Category: Contract

Sankofa and Another v The Football Association Ltd: ComC 12 Jan 2007

The claimant sought an injunction to order the defendant football association from preventing him playing on a football match. He had been sent off and was subject to an automatic additional one match ban. He sought to exercise a right under the procedure to challenge the decision.
Held: The procedure was intended to be speedy and without an appeal. Furthermore the rules did not require the commission to give reasons. The injunction was refused.

Simon J
[2007] EWHC 78 (Comm), [2007] ArbLR 51
Bailii
England and Wales
Citing:
Cited – Stevenage Borough Football Club Limited v Football League Limited CA 6-Aug-1996
Unfair changes to the rules for the promotion of sports clubs between leagues could not be challenged retrospectively after the team in question had impliedly accepted the rules. An injunction granted may within a sporting league context have unfair . .
Cited – Jones and Another v Welsh Rugby Football Union QBD 6-Mar-1997
A professional sportsman should be allowed to have representation on a suspension hearing, which might affect his ability to earn his living. However Ebsworth J doubted the correctness of the intrusion of courts into such matters, saying that:’There . .
Cited – Cetelem Sa v Roust Holdings Ltd CA 24-May-2005
The parties were engaged in arbitration proceedings. The claimant had sought and obtained an interim mandatory order intended to prevent the defendant dissipating its assets in anticipation of an adverse ruling. The defendant sought leave to appeal. . .
Cited – Flaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .

Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 21 January 2022; Ref: scu.568023

Lazarus Estates Ltd v Beasley: CA 1956

There was a privative clause in the 1954 Act. A landlord’s declaration under the Act that work of a specified value, supporting an increase in rent, had been carried out on leased premises, could not be questioned after 28 days of its service on the tenant.
Held: The validity of the declaration could be challenged as fraudulent in proceedings for arrears of rent.
Lord Denning said: ‘No Court in this land will allow a person to keep an advantage he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever; see, as to deeds, Collins v Blantern (1767) (2 Wils. KB 342), as to judgments, Duchess of Kington’s Case (1776) (1 Leach 146), and, as to contracts, Master v Miller (1791) (4 Term Rep 320). [38] There are however serious problems with the debtors’ case in fraud. While fraud gives rise to an exception, the ability to raise fraud cannot be open-ended. If there was a genuine argument as to fraud the debtors had the same obligation to raise it in the Court of Appeal as they had for all other grounds they have since raised in their attempt to attack the District Court judgment.’ and ‘The Court is careful not to find fraud unless it is distinctly pleaded and proved.’ and
‘No other objections were taken in the county court to the documents, but I do not wish it to be assumed that this court approves of them. The statutory forms require the documents to be ‘signed’ by the landlord, but the only signature on these documents (if such it can be called) was a rubber stamp ‘Lazarus Estates Ltd.’ without anything to verify it. There was no signature of a secretary or of any person at all on behalf of the company. There was nothing to indicate who affixed the rubber stamp. It has been held in this court that a private person can sign a document by impressing a rubber stamp with his own facsimile signature on it: see Goodman v J. Eban Ltd., but it has not yet been held that a company can sign by its printed name affixed with a rubber stamp.’
Lord Parker LJ observed that fraud ‘vitiates all transactions known to the law of however high a degree of solemnity.’

Denning LJ, Lord Parker LJ
[1956] 1 QB 702, [1956] 1 All ER 341, [1956] 2 WLR 502
Housing and Repairs Act 1954
England and Wales
Citing:
Cited – Master v Miller 1793
Buller J said: ‘It is a common saying in our law books, that fraud vitiates every thing. I do not quarrel with the phrase, or mean in the smallest degree to impeach the various cases which have been founded on the proof of fraud. But we must . .

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 – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Cited – Moynihan v Moynihan (No 2) FD 1997
The Queen’s Proctor applied to have set aside a decree absolute of divorce obtained by fraud on the part of the petitioner, the by then deceased Lord Moynihan. The particulars set out in the petition were false in a number of material respects; the . .
Cited – Rapisarda v Colladon (Irregular Divorces) FC 30-Sep-2014
The court considered applications to set aside some 180 petitions for divorce on the grounds that they appeared to be attempts to pervert the course of justice by wrongfully asserting residence in order to benefit from the UK jurisdiction.
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 – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
Cited – Takhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other, Administrative, Company

Updated: 21 January 2022; Ref: scu.219283

Redgrave v Hurd: CA 1881

The plaintiff, an elderly solicitor wishing to retire, advertised for someone to enter into partnership with him and to buy his house. The defendant responded to the advertisement and negotiations followed, in which the plaintiff stated that the practice brought him in about 300 pounds a year. In fact it did not bring in anything like that amount. The parties entered into partnership and into a separate contract for the sale of the house, which made no reference to the business. The defendant paid a deposit and was let into possession. On discovering that the practice was not worth what the plaintiff had said, the defendant gave up possession and refused to complete the purchase. The plaintiff sued for specific performance; the defendant counterclaimed for rescission of the contract and damages for deceit. The plaintiff succeeded at first instance.
Held: In the absence of proof that he had in fact become aware of the falsity, he was entitled to relief. To claim that a misrepresentation was corrected before the contract was entered into, it is not sufficient to say that he would have discovered the true position if he had acted with all due care. ‘Nothing can be plainer, I take it, on the authorities in equity than that the effect of false representation is not got rid of on the ground that the person to whom it was made has been guilty of negligence. One of the most familiar instances in modern times is where men issue a prospectus in which they make false statements of the contract made before the formation of a company, and then say that the contracts themselves may be inspected at the offices of the solicitor. It has always been held that those who accepted those false statements as true were not deprived of their remedy merely because they neglected to go and look at the contract. Another instance with which we are familiar is where a vendor makes a false statement as to the contents of a lease, as, for instance, that it contains no covenant preventing the carrying on of the trade which the purchaser is know by the vendor to be desirous of carrying on upon the property. Although the lease itself might be produced at the sale, or might have been open to the inspection of the purchaser long previously to the sale, it has been repeatedly held that the vendor cannot be allowed to say, ‘You were not entitled to give credit to my statement’. It is not sufficient, therefore, to say that the purchaser had the opportunity of investigating the real state of the case, but did not avail himself of that opportunity.’

Sir George Jessel MR
[1881] 20 ChD 1, [1881] UKLawRpCh 251, (1881-1882) 20 ChD 1
Commonlii
England and Wales
Cited by:
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Weir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
Cited – Halpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
Cited – Hayward v Zurich Insurance Company Plc CA 31-Mar-2015
The claimant sought damages alleging his back had been injured at work. The insurers accepted liability but said that the claimant had exaggerated the extent of his injury. The claim was settled, but later a neighbour of the claimants said that the . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
Cited – Takhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 21 January 2022; Ref: scu.187267

Kirby v the Owners of the Scindia (The ‘Marie Joseph’): PC 23 Jun 1866

A Bill of lading for the delivery of goods to order and assigns, is a negotiable instrument, which by indorsement and delivery passes the property in the goods to the indorsee, subject only to the right of the unpaid vendor to stop them in transitu.

[1866] UKLawRpPC 14, (1865-1867) LR 1 PC 219
Commonlii
England and Wales
Cited by:
Cited – Takhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 21 January 2022; Ref: scu.671561

Jumar Solutions Ltd v Mckee: ChD 14 Jun 2016

Action for infringement of copyright, breach of confidence and breach of contract brought by the Claimant against a former employee arising out of the writing and use by Mr McKee of some software.
Held: Jumar’s claim for infringement of copyright failsed; apart from the common code, there was insufficient similarity or evidence of derivation for a case to succeed and in respect of the similarities in the common code, Mr McKee’s evidence of independent creation defeated the claim.
In respect of the confidential information side of the case, the McKee Software was devised in part using Jumar’s confidential information, in particular, that in relation to its demo models and testing criteria. There was no evidence that use or distribution of the McKee Software would disclose any of that confidential information.

John Baldwin QC
[2016] EWHC 1361 (Ch)
Bailii
England and Wales

Contract, Intellectual Property

Updated: 20 January 2022; Ref: scu.567842

Harbinger UK Ltd v GE Information Services Ltd: TCC 5 Aug 1999

‘These preliminary issues are concerned with the construction of an Agreement to supply and support software programs. Two questions were considered. The first was whether the termination clause may be operated so as to bring the Agreement to an end at the end of the Initial Period. The answer was that it can be so operated. The second was whether support and maintenance obligations survive a termination. The answer was that they do. Such on-going obligations were stated, in the Agreement, to survive ‘in perpetuity’. By reliance on the principles of construction of commercial agreements provided for in Investors Compensation Scheme Limited v West Bromwich Building Society, the conclusion was reached that such services should be provided for as long as the defendant was contractually required to provide them to its end users.’

Thornton C HHJ
[1999] EWHC Technology 222
Bailii

Contract

Updated: 20 January 2022; Ref: scu.567814

Royscott Trust v Burno Daken Ltd and David Ball: QBD 9 Jul 1993

R let a vehicle on hire purchase terms to one E(SS), who passed it to BD in breach of his obligations under the hire purchase agreement. E(SS) drew up an ‘invoice’ stating the value of the car to be a certain sum, X. At the time, E(SS) owed BD substantially more than X for goods supplied. E(SS) had been unable to discharge that debt, and BD therefore took the vehicle in part satisfaction of the debt.
Held: The Judge considered whether the transaction amounted to a ‘disposition’ within section 29. He said this: ‘it appears to me that the consideration for this transaction was not money, albeit a document called an ‘Invoice’ was produced and the value of the vehicle agreed. Rather the consideration was a forbearance to sue for that part of the outstanding debt represented by the vehicle’s value. It was not ‘an exchange for property for money’ and not, therefore, a disposition as defined by section 29 sub-section 1 of the Hire-Purchase Act 1964′.

Astill J
Unreported, July 9th 1993
Hire-Purchase Act 1964 29(1)
England and Wales
Cited by:
Cited – VFS Financial Services Ltd v JF Plant Tyres Ltd QBD 26-Feb-2013
The defendant had acquired a vehicle in lieu of payment of a debt. The vehicle was subject to an HP agreement with the claimant, who now sought possession of it. The defendant argued that it had the protection of section 27, there having been a . .

Lists of cited by and citing cases may be incomplete.

Consumer, Contract

Updated: 20 January 2022; Ref: scu.519967

Berg v Blackburn Rovers Football Club and Athletic Plc: ChD 29 Apr 2013

The claimant sought damages after termination of his contract of employment as manager of the defendant football club. The Club now sought leave to withdraw an admission of liability as to payment in respect of a minimum period of notice.
Held: ‘the correct way of approaching an application of this sort is to start by asking whether the Defendant has demonstrated that if permitted to withdraw its admission it would have a realistically arguable defence. If it has it will be necessary to consider the other factors.’

