Category: Contract

Musselwhite v CH Musselwhite and Son Ltd: ChD 1962

Voiting Rights Followed Entry on Company Registerr

Parties had agreed to transfer shares in a small family company for the payment of a sum of money by way of instalments over a period of time. The agreement provided the transfers of the shares should be executed and that the executed transfers and relevant share certificates should be deposited with the company solicitors until payment had been made in full. The transferor remained on the company’s register of members as the holder of the shares. The question arose as to the rights of the transferor to vote at the annual general meeting prior to the final payment with respect to the shares.
Held: A partly paid vendor of shares remaining on the register of members after the execution of the contract for sale retained the voting rights.

Russell J
[1962] Ch 964
England and Wales
Cited by:
Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Followed – JRRT (Investments) v Haycraft ChD 1993
A purchaser of shares (under an inept agreement) raised a summons under RSC O.14A with the single issue of whether the purchaser was entitled to direct the vendor to vote the shares. . .

Lists of cited by and citing cases may be incomplete.

Contract, Company

Leading Case

Updated: 20 November 2021; Ref: scu.223744

Wilson and Another v Burnett: CA 24 Oct 2007

Insufficient Evidence of Lottery Contract

The defendant won a large prize at bingo. The claimants said they had a binding oral agreement to pool each others winnings. They now appealed dismissal of their claim.
Held: The evidence had in all material respects conflicted. The ‘claimants’ bare bones account of what they say was agreed at their place of work, taken alone, scarcely stands as an agreement binding and enforceable in law. ‘ The appeal was dismissed.

[2007] EWCA Civ 1170
Bailii
England and Wales
Citing:
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 November 2021; Ref: scu.261447

Fiona Trust and Holding Corporation and others v Privalov and others: CA 24 Jan 2007

The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Held: a dispute whether the contract can be set aside or rescinded for alleged bribery does fall within the arbitration clause on its true construction. ‘If arbitrators can decide whether a contract is void for initial illegality, there is no reason why they should not decide whether a contract has been procured by bribery, just as much as they can decide whether a contract has been procured by misrepresentation or non-disclosure. Illegality is a stronger case than bribery which is not the same as non est factum or the sort of mistake which goes to the question whether there was any agreement ever reached. It is not enough to say that the bribery impeaches the whole contract unless there is some special reason for saying that the bribery impeaches the arbitration clause in particular. ‘ and ‘we see no reason why the charterers should be prevented from arbitrating these claims; if the arbitration tribunal decides that the charters were indeed procured by bribery they will be able to decide what consequence that conclusion has on any claims which the charterers might otherwise legitimately have. ‘

Tuckey, Arden and Longmore LJJ
Times 29-Jan-2007, [2007] EWCA Civ 20, [2007] Bus LR 686, [2007] 1 CLC 144, [2007] 2 Lloyd’s Rep 267, [2007] ArbLR 22, [2007] 1 All ER (Comm) 891
Bailii
England and Wales
Citing:
Cited – Heyman v Darwins Limited HL 1942
An arbitration clause will survive a repudiatory breach: ‘I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of . .
Cited – Mackender v Feldia AG CA 1966
A clause provided that an insurance policy should be governed by Belgian law and that ‘any disputes arising thereunder shall be exclusively subject to Belgian jurisdiction.’ The underwriters avoided the contract for non-disclosure of material facts . .
Cited – Empresa Exportadora de Azucar v Industria Azucarera Nacional S.A, The Playa Larga CA 1983
There had been a theft by Cuban sellers of one cargo of sugar, property in which had already passed to the buyers, and non-delivery of a second combined with trickery whereby the intended buyers were nonetheless induced to pay its price. The first . .
Cited – Union of India v Aaby’s Rederi A/S, The Evje HL 1975
Lord Dilhorne said of the words ‘to be settled in London’: ‘At first sight those words appear to me to mean no more and no less than that the contributions to be made have to be determined in London and paid there, and that implies determined in . .
Cited – Samick Lines Co Ltd v Owners of The Antonis P Lemos HL 2-Jan-1985
The House was asked as to the effect of the section.
Held: Since the provisions of the statute under consideration were designed to give domestic effect to an international convention, a broad and liberal construction should be given to them . .
Cited – The Eschersheim; The Jade HL 1976
The 1956 Act implemented as part of the domestic law the treaty obligations of the United Kingdom under the International Convention Relating to the Arrest of Seagoing Ships signed at Brussels on 10 May 1952 (the Arrest Convention).
Held: The . .
Cited – Fillite (Runcorn) Ltd v Aqua-Lift CA 1989
The court considered whether claims arising from misrepresentation or breach of a collateral contrat were claims arising ‘under’ the contract so as to be governed by the disputes provisions in it.
Held: The disputes did not arise ‘under the . .
Cited – The Ermoupolis 1990
A claim for the tort of conversion fell within the phrase ‘any dispute arising in any way whatsoever out of this bill of lading’. . .
Cited – Aggeliki Charis Compania Maritima SA v Pagnan SpA The Angelic Grace QBD 1994
The court considered whether a claim for a collision between two ships was governed by an arbitration clause which read ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying . .
Cited – Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Ltd CA 7-Apr-1993
An action was brought by re-insurers for a declaration that reinsurance policies were void for illegality, and that the plaintiffs were not liable under them. The illegality alleged was that the defendants were not registered or approved to carry on . .
Cited – Overseas Union v AA Mutual International Insurance Co Ltd 1988
Evans J said that there was a broad distinction between clauses which referred ‘only those disputes which may arise regarding the rights and obligations which are created by the contract itself’ and those which ‘show an intention to refer some wider . .
Cited – Ethiopian Oil Fields v Rio del Mar 1990
A dispute about rectification came within the words ‘any dispute arising out of or under this contract’. The phrase ‘out of’ must add something to ‘under’, even though the words ‘out of ‘ were in fact the words which appeared first in the clause. . .
Cited – Harbour Assurance Co (Uk) Ltd v Kansa General International Insurance Co Ltd 1993
The Court said that older (pre Heyman v Darwins Ltd) authorities about the width of arbitration clauses had to be approached with some care and that the words ‘arising from the contract’ have almost invariably been treated as ‘words of very wide . .
Cited – Delos, Owners of Cargo v Delos Shipping Ltd ComC 31-Jan-2001
Claims for breach of duty and bailment could be brought within the phrase ‘any disputes under’ the contract. . .
Cited – Chimimport Plc v G d’Alesio SAS 1994
The phrase ‘arising under’ in a clause referring matters to arbitration is narrower than ‘arising out of’ and the court doubted whether a tortious claim could easily give rise to a dispute ‘under the contract’. . .
Cited – Logicrose Ltd v Southend United Football Club Ltd CA 5-Feb-1988
The agent required the contractual counterparty to pay a bribe of pounds 70,000 to an offshore account.
Held: The bribe was held to be recoverable by the principal whether the principal rescinded or affirmed the contract because it was a . .
Cited – Francesco Benincasa v Dentalkit Srl ECJ 3-Jul-1997
A contract which forms a part of the customer’s arrangements for pursuing his trade or profession is not a consumer contract and a choice of jurisdiction clause in a distribution agreement was valid.
Europa . .
Cited – Credit Suisse First Boston (Europe) Ltd v Seagate Trading Co Ltd 1999
An oral contract for the sale of Russian Notes was followed by a Trade confirmation with an English jurisdiction clause. It was said that this document was fraudulently presented by Credit Suisse as a mere perfunctory confirmation (which it was not) . .
Cited – Law Debenture Trust Corporation Plc v Elektrim Finance Bv and others ChD 1-Jul-2005
A bond contained an arbitration clause subject to a further clause giving the claimant an ‘exclusive right at its option to apply to the courts of England to settle any disputes which may arise out of or in connection with these presents’. The . .
Cited – Ahmad Al-Naimi (T/a Buildmaster Construction Services) v Islamic Press Agency Incorporated CA 28-Jan-2000
The court has an inherent power to stay proceedings. The court could refer a matter to arbitration where there was an arbitration clause, but could also do so under its inherent discretion, where this was not quite clear, but it was clear that good . .
Cited – Birse Construction Limited v St David Limited TCC 12-Feb-1999
There are four approaches to deciding whether an arbitration agreement exists to which section 9 applies:- (1) to determine on the evidence before the court that such an agreement does exist in which case (if the disputes fall within the terms of . .
Appeal from – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
See Also – Fiona Trust Holding Corporation and others v Privalov and others ComC 19-Jan-2007
. .

