Category: Contract

Khanty-Mansiysk Recoveries Ltd v Forsters Llp: ComC 22 Mar 2016

This Judgment is concerned primarily with the determination of what was originally an application by the Claimant (‘KMR’) for summary judgment with regard to an important threshold issue viz whether the Defendant (‘Forsters’) is entitled to rely on the terms of a Settlement Agreement dated 3 December 2012 (the ‘Settlement Agreement’) by way of complete defence in these proceedings. I

Sir Nernard Eder
[2016] EWHC 522 (Comm)
Bailii
England and Wales

Contract

Updated: 14 January 2022; Ref: scu.562507

Messrs Hodgson and Donaldson, Merchants, Londan v Thomas Bushby of Ardwell: HL 12 Jul 1783

Paton Bill – Notice of Dishonour.- Where the holder of a dishonoured bill makes diligent inquiry at the former residence of the holder and indorser, for the purpose of intimating the dishonour, but cannot find him, and does all in his power to intimate dishonour to him, the recourse is not lost against him.

[1783] UKHL 2 – Paton – 607, (1783) 2 Paton 607
Bailii
Scotland

Contract

Updated: 13 January 2022; Ref: scu.562105

IG Index Ltd v Ehrentreu: QBD 24 Nov 2015

The claimant sought payment on full of the sums said to be due after the defendant’s spread bet on a share price went disastrously wrong. He said that the claimant had failed to close out his position as required under the contract.

Supperstone J
[2015] EWHC 3390 (QB)
Bailii
England and Wales

Contract

Updated: 13 January 2022; Ref: scu.555025

IG Index Plc v Leung-Cheun and Others: QBD 17 Aug 2011

The claimants sought payment from the defendants under spread bets placed by them. The defendants counterclaimed saying that they had suffered greater losses after the claimants had failed as required to close out open bets.
Held: The claim succeeded and the counterclaims first on margin and secondly on deposit failed.

Mackie QC J
[2011] EWHC 2212 (QB)
Bailii
England and Wales
Citing:
Cited – Galoo Ltd and Others v Bright Grahame Murray CA 21-Dec-1993
It is for the Court to decide whether the breach of duty was the cause of a loss or simply the occasion for it by the application of common sense. A breach of contract, to found recovery, must be shown to have been ‘an ‘effective’ or ‘dominant’ . .
Cited – Spreadex Ltd v Sekhon ChD 23-May-2008
The claimant spread betting company sought payment of sums due for bets from the defendant who said they owed him money under the 2000 Act.
Held: Morgan J observed as to the interpretation of the contract: ‘Accordingly, in my judgment, the . .
Cited – Spreadex Ltd v Dr Vijay Ram Battu CA 11-Jul-2005
The appellant traded in financial indices through the respondent spread betting company. The company took two forms of security, an initial payment by way of security, and a sum covering any current trading positions. The trader made losses, and 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 . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 13 January 2022; Ref: scu.443322

Molton v Camroux: CEC 2 Jan 1848

The buyer of annuities from a company was of unsound mind. The company had acted in its normal course of business.
Held: The court asked ‘whether the mere fact of unsoundness of mind, which was not apparent, is sufficient to vacate a fair contract executed by the grantee, by payment of the consideration money, and intended bona fide to be executed by the grantor, by payment of the annuity.’ and answered: ‘the modern cases show, that when that state of mind was unknown to the other contracting party, and no advantage was taken of the lunatic, the defence cannot prevail, especially where the contract is not merely executory, but executed in whole or in part, and the parties cannot be restored altogether to their original position.’

(1848) 4 Exch 17
Citing:
Appeal from – Molton v Camroux CExC 1848
A person of unsound mind bought an annuity from a life assurance society. The society granted the annuities in the ordinary course of its business. The contracts were challenged.
Held: The court referred to the argument that a plea of insanity . .

Cited by:
Cited – Archer v Cutler 1980
(New Zealand) The purchaser of land sought specific performance of the contract. The vendor and purchaser had been neighbours. The neighbour needed part of the vendor’s land for access.
Held: A contract made by a person of insufficient mental . .
Cited – Hart v O’Connor PC 22-Apr-1985
Effect of insanity on making of contract
(New Zealand) The parties disputed the effect in law of an agreement for the sale of land. The transferor had proved not to be of sound mind.
Held: The validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by . .
Cited – McLaughlin v Daily Telegraph Newspaper Co. Ltd 15-Jul-1904
(High Court of Australia) The court considered the law on the effect of mental incapacity on a contract in the two cases Imperial Loan, and Molton v Camroux: ‘The principle of the decision seems, however, to be the same in both cases, which, in our . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 13 January 2022; Ref: scu.252447

Huyton Sa v Distribuidora Internacional De Productos Agricolas Sa De Cv: CA 24 Jul 2003

[2003] EWCA Civ 1104
Bailii
England and Wales
Citing:
Cited – Thomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 13 January 2022; Ref: scu.185300

John M’Dowal, Merchant In Glasgow, and Alexander Gray, Ws Edinburgh v Annand and Colhoun’s Assignees, Merchants: HL 26 Feb 1776

Guarantee – Relief – Arrestment – Trust – Proof – Oath of Bankrupt.- Two parties became guarantee for a company, on the latter depositing bills due to them in their hands as a security. This was done, and a list of the bills drawn out and handed over, and a receipt granted by the guarantees. They were immediately delivered to one of the partners of the company, who discounted and used some of them for company purposes. Held, on failure of the company, that the guarantees, though they had thus parted with possession, were to be preferred to an arresting creditor. The oath of one of the bankrupts of the company allowed to be taken to prove that he had the bills returned to him, not for behoof of the company, but in trust for the guarantees.

[1776] UKHL 2 – Paton – 387
Bailii
Scotland

Contract

Updated: 13 January 2022; Ref: scu.561839

The Magistrates and Town Council of The Burgh of Rutherglen v James Cullen, Wright At Whitehills, James Weir of Hill, and Samuel Steil of Town Head: HL 12 Mar 1773

Contract – Error in Essentials.- A contract specified for the building of a bridge from Rutherglen across the river Clyde, and enumerated the height of abutments, and dimensions otherwise, and referred to a plan. But omitted to mention any thing about the depth of the foundation below the bed of the river, which, from the nature of the bed, turned out to require a considerable depth of foundation, strongly piled. Held, that there was no binding contract on the builder to build, this having been omitted, and that he was free. Also held, as to the abutments built on the level of the bed of the river, that he was entitled to take away the materials so erected and built-he repaying to his employers the partial payments made towards the contract price.

[1773] UKHL 2 – Paton – 305, (1773) 2 Paton 305
Bailii
Scotland

Contract

Updated: 13 January 2022; Ref: scu.561821

Robert Alexander, Esq v James Montgomery and Co: HL 19 Feb 1773

Sale – Locus Penitentiae.- Circumstances in which written correspondence, in regard to a sale of coal, was not held to amount to a final and conclusive agreement, the parties having stipulated that their agreement was to be a written agreement, and, until this was executed, either might resile; affirming the judgment of the Court of Session.

[1773] UKHL 2 – Paton – 300, (1773) 2 Paton 300
Bailii

Scotland, Contract

Updated: 13 January 2022; Ref: scu.561816

Alexander M’Clatchie of London v Mary Brand or Burnet, Widow of William Burnet, Merchant In Dumfries: HL 22 Mar 1773

Deed – Incapacity – Proof – Testamentany Witness.- Circumstances held insufficient to reduce a deed on the head of fraud and facility. Also held, reversing the judgment of the Court of Session, that the writer who executed the deed challenged, and who was an instrumentary witness, is not, when adduced to prove the capacity of the maker of the deed at the time he executed it, an incompetent witness. Nor is he inadmissible on the ground of partial counsel, from having written into the Edinburgh attorney with instructions to defend this cause.

[1773] UKHL 2 – Paton – 312, (1773) 2 Paton 312
Bailii
Scotland

Contract

Updated: 13 January 2022; Ref: scu.561818

James Dewar, Esq of Vogrie; John Macculloch, The Elder; and John Macculloch, The Younger of Barholm v Jean Macculloch, Eldest Daughter of The Said John Macculloch of Barholm, The Elder: HL 18 Jan 1772

Entail – Revocation – Contract and Discharge. – John Macculloch executed an entail in favour of himself in liferent, and John Macculloch, the younger, his eldest son, and the heirs-male of his body; remainder to the heirs-female of his body; and remainder to other heirs-male named. The entail was recorded, and charter and infeftment followed upon it. Some time thereafter, he, with consent of his son, revoked this entail and sold the estate. Held that the father and son could not, by their joint act and deed of revocation, recall and rescind the entail, or sell the estate of Barholm.

