Convention rules applied. UPS said that the claimant had agreed that the value of any one item did not exceed the stated limit. The claimants said that the alleged misconduct of the defendant’s staff meant that UPS could not rely on the limitation of liability provided by the Convention, and that with both restrictions not applying, UPS’s liability was unlimited.
Held: The contract should be read to reflect the commercial reality under which there remained an effective contract despite the excess value. Had the misconduct been proved? The judge had not reflected the proper effect of the expert evidence, and ‘theft involving a UPS employee was shown on a strong balance of probability to have been the cause of this loss. ‘ UPS’ appeal was therefore dismissed.

Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Mance, Lord Neuberger of Abbotsbury
Times 18-May-2007, [2007] UKHL 23, [2007] 1 WLR 1325, [2007] 2 Lloyd’s Rep 114, [2007] Bus LR 1291
Bailii
Convention on the Contract for the International Carriage of Goods by Road 81, Carriage of Goods by Road Act 1965
England and Wales
Citing:
Cited – Manning v Stylianou CA 26-Oct-2006
Where an appeal is against a judge’s evaluation of the facts, the Court of Appeal should consider the evaluation in the same way it would approach an appeal against the exercise of discretion. . .
Cited – Quantum Corporation Inc and Others v Plane Trucking Ltd and Another CA 27-Mar-2002
A valuable cargo was stolen whilst being transported. Part of the journey was by road, and part by air. The carriers sought to limit their liability, because of the provisions of the Act and Convention. It was argued that that did not apply, because . .
Approved – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
At First Instance – Datec Electronic Holdings Ltd and Another v United Parcels Service Ltd and Another ComC 22-Feb-2005
The claimant sought damages for the loss of goods in transit under the care of the defendant. Andrew Smith J held as regards the burden of proof in an allegation of wilful misconduct: ‘I should add that I was properly reminded by counsel that the . .
Appeal from – Datec Electronic Holdings Ltd and Another v United Parcels Service Ltd CA 29-Nov-2005
The parties put forward alternative explanations for the loss of a mail packet. Richards LJ said: ‘Nor do I see any inconsistency between my approach and the observations of Lord Brandon in The Popi M. The conclusion that employee theft was the . .

Cited by:
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 . .
Cited – Ide v ATB Sales Ltd and Another CA 28-Apr-2008
Each appellant challenged how the judge had decided between alternative proofs of causation of the respective loss. In Ide, the claimant asserted a fault in a cycle handlebar, and in Lexus, the claimant asserted that it caught fire whilst . .
Cited – Barlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
Cited – Fosse Motor Engineers Ltd and others v Conde Nast and National Magazine Distributors Ltd and Another TCC 20-Aug-2008
The claimant said that the defendant’s employees had negligently started a fire which burned down the claimant’s warehouse. There was limited evidence to establish the cause.
Held: The claim failed. The scientific evidence did not point to any . .
Cited – Sony Computer Entertainment UK Ltd v Cinram Logistics UK Ltd CA 8-Aug-2008
Various items were deemed to have been lost whilst being transported by the defendants. The claimants sought damages based on the price for which they would have been sold. The defendants appealed a judgment on that basis.
Held: The carrier’s . .
Cited – Alford v Cambridgeshire Police CA 24-Feb-2009
The claimant police officer had been held after an accident when he was in a high speed pursuit of a vehicle into the neighbouring respondent’s area. The prosecution had been discontinued, and he now appealed against rejection of his claims for . .
Cited – Whitehouse v Lee CA 14-May-2009
The tenant appealed against an order requiring her to give up possession of her flat, held under the 1977 Act, saying that the court should not have found it reasonable to make an order after finding alternative accommodation suitable.
Held: . .
Cited – Cooper and Others v Fanmailuk.Com Ltd and Another CA 17-Dec-2009
F claimed to be the beneficial owner of shares registered in the names of the claimants. The appellants challenged a finding that the shares were held on trust for F, and the implication that the first appellant had presented a dishonest claim.
Cited – Nulty and Others v Milton Keynes Borough Council CA 24-Jan-2013
There had been two fires at a depot owned by the claimants. The fires were found to have been likely to have been caused by the deceased employee. His insurers had repudiated liability saying that the had not been notified oin a timely fashion.
Cited – Fortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
Cited – Fortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
Cited – Michalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
Mentioned – Shagang Shipping Company Ltd v HNA Group Company Ltd SC 5-Aug-2020
Allegations had been made that a contract had been procured by bribery. The other party said that the admissions of bribery had been extracted by torture and were inadmissible. The CA had decided that the unproven possibility that it was obtained by . .
Cited – Actavis Group Ptc EHF and Others v Icos Corporation and Another SC 27-Mar-2019
The court considered: ‘the application of the test of obviousness under section 3 of the Patents Act 1977 to a dosage patent. In summary, a patent, whose validity is not challenged, identified a compound as an efficacious treatment but did not . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract, Damages