Cited by:
See Also – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
Appeal from – Premium Nafta Products Ltd (20th Defendant) and others v Fili Shipping Company Ltd and others; Fiona Trust and Holding Corporation v Privalov HL 17-Oct-2007
The owners of a ship sought to rescind charters saying that they had been procured by bribery.
Held: A claim to rescind a contract by reason of bribery fell within the scope of an arbitration clause under which the parties had agreed to refer . .
Cited – Scottish and Newcastle Plc v Raguz HL 29-Oct-2008
The lease had been assigned by the claimant to the defendant and on again to a tenant who became insolvent. The landlord had recovered sums said to be due from the claimant who now sought an indemnity from the defendant. The defendant said that the . .
See Also – Fiona Trust Holding Corp and others v Privalov and others ComC 21-May-2007
Allegations were made of different varieties of fraud. Applications were made for freezing orders. . .
See Also – Fiona Trust and Holding Corporation and others v Privalov and others ComC 22-Jul-2008
. .

Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 19 November 2021; Ref: scu.248016

Whittaker v Campbell: 1984

Where goods were obtained from the owner by fraud, but with the owner’s consent, that fraud did not vitiate the consent given.

Robert Goff LJ
[1984] QB 318, [1983] 3 WLR 676, [1983] 3 All ER 582, [1983] Crim LR 812, (1983) 77 Cr App R 267
England and Wales
Cited by:
Cited – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 November 2021; Ref: scu.188448

Skipton Building Society v Stott: CA 2001

The issue was whether a mortgagee had sold at an undervalue, and if so what the damages should be.
Held: In a well-developed property market where a sale is assured and the only possible issue is as to the market level, damages for loss of chance are relatively easily calculated. The fact that the sale price may be the same as the valuer’s estimate of the market value of the property will not protect the mortgagee if in fact the market value is higher. If the creditor breaches his duty under the principal loan agreement, a surety is released from his liability under the guarantee to the extent that the value of the securities has been impaired as a result of the breach.
Evans LJ said: ‘The evidence enabled the judge to assess what the market value was, and that figure would correspond with the price that could be expected to be achieved, given exposure to the market for a reasonable time. The question, what the figure was, was an issue of historic fact which had to be established on the evidence . . ‘

Evans LJ, Potter LJ and Alliott J
[2001] QB 261, [2001] ANZ Conv R 220, [2000] 2 All ER 779, [2000] 1 All ER (Comm) 257, [2000] 3 WLR 1031
England and Wales
Cited by:
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – Roger Michael and others v Douglas Henry Miller and Another ChD 22-Mar-2004
Property had been sold by the respondents as mortgagees in possession. The claimants said the judge had failed to award the value of the property as found to be valued, and had not given a proper value to a crop of lavender.
Held: In . .
Cited – Barclays Bank Plc v Kufner ComC 10-Oct-2008
barclays_kufnerComC2008
The bank sought summary judgment under a guarantee to secure a loan to purchase a luxury yacht which was to be hired out in business. The loan had been charged against the yacht, but when the yacht was re-registered, the bank failed to re-establish . .

Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 19 November 2021; Ref: scu.184851

Caterpillar (NI) Ltd v John Holt and Company (Liverpool) Ltd: CA 13 Jun 2013

Series of applications in relation to a pending appeal

Tomlinson LJ
[2013] EWCA Civ 779
Bailii
England and Wales
Citing:
At ComC – FG Wilson (Engineering) Ltd v John Holt and Company (Liverpool) Ltd ComC 5-Sep-2012
. .

Cited by:
Directions – Caterpillar (NI) Ltd v John Holt and Company (Liverpool) Ltd CA 17-Oct-2013
The defendant (Holt) appealed against the grant of summary judgement given against it in a claim for non-payment of sums due under a distributorship agreement with the claimants. Goods had been agreed to be sold and were delivered by F G Wilson to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 18 November 2021; Ref: scu.514232

Ahuja Investments Ltd v Victorygame Ltd and Another (Consequential judgment): ChD 16 Sep 2021

Allegation of fraudulent misrepresentation and breach of contract

[2021] EWHC 2729 (Ch)
Bailii
England and Wales
Cited by:
See Also – Ahuja Investments Ltd v Victorygame Ltd and Another (2nd consequential judgment) ChD 16-Sep-2021
. .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Contract

Updated: 18 November 2021; Ref: scu.668622

Ross River Ltd and Another v Waveley Commercial Ltd and Others: CA 29 Jul 2013

Breach of fiduciary duty in development contract

Mummery, Lloyd, Fulford LJJ
[2013] EWCA Civ 910, [2014] 1 BCLC 545
Bailii
England and Wales
Citing:
Appeal from – Ross River Ltd and Another v Waveley Commercial Ltd and Others ChD 25-Jan-2012
The parties disputed the content and effect of a joint venture agreement. . .
See Also – Ross River Ltd and Another v Waveley Commercial Ltd and Others ChD 6-Sep-2012
. .
See Also – Ross River Ltd and Another v Waverly Commercial Ltd and Another ChD 9-Oct-2012
. .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 17 November 2021; Ref: scu.513705

Harvey v Dunbar Assets Plc: CA 30 Jul 2013

The court was asked whether, on the construction of a composite joint and several guarantee, one of four intended guarantors who signed the guarantee was liable, in circumstances where one of the other intended guarantors had not signed the instrument.

Longmore, Black, Gloster LJJ
[2013] EWCA Civ 952
Bailii
England and Wales

Contract

Updated: 17 November 2021; Ref: scu.513692

Victoria Laundry (Windsor) Ltd v Newman Industries: CA 1949

The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses from ‘particularly lucrative dyeing contracts’ as a different type of loss which would only be recoverable if the defendant had sufficient knowledge of them to make it reasonable to attribute to him acceptance of liability for such losses. The vendor of the boilers would have regarded the profits on these contracts as a different and higher form of risk than the general risk of loss of profits by the laundry. The court distinguished the approach to be taken in claims for damages under contract and tort. In cases of breach of contract the aggrieved can only recover such loss actually resulting as was at the time of the contract reasonably foreseeable as likely to result from the breach. In tort, the question whether loss was reasonably foreseeable is addressed to the time when the tort was committed. In contract, the question is addressed to the time when the parties made their contract. Where knowledge of special circumstances is relied on, the assumption is that the defendant undertook to bear any special loss which was referable to those special circumstances. It is assumed too that he had the opportunity to seek to limit his liability under the contract for ordinary losses in the event that he was in breach of it.
Asquith LJ said: ‘1: It is well settled that the governing purpose of damages is to put the party whose rights have been violated in the same position, so far as money can do so, as if his rights had been observed: (Sally Wertheim v..Chicoutimi Pulp Company [1911] AC 301. This purpose, if relentlessly pursued, would provide him with a complete indemnity for loss de facto resulting from a particular breach, however improbable, however unpredictable. This, in contract at least, is recognised as too harsh a rule : hence,
2: In cases of breach of contract the aggrieved party is only entitled to recover such part of the loss actually resulting as was at the time of the contract reasonably foreseeable as liable to result from the breach,
3: What was at that time reasonably so foreseeable depends on the knowledge then possessed by the parties or, at all events, by the party who later commits the breach.’ and
‘But to this knowledge, which a contract breaker is assumed to possess whether he actually possesses it or not [under the first rule] there may have to be added in a particular case knowledge which he actually possesses of special circumstances outside the ‘ordinary course of things’ of such a kind that a breach in those special circumstances would be liable to cause more loss. Such a case attracts the operation of the ‘second rule’ so as to make additional loss recoverable’.

