Category: Contract

Blackmore v London and South Western Railway Company: 1868

(1868) 38 LJ Ch 19
England and Wales
Cited by:
Appeal From – London and South Western Railway Company v Blackmore HL 5-Jul-1870
In 1861 the railway company used its statutory powers to buy some of Mr Blackmore’s land for railway purposes. In 1864 they had a dispute over their boundary. This was settled by an agreement that he should build a wall to be maintained at their . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 18 December 2021; Ref: scu.456511

Mannai Investment Co Ltd v Eagle Star Assurance: HL 21 May 1997

Minor Irregularity in Break Notice Not Fatal

Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th January 1995, although the third anniversary of the commencement date was 13th January 1995.
Held: A tenant’s notice exercising a break clause in a lease was to be treated in the same way as other notices; minor irregularities are not to be taken to override the clear intention of the notice. The notice was defective by mis-stating the date upon which it was to operate by one day. The test is an objective one as to whether the true intended meaning can be seen: ‘The question is not whether 12 January can mean 13 January: it self-evidently cannot. The real question is a different one: does the notice construed against its contextual setting unambiguously inform a reasonable recipient how and when the notice is to operate under the right reserved?’ and ‘The question is not how the landlord understood the notices. The construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood the notices. And in considering this question the notices must be construed taking into account the relevant objective contextual scene.’ (Lord Steyn) As to interpretating a commercial contract: ‘In determining the meaning of the language of a commercial contract . . . the law . . . generally favours a commercially sensible construction. The reason for this approach is that a commercial construction is more likely to give effect to the intention of the parties. Words are therefore interpreted in the way in which a reasonable commercial person would construe them. And the standard of the reasonable commercial person is hostile to technical interpretations and undue emphasis on niceties of language.’ Appeal allowed (majority).

Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Steyn, Lord Hoffmann, Lord Clyde
Times 26-May-1997, [1997] 2 WLR 945, [1997] UKHL 19, [1997] AC 749, [1997] 3 All ER 352, [1997] 24 EG 122
House of Lords, Bailii
England and Wales
Citing:
Appeal from – Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd CA 19-Jul-1995
A notice exercising a tenant’s or landlord’s right to break a lease, must be given precisely as required by the break clause in the lease.
Nourse LJ said that the last moment of time on one day is not the same as the first moment of time on . .
Distinguished – Sidebotham v Holland CA 1895
A house was let to the defendant as a yearly tenant ‘commencing on May 19 instant’, and on 17th November the landlord served a notice to quit ‘on 19th May next’.
Held: It related to a point of time which was held to be common to both dates and . .
Cited – Cadby v Martinez 1840
A clause in his lease allowed the tenant to determine it by notice expiring on Michaelmas day 1837. The tenant mistakenly gave notice to quit and deliver up the premises on 24 June 1837. The notice was expressed to be ‘agreeably to the covenants of . .
Overruled – Hankey v Clavering CA 1942
A lease term ran for 21 years from 25 December 1934. A break clause gave either party the right to determine the lease at the expiration of the first seven years, by six calendar months’ notice. The landlord gave notice to the tenant’s solicitors in . .
Cited – Gardner v Ingram 1889
‘Although no particular form need be followed, there must be plain, unambiguous words claiming to determine the existing tenancy at a certain time.’ . .
Cited – P Phipps and Co (Northampton and Towcester Breweries) Ltd v Rogers 1925
A notice to quit a lease should be so expressed as to expire on the relevant date. ‘The date of determination must be the right date.’ . .
Cited – Doe d Cox v Roe 1803
The landlord of a public house in Limehouse gave notice to quit ‘the premises which you hold of me . . . commonly called or known by the name of The Waterman’s Arms.’ However, the only property let by the landlord to the tenant was a public house . .
Cited – Carradine Properties Ltd v Aslam ChD 1976
Under a break clause in a lease, the relevant date upon which a notice given by either party under the clause might take effect was a date in September 1975, but the landlord’s notice in September 1974 specified a date in 1973. The date in 1973, had . .
Doubted – Micrografix v Woking 8 Ltd ChD 1995
The tenants gave a notice determining the lease on 23 March 1995 when under the relevant clause they could only have done so on 23 June 1995. Jacob J. held that, as the landlords knew that the date of determination could only be 23 June 1995, they . .
Cited – Delta Vale Properties Ltd v Mills CA 1990
A contract for the sale of land provided that, upon service of a notice to complete, the transaction should ‘be completed within 15 working days of service and in respect of such period time shall be of the essence’. The notices however substituted . .
Cited – Germax Securities Ltd v Spiegel CA 1978
A notice was deemed valid despite an error since the error was not in the operative party of the notice. . .
Cited – Sunrose Ltd v Gould 1962
In construing a document ‘the principle is that that is certain which the context renders certain.’ . .
Cited – Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
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 – Norwegian American Cruises A/S (formerly Norwegian American Lines A/S) v Paul Munday Ltd (The ‘Vistafjord’) 1988
A party may be precluded by an estoppel by convention from raising a contention contrary to a common assumption of fact or law (which could include the validity of a notice) upon which they have acted. . .
Cited – Heap v Ind Coope and Allsopp Ltd 1940
MacKinnon LJ said: ‘The law as it stands does permit me to give effect to common-sense and decency.’ . .
Cited – Price v Mann CA 1942
The question was whether under the a notice to avoid disclaimer given by the landlord under the Act, requiring the tenant to retain the lease on the terms set out in section 10, was invalid because section 10 was irrelevant and by mistake inserted . .
Cited – Doe d Spicer v Lea 1809
A lease in the new style commencing on St Michael’s day gave notice to quit on the old Michaelmas date, but should have been given to expire on the new Michaelmas day. Extrinsic evidence that the party intended the other day was not admitted. A . .
Cited – In the Goods of R R Peel ChD 15-Mar-1870
The testator appointed ‘Francis Courtnay Thorpe, of Hampton . . Middlesex’ to be his executor. There was a Francis Courtenay Thorpe of Hampton, Middlesex. He was however only 12 years old and his father Francis Corbet Thorpe, of Hampton, Middlesex, . .
Cited – In re Fish CA 1894
The testator left his residuary estate to his ‘niece Eliza.’ He had no niece called Eliza but his wife had an illegitimate grandniece called Eliza, to whom the evidence of their relationship showed that he must have intended to refer, and also, as . .
Cited – National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children HL 1915
A Scotsman left his money to a beneficiary which he called the National Society for the Prevention of Cruelty to Children.
Held: The House refused to accept that a gift to the ‘National Society for the Prevention of Cruelty to Children’ should . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Garston v Scottish Widows’ Fund and Life Assurance Society ChD 1996
A lease allowed a break clause to be exercised on six month’s notice. The notice given was calculated by reference to the wrong date, the date of the lease, and not the term contained in it.
Held: The mistake was not sufficiently clear to . .
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 by:
Cited – Ravenseft Properties Ltd v Hall; White v Chubb; similar CA 19-Dec-2001
Parties appealed decisions as whether assured shorthold tenancy notices were valid despite errors.
Held: If, notwithstanding errors or omissions, the substance of the notice was sufficiently clear to the reasonable person reading it, then the . .
Cited – Garston and Others v Scottish Widows Fund and Life Assurance Society CA 1-Jul-1998
Notices served together breaking lease and requiring new lease but mistaking dates should be held valid where the combined intention was unmistakable, though on its own the mistaken statutory notice requiring new tenancy from wrong date would not . .
Cited – First Property Growth Partnership LP v Royal and Sun Alliance Property Services Ltd ChD 8-Mar-2002
The lease contained rent review provisions which required the landlord’s notice invoking the review to be issued within a certain period. The tenant claimed that the notice was issued out of time. The landlord contended that the words of the lease, . .
Applied – Trafford Metropolitan Borough Council v Total Fitness UK Ltd CA 18-Oct-2002
The landlord served a notice to quit. It gave a date calculated by reference to the notice period, but then stated the date on which it expired. Under the rule in Lester, the notice period only began on the day after service, and that resulted in a . .
Cited – Garston and Others v Scottish Widows Fund and Life Assurance Society CA 25-Jun-1998
The lease demised property ‘from the 24th day of June 1985 for a term of twenty years’ with a break clause requiring six month’s notice. The break notice was mistakenly calculated from the anniversary of the lease, not the anniversary of the term. . .
Applied – McDonald and Another v Fernandez and Another CA 19-Jul-2003
The landlord served a notice to terminate a shorthold tenancy saying that he required possession on a certain day. The tenancy had been a periodic tenancy, and the date was not the last day of a period of the tenancy.
Held: The Act was . .
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 – Laminates Acquisition Co v BTR Australia Ltd ComC 31-Oct-2003
The claimant sought damages for breach of a company share sale agreement. The seller had given a warranty that it was not involved in any undisclosed litigation. An anti-trust investigation had been begun in the US.
Held: In this case the . .
Cited – York and Another v Casey and Another CA 16-Feb-1998
The plaintiffs let property to the respondents. The notice of shorthold tenancy issued prior to the tenancy commencing had obvious errors in the dates. The issue was as to its validity.
Held: The error was evident, the termination date . .
Cited – Oliver Ashworth (Holdings) Limited v Ballard (Kent) Limited CA 18-Mar-1999
In order for the landlord to claim double rent where a tenant held over unlawfully after the tenancy was determined, the landlord must not do anything to indicate that the lease might be continuing, for example by denying the validity of break . .
Cited – Clickex Ltd v McCann CA 26-May-1999
A failure by a landlord under the pre-1996 assured shorthold tenancy regime, to insert the correct tenancy dates in a shorthold notice, meant that the tenancy became an assured tenancy, since the arrangement failed to meet the requirements to create . .
Cited – Barclays Bank plc v Bee and Another CA 10-Jul-2001
The landlord’s solicitors, by mistake, sent two notices to the tenant in the same letter. One notice opposed the grant of a new tenancy but on an invalid ground, and the other said a new tenancy would not be opposed. The tenant sought clarification. . .
Cited – Lay and others v Ackerman and Another CA 4-Mar-2004
Notices had been served by tenants under the Acts. The properties were on a large estate where the freeholds had been divided and assigned to different bodies, and there were inconsistencies in identifying the landlords. The landlords served a . .
Cited – Lemmerbell Limited and Another v Britannia LAS Direct Limited CA 8-Oct-1998
A break notice was served. The tenant had informally assigned the premises, and the break notice had been purported to be exercised by the assignee.
Held: The notice was invalid. ‘The present case seems to me to bear little resemblance to the . .
Cited – B Osborn and Co Ltd v Dior and others CA 22-Jan-2003
Notices were given which were incorrect.
Held: The notices were upheld despite the errors. . .
Distinguished – Proctor and Gamble Technical Centres Limited v Brixton Estates plc 2003
. .
Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Cited – Sirius International Insurance Company (Publ) v FAI General Insurance Limited and others HL 2-Dec-2004
The appellant had taken certain insurance risks on behalf of the respondents, subject to banking indemnities. Disputes arose and were settled under a Tomlin order, which was now itself subject to challenge.
Held: The appeal was allowed. The . .
Cited – Akici v LR Butlin Ltd CA 2-Nov-2005
The tenant appealed against forfeiture of his lease for breach of a qualified covenant against assignment. It was said that the tenant had attempted to hide from the landlord the assignment of the premises to his company or its shared occupation. . .
Cited – Notting Hill Housing Trust v Roomus CA 29-Mar-2006
The landlord had served a notice to quit on his tenant. The notice specified that possession would be required ‘at the end of your period of your tenancy’ It was objected that the notice was ineffective.
Held: The notice must be interpreted to . .
Cited – Forrest and others v Glasser and Another CA 31-Jul-2006
The claimants appealed a preliminary decision against them as to whether they had correctly served a sufficient notice of their intention to make a claim in a commercial investment syndicate agreement.
Held: The claimants’ solicitor had . .
Cited – Rennie v Westbury Homes (Holdings) Ltd ChD 7-Feb-2007
The parties had entered into an option agreement for development of land. The developer purported to exercise an option extendng the applicable period, but having accepted the funds, the land owner denied that it had been validly exercised.
Cited – Andrews and Another v Cunningham CA 23-Jul-2007
The elderly appellant claimed a non-shorthold assured tenancy. He had moved in in 1999, but had been given a rent book which described the tenancy as an assured tenancy. The now deceased landlord had himself occupied another flat in the building. . .
Cited – Megaro v Di Popolo Hotels Ltd CA 13-Mar-2007
Two properties had been in common ownership, but then divided. A fire escape on one property was to be available to the other. The servient tenement removed the fire escape. The owner of the dominent tenement (a hotel) sought relief.
Held: The . .
Cited – Oxonica Energy Ltd v Neuftec Ltd PatC 5-Sep-2008
The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal . .
Cited – Carmarthen Developments Ltd v Pennington SCS 24-Sep-2008
carmarthen_penningtonSCS2008
Contracts had been entered into for the sale of plots of land, which were conditional on planning permissions being approved by the purchaser. The buyer could waive the conditions to remove the sellers’ rights to resile. The buyer obtained the . .
Cited – Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
Cited – Allianz Insurance Company- Egypt v Aigaion Insurance Company SA CA 19-Dec-2008
The parties set out to conclude a contract for insurance, but the final email omitted an essential warranty which had previously been agreed. The court was asked whether a contract had been concluded. The judge had found that the contract had been . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Inveresk Plc v Tullis Russell Papermakers Ltd SC 5-May-2010
The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that . .
Cited – Eminence Property Developments Ltd v Heaney CA 21-Oct-2010
The court was asked whether a vendor of land, who served a notice to complete making the time for completion of the essence of the sale contract, and then, mistakenly, treated the contract as at an end prior to the expiry of the notice, was thereby . .
Cited – MW Trustees Ltd and Others v Telular Corporation ChD 31-Jan-2011
The claimants sought a declaration that its tenants had not served an effective notice to break the lease. The lease contained mandatory provisions for service of any notice, and the tenant’s break notice had been served, it said, on the wrong . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – Quirkco Investments Ltd v Aspray Transport Ltd ChD 23-Nov-2011
The defendant tenant said that it had exercised a break clause in the lease held of the claimant. The claimant said the break notice was ineffective because the defendant was in breach of the lease, not having paid an iinsurance service charge, and . .
Cited – Unique Pub Properties Ltd v Broard Green Tavern Ltd and Another ChD 26-Jul-2012
The claimant freeholder sought to install in the tenant’s pub, equipment to monitor sales. It claimed a right for this in the lease. The tenant refused access, saying that the proposed system was inaccurate. The claimant now sought summary relief. . .
Cited – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Cited – Pink Floyd Music Ltd and Another v EMI Records Ltd CA 14-Dec-2010
The defendant appealed against an order made on the claimant’s assertion that there were due to it substantial underpayments of royalties over many years. The issues were as to the construction of licensing agreements particularly in the context of . .
Cited – Bogdanic v The Secretary of State for The Home Department QBD 29-Aug-2014
The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Cited – Sugarman and Others v CJS Investments Llp and Others CA 19-Sep-2014
The parties were apartment owners in a development, each owning shares in the management company. They disputed the interpreation of the Articles as to whether the owner of more than one apartment was still restricted to one vote at member meetings, . .
Cited – Nicholas v Secretary of State for Defence CA 4-Feb-2015
The claimant wife of a Squadron Leader occupied a military house with her husband under a licence from the defendant. When the marriage broke down, he defendant gave her notice to leave. She now complained that the arrangement was discriminatory and . .
Cited – Trump International Golf Club Scotland Ltd and Another v The Scottish Ministers (Scotland) SC 16-Dec-2015
The appellant challenged the grant of permission to the erection of wind turbines within sight of its golf course.
Held: The appeal failed. The challenge under section 36 was supported neither by the language or structure of the 1989 Act, and . .
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract

Leading Case

Updated: 18 December 2021; Ref: scu.158894

London and South Western Railway Company v Blackmore: HL 5 Jul 1870

In 1861 the railway company used its statutory powers to buy some of Mr Blackmore’s land for railway purposes. In 1864 they had a dispute over their boundary. This was settled by an agreement that he should build a wall to be maintained at their joint expense. The agreement included a release of claims in general terms. In 1866 the railway company decided that it did not need the land it had taken and proposed to sell it as surplus land. Mr Blackmore claimed that, as the person from whom it had been taken, he had a statutory right of pre-emption under the Land Clauses Consolidation Act 1845. The railway company argued (rather faintly, it would seem, by their second counsel) that it fell within the description of claims which he surrendered when settling the boundary dispute.
Held: Where a release of a contractual obligation is given, its language will be interpreted having regard to the surrounding circumstances against which it came into existence and with special reference to the ambit of the dispute that was the occasion of its creation.
Lord Westbury said: ‘The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given. But a dispute that had not emerged, or a question which had not at all arisen, cannot be considered as bound and concluded by the anticipatory words of a general release.’

Lord Westbury, Lord Hatherley LC
(1870) 4 AC 610, (1870) LR 4 HL 610, (1870) LJ Ch 713, (1870) 23 LT 504, (1870) JP 324, (1870) 19 WR 305, 39 LJCh 713, [1870] UKLawRpHL 13
Commonlii
Land Clauses (Consolidation) Act 1845 127 128
England and Wales
Citing:
Appeal From – Blackmore v London and South Western Railway Company 1868
. .

Cited by:
Cited – Tiffany Investments Ltd and Another v Bircham and Co Nominees (No 2) Limited and others CA 4-Dec-2003
The tenancy was a long lease at a low rent under the 1954 Act, and so had continuing protection under the 1977 Act whilst occupied by the original tenant. The lease was assigned and registered. It had been conditional upon an application to purchase . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 18 December 2021; Ref: scu.192031

On Tower UK Ltd v JH and FW Green Ltd: CA 7 Dec 2021

Terms of an agreement which is to be imposed on the parties pursuant to the electronic communications code contained in schedule 3A to the Communications Act 2003 (‘the Code’). More specifically, it relates to the extent of the upgrading and sharing rights which the respondent, On Tower UK Limited (‘On Tower’), should enjoy under that agreement.