Pelling QC J
[2013] EWHC 1070 (Ch), [2013] IRLR 537
Bailii
England and Wales
Citing:
Cited – Braybrook v The Basildon and Thurrock University NHS Trust 7-Oct-2004
Sumner J gave guidance on the withdrawal of an admission under the CPR: ‘From the cases and the CPR I draw the following principals:
1. In exercising its discretion, the court will consider all the circumstances of the case and seek to give . .
Cited – Sowerby v Charlton CA 21-Dec-2005
Before proceedings, in without prejudice discussions, the defendant made certain admissions. They were withdrawn before proceedings commenced. The claimant said that they could not be withdrawn.
Held: Until proceedings began the Civil . .
Cited – National Westminster Bank v Daniel CA 1993
The defence contained two contradictory grounds, and the defendant’s evidence again contradicted the defences. The plaintiff sought summary judgment.
Held: A judge, when considering whether a claim should be determined then or allowed to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 20 January 2022; Ref: scu.473054

Mira Oil Resources of Tortola v Bocimar NV: ChD 1999

Colman J discussed the application of the contra preferentem rule: ‘Further, this is not a case where the meaning of the words is so finely balanced that the contra proferentum rule should be applied in favour of the owners. If in the view of the Court one of two suggested meanings is significantly preferable to the other, as a matter of construction, it can safely be concluded that the former meaning reflects the mutual intention of the parties.’

[1999] 2 Lloyd’s Rep 101
England and Wales
Cited by:
Cited – AJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 20 January 2022; Ref: scu.471872

Paragon Finance Plc (Formerly the National Home Loans Corporation Plc) v Pender and Pender: ChD 25 Nov 2003

Section 114 of the 1925 Act has no application to Registered Land. It provides for a transfer ‘unless a contrary intention is expressed’ in the mortgage. Thus if section 114 applies, all depends upon the true construction of the mortgage. The power under the Civil Procedure Rules to revoke an earlier order included a power to revoke an order made under the earlier rules. Peter Smith J: ‘In my opinion, section 114 LPA 1925, either has no impact in the case of a transfer of a registered charge under registered land or its effects are subject to the need for the transferee to become registered proprietor under the LRA regime.’ and
‘In my judgment although s. 114 LPA does not say so it is not intended to apply to transfers of registered charges under the LRA 1925. The regime for transferring those charges is the statutory regime to which I have made reference above.’
‘That does not mean that section 114 will have no effect.’

The Honourable Mr Justice Peter Smith
[2003] EWHC 2834 (Ch)
Bailii
Law of Property Act 1925 114
England and Wales
Cited by:
Cited – Credit and Mercantile Plc v Feliciangela Marks CA 14-May-2004
The defendant had charged her home to the claimant and fallen into arrears. There was a sub-charge executed on the same day in favour of the Bank of Scotland (BOS) under which the claimant agreed to repay to BOS the amount it owed to them.
Per incuriam – Deg-Deutsche Investitions – Undentwicklungs Gesellschaft Gmbh v Thomas Koshy ChD 13-Dec-2004
The parties had been involved in protracted litigation where a freezing order had been made to support a claim which was eventually dismissed. The claimant sought to have set aside an earlier order made ordering him to pay costs on failing to have . .
Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Consumer, Contract, Land, Registered Land

Updated: 20 January 2022; Ref: scu.188254

Billson v Tristem: ChD 1999

Rattee J
[2000] LandTR 220
England and Wales
Cited by:
Appeal from – Billson; Findlay and Dr Ker (Trustees of the Gunter Estate) v Tristrem CA 4-Aug-1999
The tenant sought leave to appeal. Her landlord sought to recover a service charge. She said that under the lease the only element recoverable was in respect of the parts used by the flat in common with other flats in the building. As a basement . .
Cited – Campbell v Daejan Properties Ltd CA 20-Nov-2012
The tenant appealed against an order requiring the amendment of what was found to be an obvious error in the lease as to the responsibility of the lessor to make repairs to certain walls and rooves, and the apportionment of liability for payment of . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract

Updated: 20 January 2022; Ref: scu.471573

Cresswell v Potter: ChD 1978

When looking at cases of unconscionable conduct, the modern equivalent of `poor and ignorant’ might be `a member of the lower income group … less highly educated’.

Megarry J
[1978] 1 WLR 255
England and Wales
Cited by:
Cited – Portman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 20 January 2022; Ref: scu.186680

Multiservice Bookbinding Ltd v Marden: ChD 1978

To have a transaction set aside as a harsh and unconscionable bargain, a party would have to show not only that the terms of the transaction were harsh or oppressive, but also moral unfairness. Browne-Wilkinson J said: ‘In my judgment a bargain cannot be unfair and unconscionable unless one of the parties to it has imposed the objectionable terms in a morally reprehensible manner, that is to say in a way which affects his conscience’. The court may allow for the question of whether the borrower received independent advice.

Browne-Wilkinson J
[1978] 2 All ER 489, [1979] Ch 84
England and Wales
Citing:
Cited – Cityland and Property (Holdings) Ltd v Dabrah 1968
The mortgage secured a debt of pounds 2,900 owing by the mortgagor to the mortgagee. The mortgagor covenanted to pay the mortgagee pounds 4,553 by monthly instalments over a six year period. The return to the mortgagee was in the form of a premium . .
Cited – Knightsbridge Estates Trust Ltd v Byrne CA 1939
The company mortgaged properties in London to secure an advance from a Friendly Society. A clause of the mortgage provided for repayment by eighty half-yearly instalments. The mortgage further provided that if the mortgagor paid the instalments on . .

Cited by:
Cited – Portman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .
Cited – Portman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .
Cited – Brighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
Approved – Credit Lyonnais Bank Nederland Nv v Burch CA 20-Jun-1996
The defendant had charged her property to secure her employer’s debt. When the bank sought repossession, she said that the charge had been affected by the undue influence and that the terms of the charge were so harsh and inconscionable that a court . .
Cited – Ramzan v Brookwide Ltd ChD 8-Oct-2010
The claimant owned a flying freehold room butting into the defendant’s property. Whilst the claimant’s property was unoccupied, the defendant broke through into the room, blocked off the door to the claimant’s property, and included the room in the . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 20 January 2022; Ref: scu.186682

Portsmouth City Football Club v Sellar Properties (Portsmouth) Limited, Singer and Friedlander Properties Plc: ChD 17 Sep 2003

Various contracts were entered into for the sale of land, with compensation being paid in certain circumstances. One contract required a calculation of consideration as a set figure less a sum to be calculated as the cost of acquiring land. The sum became payable but the parties were unable to agree the calculation. The land was acquired with other land but no apportionment agreed.
Held: Against the factual background, the cost envisaged was not the cost of acquiring also additional easements. This was not a case where the method of calculation had broken down so as to allow the court to substitute its own.

Mr Justice Lawrence Collins
[2003] EWHC 2148 Ch
Bailii
England and Wales
Citing:
Cited – Sudbrook Trading Estate Ltd v Eggleton HL 1982
The grantors of an option, which contained a machinery for fixing the price, had refused to appoint a valuer and that made it impossible for the contractual machinery for the valuation of the option price to work. The House of Lords held that the . .
Cited – Re Malpass ChD 1985
The testator gave an option to his son to purchase his farm ‘at the agricultural value thereof determined for probate purposes . . as agreed with the district valuer’. The district valuer would not participate in this valuation.
Held: The . .
Cited – Regina v Warwickshire County Council ex parte Powergen Plc CA 31-Jul-1997
The council as highway authority had objected to a development on the grounds of road safety. The application was subsequently approved by the Secretary of State, but the Council sought to maintain its safety objection.
Held: The highway . .
Cited – Dawes v Hawkins 6-Jul-1860
A highway had been unlawfully stopped up by the adjoining owner and diverted by another route. It was held that the public had a right to deviate on to the adjoining land. The road was subsequently diverted back to its original route. Some years . .
Cited – Attorney General v Biphosphated Guano Company CA 1879
Land might be dedicated for a term of years only and not in perpetuity, although that had not happened in this case. . .
Cited – Corsellis v London County Council CA 1908
The dedication of land as a highway might occur for a limited term as a result of a an estoppel or contract. . .
Cited – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
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 – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Cited – Alghussein Establishment v Eton College HL 1985
A literal construction of the relevant provision of a lease would have led to an absurd result that a contractor who failed to complete a development without fault could not call for a lease, whereas a contractor who wilfully defaulted could do so. . .
Cited – CIA Barca de Panama SA v George Wimpey and Co Ltd CA 1980
Claim to Legal Professional Privilege Lost
Barca and Wimpey had been 50/50 joint venturers through the medium of a company called DLW which had provided services to oil companies in the Middle East, including the Aramco Group. Wimpey agreed to buy out Barca’s interest in DLW on terms which . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 20 January 2022; Ref: scu.186464

Choudry and others v Triesman: ChD 31 Mar 2003

The applicants sought an order requiring the respondent general secretary of the Labour Party to allow them to stand as candidates for the party in the forthcoming local elections. After allegations about the way in which selection had been carried out, the party imposed its own candidates.
Held: The principles for the grant of mandatory interim injunctions had been laid down in Nottingham Building Society. Here, a serious triable issue had been raised, but the risk of injustice would be greater if the injunction were granted than if not. If granted the party would not have the election candidates of its choice, but if not granted, the candidates would still be able to stand for election.
Stanley Burton J said of the Labour Party: ‘Its constitution is contained in its rules contained in the rule book, which constitute a contract to which each member adheres when he joins the party’

Stanley Burton J
Times 02-May-2003, Gazette 05-Jun-2003, [2003] EWHC 1203 (Comm)
Bailii
England and Wales
Citing:
Cited – Nottingham Building Society v Eurodynamics Systems plc 1993
The court laid down tests for the granting of mandatory interim injunctions. The court should consider whether there was a high degree of confidence that the applicant would succeed in establishing his right at trial. The higher that confidence, the . .

Cited by:
Cited – Foster v McNicol and Another QBD 28-Jul-2016
Incumbent Labour leader did not need nominations
The claimant challenged a decision of the National Executive Committee of the Labour Party to allow its present Leader to stand in the leadership election challenging his position without the need for him to submit first the otherwise standard . .

Lists of cited by and citing cases may be incomplete.

Elections, Contract

Updated: 20 January 2022; Ref: scu.181839

Lee v Lord Dalmeny: ChD 1927

The Court will not enforce an agreement which is part of the gaming contract.

[1927] 1 Ch 300
England and Wales
Cited by:
Cited – Robertson v Anderson IHCS 5-Dec-2002
The parties had agreed to share any winnings from their Bingo activities. One sought to reject the contract as an unenforceable gaming contract.
Held: The contention was rejected. It had been suggested that there had been no intention to . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 20 January 2022; Ref: scu.181870

FPH Law (A Firm) v Brown (T/A Integrum Law): QBD 14 Jul 2016

The Claimant firm of solicitors sought damages for breach of contract from a former partner in the firm. The claim was based on an alleged breach of an undertaking given by the Defendant to the Claimant on the transfer of certain client files to him following his retirement as a partner with the firm.

Slade DBE J
[2016] EWHC 1681 (QB)
Bailii
England and Wales

Legal Professions, Contract

Updated: 19 January 2022; Ref: scu.567065

Promoimpresa srl v Consorzio dei comuni della Sponda Bresciana del Lago di Garda e del Lago di Idro: ECJ 14 Jul 2016

ECJ (Judgment) Reference for a preliminary ruling – Public contracts and freedom of establishment – Article 49 TFEU – Directive 2006/123/EC – Article 12 – Concessions of State-owned maritime, lakeside and waterway property of an economic interest – Automatic extension – Lack of tender procedure

ECLI:EU:C:2016:558, [2016] EUECJ C-458/14
Bailii
European

Contract

Updated: 19 January 2022; Ref: scu.566906

ICBC Financial Leasing Co Ltd v Consultants Group Commercial Funding Corporation (T/A CG Commercial Finance): ComC 8 Jul 2016

The court was asked whether, by providing lease finance for the acquisition of four LNG carriers in a transaction which did not involve the defendant intermediary, the claimant acted in breach of a Confidentiality Letter in which it had promised not to circumvent CGCF and not to use confidential information disclosed to it by CGCF for an improper purpose.