Asquith LJ
[1949] 2 KB 528
England and Wales
Citing:
Restated – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
Cited – Wertheim v The Chicoutimi Pulp Company PC 18-Mar-1910
(Quebec) The buyer sought damages for late delivery of goods calculated on the difference between the market price at the place of delivery when the goods should have been delivered and the market price there when the goods were in fact delivered. . .

Cited by:
Cited – Watford Electronics Ltd v Sanderson CFL Ltd CA 23-Feb-2001
The plaintiff had contracted to purchase software from the respondent. The system failed to perform, and the defendant sought to rely upon its exclusion and limitation of liability clauses.
Held: It is for the party claiming that a contract . .
Cited – Jackson and Another v Royal Bank of Scotland HL 27-Jan-2005
The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one . .
Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Cited – Wiseman v Virgin Atlantic Airways Ltd QBD 29-Jun-2006
The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, . .
Cited – The ‘Pegase’ 1981
The court considered the measure of damages for breach of contract in the light of the cases in the Heron II and Victoria Laundry: ‘the principle in Hadley v Baxendale is now no longer stated in terms of two rules, but rather in terms of a single . .
Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Cited – Joyce v Bowman Law Ltd ChD 18-Feb-2010
The claimant asserted negligence by the defendant licensed conveyancers in not warning him of the effect of an option in the contract. He had been advised that it would allow him to choose to buy additional land, but it was in fact a put option. The . .

Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 17 November 2021; Ref: scu.187201

Monarch Steamship Co Ltd v Karlshamns Oljefabriker A/B: HL 1949

Damages were sought for breach of contract.
Held: After reviewing the authorities on remoteness of damage, the court reaffirmed the broad general rule that a party injured by the other’s breach of contract is entitled to such money compensation as will put him in the position in which he would have been but for the breach. The matters did not depend on the differences (if any) between contract and tort in that connection. The reasonable contemplation as to damages was what the court attributed to the parties and the question in such a case must always be what reasonable business men must be taken to have contemplated as the natural or probable result if the contract was broken. The question of whether the damage was foreseeable is a question of fact.
Lord Wright said: ‘Causation is a mental concept, generally based on inference or induction from uniformity of sequence as between two events that there is a causal connection between them . . The common law, however, is not concerned with philosophic speculation, but is only concerned with ordinary everyday life and thoughts and expressions . .’

Lord Wright
[1949] AC 196, [1948] UKHL 1, 65 TLR 217, 1949 SC (HL) 1, [1949] AC 196, 1949 SLT 51, (1948-49) 82 Ll L Rep 137, [1949] LJR 772, [1949] 1 All ER 1
Bailii
Scotland
Cited by:
Cited – Lagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Cited – County Ltd v Girozentrale Securities CA 1996
The plaintiff bank had agreed to underwrite a share placement. The defendant brokers made representations to potential investors outside and in breach of the terms of the engagement letter. The bank failed to check on the status of indicative . .
Cited – Borealis Ab v Geogas Trading Sa ComC 9-Nov-2010
The parties had contracted for sale and purchase of butane for processing. It was said to have been contaminated. The parties now disputed the effect on damages for breach including on causation, remoteness, mitigation and quantum.
Held: The . .
Cited – Kpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Damages, Negligence, Contract

Updated: 17 November 2021; Ref: scu.188648

Spooner v British Telecommunications plc: 2000

Jonathan Parker J
[2000] Pens LR 65
England and Wales
Cited by:
Cited – Barnardo’s v Buckinghamshire and Others SC 7-Nov-2018
The Court considered the interpretation of a clause in a pension scheme trust deed which defines the phrase ‘Retail Prices Index’ and which allows the trustees of the pension scheme to adopt a ‘replacement’ of the officially published Retail Prices . .
Cited – Barnardo’s v Buckinghamshire and Others SC 7-Nov-2018
The Court considered the interpretation of a clause in a pension scheme trust deed which defines the phrase ‘Retail Prices Index’ and which allows the trustees of the pension scheme to adopt a ‘replacement’ of the officially published Retail Prices . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 17 November 2021; Ref: scu.653368

Ward v Byham: CA 16 Jan 1956

The parties were the parents of an illegitimate daughter. The child lived with the father at first, but the mother requested the child to be returned to her. The father agreed subject to a letter saying: ‘Mildred, I am prepared to let you have Carol and pay you up to andpound;1 per week allowance for her providing you can prove that she will be well looked after and happy and also that she is allowed to decide for herself whether or not she wishes to come and live with you. She is well and happy and looking much stronger than ever before. If you decide what to do let me know as soon as possible’. Both parents subsequently married third parties. The father later stopped making payments. The mother brought the action to recover the payments. The father replied that there had been no consideration for his promise since the mother was only doing what she was already obliged to do in law.
Held: The defence failed.
Lord Justce Denning said: ‘ I have always thought that a promise to perform an existing duty, or the performance of it, should be regarded as good consideration, because it is a benefit to the person to whom it is given. Take this very case. It is as much a benefit for the father to have the child looked after by the mother as by a neighbour. If he gets the benefit for which he stipulated,, he ought to honour his promise; and he ought not to avoid it by saying that the mother was herself under a duty to maintain the child.’

Denning, Morris, Parker LJJ
[1956] EWCA Civ 1, [1956] 2 All ER 318, [1956] 1 WLR 496
Bailii
National Assistance Act 1948 48
England and Wales
Citing:
Cited – Crowhurst And Mary His Wife v Laverack 20-Nov-1852
The father and mother of an illegitimate child entered into an agreement for the maintenance of the child. He was to contribute on the basis that she would otherwise care for the child. The mother later married, and she and the father now sought . .

Lists of cited by and citing cases may be incomplete.

Children, Contract

Updated: 16 November 2021; Ref: scu.262831

Warren v Mendy: CA 1989

A boxing manager and promoter sought injunctive relief to restrain the defendant from interfering with a management contract between himself and B, a talented young boxer, and from acting for B in B’s professional career. B was at his request joined to the proceedings. An injunction was refused at first instance.
Held: No injunction would be granted.
Nourse LJ said: ‘It is well settled that an injunction to restrain a breach of contract for personal services ought not to be granted where its effect will be to decree performance of the contract. Speaking generally, there is no comparable objection to the grant of an injunction restraining the performance of particular services for a third party, because, by not prohibiting the performance of other services, it does not bind the servant to his contract. But a difficulty can arise, usually in the entertainment or sporting worlds, where the services are inseparable from the exercise of some special skill or talent, whose continued display is essential to the psychological and material, and sometimes to the physical, well being of the servant. The difficulty does not reside in any beguilement of the court into looking more tenderly on such who breach their contracts, glamorous though they often are. It is that the human necessity of maintaining the skill or talent may practically bind the servant to the contract, compelling him to perform it.’ and ‘This consideration of the authorities has led us to believe that the following general principles are applicable to the grant or refusal of an injunction to enforce performance of the servant’s negative obligations in a contract for personal services inseparable from the exercise of some special skill or talent. (We use the expressions ‘master’ and ‘servant’ for ease of reference and not out of any regard for the reality of the relationship in many of these cases.) In such a case the court ought not to enforce the performance of the negative obligations if their enforcement will effectively compel the servant to perform his positive obligations under the contract. Compulsion is a question to be decided on the facts of each case, with a realistic regard for the probable reaction of an injunction on the psychological and material, and sometimes the physical, need of the servant to maintain the skill or talent. The longer the term, for which an injunction is sought, the more readily will compulsion be inferred. Compulsion may be inferred where the injunction is sought not against the servant but against a third party if either the third party is the only other available master or if it is likely that the master will seek relief against anyone who attempts to replace him. An injunction will less readily be granted where there are obligations of mutual trust and confidence, more especially where the servant’s trust in the master may have been betrayed or his confidence in him has genuinely gone.’