Lord Justice Newey,
Lord Justice Dingemans,
And,
Lady Justice Whipple
[2021] EWCA Civ 1858
Bailii, Judiciary
England and Wales

Utilities, Contract

Updated: 17 December 2021; Ref: scu.670338

John G Sibbald and Son Ltd v Douglas Johnston and The Firm of DMJ Associates: SCS 3 Jun 2014

The pursuer is a development company. The second defenders are a firm of consulting engineers. This action concerns a contract to design a vehicular bridge within the Limefield Estate, West Calder, West Lothian. By an agreement dated 23 April 2003, the pursuer appointed the first defender, in his capacity as a partner or sole principal of the second defenders, to provide various professional services

Lord Tyre
[2014] ScotCS CSOH – 94
Bailii

Scotland, Contract

Updated: 16 December 2021; Ref: scu.534133

Northern Ireland Renewables Ltd v Carey: ChNI 13 May 2014

ChNI The principal relief sought with relevance to this judgment was an order for specific performance of a contract made, on the plaintiff’s contention, on 1 December 2010 by notice pursuant to an option agreement of 5 December 2003 requiring the defendant to grant a lease of premises to the plaintiffs in the terms set out in a draft lease annexed to the said option agreement.

[2014] NICh 15
Bailii
Northern Ireland

Land, Contract

Updated: 16 December 2021; Ref: scu.534077

DWF Llp v Secretary of State for Business Innovation and Skills, Acting On Behalf of The Insolvency Service: CA 8 Jul 2014

The claimant firm of solicitors challenged the decision made by the respondent in the award of contracts to provide legal services to the respondent.
Held: Sir Robin Jacob, giving the judgment of the Court of Appeal with which the other members agreed, decided not to deal with an argument that modified principles should apply in the case where the court was considering whether to lift an automatic suspension and proceeded to apply the American Cyanamid principles.

Arden, Black LJJ, Sir Robin Jacob
[2014] EWCA Civ 900
Bailii
Public Contracts Regulations 2006 4(3), EU Directive 2004/18/EC
England and Wales
Cited by:
Cited – NATS (Services) Ltd v Gatwick Airport Ltd and Another TCC 2-Oct-2014
NATS had tendered unsuccessfully for a contract to provide air traffic control services at Gatrwick airport, and challenged the award. GAL denied that the Regulations applied and now sought disapplication of the automatic suspension from the award . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 16 December 2021; Ref: scu.533932

Tallington Lakes Ltd and Others v Larking Gowen: CA 9 Jul 2014

The defendant appealed rejection of its defence that a contract with the claimant, its accountant, was on a fixed fee contract.

Tomlinson, Longmore, Briggs LJJ
[2014] EWCA Civ 959
Bailii
England and Wales
Citing:
Cited – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 16 December 2021; Ref: scu.533940

Bluewater Energy Services Bv v Mercon Steel Structures Bv and Others: TCC 30 Jun 2014

‘claims arising under a sub-contract made between the Claimant and the Defendant for the fabrication of a tower based soft yoke mooring system for installation as part of the development of the Yuri Korchagin Field in the Caspian Sea.’

Ramsey J
[2014] EWHC 2132 (TCC)
Bailii

Contract

Updated: 16 December 2021; Ref: scu.533820

DVB Bank Se v Isim Amin Ltd and Another: ComC 9 May 2014

Application for judgment in default, the defendants not having filed acknowledgments of service or defences. The claim arises out of a loan to the defendants. The only question for decision as to whether there is an entitlement to judgment in default goes to the question of service.

Field J
[2014] EWHC 2156 (Comm)
Bailii

Contract

Updated: 16 December 2021; Ref: scu.533809

Edmond De Rothschild Securities (UK) Ltd v Exillon Energy Plc: ComC 2 Jul 2014

Application for summary judgment asking whether the claimant’s right to payment of a ‘success fee’ under the terms of an Engagement Letter dated 25 January 2013 by which it agreed to provide services to the defendant is conditional on proof that its activities were an effective cause of the success in question being achieved.

Males J
[2014] EWHC 2165 (Comm)
Bailii

Contract

Updated: 16 December 2021; Ref: scu.533811

Gul Bottlers (Pvt) Ltd v Nichols Plc: ComC 2 Jul 2014

The claimant sought damages for loss of profits it might have made under a licence agreement granted to it by the defendant for the production and distribution of Vimto double strength cordial and ready-to-drink carbonated Vimto drinks across Pakistan. It was Gul’s contention that, after months of negotiations and the expenditure of significant time and money, shortly before Gul was about to launch these products into the market in Pakistan, Nichols withdrew Gul’s licence to produce the DS Cordial because of pressure applied to it by its largest distributor, Aujan Industries Co.

Cooke J
[2014] EWHC 2173 (Comm)
Bailii

Contract

Updated: 16 December 2021; Ref: scu.533812

Doyle v White City Stadium Ltd: CA 1934

A professional boxer, below the age for making a contract generally, was held to be bound by the terms of his licence from the British Boxing Board of Control, which allowed him to earn his living boxing but required him to keep the rules. It was said that ‘Similarly, it has been held that an agreement between a minor and a publisher for the publication of the minor’s biography which was to be written by a ‘ghost writer’, was binding on the minor.’

[1935] 1 KB 110
England and Wales
Cited by:
Cited – Proform Sports Management Ltd v Proactive Sports Management Ltd and Another ChD 26-Jul-2006
The claimant entered into a contract with Wayne Rooney, then a child footballer to represent him. Mr Rooney entered into another contract with the defendant, and the claimant sought damages alleging unlawful interference or the procuring of a breach . .
Cited – Fisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .

Lists of cited by and citing cases may be incomplete.

Contract, Children

Updated: 15 December 2021; Ref: scu.246036

VIS Trading Co Ltd v Nazarov and Others: QBD 8 Mar 2013

The company had made loans to a company controlled by the defendant, but now sought repayment from the defendant personally.
Held: The claim succeeded. The loans had been requested by the defendant and used by the defendant to pay his pesonal debts. The defendants evidence was evidently false in several requests. The issues were governed by Russian law as to which the court received expert evidence. Correspondence from the defendant plainly gave personal promises as to discharge of the debts.

Leggatt J
[2013] EWHC 491 (QB)
Bailii
England and Wales

Contract, Company

Updated: 13 December 2021; Ref: scu.471562

Fitch v Dewes: HL 2 Jun 1921

The respondent sought to enforce against the appellant an agreement whereby the latter was prevented from practising as a solicitor within a certain area. Held that the reasonableness of the restriction was the test, and that the fact that the restriction was life long did not render it unreasonable.
Decision of the Court of Appeal (1920, 2 Ch. 159) affirmed.

Lord Chancellor (Birkenhead), Lords Cave, Sumner, Parmoor, and Carson
59 SLR 582, [1921] UKHL 582
Bailii
England and Wales

Contract

Updated: 13 December 2021; Ref: scu.632635

Smithton Ltd v Naggar: ChD 11 Jul 2013

Claim for loss suffered by the Claimant when two companies, Insureprofit Ltd (‘Insureprofit’) and Mariona Ltd (‘Mariona’) defaulted on their obligations to pay margin calls under open-ended contracts for difference entered into between the Claimant and those two companies.

Rose J
[2013] EWHC 1961 (Ch)
Bailii
England and Wales

Contract, Financial Services

Updated: 13 December 2021; Ref: scu.512319

The Procter and Gamble Company v Svenska Cellulosa Aktiebolaget Sca and Another: ChD 14 May 2012

Interpretation and operation of certain contractual and statutory provisions relating to pensions benefits, and in particular, contractual provisions for adjustments to the purchase price according to whether or not certain accrued pension liabilities transferred to SCA by operation of the Transfer of Undertakings (Protection of Employment) Regulations 2006

The Honourable Mr Justice Hildyard
[2012] EWHC 1257 (Ch), [2012] Pens LR 257, [2012] IRLR 733
Bailii
England and Wales

Contract, Employment

Updated: 13 December 2021; Ref: scu.457683

Re De Leeuw, Jakens v Central Advance and Discount Corporation: Chd 1922

A deed which bears a false signature is a forgery and creates no rights whatever.
Where a party sues as trustee a judgment in the proceeding shall bind the persons having a beneficial interest under the trust as it does the trustee.

Peterson J
[1922] 2 Ch 540, [1922] All ER 528
England and Wales
Cited by:
Cited – Norman Hudson v Shogun Finance Ltd CA 28-Jun-2001
A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
Held: The dealer had not taken all the steps he might have done to check the identity of the . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 13 December 2021; Ref: scu.188410

United Company Rusal Plc, Regina (on The Application of) v The London Metal Exchange: Admn 27 Mar 2014

The claimant challenged the introduction of new rules for the storage of metals for the members of the respondent, which was anticipated to lead to a fall in the price of aluminium. They said that the consultation process had been procedurally unfair.
Held: The consultation was unfair principally for two reasons: (1) it was procedurally unfair because it did not explain the principal option that had been rejected, namely the rent ban option, and (2) there had been inadequate investigation of the rent ban option prior to the consultation.