Males J
[2016] EWHC 1683 (Comm)
Bailii
England and Wales

Information, Contract

Updated: 19 January 2022; Ref: scu.566829

Firstpost Homes Ltd v Johnson and Others: CA 14 Aug 1995

The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the letter which contained the contract which referred to the plan and incorporated it and it was the letter which under Section 2 had to be signed. A typed signature is insufficient for a land contract. Old Frauds cases are irrelevant under the new regime introduced for exchange and otherwise of contracts for the sale of land.
New provisions on signatures are to stand free of both old cases and statutes on the topic. The purpose of section 2 was to introduce a new and stricter regime in relation to contracts for the creation or transfer of interests in land.
Peter Gibson LJ said: ‘The point is a short one and largely one of first impression, though in considering whether the two sheets of paper are one document or two for the purposes of s 2 of the 1989 Act it is important to bear in mind that the section expressly contemplates that one document may incorporate the terms of a second document by reference. It seems to me that the natural way of looking at the letter enclosing the plan, to use the significant language of the letter, is to treat the letter alone as one document and the plan as another document, the terms of which are incorporated in the letter. That incorporation comes about because of the reference in the letter to the plan as showing what are the 15.64 acres of land at the rear of Fulfen Farm.’ and ‘the Act of 1989 seems to me to have a new and different philosophy from that which the Statue of Frauds 1677 and section 40 of the Act of 1925 had.’
Balcombe LJ: ‘Like the proverbial elephant, a document may be difficult to define but it is easy to recognise’.

Peter Gibson, Balcombe, Hutchison LJJ
Gazette 15-Sep-1995, Times 14-Aug-1995, [1995] 1 WLR 1567, [1995] 4 All ER 355
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Cited by:
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Courtney v Corp Ltd CA 1-Mar-2006
The claimants sought to enforce an offer of finance to support a land purchase. The defendants argued that the offer failed to meet the characteristics required under section 2 of the 1989 Act.
Held: The judge had been correct to say that the . .
Cited – Orton v Collins and others ChD 23-Apr-2007
The court considered how a Part 36 offer could be treated as accepted when it involved an agreement to transfer land, because the offer and its acceptance would not operate under the 1989 Act.
Held: The agreement was enforceable. The Civil . .
Cited – Rudra v Abbey National Plc and Stickley and Kent (Risk Management Unit) Limited CA 26-Feb-1998
The parties disputed whether a contract had been entered into for the sale of land, and whether new evidence could be entered on an appeal against a strike out. The estate agents had signed a contract as agents for the mortgagee in possession, but . .
Cited – Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others ChD 13-May-2010
The claimant sought a delaration that it had a right of way over an access road. The defendants said that the agreement fell foul of the 1989 Act.
Held: The claimant was not entitled to the declaration. Agreements under the 1990 Act are . .
Cited – R G Kensington Management Co Ltd v Hutchinson IDH Ltd ChD 2003
Neuberger J decided that he could not follow the court in Jelson, saying: ‘The defendant’s case is that the reference to ‘the parties’ in s.2(3) is to the parties to the proposed conveyance or transfer. Two strands of authority are put forward as . .
Cited – Bankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
Cited – Urban Manor Limited v Sadiq CA 20-Feb-1997
Appeal by prospective purchaser of property from order that contract rescinded, and deposit forfeited. . .
Cited – Keay and Another v Morris Homes (West Midlands) Ltd CA 11-Jul-2012
The claimants sought damages alleging breach of contract. The defendants argued that the contract related to land, and since it was an oral agreement it was unenforceable under the 1989 Act.
Held: It was not possible that a contract which was . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 19 January 2022; Ref: scu.80571

Keay and Another v Morris Homes (West Midlands) Ltd: CA 11 Jul 2012

The claimants sought damages alleging breach of contract. The defendants argued that the contract related to land, and since it was an oral agreement it was unenforceable under the 1989 Act.
Held: It was not possible that a contract which was void under the 1989 Act could, by acts amounting to a possible part performance of the purported contract, mature into a valid contract.

Laws, Rimer, Patten LJJ
[2012] EWCA Civ 900, [2012] WLR(D) 201, [2012] 2 EGLR 173, [2012] 2 P and CR 18, [2012] 1 WLR 2855
Bailii, WLRD
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Citing:
Cited – Tootal Clothing Ltd v Guinea Properties Ltd CA 1992
By a single commercial transaction the parties agreed to the grant of a lease, on terms that Tootal (the intending lessee), would carry out shop-fitting works, have the benefit of a three months rent-free period during the which the works were to be . .
Cited – Firstpost Homes Ltd v Johnson and Others CA 14-Aug-1995
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the . .
Cited – Grossman v Hooper CA 11-Apr-2001
The parties had lived together in the house, each contributing but held in the name of one only. The parties disputed the effect under the 1989 Act of a letter signed by each of them setting out their agreement as to the basis on which it was held. . .
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Cited – North Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
Cited – Helden v Strathmore Ltd CA 11-May-2011
The defendant appealed against an order finding valid a charge in favour of the claimant despite non-compliance with the 2000 Act.
Lord Neuberger MR said as to the 1989 Act: Section 2 is concerned with contracts for the creation or sale of . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 19 January 2022; Ref: scu.462519

Rowland v Divall: CA 1923

A car dealer had bought a car to which the seller had no title.
Held: The dealer succeeded in his claim to recover the purchase price on the ground of total failure of consideration. The vendor had gone through the motions of performance of his contract by handing over a car, but in the eyes of the law that was no performance because the car was stolen. In the case of a theft the title acquired by the thief or later possessor is frail, and of likely limited value, but nonetheless remains a title to which the law can afford protection.
Atkin LJ said: ‘It seems to me that in this case there has been a total failure of consideration, that is to say that the buyer has not got any part of that for which he paid the purchase money. He paid the money in order that he might get the property, and he has not got it. It is true that the seller delivered to him the de facto possession, but the seller had not got the right to possession and consequently could not give it to the buyer. . There can be no sale at all of goods which the seller has no right to sell. The whole object of a sale is to transfer property from one person to another . . can it make any difference that the buyer had used the car before he found out that there was a breach of the condition? To my mind it makes no difference at all. The buyer accepted the car in the representation of the seller that he had a right to sell it, and in as much as the seller had no such right he is not entitled to say that the buyer has enjoyed a benefit under the contract. In fact the buyer has not received any part of that which he contracted to receive, namely the property and right to possession – and that being so there has been a total failure of consideration.’

Atkin LJ
[1923] 2 KB 500, [1923] All ER 270, (1923) 129 LT 757
England and Wales
Cited by:
Cited – Costello v Chief Constable of Derbyshire Constabulary CA 22-Mar-2001
The police seized a car from Mr Costello, believing that it was stolen. The seizure was lawful at the time, by virtue of section 19 of PACE. The police never brought any criminal proceedings against Mr Costello, but they refused to return the car to . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Contract

Updated: 19 January 2022; Ref: scu.194107

Rossdale v Denny: CA 1921

The plaintiff offered in writing to purchase a leasehold house, but the letter was to take effect ‘on signing of a formal contract’ and ‘This offer is subject to a formal contract to embody such reasonable provisions as my solicitors may approve’. The offer was accepted, but the defendant backed out.
Held: No formal contract was created.
L Sterndale said: ‘I am far from saying that there may not be an unconditional offer and acceptance of a binding contract although the letters may contain the words ‘subject to a formal contract’, but certainly those words do point in the direction of the offer or acceptance being conditional. I do not think it can be put higher than that; I think he is well founded in saying that the general trend of the decisions has been, where those words occurred, to hold that the offer or acceptance was conditional.’

LJ Sterndale, Sargant LJ
[1921] 90 LJ Ch 204, [1921] 1 Ch 57, [1921] 124 LTR 294, [1921] 37 TLR 45, [1921] 65 Sol Jo 59
England and Wales
Citing:
Followed – Winn v Bull ChD 19-Nov-1877
By an agreement in writing, the defendant agreed with the plaintiff to take a lease of a house. The other details were included, but the agreement was ‘subject to the preparation and approval of a formal contract’. The plaintiff sought specific . .

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

Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Updated: 19 January 2022; Ref: scu.183732

Confetti Records (A Firm), Fundamental Records, Andrew Alcee v Warner Music UK Ltd (Trading As East West Records): ChD 23 May 2003

An agreement was made for the assignment of the copyright in a music track, but it remained ‘subject to contract’. The assignor later sought to resile from the assignment.
Held: It is standard practice in the music licensing business for a licensee and a licensor to enter into a deal memo followed by a long form contract, but the deal memo’s and contract are not of a standard form. The circumstances are not so strong and exceptional as to displace the conventional meaning of the phrase ‘subject to contract’. The burden was on the Defendant to establish any custom or usage within the industry to the effect that ‘subject to contract’ does not bear the meaning it bears in normal legal usage. That burden was not discharged. The fact that a party to an agreement ‘subject to contract’ acts on the faith of that agreement does not raise any estoppel as to the existence of a binding contract. In this case there had been representations and acts in reliance upon those expectations. An estoppel was created, and a contract concluded. There was accordingly no action for copyright infringement.
The claimant also sought damages for the derogatory treatment of his work. That was claimable only if his reputation was damaged. The court had the faintly surreal experience of three gentlemen in horsehair wigs examining the meaning of such phrases as ‘mish mish man’ and ‘shizzle (or sizzle) my nizzle’, but there was no evidence of the author’s reputation or damage to it.