Nourse LJ
[1989] 1 WLR 853
England and Wales
Citing:
Cited – In re Regent Hotels (UK) Ltd v Pageguide Ltd CA 10-May-1985
The court was concerned with a long-term management contract for the Dorchester Hotel between Regent as managers and Pageguide. When Regent sold the hotel to Pageguide the management contract would continue and be novated (with some amendment) as . .

Cited by:
Cited – Lady Navigation Inc v Lauritzencool Ab and Another CA 17-May-2005
The shipowner appealed the award against them of an injunction requiring them not to act inconsistently with a time charterparty. The company said that such a form of order was improper.
Held: The existence of the contract to do what was . .

Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 16 November 2021; Ref: scu.225446

Munton v Greater London Council: CA 1976

With respect to the words ‘subject to contract’, Lord Denning said, ‘It is of the greatest importance that no doubt should be thrown on the effect of those words’. As to the difference netween the procedures of compulsory purchase and ordinary contracts: ‘First, when notice to treat is given, it binds the acquiring authority to purchase and the owner to sell at a price to be ascertained . . Second, when there is an unconditional agreement fixing the price – whether in writing or by word of mouth – it is the equivalent of a binding contract between the parties . . . Once, therefore a notice to treat has been served and there is an agreement on the price, a binding obligation is created which is equivalent to a contract between the parties.’

Lord Denning MR
[1976] 1 WLR 649
Law of Property Act 1925 840
England and Wales
Citing:
Cited – Von Hatzfeldt-Wildensburg v Alexander ChD 26-Jul-1911
A purchaser wrote offering to purchase a house, saying acceptance was subject to her solicitor approving title, covenants, lease and form of contract.
Held: It was not a complete contract capable of enforcement: ‘It appears to be well settled . .

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

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 16 November 2021; Ref: scu.183733

Verderame v Commercial Union Assurance Co Plc: CA 2 Apr 1992

The insurance brokers, acting to arrange insurance for a small private limited company did not owe a duty in tort to the directors of that company personally. Where an action was brought in a tort and in breach of contract, damages could not be awarded on the tort where they were not available in contract.

Balcombe LJ
[1992] BCLC 793, Times 02-Apr-1992
England and Wales
Citing:
Followed – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .

Cited by:
Cited – Johnson v Gore Wood and Co (a Firm) CA 12-Nov-1998
The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
Cited – Hamilton Jones v David and Snape (a Firm) ChD 19-Dec-2003
The claimant was represented by the respondent firm of solicitors in an action for custody of her children. Through their negligence the children had been removed from the country. She sought damages for the distress of losing her children.
Agency, Insurance, Company, Contract, Negligence, Damages

Updated: 16 November 2021; Ref: scu.181818

Thrige v United Shipping Company Ltd: CA 1924

The plaintiff sold machinery to a purchaser in England. The terms of sale were cash against documents. Thrige took a straight bill of lading which named the Victoria Company as the consignee without any reference to ‘or order or assigns’. The goods were discharged at their final destination without the bill of lading, and Thrige thereby lost the value of the shipment.
Held: No cause of action had been shown against the defendant since it acted as a mere agent without possession of the goods. The court asked what might have arisen if the carrier had been sued. The bill of lading was odd being taken neither to the shipper’s nor to the consignee’s order. The court expressed doubt whether a carrier was in breach if he delivered goods without production of the bill where the bill was made out to a named consignee and property in the goods passed on shipment.

Scrutton LJ
(1924) 18 Ll L Rep 6
England and Wales
Citing:
Appeal from – Thrige v United Shipping Company Limited 1923
. .

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 – J I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 16 November 2021; Ref: scu.181887

Willis and Son v British Car Auctions Ltd: CA 1978

A car on hire purchase was sold and delivered by auctioneers on the instructions of the hirer. The court was asked whether the auctioneers’ liability was affected by the fact that the car had been sold under their provisional bid procedure.
Held: The auctioneers were liable. Lord Denning:’It is now, I think, well established that if an auctioneer sells goods by knocking down with his hammer at an auction and thereafter delivers them to the purchaser – then although he is only an agent – then if the vendor has no title to the goods, both the auctioneer and the purchaser are liable in conversion to the true owner, no matter how innocent the auctioneer may have been in handling the goods or the purchaser in acquiring them: see Barker v Furlong . . and Consolidated Co. v Curtis and Son . . This state of law has been considered by the Law Reform Committee . . in its 18th Report (Conversion and Detinue) (1971), Cmnd. 4774 as to innocent handlers: paragraphs 46-50. But Parliament has made no change in it: no doubt it would have done so in the Torts (Interference with Goods) Act 1977 if it had thought fit to do so.’

Lord Denning
[1978] 1 WLR 438
England and Wales
Cited by:
Cited – Marcq v Christe Manson and Woods (t/a Christies) QBD 29-Oct-2002
The claimant sought damages for conversion from the respondent auctioneers as bailees. The painting had been registered as stolen. It failed to achieve its reserve and had been returned.
Held: It was for a bailee to prove that he had acted in . .

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 16 November 2021; Ref: scu.181802

Whitmar Publications Ltd v Gamage and Others: ChD 4 Jul 2013

Whitmar claimed damages for breach of contract; an account of profits; damages for breach of fiduciary duty and/or for infringement of its Database Rights under the Copyright and Rights in Database Regulations 1997; and for a permanent injunction restraining the Defendants from using and disclosing its confidential information obtained during their employment by Whitmar.
Held: The relief was given. The defendants had begun their acting in competition to their employers before leaving employment.
‘the critical distinction between the duty of good faith and fidelity owed by an employee and the fiduciary duties is that an employee is not in the position of a fiduciary, such as a director. It is trite law that a director owes fiduciary duties to the company of which he or she is a director, and is under a duty to act in good faith in what he or she considers to be the best interests of the company. An employee does not have such a wide- reaching obligation.’