Phillips J
[2014] EWHC 890 (Admin)
Bailii
England and Wales
Cited by:
Appeal from – United Company Rusal Plc, Regina (on The Application of) v The London Metal Exchange CA 8-Oct-2014
The excange produced new rules for its members which had adversely affected the appellant. The appellant had sought orders as to the validity of the new rules. . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 December 2021; Ref: scu.523303

Dahlia Ltd v Four Millbank Nominees Ltd and Another: CA 24 Nov 1977

Appeal against strike out of statement of claim. The plaintiffs had negotiated with the defendants for the purchase of several properties. Though formal contracts were never exchanged, the plaintiffs said that they had the benefit of a unilateral contract to enter into a binding written contract.

Buckley, Orr, Goff LJJ
[1977] EWCA Civ 5, [1978] Ch 231
Bailii
England and Wales
Citing:
Cited – Warlow v Harrison CExC 26-Nov-1859
Unless public notice of this was given, a bid from the seller himself was fraudulent. He appealed against rejection of his claim against the auctioneer.
Held: The appeal failed on the existing pleadings, but said that the plaintiff might . .
Cited – Johnston v Boyes 1899
There is no custom that a purchaser at an auction can expect to have his personal cheque for a ten per cent deposit accepted. This applies even to those with a good credit standing as much as (here) for an apparent pauper.
Cozens Hardy J said . .
Cited – Warlow v Harrison CExC 26-Nov-1859
Unless public notice of this was given, a bid from the seller himself was fraudulent. He appealed against rejection of his claim against the auctioneer.
Held: The appeal failed on the existing pleadings, but said that the plaintiff might . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 11 December 2021; Ref: scu.262702

Guild and Co v Conrad: CA 25 Jun 1894

A promise by the defendant in consideration of the plaintiff accepting certain bills of exchange, to indemnify him from liability to make payments in respect of such bills is not within s. 4 of the Statute of Frauds. The defendant orally promised the plaintiff that, if he, the plaintiff, would accept certain bills for a firm in which the defendant’s son was a partner, he, the defendant, would provide the plaintiff with funds to meet the bills.
Held: (affirming the judgment of Mathew J), that this was a promise of indemnity and not of guarantee, and therefore not required by s. 4 of the Statute of Frauds to be in writing.
Davey LJ said: ‘In my opinion, there is a plain distinction between a promise to pay the creditor if the principal debtor makes default in payment, and a promise to keep a person who has entered, or is about to enter, into a contract of liability indemnified against that liability, independently of the question whether a third person makes default or not.’

Davey LJ
[1894] 2 QB 885, [1894] UKLawRpKQB 127
Commonlii
England and Wales
Cited by:
Cited – Harburg India Rubber Comb Co v Martin CA 1902
The defendant had been a member of a syndicate which owed money to the plaintiff. The plaintiff obtained judgment against the syndicate and tried (unsuccessfully) to execute a writ of fi fa. The defendant then gave an oral promise that, if the . .
Cited – Pitts and others v Jones CA 6-Dec-2007
The defendant shareholder provisionally agreed for the sale of his shares without regard to a right of pre-emption in favour of the claimants. He then made an oral promise to indemnify the claimants against any losses should the purchaser fail to . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 December 2021; Ref: scu.262987

Sutton v Gray: CA 28 Nov 1893

The plaintiff stockbrokers agreed with the defendant that he would introduce business to them which they would conduct on the stock exchange. If any profit were made it would be shared equally; if losses resulted, the defendant would be liable to the plaintiff for half. The agreement was oral.
Held: the agreement was not a guarantee caught by section 4. Lord Esher MR explained the difference between a contract of guarantee and of indemnity: ‘There the test given is, whether the defendant is interested in the transaction, either by being the person who is to negotiate it or in some other way, or whether he is totally unconnected with it. If he is totally unconnected with it, except by means of his promise to pay the loss, the contract is a guarantee; if he is not totally unconnected with the transaction, but is to derive some benefit from it, the contract is one of indemnity, not a guarantee, and section 4 does not apply.’

Lord Esher MR
[1894] 1 QB 285, [1893] UKLawRpKQB 190
Statute of Frauds 1677 4
England and Wales
Cited by:
Cited – Pitts and others v Jones CA 6-Dec-2007
The defendant shareholder provisionally agreed for the sale of his shares without regard to a right of pre-emption in favour of the claimants. He then made an oral promise to indemnify the claimants against any losses should the purchaser fail to . .
Cited – Harburg India Rubber Comb Co v Martin CA 1902
The defendant had been a member of a syndicate which owed money to the plaintiff. The plaintiff obtained judgment against the syndicate and tried (unsuccessfully) to execute a writ of fi fa. The defendant then gave an oral promise that, if the . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 December 2021; Ref: scu.262986

Pitts and others v Jones: CA 6 Dec 2007

The defendant shareholder provisionally agreed for the sale of his shares without regard to a right of pre-emption in favour of the claimants. He then made an oral promise to indemnify the claimants against any losses should the purchaser fail to satisfy any liability arising. He now argued that there was no consideration and therefore no contract, and that any such promise was unenforceable under the 1677 Act as an oral guarantee.
Held: There had been consideration in the claimant’s acceptance of the proposal which had allowed other aspects to proceed. ‘Not every interest in the transaction would serve to take the promise out of the statute; there had to be more than a motive for offering the promise; there had to be a real interest in the subject matter of the contract. If the promisor had no real interest in the subject matter of the contract but only a motive for offering his promise, the promise would be a contract of guarantee.’ Here, the guarantee stood alone, and as such as unenforceable unless in writing.

Ward LJ, Smith LJ, Wilson LJ
[2007] EWCA Civ 1301, Times 19-Dec-2007
Bailii
Staute of Frauds 1677 4
England and Wales
Citing:
Cited – Sutton v Gray CA 28-Nov-1893
The plaintiff stockbrokers agreed with the defendant that he would introduce business to them which they would conduct on the stock exchange. If any profit were made it would be shared equally; if losses resulted, the defendant would be liable to . .
Cited – Guild and Co v Conrad CA 25-Jun-1894
A promise by the defendant in consideration of the plaintiff accepting certain bills of exchange, to indemnify him from liability to make payments in respect of such bills is not within s. 4 of the Statute of Frauds. The defendant orally promised . .
Cited – Harburg India Rubber Comb Co v Martin CA 1902
The defendant had been a member of a syndicate which owed money to the plaintiff. The plaintiff obtained judgment against the syndicate and tried (unsuccessfully) to execute a writ of fi fa. The defendant then gave an oral promise that, if the . .

Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 10 December 2021; Ref: scu.261817

Harburg India Rubber Comb Co v Martin: CA 1902

The defendant had been a member of a syndicate which owed money to the plaintiff. The plaintiff obtained judgment against the syndicate and tried (unsuccessfully) to execute a writ of fi fa. The defendant then gave an oral promise that, if the plaintiff would desist in execution, he would issue bills of exchange to satisfy the syndicate’s liability.
Held: The Court considered whether a promise given orally by the defendant was a guarantee (unenforceable on account of the Statute of Frauds) or a contract of indemnity, as contended by the plaintiff.
Vaughan Williams LJ said: ‘I think, the form of the promise given by the promisor has never been held to be conclusive of the matter. He may, or he may not, promise in terms to answer for the debt of another; but, whether he does so or not, it is the substance, not the form which is regarded. . I wish to mention one other class (of case), which. . I think does not come within the section (that is section 4) at all. I mean the cases which have been spoken of as ‘indemnity cases’. Of course in one sense all guarantees, whether they come within s.4 or not, are contracts of indemnity. But the difference between those indemnities which come within the section and those which do not is very shortly thus expressed in the notes to Forth v Stanton: ‘These cases establish that the statute applies only to promises made to the person to whom another is already or is to become answerable’.
That, to my mind, is an accurate definition of a guarantee or indemnity which comes within section 4 of the statute as distinguished from an original liability which is not within the section, and which has no reference to the debt of another, but creates a new liability which is undertaken by the promisor, and has been called in the course of the argument a contract of indemnity.’

Vaughan Williams LJ
[1902] 1 KB 778
Statute of Frauds 1677 4
England and Wales
Citing:
Cited – Guild and Co v Conrad CA 25-Jun-1894
A promise by the defendant in consideration of the plaintiff accepting certain bills of exchange, to indemnify him from liability to make payments in respect of such bills is not within s. 4 of the Statute of Frauds. The defendant orally promised . .
Cited – Sutton v Gray CA 28-Nov-1893
The plaintiff stockbrokers agreed with the defendant that he would introduce business to them which they would conduct on the stock exchange. If any profit were made it would be shared equally; if losses resulted, the defendant would be liable to . .