The Honourable Mr Justice Lewison
[2003] EWCh 1274 (Ch), Times 12-Jun-2003
Bailii
Copyright Designs and Patents Act 1988 80 97(2)
England and Wales
Citing:
Cited – Winn v Bull ChD 19-Nov-1877
By an agreement in writing, the defendant agreed with the plaintiff to take a lease of a house. The other details were included, but the agreement was ‘subject to the preparation and approval of a formal contract’. The plaintiff sought specific . .
Cited – Chillingworth v Esche CA 1923
The purchasers agreed in writing to purchase land ‘subject to a proper contract to be prepared by the vendors’ solicitors’ accepting andpound;240 ‘as deposit and in part payment of the said purchase money’. A contract was prepared by the vendor’s . .
Cited – Rossdale v Denny CA 1921
The plaintiff offered in writing to purchase a leasehold house, but the letter was to take effect ‘on signing of a formal contract’ and ‘This offer is subject to a formal contract to embody such reasonable provisions as my solicitors may approve’. . .
Cited – Von Hatzfeldt-Wildensburg v Alexander ChD 26-Jul-1911
A purchaser wrote offering to purchase a house, saying acceptance was subject to her solicitor approving title, covenants, lease and form of contract.
Held: It was not a complete contract capable of enforcement: ‘It appears to be well settled . .
Cited – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Unilateral Contract Liability
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘pounds 100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .
Cited – Von Hatzfeldt-Wildensburg v Alexander ChD 26-Jul-1911
A purchaser wrote offering to purchase a house, saying acceptance was subject to her solicitor approving title, covenants, lease and form of contract.
Held: It was not a complete contract capable of enforcement: ‘It appears to be well settled . .
Cited – Michael Richards Properties Ltd v Corporation of Wardens of St Saviour’s Parish Southwark 1975
Property was offered for sale by tender. The tender documents contained all the detailed terms upon which the contract was to be based. The successful tender was accepted by letter, but by mistake the secretary who typed it typed in the words . .
Cited – Munton v Greater London Council CA 1976
With respect to the words ‘subject to contract’, Lord Denning said, ‘It is of the greatest importance that no doubt should be thrown on the effect of those words’. As to the difference netween the procedures of compulsory purchase and ordinary . .
Cited – Salvation Army Trustee Co Ltd v West Yorkshire Metropolitan County Council 1980
Threatened with a road widening, the plaintiffs left their old property, and began to develop their new one, again, on land owned by the respondent. In practice it was negotiated as an exchange of properties. The negotiations were held ‘without . .
Cited – Pasterfield v Denham ChD 1999
Distortion or mutilation is only actionable under the section if it is prejudicial to the author’s honour or reputation. . .
Cited – Mount Eden Land Ltd v Prudential Assurance Co Ltd CA 12-Nov-1996
The Court warned against extending the ‘magic’ of the ‘subject to contract’ label into the realm of unilateral licences. The question was whether a landlord had granted licence to the tenant to carry out alterations. The letter relied on as . .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – Alpenstow Ltd v Regalian Properties plc ChD 1985
The parties agreed in writing for the sale of land, the agreement contained a right of pre-emption. In the event of the owner wishing to sell it was to offer to sell a share in the property by notice. Within 28 days of the notice, the grantee was to . .
Cited – Western Electric Ltd v Welsh Development Agency 1983
An offer to grant a licence to occupy land may be accepted by taking up occupation. . .
Cited – Cohen v Nessdale Ltd CA 1982
Once negotiations are begun ‘subject to contract’, that label governs all subsequent communications between the parties unless the label is expunged by express agreement or by necessary implication. . .
Cited – Attorney General of Hong Kong v Humphreys Estate (Queen’s Gardens) Ltd PC 1987
An agreement in principle was marked ‘subject to contract’. The Government would acquire some flats owned the plaintiff Group of companies in return for the Government granting, inter alia, a lease to the Group of some Crown lands. The Government . .

Lists of cited by and citing cases may be incomplete.

Contract, Media, Estoppel, Intellectual Property

Updated: 19 January 2022; Ref: scu.183288

St Paul Fire and Marine Insurance Co (UK) Ltd v McConnell Dowell Constructors Ltd: CA 1995

The court discussed the general principles as to the meaning of ‘inducement’ in the context of insurance contract.
Held: If the three underwriters who gave evidence had been told the truth, on no view would they have underwritten the insurance at the same premium on terms which included subsidence risk. The court also considered the role played by presumption that if the recipient had known the truth, he would still have been willing to make the contract, but only on different terms, notably, but not only as to premium. ‘The existence of such a presumption is recognised in the authorities (Halsbury’s Laws vol 31 par 1067) ‘Inducement cannot be inferred in law from proved materiality, although there may be cases where the materiality is so obvious as to justify an inference of fact that the representee was actually induced, but, even in such exceptional cases, the inference is only a prima facie one and may be rebutted by counter evidence.’ ‘ and there is ‘the need to distinguish ‘materiality’ from ‘inducement’, although inevitably the two overlap. Here, the evidence of the three underwriters who did give evidence and of the expert witnesses was clear. If the underwriters had been told the true state of the ground conditions, as revealed by the 1982 report, and of the conflicting views expressed by the authors of that report and by Worleys, then they would have called for further information and in all probability either refused the risk or accepted it on different terms. In fact, all four underwriters including Mr Earnshaw accepted it without any relevant enquiries. There is no evidence to displace a presumption that Mr Earnshaw like the other three was induced by the non-disclosure or misrepresentation to give cover on the terms on which he did. In my judgment, these insurers also have discharged their burden of proof.’

Evans LJ
[1995] 2 Lloyds Rep 116
England and Wales
Citing:
Approved – Edgington v Fitzmaurice CA 7-Mar-1885
False Prospectus – Issuers liable in Deceit
The directors of a company issued a prospectus, falsely stating that the proceeds were to be used to complete alterations to the buildings of the company, to purchase horses and vans and to develop the trade of the company. In fact it was to pay off . .
Cited – Smith v Chadwick HL 18-Feb-1884
Unclear Words Insufficient as Representation
A purchaser claimed to have entered into the contract in reliance on the truth of a misrepresentation by the seller. The plaintiff claimed damages for deceit through having been induced to buy shares in an iron company by false representations in a . .

Cited by:
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Mundi v Lincoln Assurance Ltd ChD 24-Nov-2005
The defendant life insurance company sought to avoid payment alleging non-disclosure. At first they suggested first one then a second and then a third reason for non payment as each previous reason looked like failing. They relied now on . .

Lists of cited by and citing cases may be incomplete.

Contract, Insurance

Updated: 19 January 2022; Ref: scu.187265

Mehta v J Pereira Fernandes SA: ChD 7 Apr 2006

The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, but the applicant then did not honour the guarantee, saying that it was not enforceable, the email not being signed. The respondent said that the addition of the email address was sufficient signature.
Held: The appeal succeeded. The email address had been added by the appellant’s service provider as part of the header of the email, and was not present when sent and was not a signature: ‘a party can sign a document for the purposes of Section 4 by using his full name or his last name prefixed by some or all of his initials or using his initials, and possibly by using a pseudonym or a combination of letters and numbers (as can happen for example with a Lloyds slip scratch), providing always that whatever was used was inserted into the document in order to give, and with the intention of giving, authenticity to it. Its inclusion must have been intended as a signature for these purposes.’

Pelling QC J
Times 16-May-2006, [2006] EWHC 813 (Ch), [2006] 1 WLR 1543
Bailii
Statute of Frauds 1677 v
England and Wales
Citing:
Cited – Lever v Koffler 1901
An offer was made in writing by the Defendant to sell two parcels of real property on alternative bases, where one of the alternatives was accepted both orally and by letter by the Plaintiff. He suggested two bases upon which the 1677 Act operated . .
Cited – Hussey v Horne-Payne HL 1879
An exchange of letters which together constituted a binding agreement would satisfy the requirements of Section 4 as it applied to contracts for the sale of land.
Lord Selborne said: ‘The observation has often been made, that a contract . .
Cited – Evans v Hoare 1892
A defendant sought to deny liability under a document relying on the 1677 Statute. the relevant document had been drawn up by a duly authorised agent of the Defendants. The document was a letter from the Plaintiff and the words ‘Messrs Hoare, Marr . .
Cited – Smith v Neale 1857
The defendant wrote to the plaintiff requesting the assignment of a patent to him to hold as trustee for an institution who would pay him a share of the profits on exploitation of the patent, and if the profits fell below a figure, the patent would . .
Cited – Reuss v Picksley 1866
A written proposal was purportedly accepted orally. The requirements of the 1677 Statute were satisfied where a signed written offer containing the requisite terms was accepted orally by the other party.
Willes J said: ‘The only question is, . .
Cited – Parker v Clark 1960
A written offer was accepted in writing by a letter that became lost. Although it was recognised that oral evidence of the written acceptance might provide an answer, the case was argued on the basis that the written offer was a sufficient . .
Cited – Winn v Bull ChD 19-Nov-1877
By an agreement in writing, the defendant agreed with the plaintiff to take a lease of a house. The other details were included, but the agreement was ‘subject to the preparation and approval of a formal contract’. The plaintiff sought specific . .
Cited – Elpis Maritime Company Limited v Marti Chartering Company Limited (The Maria D) HL 1991
Brokers (Marti) were to guarantee a charter on the Gencon form, which contained, as one of the additional typed clauses a provision (Clause 24) in the following terms: ‘Demurrage guaranteed and payable directly by charterers to owners. However Marti . .
Cited – In re Hoyle CA 1893
ALSmith LJ discussed the 1677 Act: ‘The object of the Statute was to prevent fraud and perjury by taking away the right to sue on certain agreements if only established by verbal evidence . . The object of the statute being merely to exclude parol . .
Cited – Caton v Caton HL 1867
A document began by referring to ‘the under mentioned parties’ and then referred to the parties in question by name in relation to various promises. Neither party signed the document and the question was whether the document constituted a sufficient . .
Distinguished – Godwin v Francis 1870
The court was asked as to the effect of a note or memorandum in the form of instructions to a telegraph company signed by the party to be charged on whose behalf the telegram concerned was sent.
Held: Bovill CJ said: ‘the mere telegram written . .
Distinguished – McBlain v Cross 1871
The court considered the stautus under the 1677 statute in the case of a telegram which stated that it came from the sender and did so with his express authority. . .

Cited by:
Cited – Orton v Collins and others ChD 23-Apr-2007
The court considered how a Part 36 offer could be treated as accepted when it involved an agreement to transfer land, because the offer and its acceptance would not operate under the 1989 Act.
Held: The agreement was enforceable. The Civil . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 January 2022; Ref: scu.240177

Tootal Clothing Ltd v Guinea Properties Ltd: CA 1992

By a single commercial transaction the parties agreed to the grant of a lease, on terms that Tootal (the intending lessee), would carry out shop-fitting works, have the benefit of a three months rent-free period during the which the works were to be carried out, and on the satisfactory completion of the works, receive 30,000 pounds towards their cost from the intending landlord, Guinea Properties. The provisions as to shop-fitting works, rent-free period and the landlord’s contribution to the works were all contained in a document separate and distinct from the contract for lease.
Held: Since the land contract had been fully performed by the grant of the lease, there was nothing in section 2 adversely to affect the enforceability of the terms relating to the shop-fitting. When looking at the contract under the Act, the court allowed a ‘composite bargain’, i.e. to provide in a first contract for a second contract, the first contract amounting to consideration for the second. It may be possible for parties to hive off parts of their arrangements into separate and distinct contracts. Section 2 applies only to an executory contract for the sale or disposition of an interest in land. Once all the land elements of an alleged contract have been performed, the remaining parts of the alleged contract can be examined without reference to section 2.
Scott LJ said: ‘If parties choose to hive off part of the terms of their composite bargain into a separate contract distinct from the written land contract that incorporates the rest of the terms, I can see nothing in section 2 that provides an answer to an action for enforcement of the land contract, on the one hand, or of the separate contract on the other hand. Each has become, by the contractual choice of the parties, a separate contract.’

Scott LJ
[1992] 64 P and CR 452, [1992] 2 EGLR 80
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Cited by:
Cited – Godden v Merthyr Tydfil Housing Association CA 15-Jan-1997
The Plaintiff was a building contractor; the Defendant a housing association engaged in developing suitable sites for residential accommodation for letting to tenants. Before the contract the parties had successfully completed what was been called . .
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Cited – Grossman v Hooper CA 11-Apr-2001
The parties had lived together in the house, each contributing but held in the name of one only. The parties disputed the effect under the 1989 Act of a letter signed by each of them setting out their agreement as to the basis on which it was held. . .
Cited – North Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
Cited – Keay and Another v Morris Homes (West Midlands) Ltd CA 11-Jul-2012
The claimants sought damages alleging breach of contract. The defendants argued that the contract related to land, and since it was an oral agreement it was unenforceable under the 1989 Act.
Held: It was not possible that a contract which was . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 19 January 2022; Ref: scu.188873

Borealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others: HL 27 Mar 2001

The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a demand. An assertion of a formal right was required. A person to whom a bill of lading had been endorsed, ceased to be liable on it when he successfully endorsed it again to someone else.