Peter Leaver QC DHCJ
[2013] EWHC 1881 (Ch)
Bailii
England and Wales
Citing:
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – Lawrence David Limited v Ashton CANI 1989
The American Cyanamid principles apply in cases of interlocutory injunctions in restraint of trade just as they do in other cases. . .
Cited – Lawrence David Limited v Ashton CANI 1989
The American Cyanamid principles apply in cases of interlocutory injunctions in restraint of trade just as they do in other cases. . .
Cited – Lansing Linde v Kerr CA 1991
Staughton LJ held that ‘trade secrets’ embrace information used in a trade, restricted in its dissemination, and the disclosure of which would be liable to cause real or significant harm to the party claiming confidentiality. He considered the . .
Cited – Wessex Dairies Limited v Smith CA 1935
A milk roundsman employed by a dairy who canvassed the dairy’s customers while in the employ of the dairy but to take effect after his employment had terminated.
Held: The question to be determined depended upon the term to be implied in the . .
Cited – Faccenda Chicken Ltd v Fowler CA 1986
Nature of Confidentiality in Information
The appellant plaintiff company had employed the defendant as sales manager. The contract of employment made no provision restricting use of confidential information. He left to set up in competition. The company now sought to prevent him using . .
Cited – Faccenda Chicken Ltd v Fowler CA 1986
Nature of Confidentiality in Information
The appellant plaintiff company had employed the defendant as sales manager. The contract of employment made no provision restricting use of confidential information. He left to set up in competition. The company now sought to prevent him using . .
Cited – Nottingham University v Fishel QBD 19-Jan-2000
When a university embryologist, the respondent, worked abroad he did not act in any breach of fiduciary duty. He remained under a specific duty to direct his fellow embryologists to work in the interests of the university and not in his own . .
Cited – Ranson v Customer Systems Plc CA 27-Jun-2012
Lewison LJ considered the contractual duty of fidelity within an employment contract:
‘It is not disputed that an employee has an obligation of fidelity towards his employer. If the obligation is not expressed, it will invariably be implied.
Cited – Lansing Linde v Kerr CA 1991
Staughton LJ held that ‘trade secrets’ embrace information used in a trade, restricted in its dissemination, and the disclosure of which would be liable to cause real or significant harm to the party claiming confidentiality. He considered the . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – Helmet Integrated Systems Ltd v Tunnard and others CA 15-Dec-2006
Whilst employed by the claimants as a salesman, the defendant came to want to develop his idea for a modular helmet suitable for fire-fighters and others. He took certain steps including showing the proposal confidentially to a competitor, and then . .
Cited – Brutt Trade Marks 2007
. .
Cited – Ranson v Customer Systems Plc CA 27-Jun-2012
Lewison LJ considered the contractual duty of fidelity within an employment contract:
‘It is not disputed that an employee has an obligation of fidelity towards his employer. If the obligation is not expressed, it will invariably be implied.
Cited – Imam-Sadeque v Bluebay Asset Management (Services) Ltd QBD 10-Dec-2012
Popplewell J said: ‘In general terms, it can be said that the duty of fidelity requires an employee not to engage in competitive activity. Nevertheless, it is legitimate for him to undertake competitive activity as soon as he ceases the employment . .
Cited – Balston Ltd v Headline Filters Ltd and Another ChD 1990
The claimant, a manufacturer of filter tubes, employed the defendant as a director. He gave notice to leave, but during his notice period, he was contacted by a customer who informed him of a meeting between that customer and the company at which . .
Cited – Sun Valley Foods Limited v Vincent 2000
The court considered the grant of ‘springboard relief’. Jonathan Parker J said: ‘For reasons which I have already explained, there is no room for doubt that the defendants have made unlawful use of material in which Sun Valley/Fields has a . .

Lists of cited by and citing cases may be incomplete.

Contract, Intellectual Property

Updated: 15 November 2021; Ref: scu.512439

Parkingeye Ltd v Somerfield Stores Ltd: ChD 18 Mar 2011

The claimant said that the defendant had wrongfully terminated its contract for management of parking at the defendant’s supermarkets. The defendant replied that the contract was unenforceable for illegality.

Hegarty QC HHJ
[2011] EWHC 4023 (QB)
Bailii
England and Wales
Citing:
Cited – Pearce v Brooks 1866
The contract was one for the hire of an ornamental brougham to a prostitute which was supplied with knowledge that it would be used ‘as part of her display’. She returned it in a damaged condition, and refused to make any payments under the contract . .

Cited by:
Appeal from – Parkingeye Ltd v Somerfield Stores Ltd CA 17-Oct-2012
The claimant company operated parking management for the defendant, charging customers for overparking. The defendant came to believe that the claimant’s behaviour was over-aggressive, and the use of falsehoods, and terminated the contract. The . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 14 November 2021; Ref: scu.510822

Performing Right Society Ltd v B4U Network (Europe) Ltd: ChD 22 Oct 2012

Vos J
[2012] EWHC 3010 (Ch), [2013] FSR 19, [2013] Bus LR 664
Bailii
England and Wales
Cited by:
Appeal from – B4U Network (Europe) Ltd v Performing Right Society Ltd CA 16-Oct-2013
Composers had entered an agreement with the respondent, assigning all copyrights in their works to the respondent. The respondent asserted also an equitable assignment of all future works. The appellant asserted that the rights in the particular . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract, Equity

Updated: 14 November 2021; Ref: scu.510811

G Percy Trentham Ltd v Archital Luxfer Ltd: CA 1993

The court discussed how it should approach the task of establishing whether a contract had been made.
Performance can be a critical factor in demonstrating that the parties intended to create legal relations.
Steyn LJ said: ‘Before I turn to the facts it is important to consider briefly the approach to be adopted to the issue of contract formation in this case. It seems to me that four matters are of importance. The first is the fact that English law generally adopts an objective theory of contract formation. That means that in practice our law generally ignores the subjective expectations and the unexpressed reservations of the parties. Instead the governing criterion is the reasonable expectations of honest men. And in the present case that means that the yardstick is the reasonable expectations of sensible businessmen. Secondly, it is true that the coincidence of offer and acceptance will in the vast majority of cases represent the mechanism of contract formation. It is so in the case of a contract alleged to have been made by an exchange of correspondence. But it is not necessarily so in the case of a contract alleged to have come into existence during and as a result of performance. See Brogden v. Metropolitan Railway (1877) 2 AC 666; New Zealand Shipping Co Ltd v A M Satterthwaite and Co. Ltd. [1974] 1 Lloyd’s Rep. 534 at p.539 col.1 [1975] AC 154 at p. 167 D-E; Gibson v. Manchester City Council [1979] 1 WLR 294. The third matter is the impact of the fact that the transaction is executed rather than executory. It is a consideration of the first importance on a number of levels. See British Bank for Foreign Trade Ltd. v. Novinex [1949] 1 KB 628 at p. 630. The fact that the transaction was performed on both sides will often make it unrealistic to argue that there was no intention to enter into legal relations. It will often make it difficult to submit that the contract is void for vagueness or uncertainty. Specifically, the fact that the transaction is executed makes it easier to imply a term resolving any uncertainty, or, alternatively, it may make it possible to treat a matter not finalised in negotiations as inessential. In this case fully executed transactions are under consideration. Clearly, similar considerations may sometimes be relevant in partly executed transactions. Fourthly, if a contract only comes into existence during and as a result of performance of the transaction it will frequently be possible to hold that the contract impliedly and retrospectively covers pre-contractual performance. See Trollope and Colls Ltd. v. Atomic Power Constructions Ltd. [1963] 1 WLR 333.’

Steyn LJ
[1993] 1 Lloyd’s Rep 25
England and Wales
Citing:
Cited – Brogden v Metropolitan Railway Co HL 1877
The parties wished to contract to sell and buy coal. A draft was supplied by the railway company to the supplier once head terms were agreed. The draft was returned with minor additions and the proposed name of an arbitrator. The coal was then . .