Cited by:
Cited – Actionstrength Limited v International Glass Engineering, In Gl En SPA, Saint-Gobain Glass UK Limited CA 10-Oct-2001
The claimant sought payment for works undertaken. They had been given a promise that in return for not withdrawing their workforce from the site, the second defendants would redirect payments due to the first defendant to the claimant. When it came . .
Cited – Pitts and others v Jones CA 6-Dec-2007
The defendant shareholder provisionally agreed for the sale of his shares without regard to a right of pre-emption in favour of the claimants. He then made an oral promise to indemnify the claimants against any losses should the purchaser fail to . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 December 2021; Ref: scu.180430

Scheps v Fine Art Logistic Ltd: QBD 16 Mar 2007

The claimant bought fine art sculptures by Anish Kapoor at auction. They were stored by the defendant who when called upon to deliver them, said they had possibly been thrown away as rubbish. The defendant sought to limit its liability to the sum set by its contract. The defendant said that the claimant had been involved in the art trade and knew of the use of such terms. The claimant said he had not been sent a copy of them.
Held: There was no course of trading between the parties so as to demonstrate that British Crane should be applied and the defendant’s standard terms incorporated. Had the terms been incorporated and the claimant notified, the defendant may have been able to rely on the clause. The evidence was that the work was lost in approximately September 2004, and it should be valued at at date, but consequential damages also awarded for the expected further increase in value to the date of judgment.

[2007] EWHC 541 (QB)
Bailii
Unfair Contract Terms Act 1977, Unfair Terms in Consumer Contracts Regulations 1999, Torts (Interference with Goods) Act 1977
England and Wales
Citing:
Cited – British Crane Hire v Ipswich Plant Hire CA 13-Nov-1973
Lord Denning MR said: ‘I would not put it so much on the course of dealing, but rather on the common understanding which is to be derived from the conduct of the parties, namely, that the hiring is to be on the terms of the plaintiff’s usual . .
Cited – McCutcheon v David MacBrayne Ltd HL 21-Jan-1964
The appellant had asked his brother-in-law to have a car shipped from Islay to the mainland. The appellant had personally consigned goods on four previous occasions. On three of them he was acting on behalf of his employer; on the other occasion he . .
Cited – Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd and Another CA 18-Apr-1997
The defendant’s driver had taken a consignment of shoes to Spain, where they were stolen. The plaintiff alleged his gross negligence amounted to ‘wilful misconduct’ so as to disapply an exemption clause.
Held: Whether a bailee’s acts . .
Cited – Singer Co (UK) Ltd v Tees and Hartlepool Port Authority 1988
The court upheld under the 1977 Act a clause which limited a port authority’s liability to andpound;800 per ton of consignment. Other factors were relevant but ‘The way in which the port authority’s general conditions came into being seems to me to . .
Cited – Frans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages, Consumer

Updated: 10 December 2021; Ref: scu.250625

Bettini v Gye: QBD 1876

Mr Bettini agreed to sing for Mr Gye in concerts and operas in London between March and July 1875. The contract said he was to be in London ‘without fall’ at least six days before the 30th March for rehearsals. Because of illness, he did not arrive until the 28th.
Held: The term was not in this case a condition precedent: the clause was a warranty only and a breach would not amount to a repudiation of the contract but would only give rise to an action for compensation in damages. Nevertheless, parties to a contract are free to say that a breach of a particular term will be fundamental.
Blackburn J said: ‘Parties may think some matter, apparently of very little importance, essential; and if they sufficiently express an intention to make the literal fulfilment of such a thing a condition precedent, it will be one.’
To discovere wether there had been a repudiation, the court had to ask whether the breach in question was of a term: ‘going to the root of the matter, so that a failure to perform it would render the performance of the rest of the contract by the plaintiff a thing different from what the defendant has stipulated for.’

Blackburn J
(1876 ) 1 QBD 183
England and Wales
Cited by:
Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Lombard North Central v Butterworth CA 31-Jul-1986
The defendant entered into a hire-purchase contract for a computer, time being stipulated to be ‘of the essence’ in relation to the payment obligations. He defendant defaulted, and the plaintiff took possession of the goods, and and sought payment . .

Lists of cited by and citing cases may be incomplete.

Contract

Leading Case

Updated: 10 December 2021; Ref: scu.251066

Taylor and Another v Caldwell and Another: QBD 6 May 1863

The defendants had agreed to hire a hall to give four concerts, but it burned down before they were to start.
Held: Blackburn J said: ‘where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless when the time for the fulfilment of the contract arrived some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such continuing existence as the foundation of what was to be done; there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor. ‘ and ‘Although the Civil law is not of itself authority in an English Court, it affords great assistance in investigating the principles on which the law is grounded. And it seems to us that the common law authorities establish that in such a contract the same condition of the continued existence of the thing is implied by English law. ‘

Blackburn J
[1863] EWHC QB J1, (1863) 3 B and S 826, [1863] EngR 526, (1863) 122 ER 309
Bailii, Commonlii
England and Wales
Citing:
Cited – Paradine v Jane KBD 26-Mar-1647
The defendant tenant had had his house occupied by an invading army and he sought to be excused from paying rent.
Held: ‘where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no . .

Cited by:
Cited – Krell v Henry CA 1903
Mr Henry contracted to rent a flat located on Pall Mall from the plaintiff, Paul Krell for the daytime and on the days of the forthcoming cornation procession.. He was told that he would have an excellent view of, but this was not written down. He . .
Cited – National Carriers Ltd v Panalpina (Northern) Ltd HL 11-Dec-1980
No Frustration of Lease through loss of access
The tenant’s access to the premises was closed by the local authority because it passed by a derelict and dangerous building. The tenant argued that its tenancy was frustrated.
Held: The lease was not frustrated. The lease had a term of ten . .
Cited – Gamerco Sa v ICM Fair Warning (Agency) Ltd and Another QBD 31-Mar-1995
The plaintiff Spanish concert promoter, and the defendant rock group, Guns ‘n’ Roses, agreed to provide a concert at the stadium of Atetico Madrid, but shortly before it was due to take place, the stadium was deemed unfit, and its licence withdrawn. . .

Lists of cited by and citing cases may be incomplete.

Contract

Leading Case

Updated: 10 December 2021; Ref: scu.245442

Beswick v Beswick: CA 1966

The court was asked as to breach of an agreement to pay a man’s widow an annuity for life.
Held: A plaintiff is entitled to no more than nominal damages in respect of the defendant’s breach of a contract where the plaintiff himself has suffered no loss.
Lord Justice Denning said: ‘Old Peter Beswick was a coal merchant in Eccles, Lancashire. He had no business premises. All he had was a lorry, scales, and weights. He used to take the lorry to the yard of the National Coal Board, where he bagged coal and took it round to his customers in the neighbourhood. His nephew, John Joseph Beswick, helped him in his business. In March 1962, old Peter Beswick and his wife were both over 70. He had had his leg amputated and was not in good health. The nephew was anxious to get hold of the business before the old man died. So they went to a solicitor, Mr. Ashcroft, who drew up an agreement for them.’

Lord Justice Denning
[1966] Ch 538
England and Wales
Cited by:
Appeal from – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 10 December 2021; Ref: scu.238123

NIRU Battery Manufacturing Company and Another v Milestone Trading Ltd and others: ComC 8 May 2003

There was a contract for the sale of lead ingots. The sale was supported by letters of credit but inaccurate certificates were issued to release payment. The parties sought now to amend the contributions in the light of the Royal Brompton Hospital case.
Held: It was too late now to argue for any fraud. That was not the basis on which the case had been pursued at trial. The case did not fall within the case for recoupment under Moule, nor was any claim for restitution nor a contribution appropriate. SGS was entitled to recover from CAI the whole of the sum paid under the judgment.
Moore-Bick J said: ‘I do not think that it is desirable to attempt to define the limits of good faith; it is a broad concept, the definition of which, in so far as it is capable of definition at all, will have to be worked out through the cases. In my view it is capable of embracing a failure to act in a commercially acceptable way and sharp practice of a kind that falls short of outright dishonesty as well as dishonesty itself. . . Where he knows that the payment he has received was made by mistake, the position is quite straightforward: he must return it. . . Greater difficulty may arise, however, in cases where the payee has grounds for believing that the payment may have been made by mistake, but cannot be sure. In such cases good faith may well dictate that an inquiry be made of the payer. The nature and extent of the inquiry called for will, of course, depend on the circumstances of the case, but I do not think that person who has, or thinks he was, good reason to believe that the payment was made by mistake will often be found to have acted in good faith if he pays the money away first making inquiries of the person from whom he received it.’

Moore-Bick J
[2003] EWHC 1032 (Comm)
Bailii
England and Wales
Citing:
See Also – Niru Battery Manufacturing Company and Another v Milestone Trading Ltd and others ComC 11-Jul-2002
. .
Cited – Royal Brompton Hospital National Health Service Trust v Hammond and others HL 25-Apr-2002
The claimants sought damages against the defendants for their late delivery of a building. The contractors sought to share the damages with the architects who had certified the delays, defeating their own claims.
Held: The Act sought to extend . .
Cited – Twinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Cited – Moule v Garrett CA 3-Feb-1872
An original tenant sought an indemnity from an assignee for a later claim by the landlord.
Held: The principles of recoupment are that where a plaintiff has been compelled by law to pay, or, being compellable by law, has paid, money which the . .