[1772] UKHL 6 – Paton – 785, (1772) 6 Paton 785
Bailii
Scotland

Contract

Updated: 13 January 2022; Ref: scu.561689

Irvine of Drum, Esq, and Guardians v George, Earl of Aberdeen, Duff of Coulter: HL 2 Apr 1770

Decret of Sale – Exclusive Title.-
When a decree of sale is impugned, as having been fraudulently obtained, held that production of such decree is not a sufficient title to exclude exhibition of other writs specially called for, as the grounds and warrants on which it proceeded, nor a bar to the action raised for restoration of an entailed estate sold for the entailer’s debts; reversing the judgment of the Court of Session.

[1770] UKHL 2 – Paton – 249
Bailii
Scotland

Contract

Updated: 13 January 2022; Ref: scu.561677

William Gray and William Stuart, Merchants, Perth v Alexander Ogilvie, Merchant, Leith: HL 2 Mar 1770

Sale.-
A bargain was entered into for the sale of 100 hogsheads of Philadelphia lintseed, of Messrs. Alexander’s Importation, for which andpound;4. 4s. per hogshead was agreed to be paid. Instead of this, the seller purchased himself Virginia lintseed of inferior quality, at andpound;3. 10s. per hogshead, and sent it to the buyer as the Philadelphia lintseed which he had bargained for. Held, reversing the judgment of the Court of Session, that the buyer was not liable for the price.

[1770] UKHL 2 – Paton – 215
Bailii
Scotland

Contract

Updated: 13 January 2022; Ref: scu.561676

Oresundsvarvet AB v Marcos Diamantis Lemos (The ‘Angelic Star’): CA 1988

As part of a contract for ship-building, a delivery credit was made available to the purchaser as an ‘option’, in default of exercise of which the full price was payable in cash. The option was taken. The loan was to be repaid by bills of exchange accepted by the vessel’s purchaser, and was to be secured by mortgage of the vessel. On default, the contract provided for repayment of the loan and enforcement of the security. The vessel was duly arrested and sold, and her proceeds credited against the accelerated obligation to repay the loan.
Held: There was nothing penal about providing for payment of the capital to be accelerated on any default, provided that the interest which would have been payable for deferring payment under the credit was not also payable. The court rejected an argument that if the clause included a penalty element that also invalidated the provision accelerating the payment of the outstanding loan, saying that the doctrine relating to penalties is not a rule of illegality but of public policy: ‘The rule is, in my judgment, not designed to strike down any more of a lawful contract than is necessary to give effect to the Court’s purpose of applying public policy; and, moreover, the rule should be applied so as to interfere as little as possible with the proper enforcement of a lawful contract according to its terms. ‘

Neill LJ, Ralph Gibson LJ
[1988] 1 LlR 122
England and Wales
Citing:
Cited – Campbell Discount Company Ltd v Bridge HL 1962
The parties disputed the validity of a clause in a car hire contract relating to the consequences of a breach.
Held: (Majority) The agreement had been terminated by breach rather than by the exercise of an option, so that the stipulated . .
Cited – Robophone Facilities Ltd v Bank CA 1966
Parties to a contract should be free to stipulate not only primary obligations and rights but also the secondary rights and obligations, ie those which arise upon non-performance of any primary obligation by one of the parties to the contract, but . .

Cited by:
Cited – Cine Bes Filmcilik Ve Yapimcilik and Another v United International Pictures and Others CA 21-Nov-2003
The parties entered into agreements licensing the exclusive distribution of encrypted television channels within Turkey. A clause provided a calculation of damages for a breach amounting to the balance of licence fees due, and other penalties, . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 13 January 2022; Ref: scu.200652

Khalik v London Antwerp Diamonds Ltd: CA 17 Feb 2016

The claimant sought leave to appeal against rejection of his claim against the defendants. He had deposited a stone with them for evaluation aa a possible rough diamond pf considerable value. He said that the one returned to him was not the same one, but a fake. Photographs had beeen taken before and as it was handed over. The defendants had produced expert reports to say that the returned stone matched the one received.
Held: Though the court at first instance had indeed seen difficulties in the defence, the judge had been persuaded by what was strong expert evidence. The court’s task now was to see whether the judge had made any error of law, None had been identified, and the evidence was enough to support the judge’s conclusion. Leave was refused.

Elias LJ
[2016] EWCA Civ 272
Bailii
England and Wales

Contract

Updated: 12 January 2022; Ref: scu.561598

Marjory Stewart and Patrick Graham, Her Husband v Ann, Mary, and John Gardners, and Thomas Gardner, Their Father: HL 24 Apr 1780

Sale of Succession – Agreement – Obligation – Discharge – Novation.-
An agreement was gone into by the residuary legatees in a settlement with the widow of the deceased testator, whereby the latter agreed to purchase their right of succession for a fixed sum, they assigning their interest over to her. Stewart, a neutral party, on behalf of the widow, interposed, and allowed his name to be used in the transaction; and as the estate of the deceased was not then realized, became absolutely bound to pay the respective sums at which their interest was bought up. Thereafter the widow herself transacted with the beneficiaries, and granted bonds to some of them for the amount, without the interference of Stewart, and she granted time for payment. The widow afterwards fell into poverty, and could not pay. Held that Stewart was still bound, and that he was not released by the new transaction had with the widow herself, as that was a mere bond of corroboration, and did not discharge him.

[1780] UKHL 2 – Paton – 549, (1780) 2 Paton 549
Bailii
Scotland

Contract

Updated: 12 January 2022; Ref: scu.561502

Albesher v Ryan and Others: ComC 15 Mar 2016

Application by the second defendant (‘Ryan Corp’) to set aside a default judgment. The issues which arise are whether Ryan Corp’s proposed defence has a real prospect of success, and whether it is appropriate to exercise discretion in favour of Ryan Corp.

Walker J
[2016] EWHC 541 (Comm)
Bailii
England and Wales

Litigation Practice, Contract

Updated: 12 January 2022; Ref: scu.561039

A L Challis Ltd v British Gas Trading Ltd: ComC 11 Mar 2016

‘The dispute arises under two successive agreements between the parties relating to a product developed by Challis known as a water widget. The water widget is a device designed to be inserted into shower heads to reduce the flow of water by aerating it, thereby saving energy.’

Popplewell J
[2016] EWHC 513 (Comm)
Bailii
England and Wales

Contract

Updated: 12 January 2022; Ref: scu.561038

Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council: CA 25 May 1990

The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the council staff did not open the bid until after the time, and wrongly marked it ‘late’. It was not considered, and the contract was awarded elsewhere. On learning of the mistake, the council sought to renew the bidding process, but the company awarded the contract claimed it had a binding contract.
Held: ‘where, as here, tenders are solicited from selected parties all of them known to the invitor, and where a local authority’s invitation prescribes a clear, orderly and familiar procedure (draft contract conditions available for inspection and plainly not open to negotiation, a prescribed common form of tender, the supply of envelopes designed to preserve the absolute anonymity of tenderers and clearly to identify the tender in question, and an absolute deadline) the invitee is in my judgment protected at least to this extent: if he submits a conforming tender before the deadline he is entitled, not as a matter of mere expectation but of contractual right, to be sure that his tender will after the deadline be opened and considered in conjunction with all other conforming tenders or at least that his tender will be considered if others are.’