Leading Case

Updated: 23 January 2022; Ref: scu.252416

Baccus SRL v Servicio Nacional Del Trigo: CA 1956

The defendant organisation carried on business from Spain and was sued in England for damages for breach of a commercial contract. An appearance was entered by their solicitors in London and a consent order made for security for the organisation’s costs. These steps were taken on the instructions of the head of the organisation, Mr Cavero, who was a senior civil servant, without his Minister of Agriculture knowing of them. Eighteen months after the writ was served, steps were taken to stay proceedings on the ground that the organisation was a department of the Spanish Ministry of Agriculture.
Held: (majority) The defendants were a department of the State of Spain and entitled to claim immunity. There could be no submission to the jurisdiction unless it were made by a person with knowledge of the right to be waived and with the authority of the foreign sovereign. Jenkins LJ: ‘Applying those authorities to the present case it seems to me that the evidence here, and in particular the evidence of the ambassador, makes it reasonably plain that Mr Cavero knew nothing about sovereign immunity, or at all events, had no idea that by entering an appearance the defendants would be giving up any advantage or; in particular, any right to claim immunity which they might otherwise have. Furthermore, Mr Cavero’s superiors knew nothing about the matter at all until after the acts relied on as submissions to the jurisdiction had taken place. It seems to me, therefore, that what was done here was done by Mr Cavero without the knowledge of any of his superiors, in ignorance of his rights and without actual authority inasmuch as I think the evidence shows that the authority of the Minister of Agriculture would in fact have been necessary to enable Mr Cavero to submit to the jurisdiction.’
Parker LJ: ‘Like Jenkins LJ, I confess that at first impression it seemed to me remarkable if the true view was that the State of Spain had not submitted to the jurisdiction. Not only was there an unconditional appearance entered on the instructions of the head of this body, Senor Cavero, himself a senior civil servant, but again on his instructions security for costs was asked for and obtained; and it was not until the writ had been served for some 18 months that any steps were taken to stay the proceedings. I am satisfied, however, as the result of Mr Kerr’s argument and the cases to which he has referred, that there can be no submission in such a case as this unless it is made by a person with knowledge of the right to be waived, with knowledge of the effect of our law of procedure, and with the authority of the foreign sovereign. As Mr Kerr pointed out, proceedings against a foreign sovereign are wholly void.’ and ‘In those circumstances it does seem to me that it requires some solemn act of the foreign sovereign to bring to life something which is otherwise completely dead; and, without referring to the cases, I think that The Jassy and the case before Astbury J., In re Republic of Bolivia Exploration Syndicate Ltd., support that view. So far as this case is concerned, it is true that we have not had the benefit of an affidavit from Senor Cavero, but for my part I cannot impute to him knowledge of the effect of entering an unconditional appearance. Quite apart from that, it seems to me that the evidence is clear that although he is the person, the intermediary, to pass on instructions to English solicitors to deal with a case in England, he is bound to consult the appropriate minister as to whether sovereign immunity should be waived or not. It is true this does open up the rather alarming prospect that a foreign sovereign may allow proceedings to continue for years in this country before taking the point; but for my part I think that that is a theoretical difficulty. I do not think any person, even though he be a foreign sovereign, would be likely to be believed if in such an extreme case he were to come forward and assert that he had had no knowledge whatever of the proceedings. So far, however, as this case is concerned, I am satisfied that the point has been properly taken and that there has been no waiver.’
Singleton LJ dissented. The state had created the organisation as a legal entity to trade with citizens and corporate bodies in other countries and that Mr Carvero was acting in the ordinary course of business left to him. That being so, he had, on behalf of the state, waived the state’s right to claim immunity.