Cited by:
See Also – Niru Battery Manufacturing Company and Another v Milestone Trading Ltd and others ComC 11-Jul-2002
. .
Appeal from – 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 – 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. . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 December 2021; Ref: scu.181957

Ark Shipping Company Llc v Silverburn Shipping (IOM) Ltd: CA 10 Jul 2019

The Court was asked whether the term, contained in cl. 9A of the charterparty obliging Charterers to: ‘ . . .keep the Vessel with unexpired classification of the class indicated in Box 10 and with other required certificates in force at all times . . .’ was a condition (strictly so called) or an innominate term.

Lord Justice Gross,
Lord Justice Mccombe,
And,
Lord Justice Leggatt
[2019] EWCA Civ 1161, [2019] 2 Lloyds Rep 603
Bailii
England and Wales

Transport, Contract

Updated: 10 December 2021; Ref: scu.639500

The Captain Gregos: CA 1990

A cargo of oil had been carried under bills of lading incorporating the Hague-Visby Rules. There was an alleged theft of part of the cargo, and the question was whether article III rule 6 of the rules barred the claim on the ground that it had not been brought within one year.
Held: The court could not finally determine the issue because it was not clear whether the claimants were parties to the bills. The Act and the rules make clear that the bill of lading is the bedrock of the mandatory code. A bill of lading is a contractual document with well-known consequences when endorsed and transferred. The code would not treat the existence of a bill of lading with overriding importance if the code applied with equal force as between those who are not parties to the contract which the bill contains or evidences.
Otherwise: Compania Portorafti Commerciale SA v Ultramara Panama Inc (The Captain Gregos)

Bingham LJ
[1990] 1 Lloyds Rep 310, [1990] 3 All ER 967
Carriage of Goods by Sea Act 1971 1(4), Hague-Visby Rules I(b) X
England and Wales
Cited by:
Cited – J I MacWilliam Co Inc v Mediterranean Shipping Company S A, ‘The Rafaela S’ CA 16-Apr-2003
Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A . .
Cited – Frans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 10 December 2021; Ref: scu.181892

Pagnan SpA v Feed Products Ltd: ChD 1987

An agreement can be enforceable as an agreement on main terms only, with the detailed terms to be agreed later. Bingham J said: ‘The Court’s task is to review what the parties said and did and from that material to infer whether the parties’ objective intentions as expressed to each other were to enter into a mutually binding contract. The Court is not of course concerned with what the parties may subjectively have intended.’ and ‘The judicial task is not to discover the actual intentions of each party; it is to decide what each was reasonably entitled to conclude from the attitude of the other.’ The parties are to be regarded ‘as masters of their contractual fate. It is their intentions which matter and to which the Court must strive to give effect’.

Bingham J
[1987] 2 Lloyd’s Rep 601
England and Wales
Cited by:
Appeal from – Pagnan SpA v Feed Products Ltd CA 2-Jan-1987
Contractually Bound – but Further Terms to Agree
The parties had gone ahead with performance of the arrangement between them, but without a formal agreement being in place.
Held: Parties may intend to be bound forthwith even though there are further terms still to be agreed. If they then . .
Cited – Tullis Russell and Co Ltd v Eadie Industries Ltd SCS 31-Aug-2001
The pursuers and defenders disagreed over which of their respective terms and conditions controlled the sale of equipment, under which the pursuers sought damages for faults in the goods. Both quotation, and order purported to include the respective . .
Cited – Cox v Cox and Skan Dansk Design Limited ChD 27-Apr-2006
Mrs Cox sought to declarations as to the effect of arrangements made on her divorce in an attempt to avoid contentious proceedings. The couple held equal shares in the family business, but the company registers were missing or had never existed. The . .
Cited – Giad Hamdo Pipes Complex Company Limited v Wilson Byard Limited (In Receivership) MacLennan for Interdict and Interdict Ad Interim OHCS 30-Dec-2003
. .
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Cited – RTS Flexible Systems Ltd v Molkerei Alois Muller Gmbh and Company Kg (UK Production) SC 10-Mar-2010
The parties had reached agreement in outline and sought to have the contract formalised, but went ahead anyway. They now disputed whether an agreement had been created and as to its terms if so.
Held: It was unrealistic to suggest that no . .
Cited – Parties Named In Schedule A v Dresdner Kleinwort Ltd and Another QBD 28-May-2010
The defendant merchant banks resisted two group claims for annual bonuses for 2008 made by the employee claimants. They now sought summary judgment against the claims. The employer had declared a guaranteed minimum bonus pool available to make the . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2021; Ref: scu.242128

Kerr v John Mottram Ltd: ChD 1940

The court considered an application by a shareholder of a company to enforce an alleged contract for the sale of shares that he claimed were offered to him at a meeting of the company. The minutes of the company meeting did not support the plaintiff’s claim that the contract had been entered into by the shareholder. The plaintiff sought to rely on evidence that was inconsistent with the signed minutes of the meeting, but the Articles provided that the minutes of any meeting purporting to be signed by the chairman should be ‘conclusive evidence without any further proof of the facts therein stated’. The plaintiff argued that the evidence inconsistent with the minutes is admissible as the secretary may be wrong in his record of what occurred. The defendant argued the words ‘conclusive evidence’ in the Articles of Association mean the minutes were evidence which could not be rebutted and were conclusive between the parties bound by the minutes. The defendant argued that any inconsistent evidence was nadmissible.
Held: Simonds J stated: ‘Now, art. 114 which I have read represents the bargain between the shareholders as to what is to be, as between them, the value and effect of the minutes of the company as recorded in its minute book and signed by the chairman, and their bargain is that it is to ‘be conclusive evidence without any further proof of the facts therein stated.’ I have no doubt that the words ‘conclusive evidence’ mean what they say; that they are to be a bar to any evidence being tendered to show that the statements in the minutes are not correct.’ This was the ‘natural meaning’ of the words, and: ‘That is to say, the minutes are to be regarded as evidence which is not to be displaced and is conclusive as between the parties who are bound by them.’

Simonds J
[1940] 1 Ch 657
England and Wales
Cited by:
Cited – Lamont-Perkins v Royal Society for The Prevention of Cruelty To Animals (RSPCA) Admn 24-Apr-2012
The defendant had been convicted of animal cruelty. She appealed to the Crown Court, and now appealed against rulings made by the judge as to the time limits for a prosecution under the 2006 Act in the Magistrates Court. She said that the RSPCA . .

Lists of cited by and citing cases may be incomplete.

Contract, Company

Updated: 06 December 2021; Ref: scu.452905

NAVIG8 Chemicals Pool Inc v Aeturnum Energy International Pte Ltd: ComC 23 Nov 2021

Trial of the Claimant’s claims arising under a letter of indemnity (‘LOI’) given by the Defendant voyage charterer to the Claimant disponent owner in respect of the discharge of a cargo of light naptha in Singapore without production of the bills of lading in February 2020. The Claimant claims declaratory relief and a final mandatory injunction / order for specific performance in respect of the Defendant’s obligations under the LOI. The Claimant further claims an indemnity in respect of the losses it incurs as a result of complying with the Defendant’s instructions as well as damages for breach of the LOI.

Christopher Hancock QC Sitting as a Judge of the High Court
[2021] EWHC 3132 (Comm)
Bailii
England and Wales

Contract, Transport

Updated: 06 December 2021; Ref: scu.670107

Lyle v Richards: HL 1866

A lease described the southern boundary of the premises as ‘a straight line of about 355 fathoms from John Vincent’s house . . to a bound-stone’, which was then described, the demised premises being ‘particularly delineated by the map’, that map being on the back of the lease. The problem was this that the lease did not say from what part of the house that line was to be drawn. Further, on the map John Vincent’s house had been placed incorrectly.
Held: Extrinsic evidence was admissible to determine the true boundary. The judge was required to ask the jury to include consideration of the map. There remained a latent ambiguity which would have to be resolved by evidence other than construction of the deed.
Lord Cranworth LC: ‘The map is referred to not for the purpose of shewing the site either of the house or the bound-stone. The facts as to the true position of the house and the bound-stone are ascertained by other means. The use of the map is to clear up what, without it, was uncertain, namely, from what part of the house the line was to be drawn; and for that purpose its exact site is immaterial.’ It was for the jury, strictly, to say where the boundary line was drawn on the map, but because it was so plainly drawn from the north-east corner of John Vincent’s house the jury would have had so to find.

Lord Westbury, Lord Cranworth LC
(1866) LR 1 HL 222
England and Wales
Cited by:
Cited – Beale v Harvey CA 28-Nov-2003
Land had been divided into three lots on its development, but the site plan did not match the line of a fence actually erected.
Held: The court was not bound by the Watcham case, and would not follow it to allow reference to the later . .

Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Updated: 05 December 2021; Ref: scu.235514

Wood v Midgley: HL 28 Feb 1854

A defence founded on the Statute of Frauds may be taken by demurrer.
A demurrer, for that, it appears on the bill that the agreement therein alleged to have been entered into, is not in writing signed by the Defendant, is not a speaking demurrer.
A memorandum that A. had paid to B. andpound;60 as a deposit in part payment of andpound;1000 for the purchase of a house, the terms to be expressed in an agreement to be signed as soon as prepared. Held, not a sufficient agreement in writing.
An allegation that the defendant had approved of a draft agreement, but had asked that, in order to save him the trouble of writing till it was copied, he might be allowed to call and sign the fair copy in the morning, which he promise but failed to do: Held, not a sufficient allegations of fraud to preclude him from setting up the Statute of Frauds as a defence.

[1854] EngR 313 (B), (1854) 5 De G M and G 41
Commonlii
England and Wales

Land, Contract

Updated: 05 December 2021; Ref: scu.293170

North Sea Energy Holdings Nv (Formerly Midland and Scottish Holdings Nv) v Petroleum Authority of Thailand: CA 16 Dec 1998

The buyers repudiated an oil purchase agreement and the sellers accepted their repudiation. The sellers could not show that they would have been able to obtain the oil to sell.
Held: They were not entitled to substantial damages.

Lord Justice Roch,
Lord Justice Ward,
Lord Justice Waller
[1999] 1 All ER (Comm) 173, [1999] 1 Lloyds Rep 483, [1998] EWCA Civ 1953
Bailii
England and Wales
Citing:
Appeal from – North Sea Energy Holdings NV v Petroleum Authority of Thailand ComC 25-Mar-1997
ComC Damages – repudiation by buyer – need for seller claiming profits by reference to a specific supply contract to establish ability to obtain supply – claim to damages by reference to loss of profit on . .
Approved (Megaw LJ) – Maredelanto Compania Naviera SA v BergbauHandel GmbH (The Mihalis Angelos) CA 1-Jul-1970
The parties had agreed a charterparty. The ship was to sail to Haiphong to load a cargo for delivery in Europe. The charterer had a right to cancel if the vessel was not ready on a certain date, but a few days earlier they repudiated the charter. . .
Approved – 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 by:
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 . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 05 December 2021; Ref: scu.145432

Couchman v Hill: CA 1947

The plaintiff purchased from the defendant at auction a heifer which was described in the sale catalogue as ‘unserved’. Later, having been found to be in calf, she died as a result of carrying it at too young an age.
Held: The description of the heifer as unserved constituted a condition of the contract.
A collateral contract can override an exemption clause framed in general terms.
Scott LJ said: ‘as a matter of law, I think every item in a description which constitutes a substantial ingredient in the ‘identity’ of the thing sold is a condition . . ‘

Scott, Tucker, Bucknill LJJ
[1947] KB 554, [1947] 1 All ER 103
England and Wales
Cited by:
Cited – Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd CA 15-Dec-1989
The defendant auctioneer sold a painting to the plaintiff which turned out to be a forgery. The plaintiff appealed against a finding that it had not relied upon the attribution, saying that there had been a breach of the requirement that the paintig . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 December 2021; Ref: scu.561151

Pearce v Watts: CA 9 Jun 1875

An agreement for the sale included the reservation: ‘[The Vendor] reserves the necessary land for making a railway through the estate to Prince Town.’ Specific performance was sought by the purchaser, and the vendor objected that it was void for uncertainty. In argument the purchaser disputed this, saying that the court could determine what land was necessary for the railway.
Held: The claim was refused. Sir G Jessel MR said: ‘The present contract is one which cannot be carried out by conveyance; and that being so, I do not see how the Court can alter it and make a new contract which can be carried out by conveyance. . . If the contract were executed in this form, it is obvious, according to the present law, the whole land would pass to the purchaser, the reservation being void for uncertainty. But this is not the intention of the parties, for the vendor intended to reserve a substantial part of the estate. The contract does not show what it is. I neither know what is the amount of land necessary for a railway, nor what line the railway is to take, nor anything about it, and, therefore, I cannot enforce specific performance of the contract.’

Sir G Jessel MR
(1873) LR 20 Eq 492, 20 Ch D 90, [1875] UKLawRpEq 111
Commonlii
England and Wales
Cited by:
Cited – Sainsbury’s Supermarkets Ltd v Olympia Homes Limited, Hughes etc ChD 17-Jun-2005
The claimant sought rectification of the land register. In a development deal, an option agreement had not been registered, and the land sold on. The land was required to allow the building of a roundabout necessary for the intended store. An . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 05 December 2021; Ref: scu.258359

Sarc v Commission (Judgment): ECFI 12 Jun 2014

ECJ State aid – Software licence agreement – Decision finding no State aid – Actions for annulment – Competitive position not substantially affected – Inadmissibility – Procedural rights of the interested parties – Admissibility – Failure to initiate formal investigation procedure – No serious difficulties – Advantage

T-488/11, [2014] EUECJ T-488/11
Bailii

European, Intellectual Property, Contract

Updated: 04 December 2021; Ref: scu.526689

In Re Cassey’s Patents, Stewart v Casey: CA 19 Nov 1891

Bowen LJ said: ‘Even if it were true, as some scientific students of law believe, that a past service cannot support a future promise, you must look at the document and see if the promise cannot receive a proper effect in some other way. Now, the fact of a past service raises an implication that at the time it was rendered it was to be paid for, and, if it was a service which was to be paid for, when you get in the subsequent document a promise to pay, that promise may be treated either as an admission which evidences or as a positive bargain which fixes the amount of that reasonable remuneration on the faith of which the service was originally rendered. So that here for past services there is ample justification for the promise to give the third share ‘.

Bowen LJ
[1892] 1 Ch 104, [1891] UKLawRpCh 167
Commonlii
England and Wales

Contract

Updated: 04 December 2021; Ref: scu.372848

Lowry v Boirdeau: 1780

‘ignorantia juris non excusat’ – ignorance of the law is no excuse.

Buller J
(1780) 2 Doug KB 468
England and Wales
Cited by:
Cited – Bilbie v Lumley and Others 28-Jun-1802
Contract Not Set Aside for Mistake as to Law
An underwriter paid a claim under a policy which he was entitled in law to repudiate for non-disclosure. Although he knew the relevant facts, he was not aware of their legal significance. He claimed back the money he had paid.
Held: A contract . .
Cited – The Amazonia CA 1991
The court rehearsed the doctrine that a common mistake as to the law would vitiate a contract, Though the rule was well established, the particular contract was void on the basis of a mistake as to foreign law because foreign law is to be treated by . .
Cited – Brennan v Bolt Burdon and Others, London Borough of Islington, Leigh Day and Co CA 29-Jul-2004
The claimant sought damages for injury alleged to have been suffered as tenant of a house after being subjected to carbon monoxide poisoning, and also from her former solicitors for their delay in her claim. The effective question was whether the . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 December 2021; Ref: scu.199749

Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another: CA 14 May 2014

The court considered the operation of a break clause within a lease, and in particular ‘ Can the court imply a term which enables the lessee to get back that part of the advance payment of rent which relates to a period (‘the broken period’) after the break date, by when the lease will have terminated?’
Held: The appeal succeeded. The lease, read as a whole against the relevant background, would not reasonably be understood to include such a term, and thus the test for an implied term was not met.
Arden LJ said: ‘ the court will not imply a term as a matter of interpretation following the Belize approach unless it is necessary that the agreement should contain such a term to achieve the parties’ express agreement, purposively construed against the admissible background.’

Arden, Jackson, Fulford LJJ
[2014] EWCA Civ 603
Bailii
England and Wales
Citing:
Cited – Attorney General of Belize and others v Belize Telecom Ltd and Another PC 18-Mar-2009
(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was . .
Cited – Mediterranean Salvage and Towage Ltd v Seamar Trading and Commerce Inc (‘The Reborn’) CA 10-Jun-2009
The court confirmed that the necessity to give business efficacy to a contract was still required for the implication of a term into a contract. . .
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 – Equitable Life Assurance Society v Hyman HL 20-Jul-2000
The directors of the Society had calculated the final bonuses to be allocated to policyholders in a manner which was found to be contrary to the terms of the policy. The language of the article conferring the power to declare such bonuses contained . .
At ChD – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another ChD 16-May-2013
The lease contains a tenant’s break clause which allows the tenant, subject to its compliance with certain conditions, to terminate the lease on a specified date. Rent is payable by instalments quarterly in advance on the usual quarter days. The . .

Cited by:
Cited – Mr H TV Ltd v ITV2 Ltd ComC 8-Oct-2015
The claimant had contracted with the defendant for the production of a series of reality TV shows featuring celebrities. After severe personal clashes between the people involved on the claimants side, the contract was terminated. The claim was that . .
At CA – 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 . .

Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Updated: 03 December 2021; Ref: scu.525635

Capgemini India Private Ltd and Another v Krishnan: QBD 27 Feb 2014

Application for an interim injunction brought by the claimants, Capgemini India Private Limited, a company incorporated under the law of the Republic of India and Capgemini Financial Services UK Limited in the following terms, namely that the defendants shall not accept custom or business of or in any other way deal with any existing customer with (a), who he had business dealings on behalf of Capgemini or a member of the group within the last six months of his employment with them; and/or (b), in relation to which he had access to confidential information or commercially sensitive information within the last six months of his employment and that such injunction should last until the trial of these proceedings or the 7 May 2014 in respect of the first and third defendants and 14 May 2014 in respect of the second defendant.