Stocker, Bingham, Farquharson LJJ
[1990] 3 All ER 25, [1990] 1 WLR 1195, [1990] EWCA Civ 13
Bailii
England and Wales
Citing:
Cited – Spencer v Harding 1870
Willes J considered what promise had been made where parties had bid in response to an advertisement, and the bidder sought to enforce the contract: ‘In the advertisement cases, there never was any doubt that the advertisement amounted to a promise . .
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 – Harris v Nickerson QBD 25-Apr-1873
The defendant auctioneer advertised in the London papers that certain brewing materials, plant, and office furniture would be sold by him at Bury St Edmunds on a certain day and two following days. The plaintiff, a commission broker in London, . .
Cited – Heilbut Symons and Co v Buckleton HL 11-Nov-1912
In an action of damages for fraudulent misrepresentation and breach of warranty, the plaintiff founded on a conversation between himself and the defendants’ representative. In this conversation the plaintiff said-‘I understand that you are bringing . .
Cited – CBS Songs Ltd v Amstrad Consumer Electronics Plc HL 12-May-1988
The plaintiffs as representatives sought to restrain Amstrad selling equipment with two cassette decks without taking precautions which would reasonably ensure that their copyrights would not be infringed by its users.
Held: Amstrad could only . .
Cited – Liverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .
Cited – Lavarack v Woods of Colchester Ltd CA 1967
Damages for wrongful dismissal could not confer on an employee extra benefits that the contract did not oblige the employer to confer. There is a clear distinction between expectations, however reasonable, and contractual obligations.
Diplock . .
Cited – White and Carter (Councils) Ltd v McGregor HL 6-Dec-1961
Contractor not bound to accept Renunciation
Mr McGregor contracted with the appellants for them to display advertisements for three years on litter bins. The contract was made on his behalf by an employee, without specific authority. On the day it was made, he sought to cancel the contract. . .
Cited – The Kapetan Markos N.L. (No 2) CA 1987
A party seeking to establish the existence of a contract must at least able to answer the question ‘What was the mechanism for offer and acceptance?’ . .
Cited – Tai Hing Ltd v Liu Chong Hing Bank PC 1985
(Hong Kong) The relationship between banker and customer is principally a contractual one between debtor and creditor. As between the banker and his customer, the risk of loss through forgery of the customer’s signature falls on the banker unless . .
Cited – Ross v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .
Cited – American Express International Banking Corporation v Hurley ChD 1985
The property mortgaged was specialised sound and lighting equipment used at pop concerts. The mortgagee’s guarantor was dissatisfied with the way in which the receiver sold the equipment.
Held: Where a company receiver was appointed under a . .

Lists of cited by and citing cases may be incomplete.

Contract, Negligence

Updated: 12 January 2022; Ref: scu.248030

Sykes and Another v Taylor-Rose and Another: CA 27 Feb 2004

The appellants purchased a property from the respondents. The house had been the site of a partiularly horrendous murder in 1980, but the respondents did not disclose the fact.
Held: The doctrine of caveat emptor still had application. As regards the replies to preliminary enquiries, the question asked was subjective and had to be answered honestly. The question was confined to information the purchaser might be entitled to know. The judge was not incorrect.

Lord Justice Peter Gibson Lord Justice Mantell Sir William Aldous
[2004] EWCA Civ 299
Bailii
England and Wales
Citing:
Cited – William Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Cited – Economides v Commercial Union Assurance Co Plc CA 22-May-1997
The insured represented to the insurers that to ‘the best of his knowledge and belief’ the full cost of replacing all the contents in his flat as new was pounds 16,000. He contended that that meant that he honestly believed that pounds 16,000 was . .
Cited – Taylor v Hamer CA 2002
The parties were buyers and sellers of land. The seller’s husband removed a large area of flagstones after the buyer’s first inspection but before exchange. He seeded over the land so that, on a second inspection by the buyer’s solicitor, the . .
Cited – Gran Gelato Ltd v Richcliff (Group) Ltd ChD 1992
The claimant wished to purchase an underlease from the first defendant. The claimant’s solicitors inquired of the second defendants, a firm of solicitors acting for the first defendant, whether any provisions in the headlease might affect the length . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 12 January 2022; Ref: scu.194673

Coulson v Newsgroup Newspapers Ltd: QBD 21 Dec 2011

The claimant had been employed by the defendant as editor of a newspaper. On leaving they entered into an agreement which the claimant said required the defendant to pay his legal costs in any action arising regarding his editorship. The defendant had later refused to do so, saying that it was not obliged to pay fees in respect of unlawful conduct.
Held: The claim failed. Applying the principle of ex turpi cause non oritur actio, the contract did not give an indemnity to the claimant in respect of the costs of preparing to defend the criminal proceedings, which in any event, as yet, had not commenced.

Supperstone J
[2011] EWHC 3482 (QB)
Bailii
England and Wales
Citing:
Mentioned – Clouston and Company Limited v Corry PC 1-Dec-1905
(New Zealand) . .
Mentioned – Laws v London Chronicle (Indicator Newspapers) Ltd CA 1959
Lord Evershed MR discussed the justification for summary dismissal: ‘It follows that the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. One . .
Mentioned – Sinclair v Neighbour CA 1967
The manager of a betting shop took andpound;15 from the shop till for the purpose of gambling; he knew that he would not have been given permission to do so if he had asked. He put an IOU in the till and repaid the money next day. He was summarily . .
Mentioned – Lewis v Motorworld Garages Ltd CA 1985
The court considered the circumstances under which an employee might resign and successfully claim constructive dismissal.
Glidewell LJ said: ‘This breach of this implied obligation of trust and confidence may consist of a series of action on . .
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 – Neary and Neary v Dean of Westminster 9-Jun-1999
Financial wrong-doing short of dishonesty can be a basis for summary dismissal. Gross misconduct sufficient to justify dismissal must in the particular circumstances so undermine the trust and confidence of an employer that he should no longer be . .
Cited – Maga v The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA 16-Mar-2010
The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
Cited – Brink’s Global Services Inc and Others v Igrox Ltd and Another CA 27-Oct-2010
There was a sufficiently close connection between an employee’s theft of silver from a customer’s container and the purpose of his employment to make it fair and just that his employer be held vicariously liable for his actions. Moore-Bick LJ said: . .
Cited – Regina v Brentwood Justices ex parte Jones QBD 1979
Proceedings had begun by arrest without warrant. Lord Widgery CJ said: ‘that the proceedings commenced when the suspect was taken to the police station pursuant to such arrest, and when he was formally charged in the presence of a station officer, . .
Cited – Regina v Elliott CACD 1985
The defendant was faced with a charge under the 1882 Act. The prosecution required that the consent of the Attorney-General be given before proceedings commenced. The consent was only given after he had been charged, but before the trial.
Cited – Hick v Raymond and Reid HL 1893
The House was asked whether the consignee of a cargo was in breach of a contractual obligation to discharge the relevant vessel within a reasonable time, that is to say, a single obligation to do something within a reasonable time, rather than an . .
Cited – Safeway Stores Ltd and Others v Twigger and Others CA 21-Dec-2010
The court was asked whether, when a company had been fined for anti-competitive practices, the company could then recover the penalties from the directors and senior employees involved.
Held: The undertaking was not entitled to recover the . .
Cited – Cadder v Her Majesty’s Advocate SC 26-Oct-2010
Statement without lawyer access was inadmissible
The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer.
Held: The . .
Cited – Maga v The Trustees of The Birmingham Archdiocese of The Roman Catholic Church QBD 22-Apr-2009
There was a sufficiently close connection between the employment of a priest at the church and the abuse which he inflicted on the claimant to render it fair and just to impose vicarious liability for the abuse on his employer, the Archdiocese. . .
Cited – Askey v Golden Wine Co Ltd 1948
Denning J said: ‘It is, I think, a principle of our law that the punishment inflicted by a criminal court is personal to the offender, and that the civil courts will not entertain an action by the offender to recover an indemnity against the . .
Cited – Salduz v Turkey ECHR 27-Nov-2008
(Grand Chamber) The applicant had been taken into custody before he was interrogated during his detention by police officers of the anti-terrorism branch of the Izmir Security Directorate.
Held: There had been a violation of art 6(3)(c) of the . .
Cited – Hale, Regina (On the Application of) v North Sefton Justices Admn 14-Jan-2002
The court considered the words ‘in the proceedings’ in Regulation 7 of the 1986 Regulations. One issue was whether claims for attendance on the claimant prior to charge are for expenses incurred by the claimant ‘in the proceedings’. The court . .
Cited – Corbett v Barking Havering and Brentwood Health Authority CA 1991
The Claimant was a child who would have been dependant on his deceased young mother only until adulthood. When the trial took place the infant Plaintiff was 11.5 with a dependency until the age of 18. As the multiplier calculated as at the date of . .

Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 12 January 2022; Ref: scu.450158

Morgan and Another v Pooley and Another: QBD 7 Oct 2010

The claimants had bought a property from the defendants and now sought damages in misrepresentation saying that the defendants had failed to disclose a planning application for an adjacent farm as regards a track bordering the property.
Held: The claim failed. The court expressed its view as to the effective loss of privacy, and the diminution of value. Even so, the court found that the defendants had been unaware of the proposed development, and that therefore there had been no misrepresentation. There had been two proposed developments by the neighbours, and it was possible that they had assumed that any paperwork related to the first. The contract had in any event included a clause by which the claimant disregarded any representation made by the defendants. Whilst in some situations of such a clause being buried in a contract, the court might not give it effect, here the clause was open and emphasised and well known to the solicitors at least, and was effective.