Lord Hoffmann, Lord Mackay of Clashfern, Lord Cooke of Thorndon, Lord Hope of Craighead, Lord Hobhouse of Woodborough
Times 27-Mar-2001, Gazette 17-May-2001, [2001] UKHL 17, [2001] 2 All ER 193, [2002] 2 AC 205
House of Lords, Bailii
Carriage of Goods by Sea Act 1992 3(1), Bills of Lading Act 1855
England and Wales
Citing:
Appeal from – Borealis Ab v Stargas Ltd and Others CA 30-Jul-1998
The holder of a bill of lading became liable upon completing any one of some initial steps, and retained that liability unless he actually took delivery. He remained liable until the bill was endorsed to somebody else who in turn fulfilled such a . .
Cited – Effort Shipping Company Ltd v Linden Management Sa and others (The Glannis Nk) HL 22-Jan-1998
A ship’s cargo can be held to be dangerous, and the shipper liable for anything which was more than an obvious physical danger. Such wider danger includes beetle infestation of a crop cargo. Lord Steyn said:’I would be quite prepared, in an . .
Cited – Sanders v Maclean CA 1883
‘The law as to the indorsement of bills of lading is as clear as in my opinion the practice of all European merchants is thoroughly understood. A cargo at sea is incapable of physical delivery, and a bill of lading by the law merchant is universally . .
Cited – Dublin City Distillery (Great Brunswick Street, Dublin) Limited and Another v Doherty HL 1914
D had advanced monies to a distillery company on the security of manufactured whisky stored in a warehouse. On the occasion of each advance, the company delivered to D an invoice and a warrant which described the particulars of the whisky and stated . .
Cited – 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 – Dawes v Peck 1799
Where there is a named consignee on a bill of lading it may be inferred that the contracting party is the consignee not the shipper. . .
Cited – Albacruz (Cargo Owners) v Albazero ‘The Albazero’ HL 1977
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for . .
Cited – Bryans v Nix 1839
. .
Cited – Evans v Nichol 1841
. .
Cited – Kum and Another v Wah Tat Bank Ltd HL 1971
‘Negotiable’, when used in relation to a bill of lading, means simply transferable. A negotiable bill of lading is not negotiable in the strict sense; it cannot, as can be done by the negotiation of a bill of exchange, give to the transferee a . .
Cited – Thompson v Dominy 1845
. .
Cited – Glynn Mills v E and W India Dock Co 1880
The effect of the assignment of a bill of lading on the title to the goods depends on the circumstances and the intention of the transferor and transferee. . .
Cited – Sewell v Burdick HL 1884
What does the word ‘property’ encompass in the context of the assignment of a bill of lading? Is it limited to the general property in the goods, that is, the legal title to the goods as is transferred by a sale? Or does it include the special . .
Cited – Cock v Taylor 1811
The carrier’s liens under a bill of lading are a qualification of the rights of the endorsee against the shipowner. . .
Cited – Allen v Coltart 1883
‘Where goods are deliverable to the holder of a bill of lading on certain conditions being complied with, the act of demanding delivery is evidence of an offer on his part to comply with those conditions, and the delivery accordingly by the master . .
Cited – Sanders, Snow and Cockings v Vanzeller 2-Feb-1843
Carrier’s lien under bill of lading . .
Cited – Stindt v Roberts 1848
Carrier’s lien under bill of lading. . .
Cited – Young v Moeller 1855
. .
Cited – Brandt v Liverpool, Brazil and River Plate Steam Navigation Co Ltd CA 1924
The plaintiff claimed damages from the shipowner for negligence in the carriage of a consignment of goods. He was not able to bring himself within the terms of the 1855 Act but he succeeded on the contract to be inferred from the presentation of the . .
Cited – The Delfini 1990
. .
Cited – Fox v Nott 1861
. .
Cited – Smurthwaite v Wilkins 1862
The endorser of a bill of lading is not liable after he has endorsed over the bill of lading to another who is liable; the shipper remains liable as an original party to the contract. ‘Looking at the whole statute it seems to me that the obvious . .
Cited – The Aramis CA 1989
The court considered the circumstances under which a contract might be implied: ‘As the question whether or not any such contract is to be implied is one of fact, its answer must depend upon the circumstances of each particular case – and the . .
Cited – In re Wait 1927
In the case of a Bill of lading issued for quantities out of undivided consignments and where those quantities had been sold to different buyers and the various bills of lading endorsed over to them, those endorsements were ineffective to pass the . .
Cited – Margarine Union GmbH v Cambay Prince Steamship Co Ltd 1969
The practice of issuing delivery orders for parcels out of a bulk cargo were ineffective and the intended buyers were left without remedy against the carrier.
Roskill J said: ‘In my judgment, there is nothing in Hedley Byrne to affect the . .
Cited – Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) HL 24-Apr-1985
The plaintiff contracted to buy a cargo to be shipped on the defendant’s vessel. Because of poor stowage, the cargo was damaged. At the time of the damage the claimant was neither the owner nor possessor of the cargo, but under the terms of the . .
Cited – Aegean Sea Traders Corp v Repsol Petroleo SA (‘The Aegean Sea’) AdCt 1998
The Aegean Sea was lost at sea causing very extensive damage through the escape of its cargo of crude oil. AST asserted as a preliminary issue, that RP had become liable for that damage. RP’s wholly owned subsidiary ROIL was the charterer, argued . .

Cited by:
Appealed to – Borealis Ab v Stargas Ltd and Others CA 30-Jul-1998
The holder of a bill of lading became liable upon completing any one of some initial steps, and retained that liability unless he actually took delivery. He remained liable until the bill was endorsed to somebody else who in turn fulfilled such a . .
Cited – Scottish and Newcastle International Limited v Othon Ghalanos Ltd HL 20-Feb-2008
The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have . .

Lists of cited by and citing cases may be incomplete.

Transport, Commercial, Contract

Updated: 19 January 2022; Ref: scu.78491

Ross River Ltd and Another v Cambridge City Football Club Ltd: ChD 19 Sep 2007

The club sought to rescind agreements for leasing its ground, saying that the developers had made a secret payment to its chairman.
Briggs J said: ‘First and foremost, in a case where fraudulent material misrepresentations have been deliberately made with a view (as I find) improperly to influence the outcome of the negotiation of the contract in favour of the maker and his principal, by an experienced player in the relevant market, there is the most powerful inference that the fraudsman achieved his objective, at least to the limited extent required by the law, namely that his fraud was actively in the mind of the recipient when the contract came to be mad

Briggs J
[2007] EWHC 2115 (Ch), [2008] 1 All ER 1004, 117 Con LR 129, [2007] 41 EG 201, [2008] 1 All ER (Comm) 1028
Bailii
England and Wales
Cited by:
Appeal from – Ross River Ltd and Another v Cambridge City Football Club CA 7-May-2008
Both parties renewed their applications for leave to appeal. . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 January 2022; Ref: scu.259430

Smith v Chadwick: HL 18 Feb 1884

Unclear Words Insufficient as Representation

A purchaser claimed to have entered into the contract in reliance on the truth of a misrepresentation by the seller. The plaintiff claimed damages for deceit through having been induced to buy shares in an iron company by false representations in a prospectus as to the output of the iron works.
Held: His claim failed because the critical words of the prospectus were ambiguous, and the plaintiff had failed to show that he understood them in a sense which was false.
An inference of inducement can be made or rebutted on evidence. Lord Blackburn, said: ‘I think if it is proved that the defendants with a view to induce the plaintiff to enter a contract made a statement to the plaintiff of such a nature as would be likely to induce a person to enter into a contract, and it is proved that the plaintiff did enter into the contract, it is a fair inference of fact that he was induced to do so by the statement.’
. . and ‘In Pasley v Freeman, 2 Smith’s Leading Cases 66, 73, 86 (8th ed), Buller J says: ‘The foundation of this action is fraud and deceit in the defendant and damage to the plaintiffs. And the question is whether an action thus founded can be sustained in a court of law. Fraud without damage, or damage without fraud, gives no cause of action, but where these two concur an action lies, per Croke J, 3 Bulst 95.’
Whatever difficulties there may be as to defining what is fraud and deceit, I think no one will venture to dispute that the plaintiff cannot recover unless he proves damage. In an ordinary action of deceit the plaintiff alleges that false and fraudulent representations were made by the defendant to the plaintiff in order to induce him, the plaintiff, to act upon them. I think that if he did act upon these representations, he shews damage; if he did not, he shews none.’
Lord Selborne LC said: ‘My Lords, I conceive that in an action of deceit, like the present, it is the duty of the plaintiff to establish two things; first, actual fraud, which is to be judged by the nature and character of the representations made, considered with reference to the object for which they were made, the knowledge or means of knowledge of the person making them, and the intention which the law justly imputes to every man to produce those consequences which are the natural result of his acts: and, secondly, he must establish that this fraud was an inducing cause to the contract; for which purpose it must be material, and it must have produced in his mind an erroneous belief, influencing his conduct.’

Lord Blackburn, Lord Selborne LC
(1884) 9 App Cas 187, (1883-1884) 9 App Cas 187, [1884] UKLawRpAC 4
Commonlii
England and Wales
Cited by:
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Spice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .
Cited – St Paul Fire and Marine Insurance Co (UK) Ltd v McConnell Dowell Constructors Ltd CA 1995
The court discussed the general principles as to the meaning of ‘inducement’ in the context of insurance contract.
Held: If the three underwriters who gave evidence had been told the truth, on no view would they have underwritten the insurance . .
Cited – Mundi v Lincoln Assurance Ltd ChD 24-Nov-2005
The defendant life insurance company sought to avoid payment alleging non-disclosure. At first they suggested first one then a second and then a third reason for non payment as each previous reason looked like failing. They relied now on . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .

Lists of cited by and citing cases may be incomplete.

Contract, Insurance, Torts – Other

Updated: 19 January 2022; Ref: scu.187266

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 promised. The girls acknowledged that Geri had said she would leave, but insisted that no real intention to leave had existed.
Held: Generally, a person who is about to enter into an agreement is under no duty to disclose material facts which he knows but which the other party does not know. Here the group knew that the other party was relying upon a representation, and could not discharge the requirement to show that they did not know of its falsity, and were liable in damages to the defendant.