Cited by:
Cited – RTS Flexible Systems Ltd v Molkerei Alois Muller Gmbh and Co Kg (UK Productions) TCC 16-May-2008
The parties had gone ahead in performing the contract for the supply of machinery for manufacturing yoghurt pots, despite not having concluded formal agreements. . .
Cited – RTS Flexible Systems Ltd v Molkerei Alois Muller Gmbh and Co KG CA 12-Feb-2009
The parties went ahead with performance of a contract or the provision of a substantial production line without formally completing negotiation of the contract. . .
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: 14 November 2021; Ref: scu.242133

Tsakiroglou and Co Ltd v Noblee Thorl GmbH: HL 1961

The appellants had agreed to sell to the respondents 300 tonnes of groundnuts. However due to the blockade of the Suez canal from November 2 1956 until April 1957, the appellants failed to deliver these goods and the respondents sued for breach of contract. The issue before the court was whether by reason of the blockade the contract became impossible of performance and could therefore be discharged as frustrated. The appellants argued that the use of an alternative route via the Cape of Good Hope to deliver the goods meant that the contract was frustrated. The arbitrator had determined a mixed question as to whether a cif contract had been frustrated.
Held: A mixed finding of fact and law by an arbitrator is open to review by a court. Though in the ultimate analysis whether a contract was frustrated is a question of law, ‘that conclusion is almost completely determined by what is ascertained as to mercantile usage and the understanding of mercantile men.’
A contract for goods to be shipped between two locations was silent as to the method of delivery. It was held that the closing of the most direct route (the Suez Canal at a time of war) did not frustrate the contract where there was an alternative, albeit longer route available. Lord Reid commented that the appellants had simply to find another ship and that the altered nature of the voyage did not mean that the contract was frustrated. His Lordship stated that it was a question of law in light of commercial considerations whether a contract was fundamentally different and was frustrated. Shipping the goods by a different route was not commercially or fundamentally different so as to frustrate the contract.
Lord Reid pointed out that it was not a case where a longer voyage would have damaged the goods or one where the buyers would suffer extraordinary losses as a result of the goods arriving later than anticipated.
Viscount Simmonds held that use of the route via the Cape did not frustrate the contract, he pointed out, at 115, that it may well have meant greater expense and reduced or eliminated the appellant’s profits but that was not a ground for frustration and the contract was not ‘fundamentally’ altered.

Lord Radcliffe, Lord Reid, Viscount Simmonds
[1962] AC 93, [1961] 2 All ER 179
England and Wales
Cited by:
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 – Overseas Buyers v Granadex 1980
The court considered the meaning of a promise by one party to use its best endeavours.
Held: Mustill J said: ‘it was argued that the arbitrators can be seen to have misdirected themselves as to the law to be applied, for they have found that . .

Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Leading Case

Updated: 14 November 2021; Ref: scu.259072

Rogers v Parish (Scarborough) Ltd: CA 1987

The plaintiff appealed against rejection of his claim that the car he had bought from the defendant was not of merchantable quality. The goods were a Range Rover bought for a sum in excess of pounds 14,000.
Held: The appeal was allowed. Goods which were defective on delivery were not to be taken to be of merchantable quality for the purpose of section 14 of the 1979 Act by reason only of the fact that the defects had not destroyed the workable character of the goods. It was not relevant to whether the goods had been of merchantable quality upon delivery that the defects had subsequently been repaired; that in respect of any passenger vehicle the purpose for which goods of that kind were commonly bought would include not only the purchaser’s purpose in driving it but that of doing so with the degree of comfort, ease of handling, reliability and pride in its appearance appropriate for the market at which the vehicle was aimed; that defects which might be acceptable in a second hand vehicle and which would not therefore render it unmerchantable were not reasonably to be expected in a vehicle sold as new; and that the plaintiffs were entitled to repudiate the contracts since the vehicle was not as fit for its purpose as the plaintiffs were entitled to expect.
The standard of merchantable quality to be achieved under the 1979 Act depends on the market at which the product is aimed and that deficiencies might be acceptable in a product which is being sold as second-hand.
Mustill LJ said: ‘This being so, I think it legitimate to look at the whole issue afresh with direct reference to the words of section 14(6). Starting with the purpose for which ‘goods of that kind’ are commonly bought, one would include in respect of any passenger vehicle not merely the buyer’s purpose of driving the car from one place to another but of doing so with the appropriate degree of comfort, ease of handling and reliability and, one might add, of pride in the vehicle’s outward and interior appearance. What is the appropriate degree and what relative weight is to be attached to one characteristic of the car rather than another will depend on the market at which the car is aimed.
To identify the relevant expectation one must look at the factors listed in the subsection. The first is the description applied to the goods. In the present case the vehicle was sold as new. Deficiencies which might be acceptable in a secondhand vehicle were not to be expected in one purchased as new. Next, the description ‘Range Rover’ would conjure up a particular set of expectations, not the same as those relating to an ordinary saloon car, as to the balance between performance, handling, comfort and resilience. The factor of price was also significant. At more than andpound;14,000 this vehicle was, if not at the top end of the scale, well above the level of the ordinary family saloon. The buyer was entitled to value for his money.
With these factors in mind, can it be said that the Range Rover as delivered was as fit for the purpose as the buyer could reasonably expect? The point does not admit of elaborate discussion. I can only say that to my mind the defects in engine, gearbox and bodywork, the existence of which is no longer in dispute, clearly demand a negative answer.’

Mustill, Woolf LJJ, Sir Edward Eveleigh
[1987] QB 933
Sale of Goods Act 1979 13 14(6)
England and Wales
Cited by:
Cited – Stewart v Perth and Kinross Council HL 1-Apr-2004
The claimant challenged refusal of a licence to sell second hand cars, saying that the licensing requirements imposed were outwith the Act under which they had been made. The licensing scheme imposed additional requirements.
Held: Though a . .
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, Consumer

Updated: 14 November 2021; Ref: scu.195464

Marshall v Berridge: CA 19 Nov 1881

The court was asked as to the validity of an agreement for lease.
Held: Lush LJ said: ‘there must be a certain beginning and a certain ending otherwise it is not a perfect lease and a contract must in order to satisfy the Statute of Frauds, contain this reference.’
Baggallay LJ appeared to consider that an agreement for a lease to commence on the signing of another formal agreement could be sufficiently certain

Lush LJ, Baggallay LJ
(1881) 19 ChD 233, [1881] UKLawRpCh 242, 4 IC 85
Commonlii
England and Wales
Cited by:
Cited – Harvey v Pratt CA 1965
The parties had entered into an agreement for a lease, but had not specified a date for its commencement.
Held: In the case of a lease or agreement to lease, the essential terms will usually be the parties, the premises, the term and the rent. . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract

Updated: 14 November 2021; Ref: scu.246712

Blue-Sky Solutions Ltd v Be Caring Ltd: ComC 30 Sep 2021

Claim by the claimant, a supplier of mobile phones and telecommunication services, against the defendant, a social care provider, in which it claims the sum of pounds 180,000 plus VAT. The claim is made under a contract relating to the supply to the defendant of a mobile network service (MNS) by the well-known MNS provider, EE. The contract involved the provision of connections for 800 mobile phones for a minimum period of 48 months for a monthly rental of pounds 9,600.

His Honour Judge Stephen Davies
[2021] EWHC 2619 (Comm)
Bailii
England and Wales

Contract

Updated: 14 November 2021; Ref: scu.668387

Kirt Chunder Roy, And Others v The Government, And Connoy Laul Thakoor, And Gopaul Laul Thakoor: 15 Feb 1837

By the Bengal Revenue Regulations the Governor-General in Council, upon the report of the Board of Revenue, may order a sale for arrears of a monthly instalment before the close of the year ; but in order to warrant that act, there must be an arrear of a previous year, or of a monthly instalment, for which default has been made, after demand by the Collector.