Jenkins LJ, Parker LJ, Singleton LJ (dissenting)
[1958] 1 QB 438, [1956] 3 All ER 715, [1956] 3 WLR 948
England and Wales
Citing:
Cited – The Jassy 1906
The plaintiff took process by way of arrest in a damages action in rem against a vessel which was the property of a foreign state.
Held: The action was dismissed. No waiver of the state’s privilege could be assumed even though agents of the . .
Cited – The Parlement Belge CA 1879
An action in rem indirectly impleaded a sovereign who was the owner of the vessel served because his property was affected by the judgment of the court. An unincorporated treaty cannot change the law of the land and, ‘the immunity of the sovereign . .
Cited – De Haber v The Queen of Portugal 1851
Orse In the Matter of Wadsworth and R of Spain In the Matter of De Haber and R of Portugal
Property in England, belonging to a foreign sovereign prince in his public capacity, cannot be seized under process in a suit instituted against him in . .

Cited by:
Cited – Aziz v Republic of Yemen CA 17-Jun-2005
The claimant had made a claim for unfair dismissal. The defendant state had filed a defence instead of claiming state immunity. It then sought to assert such immunity. The claimant said the state had waived its immunity.
Held: Section 2(7) of . .
Cited – Regina v Central Criminal Court Ex Parte Propend Finance Pty Ltd and Others QBD 17-Mar-1994
A Home Secretary requesting warrants must be specific on the type he required. It was his duty, and not that of the police to state the method of seizure of documents for use in a foreign jurisdiction. A judge making an order should give reasons for . .
Cited – Reyes v Al-Malki and Another SC 18-Oct-2017
The claimant alleged that she had been discrimated against in her work for the appellant, a member of the diplomatic staff at the Saudi Embassy in London. She now appealed against a decision that the respondent had diplomatic immunity.
Held: . .

Lists of cited by and citing cases may be incomplete.

International, Contract

Updated: 22 January 2022; Ref: scu.227915

Petromec Inc v Petroleo Brasileiro S A Petrobras and others: ComC 18 Feb 2003

Tomlinson J
[2003] EWHC 179 (Comm)
Bailii
England and Wales
Citing:
See Also – Petromec Inc and Petroleo Brasileiro S A Petrobras, Braspetro Oil Services Company v Petromec Inc, Petro-Deep Inc, Maritima Petroleo E Engenharia Ltda QBD 2-Feb-2004
The parties entered into a complex group of inter-related contracts for the purpose of purchasing and upgrading an oil production platform for use by Petrobras in the South Marlim oilfield. At a very early stage it was agreed that the upgrade . .

Cited by:
See also – Petromec Inc and Petroleo Brasileiro S A Petrobras, Braspetro Oil Services Company v Petromec Inc, Petro-Deep Inc, Maritima Petroleo E Engenharia Ltda QBD 2-Feb-2004
The parties entered into a complex group of inter-related contracts for the purpose of purchasing and upgrading an oil production platform for use by Petrobras in the South Marlim oilfield. At a very early stage it was agreed that the upgrade . .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras, Braspetro Oil Services Company, Societa Armamento Navi Appoggio Spa, Den Norske Bank Asa CA 17-Feb-2004
. .
See Also – Petromec Inc v Petroleo Brasileiro SA Petrobrasbraspetro Oil Services etc ComC 20-May-2004
. .
See Also – Petromec Inc Petro-Deep Inc and others v Petroleo Brasileiro Sa and others CA 15-Jul-2005
. .
See Also – Petroleo Brasileiro SA and Another v Petromec Inc and others ComC 3-Nov-2005
. .
See Also – Petromec Inc v Petroleo Brasiliero Sa Petrobras and Another ComC 16-Jun-2006
. .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras CA 19-Jul-2006
A Mr Efremovich, a third party to the action was ordered to pay the costs of Petrobras and Brasoil which on the failure of its claim against them had been ordered to be paid by Petromec. The judge found that Mr Efromovich controlled the proceedings . .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras and others ComC 7-Dec-2006
. .
See Also – Petromec Inc v Petrobras ComC 11-May-2007
Defendant’s application for security for costs. . .
See Also – Petromec Inc v Etroleo Brasileiro Sa Petrobras and others ComC 6-Jul-2007
. .
See Also – Petromec Inc v Petroleo Brasileiro SA Petrobras and others CA 21-Dec-2007
. .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras and others CA 23-Jan-2008
Short order. . .