Arden J DBE
[2000] EWHC Ch 140
Bailii
England and Wales
Citing:
Cited – Royscot Trust Ltd v Rogerson 1991
Doyle -v- Olby (Ironmongers) Ltd was an appropriate way of assessing damages for an action under the Act, and damages are calculated on the basis of fraud.
A client misled into an investment is entitled to the measure of damages he would . .
Cited – Edgington v Fitzmaurice CA 7-Mar-1885
False Prospectus – Issuers liable in Deceit
The directors of a company issued a prospectus, falsely stating that the proceeds were to be used to complete alterations to the buildings of the company, to purchase horses and vans and to develop the trade of the company. In fact it was to pay off . .
Cited – Esso Petroleum Company Ltd v Mardon CA 6-Feb-1976
Statements had been made by employees of Esso in the course of pre-contractual negotiations with Mr Mardon, the prospective tenant of a petrol station. The statements related to the potential throughput of the station. Mr Mardon was persuaded by the . .
Cited – Smelter Corporation v O’Driscoll 1977
(Ireland) In an action for misrepresentation, it did not matter that the representation was made by an agent who did not know that the representation was untrue. . .
Cited – Schneider v Heath 1813
A ship was sold ‘to be taken with all faults’. In fact the vendor knew that she was unseaworthy. The particulars of sale stated that her hull was ‘nearly as good as when launched’. In fact the hull was rotten and the captain took her to a place . .
Cited – Reynell v Sprye 1852
. .
Cited – Walters v Morgan 1861
A person may make a representation by conduct if he fails to correct an impression given by his conduct. . .
Cited – With v O’Flanagan CA 1936
When negotiating to enter into a contract, a person may have a duty to disclose material facts which come to his notice before the conclusion of a contract if they falsify a representation previously made by him. A representation as to the profits . .
Cited – Nottingham Patent Brick Co v Butler 1886
A solicitor stated that he was not aware that property was subject to any restrictions, but his failure to add that he had not read the relevant deeds made his statement a misrepresentation. . .
Cited – Trail v Baring CA 1864
(Orse Traill v Baring) The court considered a misrepresentation by conduct before contract. Turner LJ said: ‘I take it to be quite clear, that if a person makes a representation by which he induces another to take a particular course, and the . .
Cited – Brown v Raphael 1958
This was a sale of an absolute reversion in a trust fund. The particulars stated that: ‘Estate duty will be payable on the death of the annuitant who is believed to have no aggregable estate’ and the name of the solicitors who prepared the . .
Cited – 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 – Horsfall v Thomas 1852
It is a necessary requirement for an action in misrepresentation, that the misrepresentation induced the other party to enter into the contract. . .
Cited – 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 – Smith v Chadwick HL 18-Feb-1884
Unclear Words Insufficient as Representation
A purchaser claimed to have entered into the contract in reliance on the truth of a misrepresentation by the seller. The plaintiff claimed damages for deceit through having been induced to buy shares in an iron company by false representations in a . .

Cited by:
See Also – Spice Girls Ltd v Aprilla World Service BV ChD 5-Apr-2000
It was possible through conduct to make representations which could induce the other party to enter into a contract. Here the contract was entered into at a time when one of the group had decided to leave, but in the period before the contract had . .
See also – Spice Girls Ltd v Aprilla World Service BV (No 3) ChD 20-Jul-2000
After trials and hearings as to the facts, as to damages, and as to costs, and where the parties had previously been shown draft judgments, and been invited to comment, the applicants sought to appeal, on the grounds that losses which had been . .
See Also – Spice Girls Limited v Aprilia World Service Bv CA 24-Jan-2002
When considering the statutory right to rescind for innocent misrepresentation, the representation should be interpreted to bear the meaning in which it would reasonably be understood by the claimant, the natural and ordinary meaning which would be . .

Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Leading Case

Updated: 19 January 2022; Ref: scu.135788

Winn v Bull: ChD 19 Nov 1877

By an agreement in writing, the defendant agreed with the plaintiff to take a lease of a house. The other details were included, but the agreement was ‘subject to the preparation and approval of a formal contract’. The plaintiff sought specific performance.
Held: The words ‘subject to the preparation and approval of a formal contract’ in a document prevented the document from being held to be a final agreement of which specific performance could be enforced.
Sir George Jessel MR said: ‘It comes, therefore, to this, that where you have a proposal or agreement made in writing expressed to be subject to a formal contract being prepared, it means what it says; it is subject to and is dependent upon a formal contract being prepared. When it is not expressly stated to be subject to a formal contract it becomes a question of construction, whether the parties intended that the terms agreed on should merely be put into form, or whether they should be subject to a new agreement the terms of which are not expressed in detail’

Sir George Jessel MR
(1877) 7 Ch D 29, 47 LJ Ch 139, 42 JP 230, 26 WR 230, (1877-1878) 7 ChD 29, [1877] UKLawRpCh 283
Commonlii
England and Wales
Cited by:
Followed – Rossdale v Denny CA 1921
The plaintiff offered in writing to purchase a leasehold house, but the letter was to take effect ‘on signing of a formal contract’ and ‘This offer is subject to a formal contract to embody such reasonable provisions as my solicitors may approve’. . .
Cited – Confetti Records (A Firm), Fundamental Records, Andrew Alcee v Warner Music UK Ltd (Trading As East West Records) ChD 23-May-2003
An agreement was made for the assignment of the copyright in a music track, but it remained ‘subject to contract’. The assignor later sought to resile from the assignment.
Held: It is standard practice in the music licensing business for a . .
Cited – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
Cited – Hutchison and others v B and DF Ltd ChD 3-Oct-2008
The claimants sought an order declaring that the defendant had a tenancy and requiring it to execute an appropriate lease. The landlords said that the tenant had a continuation lease under the 1954 renewal procedure, and the tenants said they had . .

Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Updated: 19 January 2022; Ref: scu.183731

Cowern v Nield: KBD 14 May 1912

The infant had sold goods to the plaintiff, but did not deliver them. The buyer sought repayment of the sums paid. The infant had fraudulently hidden his age.
Held: The fraud went to the heart of the contract since it concerned the ability to contract. The promises of an infant are not enforceable against that infant.
Philimore J said: ‘An infant is not necessarily liable on a contract merely because it is for his benefit. I am satisfied . . That the only contracts which, if for the infant’s benefit, are enforceable against him, are contracts relating to the infant’s person, such as contracts for necessaries, food, clothing and lodging, contracts of marriage, and contracts of apprenticeship and service. In my opinion a trading contract does not come within that category.’

Philimore J
[1912] 2 KB 419, [1911-1913] All ER Rep 425, 81 LJKB 865, 106 LT 984, 28 LTR 423, 56 Sol Jo 552, [1912] UKLawRpKQB 79
Commonlii
England and Wales

Contract, Children

Updated: 19 January 2022; Ref: scu.640526

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 consignor as against such assignee is divested. There is no distinction between a bill of lading iridorsed in blank, and an indorsement to a particular person.

[1787] EngR 193, (1787) 2 TR 63, (1787) 100 ER 35
Commonlii
England and Wales
Cited by:
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. . .
See Also – Lickbarrow v Mason 28-Nov-1794
. .
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: 19 January 2022; Ref: scu.368867

The Software Incubator Ltd v Computer Associates UK Ltd: QBD 1 Jul 2016

Claim for damages for repudiatory breach of agency agreement,and for damages for termination of sales agency agreement. The defendant argued that the 1993 Regulations did not apply since the supply of computer software under the contract was not a supply of goods as required by the Regulations.
As to whether the software was goods: ‘The Product is an application as opposed, simply, to data. More particularly, in this case, it is a program designed to give effect to the automatic deployment of or changes to other applications across a large computer network. Like other software it is itself intangible in the sense that it does not exist in three-dimensions and cannot be physically handled or transported. But its effects can be observed as with, for example, gas or electricity.
In common parlance, and without wishing to state the obvious, I believe that as a piece of sophisticated, commercial non-bespoke software, it would be regarded, at the very least as a ‘product’. It would not be regarded, nor is it, a ‘service’. Like other pieces of software, it is ‘commodified’ i.e. it is capable of transfer and commercial exploitation. Moreover, so far as ‘tangibility’ is concerned, while software itself is intangible and its method of delivery may be electronic, it can only operate in a tangible environment i.e. (a) being loaded onto a hard disk or server or some other permanent storage system, somewhere, and (b) when it runs, it will be run on a computer, tablet, reader mobile phone (depending on the software) and so on. In that sense it is akin to digital music. As Professor Clark of University College Dublin put it in an article called ‘The Legal Status of Software’ in March 2016, ‘Digital content . . possesses a functional equivalence to goods.’
Indeed, for the purposes of the Agreement, the Product is treated very much as tangible goods. Thus TSI was engaged to promote, market and sell it – there was clearly no difficulty foreseen in referring to sales and commission on those sales. Moreover, and although hardly determinative, the purported release of CA by TSI of any claims under the Regulations set out in Clause 10.2, rather suggests, objectively, that absent such a release, the Regulations would have applied.
While there is copyright in the Product owned by CA, it would be wrong to describe the Product as simply intellectual property in my view. Rather, the property rights associated with it are simply intellectual as opposed to real or personal. In that sense it is like other products, for example, music downloaded on MP3 files or books downloaded in electronically readable form. The fact that there are detailed provisions as to the use of the Product and the terms of the licence (see, for example, the master agreement made between CA and Tesco at D5/p3839 – ‘the Tesco Agreement’) does not alter this. In the case of the Product, the agreements with CA usually provide for the grant of a perpetual licence. Although it is possible to supply it on a lesser licence, it was not suggested to me by CA that perpetual licences were not the usual commercial aim and indeed Mr Dainty said that they were the most popular. I proceed on that basis.
Finally, the Product can be delivered either on tangible media or electronically. See in this regard, for example, paragraph 11 (f) of the Tesco Agreement. These days I would suggest that the essential characteristics of a piece of software like the Product cannot depend on its mode of delivery any more than the nature of tangible goods depends on whether they are transported by rail, sea or air.
Working from first principles, therefore, I would consider that the Product would today, be regarded as ‘goods’ albeit that it is not tangible.

Waksman QC HHJ
[2016] EWHC 1587 (QB), [2017] Bus LR 245
Bailii
Commercial Agents (Council Directive) Regulations 1993 17(2)
England and Wales

Contract, Agency

Updated: 18 January 2022; Ref: scu.566574

Whaley Bridge Calico Printing Co v Green: QBD 12 Jan 1879

A director of a company who negotiated a purchase by the company for pounds 20,000 of a property was promised but did not receive pounds 3,000 out of the pounds 20,000 from the vendor.
Held: The contract was to be treated as having been entered into for the benefit of the purchaser without proof of fraud. The vendor was liable to the company for the pounds 3,000, because the company was entitled to treat the contract between the vendor and the director as made by the director on behalf of the company. Bowen J held that it ‘could not be successfully denied’ that if the pounds 3,000 had been paid to the director he would have held it on trust for the company.

Bowen J
(1879) 5 QBD 109, [1879] UKLawRpKQB 4
Commonlii
England and Wales

Equity, Contract

Updated: 18 January 2022; Ref: scu.551510

Roberts v Gray: CA 19 Dec 1912

Child’s Training Contract was a Necessity

The infant had entered into a contract to go on a tour as a professional billiard player.
Held: The contract could be construed as one for necessaries, because it was for teaching, instruction and employment.
Liability continued despite the fact that it was in part executory.
Hamilton LJ was: ‘unable to appreciate why a contract which is in itself binding, because it is a contract for necessaries not qualified by unreasonable terms, can cease to be binding merely because executory . . If the contract is binding at all, it must be binding for all such remedies as are appropriate to the breach of it.’

Cozens-Hardy MR L, Hamilton LJ
[1913] 1 KB 520, [1911-13] All ER Rep 870, 82 LJKB 362, 108 LT 232, 29 TLR 149, 57 Sol Jo 143, [1912] UKLawRpKQB 181
Commonlii
England and Wales

Contract, Children

Updated: 18 January 2022; Ref: scu.640528

Kaufman v Gerson: CA 1 Mar 1904

An English Court will not enforce a foreign contract, though valid by the law of the country in which it was made, in cases where the Court deems the contract to be in contravention of some essential principle of justice or morality.
The plaintiff, who was domiciled in a foreign country, sued on a contract made in that country between himself and the defendant, a woman likewise domiciled there, whom he had coerced into signing the contract by threats of a criminal prosecution against her husband for an offence which he had committed, the consideration for the contract being that the plaintiff would not prosecute the husband. Evidence was given to the effect that the contract was not invalid by the law of the country in which it was made.
Held: Even assuming that to be so, the Court would not enforce a contract so procured.