[1837] EngR 512, (1837) 1 Moo Ind App 383, (1837) 18 ER 155
Commonlii
England and Wales

Contract

Updated: 12 November 2021; Ref: scu.313629

Econet Satellite Services Ltd v Vee Networks Ltd: ComC 13 Jul 2006

Field J
[2006] EWHC 1664 (Comm), [2006] ArbLR 20
Bailii
Arbitration Act 1996 67 68 69
England and Wales
Citing:
See Also – Vee Networks Limited v Econet Wireless International Limited QBD 14-Dec-2004
The court considered a complaint that the arbitration award was faulty or lack of jurisdiction under the agreement founding it. . .
See Also – Econet Wireless Ltd v Vee Networks Ltd and others ComC 28-Jun-2006
. .

Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 12 November 2021; Ref: scu.243425

Effort Shipping Company Ltd v Linden Management Sa and others (The Glannis Nk): HL 22 Jan 1998

A ship’s cargo can be held to be dangerous, and the shipper liable for anything which was more than an obvious physical danger. Such wider danger includes beetle infestation of a crop cargo. Lord Steyn said:’I would be quite prepared, in an appropriate case involving truly feasible alternative interpretations of a convention, to allow the evidence contained in the travaux preparatoires to be determinative of the question of construction. But that is only possible where the court is satisfied that the travaux preparatoires clearly and indisputably point to a definite legal intention: see Fothergill v Monarch Airlines Ltd., per Lord Wilberforce, at p.278c. Only a bull’s-eye counts. Nothing less will do.’

Lord Lloyd of Berwick, Lord Steyn
Times 29-Jan-1998, Gazette 18-Feb-1998, [1998] UKHL 1, [1998] AC 605, [1998] 2 WLR 206, [1998] 1 All ER 495
House of Lords, Bailii
Carriage of Goods by Sea Act 1971, Hague Rules
England and Wales
Citing:
Appeal from – Effort Shipping Co Ltd v Linden Management Sa and Another (The Glannis Nk) CA 5-Feb-1996
A shipper’s liability for known dangerous goods is not limited by fault or by negligence. . .
At first instance – Effort Shipping Co Ltd v Linden Management Sa and Another (The Glannis Nk) QBD 5-May-1994
A danger to the goods on board a ship made the cargo physically dangerous. The ship’s master was responsible. . .

Cited by:
Cited – Borealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Cited – Mullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
Cited – Aerotel Ltd v Telco Holdings Ltd and others, In re Patent Application GB 0314464.9 in the name of Neal Macrossan Rev 1 CA 27-Oct-2006
In each case it was said that the requested patent concerned an invention consisting of a computer program, and was not therefore an invention and was unpatentable. In one case a patent had been revoked on being challenged, and in the other, the . .
Cited – Nova Productions Ltd v Mazooma Games Ltd and others CA 14-Mar-2007
The defendant appealed against a finding of copyright infringement in a computer game.
Held: The appeal failed. The court must identify the artistic work relied upon and then decide whether it has been reproduced by copying of the work as a . .
Cited – Higgs v Regina CACD 24-Jun-2008
The defendant appealed against his conviction under the section. He ran a business fitting modifying chips to games consoles allowing them to play non-certificated games CDs.
Held: The appeal was allowed. It was not suggested that the use of a . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 12 November 2021; Ref: scu.158932

Praetura Asset Finance Ltd v Hood: ComC 31 Jul 2019

Extemporary judgment on a claim by P against H seeking to recover over pounds 1.5 million said to be due to it from the defendant under an unregulated hire purchase agreement made between the parties. An acknowledgment of service was duly filed indicating an intention by the defendant to defend all of the claim. However, no defence was filed or served and the claimant entered judgment in default against the defendant for pounds 1,580,345.41, inclusive of interest. The defendant now sought to have judgment in default set aside.

Judge Hodge QC
[2019] EWHC 2231 (Comm)
Bailii
England and Wales

Contract, Litigation Practice

Updated: 12 November 2021; Ref: scu.642077

Thevarajah v Riordan and Others: CA 4 Feb 2015

The court was asked whether the judge at first instance had been right to attribute an agreement which he had not made to the defendants.
Held: The defendants were liable to pay 2.205 million pounds.

Richardsm Tomlinson LJJ, Newey J
[2015] EWCA Civ 41
Bailii
England and Wales
Citing:
Cited – Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen ChD 15-Jul-2003
The defendant sought a variation under Part 3.1(7) of an order setting aside an earlier judgment in default of defence, on terms requiring a substantial payment into court with which the defendant, who was a litigant in person, had not complied.
See Also – Thevarajah v Riordan and Others ChD 10-Oct-2013
The court allowed the application of the first, second and fourth respondents for relief from sanction under CPR 3.9. . .
See Also – Thevarajah v Riordan and Others CA 16-Jan-2014
Defendants appealed against an order allowing the application of the first, second and fourth respondents for relief from sanction under CPR 3.9. The relief sought had previously been refused by Hildyard J, so this was the respondents’ second . .
Appal from – Thevarajah and Another v Riordan and Others ChD 21-Mar-2014
The parties disputed the arrangements for the intended acquisition by the Claimant of three properties, or more accurately of all or part of the shares in their owning companies. Following a failure to comply with ‘unless’ orders fr disclsure of . .
See Also – Thevarajah v Riordan and Others ChD 9-Aug-2013
The court was asked first whether the defendants had complied with an unless order made with respect to the disclosure of information required to be provided in aid and in order to ensure the proper release of a freezing order which had previously . .

Cited by:
See Also – Thevarajah v Riordan and Others SC 16-Dec-2015
The defendants had failed to comply with an ‘unless’ order requiring disclosure, and had been first debarred from defending the cases as to liability. They applied to a second judge who granted relief from sanctions after new solicitors had complied . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 12 November 2021; Ref: scu.542248

Hochster v De La Tour: QBD 25 Jun 1853

The plaintiff said that the defendant had given him a contract to travel with him and to act as the defendant’s courier, but then changed his mind. The plaintiff obtained another engagement to start before the proposed term. The defendant said there could be no breach.
Held: Lord Campbell CJ said: ‘On this motion in arrest of judgment, the question arises, whether, if there be an agreement between A. and B., whereby B. engages to employ A. on and from a future day for a given period of time, to travel with him into a foreign country as a courier, and to start with him in that capacity on that day, A. being to receive a monthly salary during the continuance of such service, B. may, before the day, refuse to perform the agreement and break and renounce it, so as to entitle A. before the day to commence an action against B. to recover damages for breach of the agreement; A. having been ready and willing to perform it, till it was broken and renounced by B. The defendant’s counsel very powerfully contended that, if the plaintiff was not contented to dissolve the contract, and to abandon all remedy upon it, he was bound to remain ready and willing to perform it till the day when the actual employment as courier in the service of the defendant was to begin; and that there could be no breach of the agreement, before that day, to give a right of action. But it cannot be laid down as a universal rule that, where by agreement an act is to be done on a future day, no action can be brought for a breach of the agreement till the day for doing the act has arrived. ‘

Lord Campbell CJ
[1853] EWHC QB J29, [1853] 2 E and B 678, [1853] EngR 760, (1853) 2 El and Bl 678, (1853) 118 ER 922, [1853] EWHC QB J72
Bailii, Commonlii, Bailii
England and Wales
Cited by:
Cited – Sarker v South Tees Acute Hospitals NHS Trust EAT 25-Mar-1997
CS The appellant applied for a job with the respondent. Her offer was confirmed in writing. When the offer was withdrawn before she began to work, she claimed damages under s131.
Held: The employment . .
Cited – SK Shipping (S) Pte Ltd v Petroexport Ltd ComC 24-Nov-2009
The parties disputed the termination of a charterparty for anticipatory repudiatory breach.
Held: To the extent that the dispute relied on disputes of fact, the court preferred the evidence of the claimant. The defendant had displayed an . .
Cited – Bunge Sa v Nidera Bv SC 1-Jul-2015
The court considered the effect of the default clause in a standard form of contract which is widely used in the grain trade. On 10 June 2010 the respondents, Nidera BV, whom I shall call ‘the buyers’, entered into a contract with the appellants, . .