Lists of cited by and citing cases may be incomplete.

Contract, Insurance

Updated: 22 January 2022; Ref: scu.179523

Westville Shipping Co Ltd v Abram Steamship Co Ltd: HL 6 Jul 1923

A assigned his rights under a shipbuilding contract to B on certain representations as to the stage of construction reached by the vessel which were in fact false. B thereafter subassigned his rights to C, making practically the same representations to C as had been made to him by A. On C discovering that the representations were false, and intimating that he repudiated the contract, B was advised that he had no defence, and it was arranged that judgment should be allowed to go against him in the English Courts. B then brought an action against A for reduction of his contract with A and for damages, but at the time of raising his action judgment had not been pronounced by the Court in England annulling the sub-assignation, though such judgment was obtained before the record was closed. In the action by B against A objection was taken that B had no title to sue in respect that at the date of raising the action he had not been reinvested in his right to the contract, and therefore was not in a position to make restitutio in integrum. Held ( aff. the judgment of the First Division) that B had a good title to sue.

The sub-assignees of a shipbuilding contract, after discovering the falsity of the representations on which they had bought, requested the shipbuilders to make a slight alteration in the design of the ship. Thereafter in an action at their instance the sub-assignation was annulled. The assignees having thereafter sued the original cedents for rescission of their contract with them on the ground of misrepresentation and for damages, held ( aff. the judgment of the First Division) that the act of the subassignees in agreeing to the suggested alteration on the design of the ship did not bar the assignees from insisting in their action, and that the unimportant character of the alteration did not make restitutio in integrum inequitable.
Circumstances in which held ( aff. the judgment of the First Division) that in an action for the rescission of a shipbuilding contract on the ground of misrepresentation, a fall in the value of the subject of the contract owing to a slump in freights did not render restitutio in integrum inequitable, and appeal dismissed.

Earl of Birkenhead, Viscount Finlay, Lord Dunedin, Lord Atkinson, and Lord Shaw
[1923] UKHL 625, 60 SLR 625
Bailii
England and Wales

Contract

Updated: 22 January 2022; Ref: scu.633267

Howmet Ltd v Economy Devices Ltd and Others: CA 31 Aug 2016

Appeal by the owners of a factory which suffered fire damage against a judgment dismissing their action. The owners claimed damages against the manufacturers of a device which, they said, should have prevented the fire from occurring. This takes us back to the basic principles of the law of tort and in particular to Donoghue v Stevenson [1932] AC 562, which is almost the first case that any law student studies.

Arden, Jackson LJJ, Sir Robert Akenhead
[2016] EWCA Civ 847
Bailii
Consumer Protection Act 1987, Law Reform (Contributory Negligence) Act 1945, Electrical Equipment (Safety) Regulations 1994
England and Wales
Citing:
Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .

Lists of cited by and citing cases may be incomplete.

Negligence, Contract

Updated: 22 January 2022; Ref: scu.568791

Simaan General Contracting Co v Pilkington Glass Ltd: CA 17 Feb 1988

The defendant had supplied glass to a contractor. The customer complained that the glass was not uniform, and the contractor now sued the defendant for its losses.

Bingham LJ
[1988] EWCA Civ 15, [1988] QB 758
Bailii
England and Wales
Citing:
Cited – Junior Books v Veitchi Co Ltd HL 15-Jul-1982
The defendant was a specialist sub-contractor brought in to lay a floor. In laying the composition floor the defenders used too wet a mixture and applied too thin a top coat and failed to cure the material properly. As a result cracks began to . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 22 January 2022; Ref: scu.262639

Babcock v Lawson: CA 1880

A person who has acquired the goods by a fraud has a voidable title.