The existence of an illegal agreement introduces a quality of impropriety into a transaction induced thereby so as to render it voidable for duress.

[1904] 1 KB 591, [1904] UKLawRpKQB 40
Commonlii
England and Wales

Contract

Updated: 18 January 2022; Ref: scu.372856

Dixon v Monkland Canal Company: 1831

Recovery of money paid in error of law.

Lord Brougham LC
(1831) 5 Wilson and Shaw 445
England and Wales
Cited by:
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 January 2022; Ref: scu.236537

FSL-9 Pte Ltd and Another v Norwegian Hull Club: ComC 10 May 2016

The court was asked whether the claimant owners can apply to the court to require the defendant PandI club to increase the level of security available under a letter of undertaking issued by the club to the owners on 31 October 2013. In summary, the owners say that the use of the words ‘liberty to apply’ in the LOU means that the court has power to make such a requirement. The club says that the court has no such power.

Blair J
[2016] EWHC 1091 (Comm)
Bailii
England and Wales

Transport, Contract

Updated: 17 January 2022; Ref: scu.565731

Zinda v Ark School: CA 28 Jul 2015

The parties had settled an earlier employment dispute on the basis that the employer would not make an statement adverse to the claimant. He said that their reporting him to the Independent Safeguarding Authority was a breach of that agreement leaving him not bound by the compromise.

Bean LJ
[2015] EWCA Civ 1596
Bailii
Unfair Contract Terms Act 1977
England and Wales

Contract, Employment

Updated: 17 January 2022; Ref: scu.565641

Autoweld Systems Ltd v Kito Enterprises Llc: CA 17 Dec 2010

In the civil sphere a claim for security for costs is invariably made in a costs-follow-the-event regime. Black LJ stated: ‘it must be borne in mind that the design of the rules is to protect a defendant (or a claimant placed in a similar position by a counterclaim) who is forced into litigation at the election of someone else against adverse costs consequences of that litigation’

Sedley, Rimer, Black LLJ
[2010] EWCA Civ 1469, [2011] TCLR 1
Bailii
England and Wales
Cited by:
Cited – MG v AR FD 16-Nov-2021
Family Case: Costs Security depends on Case Merits
Application for security for costs in family cases.
Held: In contrast to civil cases generally, in a family case the merits of the application and the strength of the defence necessarily have to be carefully considered. It is only by . .
Cited – Tulip Trading Ltd v Bitcoin Association for BSV and Others ChD 5-Jan-2022
Security required for Bitcoin claim
Two applications for security for costs. The claimant claimed against fifteen overseas residents requiring a re-write of cryotocurrency systems so that he could recover sums he said were due to him in respect of Bitcoin assets which he said have . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 17 January 2022; Ref: scu.427267

Fried Krupp Aktiengessellschaft v Orconera Iron Ore Co Ltd: HL 31 Jan 1919

The respondent company was incorporated in England in 1873, the entire share capital being contributed by four ironmasters, one of them now represented by the appellant company. As part of the arrangement made at that time, contracts were entered into by the respondent to supply for a term of ninety-nine years specified amounts of ore at a specified rate to the promoters. The contract provided for its suspension during any period ‘in which an unavoidable cause shall exist preventing the company from delivering.’ The appellant claimed that by this clause the contract though suspended was preserved. Held that on the outbreak of war the contract was dissolved, not suspended.
Eitel, Bieber, and Company v. Rio Tinto Company, [1918] A.C. 260, 50 S.L.R. 784, applied.
Decision of the Court of Appeal, 118 L.T.R. 237, affirmed.

Lord Chancellor (Smith), Lords Buckmaster, Finlay, Dunedin, Atkinson, and Shaw
[1919] UKHL 638, 56 SLR 638
Bailii
England and Wales

Contract

Updated: 17 January 2022; Ref: scu.632767

Vyse v Foster: HL 1874

Where a person already has contractual relations with another, his assumption of a fiduciary role in relation to that other will not necessarily require him to abandon his own contractual interests.

(1874-5) LR 7 HL 318, (1872) LR 8 LRCh App 309
England and Wales
Citing:
Appeal from – Vyse v Foster CA 1872
James LJ: ‘This Court is not a Court of penal jurisdiction. It compels restitution of property unconscientiously withheld; it gives full compensation for any loss or damage through failure of some equitable duty; but it has no power of punishing any . .

Cited by:
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Revenue and Customs v Joint Administrators of Lehman Brothers International (Europe) SC 13-Mar-2019
The Court was asked whether interest payable under rule 14.23(7) of the Insolvency Rules 2016 is ‘yearly interest’ within the meaning of section 874 of the Income Tax Act 2007. If so, the administrators must deduct income tax before paying interest . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 17 January 2022; Ref: scu.230280

William Mackenzie And Others v Knight Bruce-Dr Lushington; Mrs Janet Orr Or Gordon, Widow, And Others (16 D, B, And M, 311): 26 Mar 1839

A party lending a large sum over an estate possessed in fee simple stipulated to receive as part security, in addition to a bond and disposition in security in his favour, assignations to certain incumbrances of a prior date. The incumbrances were paid by the trustee and agent of the borrower, but it did not appear with whose money. In a question between a party holding an incumbrance intervening between the assigned incumbrances and the bond and disposition in security, Held that the presumption was, that the prior incumbrancers were paid with the money of the assignee ; and, as there was no evidence to the contrary, that (affirming the judgment of the Court of Session) the assignment conferred a preference over the intermediate incumbrancer

[1839] EngR 583, [1839] Macl and R 117, (1839) 9 ER 42
Commonlii
Scotland

Contract

Updated: 17 January 2022; Ref: scu.311115

Redrow Homes Ltd v Martin Dawn (Leckhampton) Ltd: ChD 13 Apr 2016

The claimant Redrow sought an order for specific performance of the defendant’s contractual obligations under a legal charge between the defendant (as chargee) and the claimant (as chargor) to execute an agreement under section 106 of the Town and Country Planning Act 1990 to be entered into between Redrow and Tewkesbury Borough Council as the local planning authority for a development site at Leckhampton.

Hidge QC HHJ
[2016] EWHC 934 (Ch)
Bailii
England and Wales

Contract

Updated: 16 January 2022; Ref: scu.564147

Connolly Ltd v Bellway Homes Ltd: ChD 23 Apr 2007

The claimant sought rectification of a contract for the sale of land, or damages in deceit. They said that it had been agreed that the price would be adjusted to reflect any change in values. The formula inserted made no great sense mathematically, and mutiual mistake was asserted.
Held: The contract did reflect the intention of Bellway, but any mistake was not mutual. Furthermore the court could not establish exactly what formula would have achieved the aims of the claimant, and ‘This is in truth a case where one party has subsequently come to appreciate that it should not have agreed to the inclusion of a particular term. But that is not the sort of error which enables a court to rectify the agreement. The court cannot remake the parties’ bargain just because it has turned out to be significantly to the detriment of one party, and significantly to the benefit of the other. ‘
However, the base value, which was the source of the problem had been suggested by the defendants and was so wide of the mark as a base cost as to allow an inference of dishonesty, and its proponent did not believe it represented the intended base costs. Judgment for the claimant accordingly.

[2007] EWHC 895 (Ch)
Bailii
England and Wales
Citing:
Cited – Thomas Bates and Sons Ltd v Wyndham’s Lingerie Ltd CA 21-Nov-1980
An application was made for rectification of a rent review clause in a lease. When executing the lease, the tenants’ officer, Mr Avon, noticed that the rent review clause in the lease drafted by the landlords was defective in not including a . .
Cited – Rowallan Group Ltd v Edgehill Portfolio No 1 Ltd ChD 19-Jan-2007
When striking out a claim for rectification of a contract on the basis of a unilateral mistake: ‘the remedy of rectification for unilateral mistake is a drastic remedy, for it has the result of imposing on the defendant to the claim a contract which . .
Cited – George Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
Cited – Swainland Builders Ltd v Freehold Properties Ltd CA 2002
Swainland Builders Ltd owned the freehold of a block of flats. It had granted 99-year leases at ground rents of all the flats except numbers 11 and 18. It had intended to sell the block subject to the retention of flats 11 and 18 which it initially . .
Cited – Rowallan Group Ltd v Edgehill Portfolio No 1 Ltd ChD 19-Jan-2007
When striking out a claim for rectification of a contract on the basis of a unilateral mistake: ‘the remedy of rectification for unilateral mistake is a drastic remedy, for it has the result of imposing on the defendant to the claim a contract which . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 15 January 2022; Ref: scu.251538

Anderson Antiques (UK) Ltd v Anderson Wharf (Hull) Ltd and Another: ChD 23 May 2007

The claimants owned land against which they said, the defendant had wrongfully registered notices. They sought removal of the notices, damages, and an injunction to prevent further notices being registered. The first defendant asserted an oral agreement for the purchase of the site. The claimant sought a strike out of the defence.
Held: The balance between the doctrine of proprietary estoppel and section 2 of the 1989 Act is not yet clear. The court doubted that the defendant would be able to establish an estoppel to get around the Act. The evidence that the defendant believed that a contract had been created was not credible having istelf taken part in the tendering process which stood in place of the agreement it now asserted. The defence was struck out.

Briggs J
[2007] EWHC 2086 (Ch)
Bailii
Land Registration Act 2002 77, Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Citing:
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe CA 31-Jul-2006
The defendants orally agreed to sell the claimant a block of flats for andpound;12 million if he first obtained planning permission for it on terms as to a sharing of subsequent development profits. The claimant spent over andpound;100,000 and . .
Cited – MCA Records Inc and Another v Charly Records Ltd and others (No 5) CA 5-Oct-2001
The court discussed the personal liability of a director for torts committed by his company: ‘i) a director will not be treated as liable with the company as a joint tortfeasor if he does no more than carry out his constitutional role in the . .

Lists of cited by and citing cases may be incomplete.

Registered Land, Contract, Estoppel

Updated: 15 January 2022; Ref: scu.262175

Lipkin Gorman (a Firm) v Karpnale Ltd: HL 6 Jun 1991

The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were worthless, and that therefore no consideration had been given.
Held: The casino’s defence succeeded. The defence against a restitutionary claim that the defendant had altered his position was available to a person who had changed his position actin in good faith so that it would be inequitable to require him to make restitution.
Lord Goff said: ‘where an innocent defendant’s position is so changed that he will suffer injustice if called upon to repay or to repay in full, the injustice of requiring him so to repay outweighs the injustice of denying the plaintiff restitution. If the plaintiff pays money to the defendant under a mistake of fact, and the defendant then, acting in good faith, pays the money or part of it to charity, it is unjust to require the defendant to make restitution to the extent that he has so changed his position. Likewise, on facts such as those in the present case, if a thief steals my money and pays it to a third party who gives it away to charity, that third party should have a good defence to an action for money had and received. In other words, bona fide change of position should of itself be a good defence in such cases as these. The principle is widely recognised throughout the common law world.’ and
‘It is well established that a legal owner is entitled to trace his property into its product, provided that the latter is indeed identifiable as the product of his property . . Of course, ‘tracing’ or ‘following’ property into its product involves a decision by the owner of the original property to assert his title to the product in place of his original property.’
Lord Templeman discussed the value of chips issued by a casino to a gambler: ‘Thus within the club chips were treated as currency and on leaving the club Cass could exchange chips for money whenever he chose to do so. The chips themselves were worthless and at all times remained the property of the club but the club would redeem them for cash.’
Lord Bridge of Harwich said: ‘I agree with my noble and learned friend, Lord Goff of Chieveley, that it is right for English law to recognise that a claim to restitution, based on the unjust enrichment of the defendant, may be met by the defence that the defendant has changed his position in good faith. I equally agree that in expressly acknowledging the availability of the defence for the first time it would be unwise to attempt to define its scope in abstract terms, but better to allow the law on the subject to develop on a case by case basis.’