Owen QC HHJ
[2014] EWHC 1092 (QB)
Bailii
England and Wales

Employment, Contract

Updated: 03 December 2021; Ref: scu.525157

Briggs and Others v Gleeds (Head Office) and Others: ChD 15 Apr 2014

The court was asked whether certain documents constituting a pension scheme had been effectively executed. They had been signed, but the signatures lacked the necessary witnessing. The scheme members claimed estoppel against the signatories.
Held: There could be no estoppel where the non-compliance where a document does not even appear to comply with the 1989 Act on its face.
Distinguishing Shah v Shah, Newey J said: ‘there are circumstances in which a person can be estopped from denying that a document was executed in accordance with the requirements of section 1 of the 1989 Act. It is also apparent from Pill LJ’s judgment that attestation is less crucial than signature. On the other hand, Pill LJ did not decide that estoppel can be used in response to every sort of failure to comply with the 1989 Act. To the contrary, he expressed his conclusion narrowly: he was unable to detect a statutory intention ‘totally’ to exclude the operation of an estoppel in relation to the application of section 1 or to exclude it ‘in present circumstances’. It seems fair, moreover, to infer that Pill LJ would not have considered estoppel applicable if the defendants had not even signed the ‘deed’. In Pill LJ’s view, ‘a document cannot be a deed in the absence of a signature’ and the public interest lies in the requirement for a signature.’
The failure of the estoppel was explained: ‘i) To state the obvious, Parliament has decided that, for an individual validly to execute a deed, he must sign ‘in the presence of a witness who attests the signature’. That requirement has an evidential purpose: as Pill LJ noted in Shah v Shah, it ‘limits the scope for disputes as to whether the document was signed and the circumstances in which it was signed’ and ‘gives some, but not complete, protection to other parties to the deed who can have more confidence in the genuineness of the signature by reason of the attestation’. As Pill LJ further noted, the requirement also ‘gives some, but not complete, protection to a potential signatory who may be under a disability, either permanent or temporary’. The Law Commission thought, too, that the need for attestation would ’emphasise to the person executing the deed the importance of his act’ (see paragraph 8.3(i) of the Law Commission’s Working Paper No 93: Transfer of Land: Formalities for Deeds and Escrows (1985));
ii) Fulfilment of Parliament’s and the Law Commission’s objectives would be undermined, potentially to a serious extent, if estoppel could be invoked in circumstances such as those in the present case;
iii) Shah v Shah shows, of course, that a person can sometimes be estopped from denying due attestation. The document with which the Court was concerned in that case appeared, however, to be valid. Accordingly, Pill LJ said that failure to comply with the formality of attestation should not in itself prevent a party into whose possession ‘an apparently valid deed’ has come from alleging that the signatory should not be permitted to rely on the absence of attestation in his presence. He also spoke of ‘an apparently valid deed’ in the next sentence of his judgment;
iv) The ‘deeds’ at issue in the present case are not ‘apparently valid’. It can be seen from each document that it was not executed in accordance with the 1989 Act. This distinction from Shah v Shah is a significant one. If estoppel can be invoked in relation to documents that are not ‘apparently valid’, the documents cannot necessarily be taken at face value. ‘[A]s far as possible,’ however, ‘it should be clear on the face of the document whether or not it has been validly witnessed’ (see paragraph 8.3(i) of the Law Commission working paper). That is especially so since the validity of a deed can matter for many years, and those considering ‘deeds’ long after they have been executed may well have no personal knowledge of the circumstances in which they were executed and access to little or no contemporary correspondence;
v) If estoppel were available in circumstances such as those in the present case, a party to a ‘deed’ who had not himself executed the document in accordance with section 1 of the 1989 Act could choose whether or not the document should be treated as valid. If it turned out to be in his interests to disavow the document, he could do so. If, on the other hand, the document proved to be advantageous to him, he could invoke estoppel. To take an example close to the facts of the present case, if a ‘deed’ provided for a pension scheme to become money purchase rather than final salary, an employer who had signed without having his signature witnessed could wait and see whether the change was, in the event, beneficial to him;
vi) Section 1 of the 1989 Act was in part designed to achieve certainty. It could, however, have the opposite consequence if estoppel were available in circumstances such as those in the present case. The effectiveness of a ‘deed’ that had not, on the face of it, been validly executed could be left in doubt.

Newey J
[2015] 1 Ch 212, [2014] 3 WLR 1469, [2014] Pens LR 265, [2014] EWHC 1178 (Ch), [2014] WLR(D) 174
Bailii, WLRD
Law of Property (Miscellaneous Provisions) Act 1989 1(3)
England and Wales
Citing:
Explained – Shah v Shah CA 10-Apr-2001
The court was asked as to the enforceability of a document under the terms of which the defendants were to make a payment of pounds 1.5 million to the claimant. The document was described as a deed and provided for each defendant to sign in the . .

Cited by:
Applied – Bank of Scotland Plc v Waugh and Others ChD 21-Jul-2014
The defendants had charged a property to the claimant bank to secure a guarantee of borrowings. The signatures were not witnessed as required under section 1(3) of the 1989 Act, and there were other misdescriptions. The bank sought a declaration as . .

Lists of cited by and citing cases may be incomplete.

Contract, Estoppel

Updated: 02 December 2021; Ref: scu.523772

NYK Bulkship (Atlantic) NV v Cargill International SA: CA 8 Apr 2014

The court was asked as to ‘the true construction and application of a proviso to an off hire clause in a time charterparty, dealing with the capture, seizure, detention or arrest of the vessel. The issue thus raises the familiar question as to the allocation of risk of delay as between owners and time charterers. ‘

Gross, Gloster LJJ, Sir Stanley Burnton
[2014] EWCA Civ 403, [2014] 2 Lloyd’s Rep 103
Bailii
England and Wales
Citing:
Cited – Hyundai Merchant Marine Co Ltd v Furness Withy (Australia) Pty (‘Doric Pride’) CA 25-Jan-2006
The court considered the relationship between express an implied warranties.
Held: Under a time charterparty, hire continues to run unless the charterer can bring himself within the plain words of an off-hire provision; the risk of delay is . .
Cited – Mediolanum Shipping Co v Japan Lines Ltd (‘The Mediolanum’) CA 1984
The charterers had contracted to provide and pay for fuel. They ordered her to a safe port but she was directed to an unsafe place in that port by the refinery with whom the charterer had contracted for the supply of bunkers. The court was asked to . .
At ComC – NYK Bulkship (Atlantic) Nv v Cargill International Sa ComC 1-Feb-2013
The ship (Global Santosh), having been found with illicit drugs, was arrested in error, leading to considerable delays in unloading the cement cargo. The charterparty period off-hire clause (NYPE form) was applied and hire withheld by the head . .
Cited – The ‘Goodpal’ 2000
The court dealt with the apportionment of claims under the Interclub NYPE Agreement . .

Cited by:
At CA – NYK Bulkship (Atlantic) Nv v Cargill International Sa SC 11-May-2016
The ship ‘Global Santosh’ had been arrested as a side issue in a dispute as to its cargo between its anticipated receiver and a sub-sub charterer.
Held: (Lord Clarke dissenting) The appeal succeeded. Any responsibility of Cargill under the . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract, Agency

Updated: 02 December 2021; Ref: scu.523625

Valilas v Januzaj: CA 8 Apr 2014

The parties, dentist working together, disputed the contract between them.
Held: Floyd LJ described the assessment to be made when deciding if a contract had been breached: ‘Whether a breach or threatened breach does give rise to a right to terminate involves a multi-factorial assessment involving the nature of the contract and the relationship it creates, the nature of the term, the kind and degree of the breach and the consequences of the breach for the injured party’

Arden, Underhill, Floyd LJJ
[2014] 154 ConLR 38, [2014] EWCA Civ 436
Bailii
England and Wales
Cited by:
Cited – Warren and Another v Burns QBD 13-Nov-2014
The boxing manager and boxer each said that the other owed him money.
Held: The contract entitled the claimant to take some share of the boxers earnings but as part of the overall management fee, but as a part of the overall sum and at a share . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 December 2021; Ref: scu.523626

Harrison v Madejski and Another: CA 28 Mar 2014

[2014] EWCA Civ 361
Bailii
England and Wales
Citing:
Cited – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 December 2021; Ref: scu.523347

Barclays Bank Plc v Unicredit Bank Ag and Another: CA 20 Mar 2014

This appeal raises the question of what is ‘commercially reasonable’ in the context of determinations made by parties to financial instruments.

Longmore, Patten, Christopher Clarke LJJ
[2014] EWCA Civ 302, [2014] Bus LR D15, [2014] 2 Lloyd’s Rep 59, [2014] 1 BCLC 417
Bailii
England and Wales

Financial Services, Contract

Updated: 01 December 2021; Ref: scu.522626