Bramwell LJ
(1880) 5 QBD 284
England and Wales
Cited by:
Cited – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 22 January 2022; Ref: scu.188449

Rath v CS Lawrence and Partners (PJ Cook and Co) (a Firm) (Third Party): CA 1991

The plaintiff bought the property in 1982, relying on the defendant’s survey, which later proved incorrect having failed to identify subsidence. The writ was issued in 1984. Delays before the expiry of the limitation period led the defendant to apply to dismiss the claim for inordinate and inexcusable delay.
Held: The plaintiff’s appeal against dismissal failed. Once the claim was issued, the plaintiff was under a duty to proceed with reasonable diligence, and delay after issue, and even within the limitation period could justify dismissal.

[1991] 1 WLR 399
England and Wales
Citing:
Cited – Birkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .

Cited by:
Cited – Hopkinson and Others and Birmingham Mid-Shires Building Society v Tupper CA 30-Jan-1997
The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the . .

Lists of cited by and citing cases may be incomplete.

Limitation, Contract

Updated: 22 January 2022; Ref: scu.261927

Nelson v British Broadcasting Corporation: CA 1977

Mr Nelson was employed as a producer but had in fact been engaged in the Caribbean Service of the BBC in terms of the work which he had actually been doing. The contract of employment expressly provided that he should serve wherever and however he might be required.
Held: The closure of the BBC service in the Caribbean did not involve a redundancy since he was expressly not employed to perform his services there.
Roskill LJ said: ‘The corporation’s case before the industrial tribunal was simplicity itself: ‘This man was employed for the purpose of the Caribbean Service. The Caribbean Service was being shut down as a result of Treasury demands for economy. Therefore we could no longer keep him there; his services were not required; and therefore he became redundant; and because he became redundant he cannot claim to have been unfairly dismissed.’ The industrial tribunal, as I said at the beginning of this judgment, accepted that argument and rejected the claim. They went into the matter with very great care. They held that Mr Nelson had become redundant. They reached that conclusion because of an argument that was apparently put forward that it was a term of Mr Nelson’s employment that he should be employed for, and for all practical purposes only for, programmes for the Caribbean. That emerges very clearly from the industrial tribunal’s reasons. It was said that, notwithstanding the very wide words of clause 8 of the agreement none the less: ‘We think it was a term of Mr Nelson’s contract of employment, arising by necessary implication or inference from the primary facts, that he was employed for the purposes of broadcasts to the Caribbean.’ With great respect to the tribunal, that seems to me to be an impossible conclusion as a matter of law, for this reason: it is a basic principle of contract law that if a contract makes express provision (as clause 8 did) in almost unrestricted language, it is impossible in the same breath to imply into that contract a restriction of the kind that the industrial tribunal sought to do.’ The employers were not allowed to amend their pleadings to allege dismissal for some other reason, and they had failed to establish a potentially fair reason for dismissal, so that the employee was entitled to succeed.

Roskill LJ, bUxton LJ
[1977] IRLR 148
England and Wales
Cited by:
Cited – Murray and Another v Foyle Meats Ltd (Northern Ireland) HL 8-Jul-1999
The company decided to make redundancies. The applicants, all selected, had worked in more than one section of the plant. All employees worked under the same contract, but employees were chosen only from the one section. The complainants said that . .
Cited – Reda, Abdul-Jalil v Flag Limited PC 11-Jul-2002
PC (Bermuda) The courts should be reluctant to accept a fetter on the employer’s right to dismiss on notice where there is an express term in the contract empowering the employer to do so.
Lord Millet . .
Cited – Nelson v British Broadcasting Corporation (No 2 ) CA 1980
Mr Nelson was employed as a producer but had in fact been engaged in the Caribbean Service of the BBC in terms of the work which he had actually been doing. The contract of employment expressly provided that he should serve wherever and however he . .
See Also – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
Cited – Victoria and Albert Museum v Durrant EAT 5-Jan-2011
EAT UNFAIR DISMISSAL
Reason for dismissal including some other substantial reason
The correct interpretation of section 106 of Employment Rights Act 1996 (‘the Act’) was considered.
The . .

Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 22 January 2022; Ref: scu.182825