Edwards-Stuart J
[2010] EWHC 2447 (QB)
Bailii
England and Wales
Citing:
Cited – William Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Cited – E A Grimstead and Son Ltd v McGarrigan CA 27-Oct-1999
The court considered the effect of an acknowledgement of non-reliance clause: ‘There are, as it seems to me, at least two good reasons why the courts should not refuse to give effect to an acknowledgement of non-reliance in a commercial contract . .
Cited – Watford Electronics Ltd v Sanderson CFL Ltd CA 23-Feb-2001
The plaintiff had contracted to purchase software from the respondent. The system failed to perform, and the defendant sought to rely upon its exclusion and limitation of liability clauses.
Held: It is for the party claiming that a contract . .
Cited – Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd CA 6-Apr-2006
Moore-Bick LJ discussed whether the court should give effect to a non-reliance clause in a contract saying: ‘It is common to include in certain kinds of contracts an express acknowledgement by each of the parties that they have not been induced to . .

Cited by:
Distinguished – Cleaver and Others v Schyde Investments Ltd CA 29-Jul-2011
The parties had contracted for the sale of land. The purchaser secured the rescinding of the contract for innocent misrepresentation. A notice of a relevant planning application had not been passed on by the seller’s solicitors. The seller appealed . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 12 January 2022; Ref: scu.424971

Force India Formula One Team Ltd v Etihad Airways PJSC and Another: QBD 4 Nov 2009

The parties had entered into a sponsorship agreement, with the claimants undertaking to display the name of the defendants on their car. After the agreement, the claimant company had been taken over by parties with interests competing with those of the defendants, and the defendants said that they had terminated the agreement and their obligations. The claimants denied any breach by them allowing the termination of the contract.
Held: E/A by their course of conduct over the months detailed above had, prior to the sending of the letter of termination, elected not to exercise any right they might otherwise have had to terminate the contract. By parity of reasoning the various breaches of contract now relied on were waived by E/A or alternatively acquiesced in by their conduct over that period.
Damages were assessed accordingly.

Sir Charles Gray
[2009] EWHC 2768 (QB), [2010] ETMR 14
Bailii
England and Wales
Citing:
Cited – Vitol Sa v Norelf Ltd HL 10-Jul-1996
(The Santa Clara) The seller was to deliver propane by a ship set to leave on a certain date. The market was falling. The buyer, when it was clear that the ship would be unable to leave on the day fixed, sent a telex to say that the contract was . .
Cited – Stocznia Gdynia Sa v Gearbulk Holdings Ltd CA 13-Feb-2009
Orders were placed for the construction of ships. They were not delivered. The buyer, the defendant, cancelled the orders. The defendants sought the loss of profit. The claimants said they were entitled only to the repayment of instalments. The . .
Cited – Woodar Investment Development Ltd v Wimpey Construction UK Ltd HL 14-Feb-1980
Wimpey agreed to buy land from Woodar for a sum of andpound;850,000 of which andpound;150,000 was to be paid to Transworld. A month later Wimpey sent a letter purporting to rescind the contract and Woodar sued for damages including the . .
Cited – Glencore Grain Rotterdam BV v Lebanese Organisation for International Commerce CA 25-Jun-1997
The court was asked: ‘(1) What approach should the Court adopt on seeking to ascertain, by a process of implication, what terms of a letter of credit are contractual under an FOB sale which provides for payment to be made by an irrevocable and . .
Cited – Tele2 International Card Company Sa and others v Post Office Ltd CA 21-Jan-2009
Appeal against rejection of claim for novation of contract.
Held: Aikens LJ summarised the analysis by Lord Goff of the principles of affirmation by election in Kanchenjunga as follows: ‘i) If a contract gives a party a right to terminate upon . .
Cited – Concord Trust v Law Debenture Trust Corporation Plc HL 28-Apr-2005
The House was called on to construe the terms of a Eurobond. The question was as to the entitlement to require the trustees to issue a notice of default which would accelerate payment under the bond, and the ability of the Trustees to call for an . .
Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Expert Clothing Service and Sales Ltd v Hillgate House Ltd CA 1985
Landlords took possession after a successful, at first instance, forfeiture claim. The tenant succeeded on appeal and then brought a claim for the wrong of breach of the covenant for quiet enjoyment.
Held: The lease had been in existence all . .
Cited – The Fanis CA 1994
Mance LJ said: ‘The general issue is in my view appropriately stated as being whether any profit or loss arose out of or was sufficiently closely connected with the breach to require to be brought into account in assessing damages. Resolution of . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .

Cited by:
Appeal from – Force India Formula One Team Ltd v Etihad Airways PJSC and Another CA 6-Oct-2010
The claimant complained of the failure to honour its sponsorship agreement of its Formula 1 racing team. The court at first instance had found the breaches to have been waived.
Held: Rix LJ discussed the consequences of a breach, saying: ‘this . .

Lists of cited by and citing cases may be incomplete.

Contract

Leading Case

Updated: 12 January 2022; Ref: scu.377861

Fisher v Bell: QBD 10 Nov 1960

A shopkeeper displayed a flick-knife in his window for sale. A price was also displayed. He was charged with offering it for sale, an offence under the Act. The words ‘offer for sale’ were not defined in the Act, and therefore the magistrates construed them as under the general law of contract, in which case the shopkeeper had merely issued an invitation to treat.
Held: The display of the knife in the window was indeed only an invitation to treat, and the knife had not been offered for sale. In the Keating and Wiles cases the Acts in question allowed a conviction where an item was exposed for sale. That did not apply here. The appeal was dismissed.
Lord Justice Parker said: ‘It is perfectly clear that according to the ordinary law of contract the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract.’

Parker LJ CJ, Ashworth Elwes JJ
[1961] 1 QB 394
England and Wales
Citing:
Distinguished – Wiles v Maddison 1943
It was proved that the defendant had the intention to commit an offence. Viscount Caldecote CJ said ‘A person might, for instance, be convicted of making an offer of an article at too high a price by putting it in his shop window to be sold at an . .
Cited – Magor and St Mellons Rural District Council v Newport Corporaion HL 1951
The Court of Appeal had tried to fill in the gaps in a statute where parliament had intended an effect.
Held: Rights to compensation are well capable of falling within the definition of ‘property of a company’ in the relevant provisions of the . .
Distinguished – Keating v Horwood QBD 1926
A baker’s van was doing its rounds, delivering bread which had already been ordered but the van also contained bread which could be bought as required. The bread was underweight The Order prohibited the offering or exposing for sale of food . .

Lists of cited by and citing cases may be incomplete.

Crime, Consumer, Contract

Leading Case

Updated: 12 January 2022; Ref: scu.185104

James v Smith: CA 1931

The defendant, the owner of a hotel, wrote a letter to the plaintiff, an estate agent, saying that it would sell the property at a specified price and would pay a commission if the property was sold at that price. The plaintiff introduced a purchaser who signed a contract but was unable to complete. The plaintiff nevertheless claimed that he was entitled to his commission. The Court of Appeal, reversing the trial judge, found he was not. Bankes LJ reasoned that it was necessary to imply a term to make the contract complete, that term being that the commission would be payable upon the introduction of a purchaser who agreed to purchase the property and was able to complete; in other words, a purchaser who was not a man of straw or without means. Scrutton and Atkin LJJ agreed. Scrutton LJ construed the wording of the agreement and identified the minimum obligation on the plaintiff. Atkin LJ approached the case in much the same way as Bankes LJ. He too thought the obligation on the plaintiff had to be implied, and it was to introduce a purchaser who was able to complete at the time he signed the contract.