Lord Templeman, Lord Bridge, Lord Ackner and Lord Griffiths, Lord Goff
[1991] 2 AC 548, [1988] UKHL 12, [1991] 3 WLR 10
Bailii
Gaming Act 1845 18
England and Wales
Citing:
At CA – Lipkin Gorman v Karpnale Ltd CA 1989
A partner in a firm of solicitors stole money from them, and spent it gambling with the defendants. The firm sued also their banker, who had been held to be aware of the defaulting partner’s weaknesses and activities.
Held: The solicitors . .
Cited – Miller v Race 1758
A bank note made out to bearer and payable on demand was to be treated as currency. Conversion did not lie because there is no property in currency. Lord Mansfield said: ‘So, in the case of money stolen, the true owner cannot recover it, after it . .
Cited – Clarke v Shee and Johnson 1774
A servant diverted money from customers of his employer and bought lottery tickets. Lotteries were illegal and void under the Lottery Act 1772. The master recovered from the defendants who were the holders of the lottery and had innocently received . .
Cited – Aubert v Walsh 1810
The parties had wagered on 15 September 1808 that the war with France would end before 1 July 1810. One party to the wager withdrew in October 1808, and sought recovery of his stake.
Held: He was entitled to its return. Lord Mansfield said: . .
Cited – Hudson v Robinson 1816
A partner in a firm fraudulently contracted in the names of the partnership to sell goods to the plaintiff. He received the purchase price from the plaintiff and then did not delivery the goods.
Held: The plaintiff buyer could recover the . .
Cited – Orton v Butler 3-May-1822
A count stating that defendant had and received to the use of the plaintiff a certain sum of money, to be paid by the defendant to the plaintiff upon request ; and the non-payment upon request, and that the defendant converted and disposed thereof . .
Cited – Foster v Green 1862
Cash may not be subject to a claim for conversion. . .
Cited – Bainbrigge v Browne ChD 19-May-1881
An impoverished father had prevailed upon his inexperienced children to charge their reversionary interests under their parents’ marriage settlement to pay his mortgage debts. Undue influence was claimed.
Held: The defendants who were not . .
Cited – Shoolbred v Roberts 1899
A bankrupt won andpound;100 in a billiards game. The stake was given to stakeholders.
Held: The bankrupt’s trustee could recover the bankrupt’s own stake from the stakeholder but not the stake of the loser. Phillimore J said that: ‘I am bound . .
Cited – Black v S Freeman and Co 1910
(High Court of Australia) A thief stole money from the husband, and gave it to the victim’s wife. The victim sought to recover it from her.
Held: The money was repayable. Once stolen it was subject to a trust in favour of the victim wich could . .
At first instance – Lipkin Gorman (a Firm) v Karpnale Ltd 1987
A partner in the plaintiff firm of solicitors stole money from them and spent it gambling in the defendant’s casino. The plaintiff cought to recover the money from the defendant, saying that as a gambling debt, no consideration had been given. They . .
Cited – Banque Belge pour L’Etranger v Hambrouck 1921
Money was stolen by a thief. He then paid it by way of a gift into the bank account of the woman with whom he was living. The victim claimed its return from the woman and her bankers. GBP315 of the balance in her account represented part of the . .
Cited – Transvaal and Delagoa Bay Investment Co Ltd v Atkinson 1944
Money stolen from a company was paid by the thief into a bank account of his wife. All the money was expended, mostly by being returned to the husband. . .
Cited – Taylor and Another v Sir Thomas Plumer KBD 10-Feb-1815
Sir Thomas Plumer gave a bank draft to a stockbroker for the purpose of buying exchequer bills, and the stockbroker instead used the draft for buying American securities and doubloons for his own purposes.
Held: Sir Thomas was able to trace . .
Cited – Marsh v Keating HL 1834
Keating owned 12,000 pounds interest or share in joint stock reduced 3 per cent annuities, standing to her with the Bank of England, where the accounts were entered in the form of debtor and creditor accounts in the ledgers of the bank. Under what . .
Cited – Bolton Partners v Lambert 1889
The equitabe remedy of ratification cannot be relied upon so as to render an innocent recipient a wrongdoer. Cotton LJ said ‘an act lawful at the time of its performance [cannot] be rendered unlawful, by the application of the doctrine of . .
Cited – CHT Ltd v Ward 1965
Davies LJ discussed whether a casino gave good consideration when supplying gambling chips to customers: ‘People do not game in order to win chips; they game in order to win money. The chips are not money or money’s worth; they are mere counters or . .
Cited – Ministry of Health v Simpson; In re Diplock dec HL 1950
The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an . .
Cited – Commercial Banking Co of Sydney Ltd v Mann PC 1961
The respondent Mann practiced as a solicitor in partnership with Richardson. They kept a ‘trust account’ in the partnership name with the Australian and New Zealand Bank in Sydney (‘ANZ’). Under the partnership agreement, all assets belonged to . .
Cited – Moses v Macferlan KBD 1760
An action for money had and received will only lie where it is inequitable for the defendant to retain the money. The defendant in an action for money had and received ‘can be liable no further than the money he has received’. . .
Cited – London and River Plate Bank Ltd v Bank of Liverpool Ltd 1896
Mathew J said: ‘when a bill becomes due and is presented for payment the holder ought to know at once whether the bill is going to be paid or not’. And ‘it is manifest that the position of a man of business may be most seriously compromised, even by . .
Cited – Durrant v Ecclesiastical Commissioners for England and Wales 1880
An action would lie against a recipient of money, paid under a mistake if fact, who (without notice of the mistake) had paid on the money in good faith as a principal to a third party from whom the recipient could not recover. The court rejected the . .
Cited – Price v Neal 1762
Money paid under a forged bill may be irrecoverable. . .
Cited – Golightly v Reynolds 1774
The identity of funds was traced through different hands and shops. . .
Cited – R E Jones Ltd v Waring and Gillow Ltd HL 1926
In the case of a confidence man whose plan might have been frustrated by an unexpected contact between the two innocent parties; the House of Lords were divided as to whether that equivocal contact amounted to a representation. Viscount Cave LC . .
Cited – Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd HL 15-Jun-1942
A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war.
Held: Lord Wright restated . .
Cited – Avon County Council v Howlett CA 1983
The plaintiff, through its computerised system for the payment of wages, had overpaid the defendant to the extent of andpound;1,007. He had suffered an injury and been absent from work. The Council sought to recover the overpayment on the grounds . .
Cited – Union Bank of Australia Ltd v McClintock PC 1922
Where a partner obtains money by drawing on a partnership bank account without authority, he alone and not the partnership obtains legal title to the money so obtained. . .
Cited – Bute (Marquess) v Barclays Bank Ltd 1955
McGaw was the manager of three farms belonging to the plaintiff. He applied to the Department of Agriculture for Scotland for farm subsidies. After he left, the Department sent him three warrants in respect of the subsidies. The warrants were made . .

Cited by:
Cited – Rose v AIB Group (UK) plc and Another ChD 9-Jun-2003
The bank had received and paid substantial sums from the company before the petition for insolvency had been presented, and had discharged the director’s charge on his house. The liquidator sought restitution under the Act. The bank replied that it . .
Cited – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
Cited – Commerzbank Ag v Price-Jones CA 21-Nov-2003
The respondent had received a bonus of andpound;250,000. His employers wrote to him in error increasing it. He later chose to stay rather than take redundancy because he now expected the full amount. He resisted an order for restitution. The . .
Cited – Dextra Bank and Trust Company Limited v Bank of Jamaica PC 26-Nov-2001
(Jamaica) A cheque was drawn which was used as part a complex financial arrangement intended to purchase foreign currency to work around Jamaica’s foreign exchange control regulations. It was asserted that by presenting the cheque used in the . .
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – AbouRahmah and Another v Abacha and others QBD 28-Nov-2005
Claims were made as to an alleged fraud by some of the respondents. . .
Cited – Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
Cited – Sempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
Cited – Grosvenor Casinos Ltd v National Bank of Abu Dhabi ComC 17-Mar-2008
Banker’s reference no guarantee
An Arab businessman lost pounds 18m at the claimant casino, and wrote scrip cheques against his account with the defendant. The claimant obtained judgment, but being unable to enforce that judgment pursued his bank. The club had used a system where . .
Cited – Kommune and Another v DEPFA Acs Bank ComC 4-Sep-2009
Local authorities in Denmark sought to recover sums paid to the defendant banks for swap trading, saying that the payments had been outwith their powers. . .
Cited – Bankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
Cited – Jeremy D Stone Consultants Ltd and Another v National Westminster Bank Plc and Another ChD 11-Feb-2013
The claimants asserted an equitable claim against funds held by the defendant bank in the name of a company owned by another defendant who they said defrauded them through a Ponzi investment scheme.
Held: The claim failed. On the evidence, the . .
Cited – Scottish Equitable v Derby 16-Mar-2001
The claimant company sought repayment of a sum paid in error to the defendant. She replied that she had changed her position as a result of and relying upon the payment.
Held: The court gave as ‘the most obvious example’ of the kind of . .
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 . .
Cited – In re Hampton Capital Ltd ChD 9-Jul-2015
The companyy’s joint administrator requested orders under section 238 as against various payments made by the Company and for payment of the equivalent sums. . .
Cited – Investment Trust Companies v Revenue and Customs CA 12-Feb-2015
The claimants having sought repayment of overpaid VAT, they now complained of sums deducted by the Revenue.
Held: The Court allowed the Lead Claimants’ appeal, to the extent of the notional pounds 75 paid in respect of dead periods, and . .
Cited – John Ruskin College v Harley QBD 26-Nov-2013
A sum had been paid into court in 1997. Other sums were paid out, but this sum was left against costs liability. It was discovered much laterand paid out to the claimant. The former defendant now said that it had been paid out twice, and alleged . .
Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .

Lists of cited by and citing cases may be incomplete.

Equity, Contract

Leading Case

Updated: 15 January 2022; Ref: scu.184533

Bentray Investments Limited v Venner Time Switches Limited: ChD 1985

Stuart-Smith J discussed the circumstances under which a deed was said to have been delivered in escrow: ‘the passages to which I have referred seem to establish that the intention of the maker must be made clear, at least where the deed is physically handed to the other party. Commonsense supports that view. But even if this is not so, the court is entitled to judge the maker’s true intention in the light of what he did and said at the time, and would be unlikely to hold that he had an intention to deliver a deed in escrow when all his words and actions pointed to the contrary conclusion. [Counsel] submits that where, as here, a signed and sealed deed is handed first to the defendant’s solicitors and then by him to the plaintiff’s solicitors, the onus is upon the defendant to establish that it was a delivery in escrow. In my judgment, this is correct, but I do not propose to decide this case on the onus of proof.’

Stuart-Smith J
[1985] 1 EGLR 39
England and Wales
Cited by:
Cited – Bank of Scotland Plc v King and others ChD 23-Nov-2007
The parties contracted to buy and sell a property. The lending bank sought possession, saying that it had advanced the money which had been spent acquirng the property. The defendant purchasers said that completion had not taken place, the full . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Leading Case

Updated: 15 January 2022; Ref: scu.261515