[1931] 2 KB 317
England and Wales
Cited by:
Cited – Wells v Devani SC 13-Feb-2019
Mr W was selling apartments in a block of flats. Mr D, an estate agent, sought commission. W argued that D had not had signed his terms, and that therefore no contract existed. The court considered whether a contract had come into being when a major . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 12 January 2022; Ref: scu.670954

Teacher v Calder: HL 24 Jul 1899

The mere fact that the defendant’s breach of his contract with the plaintiff has enabled him to enter into a more profitable contract with someone else should also not be sufficient to justify departing from the normal rules for calculation of damages.
A advanced pounds 15,000 to B, to be used in B’s business for a period of five years, receiving in return, besides interest, three-eighths of the profits. It was agreed that B’s books should be audited annually by a particular firm of accountants, whose certificates as to the amount of profits were to be binding on both parties. Notice of this agreement and of its terms was given by A to one of the partners of the firm of auditors, but they were not communicated by him to the partner who actually conducted the audit. While aware that A had an interest in the profits, the latter did not know the terms of the agreement, and in particular did not know that his audit was intended to bind the parties.
In an action for a judicial accounting at A’s instance, the Court of Session ( aff. the judgment of Lord Low- diss. Lord Adam) held, as the result of a proof, that it would have made no substantial difference in the result of the audit had the auditor been aware of the agreement, and refused the accounting. Judgment reversed in the House of Lords on the ground (1) that there had been mutual error as regards the auditor’s knowledge of the agreement, and that in the absence of such knowledge the audit could not he regarded as binding; and (2) that it was not substantiated by the evidence that the want of this knowledge did not affect the audit.
A advanced to B pounds 15,000, to be used in B’s business of timber merchant for a period of five years, receiving in return 5 per cent. interest and three-eighths of the annual profits. The agreement did not provide that A should become a partner of the business, but it was agreed that B should always keep a like sum of pounds 15,000 of his own in the business. In breach of the latter engagement B withdrew from time to time from the business part of this sum of pounds 15,000, and used it in a distillery business where large profits were earned.
In an action of damages for breach of contract, at A’s instance, he maintained that the damages ought to be assessed at the amount made by the diverted capital in the distillery, on the ground that the defender must be treated as a trustee for or a partner of the pursuer.
Held that this method of assessment was inapplicable, and that the appropriate method was to assess the damages by ascertaining the extra profit which might have been made in the timber business with the aid of the diverted capital.
Judgment affirmed in the House of Lords.

Lord Watson (in the Chair) and Lords Shand and Davey
[1899] AC 451, [1899] UKHL 1, (1899) 7 SLT 153, (1899) 1 F (HL) 39, [1899] UKHL 949, 36 SLR 949
Bailii, Bailii
Scotland
Citing:
Appeal From – Teacher v Calder SCS 25-Feb-1898
An agreement was entered into between T and C, whereby, as interest for an advance made by T for the purpose of carrying on and extending the business of C’s firm, he was to receive a certain percentage of the profits of the business. It was . .

Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 10 January 2022; Ref: scu.631841

Forslind v Bechely-Crundall: HL 14 Jul 1922

A B having entered into a contract with a landed proprietor for the purchase of eleven lots of timber growing on his property, on terms that forbade him cutting or removing more than four lots at one time, on 3rd May 1918 sold one of the lots delivered on rail to C D without disclosing to him the above limitation. At the time that the contract of sale to C D was entered into, cutting operations were going on on four lots. The contract with C D provided that the purchase price of pounds 10,000 should be paid to the extent of pounds 5000 forthwith and pounds 5000 when timber to that value had been railed. The purchaser paid the first instalment of pounds 5000, and the seller was proceeding to fell the trees on the lot sold when he was stopped by the proprietor on the ground that he was thus exceeding the four lots to which simultaneous operations were restricted. The purchaser pressed for fulfilment of his contract or return of the instalment, and the seller while endeavouring to obtain the landlord’s consent alleged various reasons for not carrying out the contract, such as the state of the roads and unsettled claims which he had against the purchaser. The seller obtained the proprietor’s consent in October 1918, but no deliveries were made before April 1919 under various excuses, when the purchaser commenced an action of damages against him for breach of contract. Held ( rev. judgment of the Second Division, diss. Viscount Finlay) that the purchaser was entitled to treat the seller as having repudiated the contract in respect that he had followed a course of conduct which would as its natural result put it out of his power to fulfil his contract when the time came for doing so.

Viscount Haldane, Viscount Finlay, Lord Dunedin, and Lord Shaw
[1922] UKHL 17, 60 SLR 17
Bailii
Scotland

Contract

Updated: 10 January 2022; Ref: scu.632807

Mason v Huddersfield Giants Ltd: QBD 15 Jul 2013

The claimant rugby league player complained of his dismissal under a clause allowing such for behaviour which might bring the club into disrepute. He had engaged in a celebratory evening out involving a naked run.

Saffman HHJ
[2013] EWHC 2869 (QB)
Bailii
Citing:
Cited – Ross T Smythe and Co v Bailey and Sons HL 1940
Lord Wright said that repudiation of a contract is a serious matter not to be lightly found or inferred.
A party who intended to fulfil a contract but only in a manner substantially inconsistent with his obligations and not in any other way . .
Cited – Laws v London Chronicle (Indicator Newspapers) Ltd CA 1959
Lord Evershed MR discussed the justification for summary dismissal: ‘It follows that the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. One . .
Cited – Wilson v Racher CA 1974
Edmund Davis LJ said: ‘does the conduct make it impossible for the continuance of the master and servant relationship and show that the employer was resolved to follow a line of conduct that mof behaviour justifying instant dismissalakes the . .
Cited – Neary and Neary v Dean of Westminster 9-Jun-1999
Financial wrong-doing short of dishonesty can be a basis for summary dismissal. Gross misconduct sufficient to justify dismissal must in the particular circumstances so undermine the trust and confidence of an employer that he should no longer be . .
Cited – Briscoe v Lubrizol Limited CA 23-Apr-2002
The claimant had been employed by the respondents. Having been injured he claimed under a long-term disability scheme underwritten by insurers. They discontinued payment, and the company dismissed him. He now claimed damages for breach of contract. . .

Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 10 January 2022; Ref: scu.560107

Abela and Others v Baadarani: ChD 24 Jul 2015

In 2002, Mr Abela and his companies entered into a share purchase agreement with Mr Baadarani. In April 2009, Mr Abela and his companies commenced proceedings in relation to a dispute arising out of that transaction.

Norris J
[2015] EWHC 2393 (Ch)
Bailii
England and Wales
Cited by:
Cited – Cameron v Liverpool Victoria Insurance Co Ltd SC 20-Feb-2019
The Court was asked in what circumstances is it permissible to sue an unnamed defendant? The respondent was injured when her car collided with another. The care was insured but by a driver giving a false name. The car owner refused to identify him. . .

Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 10 January 2022; Ref: scu.551286

Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd: CA 9 Feb 2016

Appeal from Flaux J’s refusal to set aside a default judgment entered by HHJ Mackie QC in favour of the claimant and respondent Dubai Financial Group LLC (‘DFG’) and arises from a contract of 30th April 2008 between the parties for the sale and purchase of a 50% share interest in a Gulfstream aircraft

Lngmore, Treacy, McCombe LJJ
[2016] EWCA Civ 71
Bailii
England and Wales

Contract

Updated: 10 January 2022; Ref: scu.559584

Gyle Shopping Centre General Partners Ltd v Marks and Spencer Plc: SCS 25 Mar 2014

Outer House Court of Session – The pursuer avers that it has entered into an agreement with Primark Stores Ltd for the erection and leasing of a new retail store building which would abut the existing shopping centre and would be constructed on currently unbuilt-upon land including part of the car parking area. In this action the pursuer seeks declarator (i) that the defender has given its unqualified written consent to the use by the pursuer of this land for the construction of a new building to be leased to Primark; (ii) that it is entitled to construct the building and would not be acting unlawfully or in breach of the defender’s lease in so doing; and (iii) that the defender would be barred from taking any action to prevent construction on the ground that there is absence of agreement complying with the terms of either the Requirements of Writing (Scotland) Act 1995 or the defender’s lease. The defender contends that it has not given its agreement in probative writing to the construction of the building and accordingly that the pursuer is not entitled to commence construction.

Lord Tyre
[2014] ScotCS CSOH – 59
Bailii
Requirements of Writing (Scotland) Act 1995
Scotland

Land, Contract

Updated: 10 January 2022; Ref: scu.523283

Scammell and Nephew Ltd v HJ and JG Ouston: HL 1941

There was an agreement for a purchase on ‘hire-purchase terms’ It was challenged as being too uncertain.
Held: There were many possible forms of such an agreement. The agreement was void for uncertainty. Lord Wright: ‘There are in my opinion two grounds on which the court ought to hold that there never was a contract. The first was that the language used was so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any particular contractual intention. The object of the court is to do justice between the parties, and the court will do its best, if satisfied that there was an ascertainable and determinate intention to contract, to give effect to that intention, looking at substance and not mere form. It will not be deterred by mere difficulties of interpretation. Difficulty is not synonymous with ambiguity so long as any definite meaning can be extracted. But the test of intention is to be found in the words used. If these words, considered however broadly and untechnically and with due regard for all the just implications, fail to evince any definite meaning on which the court can safely act, the court has no choice but to say that there is no contract. Such a position is not often found. But I think it is found in this case. My reason for so thinking is not only based on the actual vagueness and unintelligibility of the words used, but is confirmed by the startling diversity of explanations, tendered by those who think there was a bargain, of what the bargain was. I do not think it would be right to hold the appellants to any particular version. It was all left too vague. There are many cases in the books of what are called illusory contracts, that is, where the parties may have thought they were making a contract but failed to arrive at a definite bargain. It is a necessary requirement that an agreement in order to be binding must be sufficiently definite to enable the court to give it a practical meaning. Its terms must be so definite, or capable of being made definite without further agreement of the parties, that the promises and performances to be rendered by each party are reasonably certain. In my opinion that requirement was not satisfied in this case. . . But I think the other reason, which is that the parties never in intention nor even in appearance reached an agreement, is a still sounder reason against enforcing the claim. In truth, in my opinion, their agreement was inchoate and never got beyond negotiations.’

Lord Wright
[1941] AC 251
England and Wales
Cited by:
Cited – Byrnlea Property Investments Ltd v Ramsay CA 1969
It was a requirement under the 1967 Act for the notice of a lessee, seeking to extend his interest under that Act, to indicate whether he was seeking the freehold or an extended lease. The tenant failed to do so.
Held: This failure was fatal. . .
Cited – Scammell and others v Dicker CA 14-Apr-2005
The parties had settled a boundary dispute in 1994 with a consent order, but the terms of the order had been difficult to implement. The respondent appealed an order declaring the consent order void for uncertainty.
Held: The appeal succeeded. . .
Cited – Wells v Devani SC 13-Feb-2019
Mr W was selling apartments in a block of flats. Mr D, an estate agent, sought commission. W argued that D had not had signed his terms, and that therefore no contract existed. The court considered whether a contract had come into being when a major . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 January 2022; Ref: scu.214625

John D Wood and Co (Residential and Agricultural Ltd) v Craze: QBD 30 Nov 2007

The claimant estate agents sought payment of its commission. The defendant appealed refusal of his request for the claim to be struck out. The agency said that the agency’s standard terms applied under which commission was payable on exchange. The defendant said this had been varied so that commission was payable on completion. Contracts had been exchanged but the purchaser had rescinded the contract for misrepresentation.
Held: The judge should have decided the issues of law and construction that were canvassed before him in relation to all the grounds of claim. He had the material on which to decide those issues and he had heard argument on them from Counsel lasting half a day. The court would therefore decide the issue itself.
The contract was voidable, and once avoided was void ab initio, and therefore on the basis the commission was not payable.
However the court could imply into the contract a requirement that the vendor should not make a faudulent misrepresentation which might lead to such a conclusion. The case should go forward to see whether any damages might flow from a breach if proved of that clause.

Swift J
[2007] EWHC 2658 (QB)
Bailii
England and Wales
Citing:
Cited – ICI Chemicals and Polymers Ltd v TTE Training Ltd CA 13-Jun-2007
The Defendant had applied for summary judgment under CPR Part 24. One argument was a short point of construction. The Judge suggested the parties agree that he should decide the point as a preliminary issue. They were unwilling so he proceeded on . .
Cited – Fowler v Bratt CA 1950
the plaintiff, a house agent, was instructed by the defendant to find a purchaser of his house and agreed to pay a commission on the price. Subsequently the defendant decided not to go through with the sale and the plaintiff brought proceedings for . .
Cited – Peter Long and Partners v Burns CA 1956
The estate agency agreement at issue said that commission was payable on the agents ‘introducing a person ready, willing and able to enter into a binding contract to purchase’. The purchaser entered into the contract, but then resiled after . .
Cited – Midgeley Estates Ltd v Hands 1952
In the absence of some other clear expression of intent, the intention of the estate agent and vendor when entering into an agreement concerning the sale of a property is likely to be that the commission stipulated for should be payable only in the . .
Cited – Luxor (Eastbourne) v Cooper HL 1941
The vendor company had instructed agents to sell properties on its behalf and had agreed to pay commission on completion of the sale. The sale was agreed with a prospective purchaser introduced by the agents. Before the sale was completed, the . .
Cited – Blake and Co. v Sohn 1969
The defendant had falsely represented to their estate agents that they had been in undisputed exclusive possession of part of the land to be sold for 20 years and were able to prove title for the land. In fact, there was a long running dispute about . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 January 2022; Ref: scu.261919

Wells v Devani: CA 15 Nov 2016

Claim for agent’s commission on sale of flats. The defendant developer had entered into a sole agency agreement with W. Unsold flats were eventually sold to an Housing association on an introduction by a third party agent., the claimant, who now sought commission. The parties disputed whether a contract had been created.
Held: The developer’s appeal succeeded (Arden LJ Dissenting). A court might imply terms into a concluded contract, but not where the very existence of the contract remained at issue. It was not permissible first to assume a contract in order then to decide its terms. The terms of the event triggering an obligation to pay were a precondition to the finding that a contract had been concluded.

Arden, Lewison, McCombe LJJ
[2016] EWCA Civ 1106, [2016] WLR(D) 604, [2017] 2 WLR 1391, [2017] QB 959
Bailii, WLRD
Estate Agents Act 1979
England and Wales
Cited by:
Appeal from – Wells v Devani SC 13-Feb-2019
Mr W was selling apartments in a block of flats. Mr D, an estate agent, sought commission. W argued that D had not had signed his terms, and that therefore no contract existed. The court considered whether a contract had come into being when a major . .

Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 10 January 2022; Ref: scu.571238

Midgley Estates v Hand: CA 1952

An estate agent’s commission is normally payable upon completion of the sale, but that does not prevent parties from agreeing that it should be payable upon a different event. The question depends on the construction of the particular contract.
There was an agreement between the plaintiff estate agents and the defendant vendor that the agents’ commission would be payable as soon as a purchaser had signed ‘a legally binding contract’ within a certain period of time. The agents did introduce such a purchaser who signed the contract and paid a deposit but was unable to complete. The agents thereupon sought payment of their commission.
Held: The terms of the agreement were clear and the court would give effect to them, and they displaced the prima facie position. Jenkins LJ, with whom Somervell and Morris LJJ agreed, described that prima facie position in these terms: ‘The question depends on the construction of each particular contract, but prima facie the intention of the parties to a transaction of this type is likely to be that the commission stipulated for should only be payable in the event of an actual sale resulting. The vendor puts his property into the hands of an agent for sale and, generally speaking, contemplates that if a completed sale results, and not otherwise, he will be liable for the commission, which he will then pay out of the purchase price. That is, broadly speaking, the intention which, as a matter of probability, the court should be disposed to impute to the parties. It follows that general or ambiguous expressions, purporting, for instance, to make the commission payable in the event of an agent ‘finding a purchaser’, or in the event of the agent ‘selling the property’, have been construed as meaning that the commission is only payable in the event of an actual and completed sale resulting, or, at least, in the event of an agent succeeding in introducing a purchaser who is able and willing to purchase the property. That is the broad general principle in the light of which the question of construction should be approached; but this does not mean that the contract, if its terms are clear, should not have effect in accordance with those terms, even if they involve the result that the agent’s commission is earned and becomes payable although the sale in respect of which it is claimed, for some reason or another, turns out to be abortive.’

Jenkins, Somervell and Morris LJ j
[1952] QB 432
England and Wales
Cited by:
Cited – Foxtons Ltd v Thesleff and Another CA 19-Apr-2005
Estate Agents claimed their commission. They had originally acted as sole agents, but agreed to allow a multiple agency. Contracts were exchanged, but the vendor refused to complete. The vendor claimed that the variation left the agent’s contract . .
Cited – Wells v Devani SC 13-Feb-2019
Mr W was selling apartments in a block of flats. Mr D, an estate agent, sought commission. W argued that D had not had signed his terms, and that therefore no contract existed. The court considered whether a contract had come into being when a major . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 January 2022; Ref: scu.224914

Wells v Devani: SC 13 Feb 2019

Mr W was selling apartments in a block of flats. Mr D, an estate agent, sought commission. W argued that D had not had signed his terms, and that therefore no contract existed. The court considered whether a contract had come into being when a major term remained unresolved.
Held: Mr D’s appeal succeeded. Whether a contract was in place was an objective question. That was established. The courts are reluctant to find an agreement is too vague or uncertain to be enforced where it is found that the parties had the intention of being contractually bound and have acted on their agreement. The parties would have intended that commission be paid on the sale. W had found the Housing Association through the contact and had gone on to complete the sale to it.
D having failed to comply with his obligations under the 1979 Act, his award was reduced accordingly.

Lord Wilson, Lord Sumption, Lord Carnwath, Lord Briggs, Lord Kitchin
[2019] UKSC 4, UKSC 2016/0223
Bailii, Bailii Summary, SC, SC Summary, SC Summary video, SC 20181011 am Video
Estate Agents Act 1979 18(1)
England and Wales
Citing:
Appeal from – Wells v Devani CA 15-Nov-2016
Claim for agent’s commission on sale of flats. The defendant developer had entered into a sole agency agreement with W. Unsold flats were eventually sold to an Housing association on an introduction by a third party agent., the claimant, who now . .
Cited – Nightingale and others v Parsons CA 9-Mar-1914
In 1908 the plaintiff, who was a house agent, was employed by the defendant to find a tenant for a house at a rent of 120 pounds a year or a purchaser for 2500 pounds. The plaintiff found a tenant who took the house for a term of three years with . .
Cited – James v Smith CA 1931
The defendant, the owner of a hotel, wrote a letter to the plaintiff, an estate agent, saying that it would sell the property at a specified price and would pay a commission if the property was sold at that price. The plaintiff introduced a . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Cited – RTS Flexible Systems Ltd v Molkerei Alois Muller Gmbh and Company Kg (UK Production) No 2 – Order and Costs SC 21-Jul-2010
The main judgment had not attempted to settle all issues between the parties, and much remained to be done. Any order would not be a final one. As to costs, each party had succeeded in one respect or another, but ‘at the end of this whole process . .
Cited – Little v Courage Ltd CA 6-Jan-1995
The tenancy contained an option for the tenant to renew, subject to agreement being reached with the brewer on a business plan. The tenant said he wished to renew, but the brewer did not present a business plan or agreement, and then the landlord . .
Cited – Fowler v Bratt CA 1950
the plaintiff, a house agent, was instructed by the defendant to find a purchaser of his house and agreed to pay a commission on the price. Subsequently the defendant decided not to go through with the sale and the plaintiff brought proceedings for . .
Cited – Dennis Reed Ltd v Goody CA 1950
Two home owners instructed the plaintiff agents to ‘find a person ready, willing and able’ to purchase their property and agreed to pay the agents a commission upon them introducing such a person. The agents found a prospective purchaser but he . .
Cited – Scammell and Nephew Ltd v HJ and JG Ouston HL 1941
There was an agreement for a purchase on ‘hire-purchase terms’ It was challenged as being too uncertain.
Held: There were many possible forms of such an agreement. The agreement was void for uncertainty. Lord Wright: ‘There are in my opinion . .
Cited – Luxor (Eastbourne) v Cooper HL 1941
The vendor company had instructed agents to sell properties on its behalf and had agreed to pay commission on completion of the sale. The sale was agreed with a prospective purchaser introduced by the agents. Before the sale was completed, the . .
Cited – Midgley Estates v Hand CA 1952
An estate agent’s commission is normally payable upon completion of the sale, but that does not prevent parties from agreeing that it should be payable upon a different event. The question depends on the construction of the particular contract.
Contract, Agency

Updated: 10 January 2022; Ref: scu.633294

Charania v Harbour Estates Ltd: CA 27 Oct 2009

The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
Held: It was not enough that the agents had introduced the purchaser to the property, they must introduce him to the purchase. However the judge had concluded that the purchaser had acted deliberately to await the loss of involvement of the agent before seeking a lower price to reflect the saving to the seller. That conclusion of fact was capable of support on the facts, and an appeal court should not intervene. The appeal failed.

Leveson, Wilson, Ward LJJ
[2009] EWCA Civ 1123
Bailii
Estate Agents (Provision of Information) Regulations 1991 (SI 1991/859) 5(1)(b), Estate Agents Act 1999 9
England and Wales
Citing:
Cited – Millar Son and Co v Radford CA 1903
For an estate agent to recover his commission, it was ‘necessary’ to show that the agent’s introduction was an ‘efficient’ (namely effective) cause in bringing about the transaction. . .
Cited – Foxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
Cited – Subesh, Suthan, Nagulananthan and Vanniyasingam v Secretary of State for the Home Department CA 17-Mar-2004
The Immigration Appeal Tribunal should not interfere with an adjudicator’s decision unless it concludes that it is not merely able but is required to adopt a different view.
Laws LJ discussed the caution required of an appellate court: ‘The . .
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 – Nightingale and others v Parsons CA 9-Mar-1914
In 1908 the plaintiff, who was a house agent, was employed by the defendant to find a tenant for a house at a rent of 120 pounds a year or a purchaser for 2500 pounds. The plaintiff found a tenant who took the house for a term of three years with . .
Cited – Biogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
Cited – Benmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
Cited – Wood (John D) and Co v Dantata; Beauchamp Estates v Dantata CA 1987
The purchaser liked inspecting houses and the vendor had appointed ten firms to act for him as estate agents. Each of the estate agents was approached by this purchaser and each of the estate agents took the would be purchaser over the property of . .

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 10 January 2022; Ref: scu.377230

Little v Courage Ltd: CA 6 Jan 1995

The tenancy contained an option for the tenant to renew, subject to agreement being reached with the brewer on a business plan. The tenant said he wished to renew, but the brewer did not present a business plan or agreement, and then the landlord refused to grant a new lease, saying that no new plan or agreement had been entered into.
Held: The tenant’s appeal succeeded. The renewal of the lease under the covenant was enforced against the Landlord, despite the failure of the condition precedent. The brewer’s refusal to agree a plan did not allow the Landlord to refuse a new lease. The lease should be read so as to make the plan and agreement a condition, only if one was offered by the brewer. Under that reading, the landlord would not be entitled to refuse to renew the lease.

Ind Summary 06-Feb-1995, Times 06-Jan-1995, (1994) 70 P and CR 469
England and Wales
Citing:
Appeal from – Little v Courage Ltd ChD 19-Jan-1994
The pub tenant had an option to renew his lease, subject to agreeing with the brewer a business plan and agreement. He notified the landlord that he wished to renew but the landlord did not himself present any plan and agreement, or obtain one, but . .

Cited by:
Cited – Wells v Devani SC 13-Feb-2019
Mr W was selling apartments in a block of flats. Mr D, an estate agent, sought commission. W argued that D had not had signed his terms, and that therefore no contract existed. The court considered whether a contract had come into being when a major . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract

Updated: 10 January 2022; Ref: scu.83093

Nightingale and others v Parsons: CA 9 Mar 1914

In 1908 the plaintiff, who was a house agent, was employed by the defendant to find a tenant for a house at a rent of 120 pounds a year or a purchaser for 2500 pounds. The plaintiff found a tenant who took the house for a term of three years with the option of continuing the tenancy for five or seven years at the rent of 110 pounds a year, and he was paid commission on the letting. At the end of the three years the tenant, as a condition of his continuing the tenancy for a further term, required the defendant to build an addition to the house. The defendant refused to do so, and thereupon the question of purchasing the house arose, and the defendant agreed to sell it to the tenant’s wife for 1900 pounds. The plaintiff, after the original letting, had nothing to do with the negotiations which led up to the sale. The plaintiff sued the defendant in the county court to recover commission on the sale. The county court judge found that, though the plaintiff introduced the property to the tenant and his wife, that introduction was not the effective cause of the subsequent sale, and he. gave judgment for the defendant.
Held: The county court judge had applied the proper test, and had found against the plaintiff’s claim upon evidence which entitled him so to find, and that his decision must be affirmed.

[1914] 2 KB 621, [1914] UKLawRpKQB 66
Commonlii
England and Wales
Cited by:
Cited – Charania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
Cited – Wells v Devani SC 13-Feb-2019
Mr W was selling apartments in a block of flats. Mr D, an estate agent, sought commission. W argued that D had not had signed his terms, and that therefore no contract existed. The court considered whether a contract had come into being when a major . .
Cited – Dennis Reed Ltd v Goody CA 1950
Two home owners instructed the plaintiff agents to ‘find a person ready, willing and able’ to purchase their property and agreed to pay the agents a commission upon them introducing such a person. The agents found a prospective purchaser but he . .

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 10 January 2022; Ref: scu.377316

Dennis Reed Ltd v Goody: CA 1950

Two home owners instructed the plaintiff agents to ‘find a person ready, willing and able’ to purchase their property and agreed to pay the agents a commission upon them introducing such a person. The agents found a prospective purchaser but he withdrew before an enforceable agreement for sale had been made. The agents nevertheless claimed they were entitled to their full commission.
Held: The Court agreed with the trial judge that they were not.
Denning LJ explained that when an owner puts his house into the hands of an estate agent, the ordinary understanding is that the agent is only entitled to a commission if he succeeds in effecting a sale; but if he does not, he is entitled to nothing. A little later, he said this about the relationship between owner and agent: ‘All the familiar expressions ‘please find a purchaser’, ‘find someone to buy my house’, ‘sell my house for me’, and so on mean the same thing: they mean that the agent is employed on the usual terms; but none of them gives any precise guide as to what is the event on which the agent is to be paid. The common understanding of men is, however, that the agent’s commission is payable out of the purchase price. The services rendered by the agent may be merely an introduction. He is entitled to commission if his introduction is the efficient cause in bringing about the sale: Nightingale v Parsons [1914] 2 KB 621. But that does not mean that commission is payable at the moment of the introduction: it is only payable on completion of the sale. The house owner wants to find a man who will actually buy his house and pay for it.’

[1950] 2 QB 277
England and Wales
Citing:
Cited – Nightingale and others v Parsons CA 9-Mar-1914
In 1908 the plaintiff, who was a house agent, was employed by the defendant to find a tenant for a house at a rent of 120 pounds a year or a purchaser for 2500 pounds. The plaintiff found a tenant who took the house for a term of three years with . .

Cited by:
Cited – Wells v Devani SC 13-Feb-2019
Mr W was selling apartments in a block of flats. Mr D, an estate agent, sought commission. W argued that D had not had signed his terms, and that therefore no contract existed. The court considered whether a contract had come into being when a major . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 January 2022; Ref: scu.670953

Canary Wharf Finance Ii Plc v Deutsche Trustee Company Ltd and Others: ComC 28 Jan 2016

Part 8 proceedings turning on a point of construction of the terms and conditions of mortgage-backed debentures (‘Notes’) issued by the claimant, a special purpose company in the Canary Wharf Group, pursuant to a securitisation of the CW Group’s real estate portfolio.

Phillips J
[2016] EWHC 100 (Comm)
Bailii

Contract

Updated: 09 January 2022; Ref: scu.559390

ACG Acquisition Xx Llc v Olympic Airlines Sa: ComC 21 Apr 2010

The claimant had granted a lease of an aircraft to the defendants, undertaking in the agreement that the aircrat would be airworthy. It now claimed payment under the agreement, the defendant saying it had not been airworthy and had to be withdrawn from service, the costs of the repairs exceeding the value of the aircraft.
Held:

Hamblen J
[2010] EWHC 923 (Comm), [2010] 1 CLC 581
Bailii
England and Wales
Cited by:
Appeal from – Olympic Airlines Sa v ACG Acquisition XX Llc CA 17-Dec-2012
The airline had been placed in liquidation in Greece. The liquidator now appealed against orders for payment of debts and costs to the respondent . .
See Also – Olympic Airlines Sa v ACG Acquisition XX Llc CA 17-Apr-2013
The parties disputed their mutual obligations under aircraft leasing agreements. The insolvent airline said that in signing to accept the condition of the aircraft on delivery, it had not created an estoppel against itself when the aircraft later . .
At Commerial Court – Olympic Airlines Sa v ACG Acquisition Xx Llc CA 17-Jun-2014
. .

Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 09 January 2022; Ref: scu.416129

Robert Anderson, Mason v James Anderson, Late of Crookhill: HL 26 Feb 1759

Sale – Security for Price –
Circumstances in which held, where a purchaser did not find satisfactory security for payment of the price within the time specified in the minute of sale, though cautioners were offered, but rejected as insufficient, the seller was entitled to sell the property to another.

[1759] UKHL 2 – Paton – 22
Bailii
Scotland

Land, Contract

Updated: 09 January 2022; Ref: scu.558277

Capita (Banstead 2011) Ltd and Another v RFB Group Ltd: CA 21 Dec 2015

A claim under an indemnity clause contained in a share purchase agreement. It raises the question whether, if the seller of shares in a company undertakes to indemnify the purchaser in respect of liabilities which the purchaser may incur as a result of negligently performed services provided by the company to a recipient before the transfer date of the shares and the company provides services to a customer both before and after the Transfer Date, it is appropriate, as between the seller and the purchaser of the shares, to apportion the liability incurred to that customer by reference to the time when that liability is incurred or by reference to some other criteria and, if so, what.

Longmore, Gloster LJJ, Henderson J
[2015] EWCA Civ 1310
Bailii
England and Wales

Company, Contract

Updated: 09 January 2022; Ref: scu.558056

PK Airfinance Sarl and Another v Alpstream Ag and Others: CA 21 Dec 2015

The court was asked whether the mortgagee of the seven aircraft owed a duty to the ultimate recipient of the balance of the proceeds of the three aircraft to take reasonable steps to obtain best value when selling the seven and, if so, whether it was in breach of that duty.

Underhill, Christopher Clarke LJJ, Sir Bernard Rix
[2015] EWCA Civ 1318
Bailii
England and Wales

Agency, Contract

Updated: 09 January 2022; Ref: scu.558059

Transag Haulage Ltd (In Admin Receivership) v Leyland Daf Finance Plc and Another: ChD 31 Jan 1994

Hire-purchase agreements for the hire of three lorries were entered into by Transag, a haulier, between January and May 1991. The price for the three lorries was andpound;177,333, with down payments totalling andpound;69,333 and the balance (for each vehicle) due by 36 monthly payments of andpound;1000. Transag went into administrative receivership in November 1993, when only about andpound;14,000 remained to be paid and the lorries were worth about andpound;67,000. The agreements were in standard form with provision for termination by the owner after a default, which included receivership. Provisions for termination, included return of the vehicles to the owner and an immediate liability for outstanding instalments; and ‘If the hirer (having duly observed and performed all the terms and conditions of this agreement whether expressed or implied, and having paid all sums due under this agreement) shall pay to the owner the sum of andpound;5 the hiring thereby constituted shall determine and the hirer shall become the absolute owner of the goods but until such time the goods shall remain the sole property of the owner and the hirer shall be a mere bailee thereof.’ Transag requested relief from forfeiture.
Held: The case was ‘one of those rare cases’ where it would be right for the court to exercise its discretion and grant relief on terms that the outstanding instalments were to be paid within seven days. A hirer might be given given equitable relief in respect of its proprietary rights despite its receivership. The court should look at the extent of financial defaults, the extent of any disproportionate loss which would be incurred for either owner or hirer, and any substantial windfall profit which might accrue to the owner.

Knox J
Ind Summary 31-Jan-1994, Times 15-Jan-2004, [1994] 2 BCLC 88
England and Wales
Citing:
Cited – BICC plc v Burndy Corp CA 1985
. .
Cited – Goker (Ali) v NSW Bank CA 23-May-1990
In the case of a hire purchase agreement, the court has a power to grant relief from forfeiture, but will not normally exercise that power unless there is no real prejudice to the owner of the goods. . .

Cited by:
Applied – On Demand Information Plc and Another v Michael Gerson (Finance) Plc and Another CA 19-Sep-2000
The power to grant relief from forfeiture in finance leases was real, but ceased to be available after property repossessed by the finance company had been contracted for sale by the applicants. The application for relief was in its nature, an . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 09 January 2022; Ref: scu.89974

Target Holdings Ltd v Priestley and Another: ChD 8 Apr 1999

An oral contract by which a lender agreed to accept repayments of arrears under a mortgage at a certain rate was valid in law despite non-compliance with the section. It was however a contract of disposition, not an executory contract and not caught. A compromise of repayments under a mortgage was valid despite lack of formality.

Gazette 08-Apr-1999, Gazette 06-May-1999, Times 13-May-1999
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales

Land, Contract

Updated: 09 January 2022; Ref: scu.89710