Lists of cited by and citing cases may be incomplete.

Employment, Contract

Leading Case

Updated: 12 November 2021; Ref: scu.241588

Thomas v Thomas: 5 Feb 1842

A promisee can only enforce a promise if in return for it he gave something of value in the eyes of the law. Consideration need not be ‘valuable’ for it to be valid or effective to form the basis for a contract. It merely needs to be ‘legally sufficient’; and this criterion may be met even by purely nominal consideration.
Lord Denman CJ said: ‘There is nothing in this case but a great deal of ingenuity, and a little wilful blindness to the actual terms of the instrument itself. This is in terms on express agreement, and shews a sufficient legal consideration quite independent of the moral feeling which disposed the (defendant) to enter into such a contract.’

Patteson J, Lord Denman CJ
[1842] EngR 260, (1842) 2 QB 851, (1842) 114 ER 330
Commonlii
England and Wales

Contract

Leading Case

Updated: 12 November 2021; Ref: scu.307215

Oughtred v Inland Revenue Commissioners: HL 4 Nov 1959

The taxpayer and her son owned through a trust the entire beneficial interest in the shares of a company. She agreed to transfer other shares to him in return for his interest in the shares subject to the trust, releasing the trust. The Revenue contended that there must be a deed giving effect to the transaction releasing the interest in the trust shares, and that it was subject to ad valorem stamp duty.
Held: Stamp duty was payable on documents only. Neverheless the transfer gave effect to a transfer within section 54 of the 1891 Act and was liable to ad valorem duty despite the low nominal consideration expressed in it.
Lord Radcliffe (dissenting) said that the existence of a document could not be inferred only from section 53 of the 1925 Act: ‘The duty is charged upon instruments, if they exist and come within any of the categories prescribed by the Act. It is not charged upon transactions.
Thus property such as chattels which by law pass on delivery can be transferred from one owner to another without attracting duty. Again, though an agreement for sale may be chargeable ad valorem, since the Act has so required, an oral agreement for the sale of property involves no charge to duty because no instrument is brought into existence to effect or to record it. The whole point of the present appeal seems to me to turn on the question whether it is open to a Court of Law to deduce from the documents of this case that Mrs. Oughtred’s title to her son’s equitable reversionary interest rested upon anything more than the oral agreement which admittedly took place.’
Lord Jenkins said: ‘I am unable to accept the conclusion that the disputed Transfer was prevented from being a transfer of the shares to the Appellant on sale because the entire beneficial interest in the settled shares was already vested in the Appellant under the constructive trust, and there was accordingly nothing left for the disputed Transfer to pass to the Appellant except the bare legal estate. The constructive trust in favour of a purchaser which arises on the conclusion of a contract for sale is founded upon the purchaser’s right to enforce the contract in proceedings for specific performance. In other words, he is treated in equity as entitled by virtue of the contract to the property which the vendor is bound under the contract to convey to him. This interest under the contract is no doubt a proprietary interest of a sort, which arises, so to speak, in anticipation of the execution of the Transfer for which the purchaser is entitled to call. But its existence has never (so far as I know) been held to prevent a subsequent transfer, in performance of the contract, of the property contracted to be sold from constituting for stamp duly purposes a transfer on sale of the property in question.’

Lord Radcliffe, Lord Cohen, Lord Keith of Avonholm, Lord Denning, Lord Jenkins
[1959] UKHL 3, [1960] AC 206
Bailii
Law of Property Act 1925 53(1), Stamp Act 1891 54
England and Wales
Citing:
Cited – Attorney General v Brown 1849
. .
Cited – Commissioners for Inland Revenue v Angus CA 14-Jun-1881
The court was asked whether an agreement for sale of property in the shape of goodwill amounted to a conveyance of the property for stamp duty purposes under section 70 of the 1870 Act.
Held: It did not.
Lord Evershed MR said: ‘The first . .

Cited by:
Cited – Robin Alexis Justin Keston, Helen Janet Keston v Commissioners of Inland Revenue ChD 27-Jan-2004
The claimants sought to reduce liability for stamp duty by arranging an intermediate sale to a company followed by a scheme of regular payments.
Held: The scheme was not effective to save stamp duty. The combined effect of the sections was to . .
Cited – Vandervell v Inland Revenue Commissioners HL 24-Nov-1966
The taxpayer made a gift of shares to a trust set up to fund a medical professorship. The shares were in a private company, and an option was given for their repurchase once a certain level of dividends had been attributed to them. He was assessed . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .

Lists of cited by and citing cases may be incomplete.

Stamp Duty, Contract

Leading Case

Updated: 12 November 2021; Ref: scu.248536

Tournier v National Provincial and Union Bank of England: CA 1924

The court considered the duty of confidentiality owed by a banker to his client. Bankes LJ said: ‘At the present day I think it may be asserted with confidence that the duty is a legal one arising out of contract, and that the duty is not absolute but qualified. It is not possible to frame any exhaustive definition of the duty. The most that can be done is to classify the qualification, and to indicate its limits.’ and ‘In my opinion it is necessary in a case like the present to direct the jury what are the limits, and what are the qualifications of the contractual duty of secrecy implied in the relation of banker and customer. There appears to be no authority on the point. On principle I think that the qualifications can be classified under four heads: (a) Where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer.’
Scrutton LJ said: ‘The Court will only imply terms which must necessarily have been in the contemplation of the parties in making the contract. Applying this principle to such knowledge of life as a judge is allowed to have, I have no doubt that it is an implied term of a banker’s contract with his customer that the banker shall not disclose the account, or transactions relating thereto, of his customers except in certain circumstances’ and ‘I doubt whether it is sufficient excuse for disclosure, in the absence of the customer’s consent, that it was in the interests of the customer, where the customer can be consulted in reasonable time and his consent or dissent obtained.’
Scrutton LJ did not think that the ‘ancient formula’ set out in Parmiter for defamation was sufficient in all cases, because words might damage the reputation of a man as a business man which no one would connect with hatred, ridicule or contempt.
Atkin LJ said: ‘The facts in this case as to the course of business of this bank do not appear to be in any degree unusual in general banking business. I come to the conclusion that one of the implied terms of the contract is that the bank enter into a qualified obligation with their customer to abstain from disclosing information as to his affairs without his consent.’
and ‘I have already stated the obligation as an obligation not to disclose without the customer’s consent. It is an implied term, and may, therefore, be varied by express agreement. In any case the consent may be express or implied, and to the extent to which it is given the bank will be justified in acting. A common example of such consent would be where a customer gives a banker’s reference. The extent to which he authorises information to be given on such a reference must be a question to be determined on the facts of each case. I do not desire to express any final opinion on the practice of bankers to give one another information as to the affairs of their respective customers, except to say it appears to me that if it is justified it must be upon the basis of an implied consent of the customer.’
As to defamatory meaning, Atkin LJ said: ‘I do not think that it is sufficient direction to a jury on what is meant by ‘defamatory’ to say, without more, that it means: were the words calculated to expose the plaintiff to hatred, ridicule or contempt, in the mind of a reasonable man? The formula is well known to lawyers but it is obvious that suggestions might be made very injurious to a man’s character in business which would not, in the ordinary sense, excite either hate, ridicule, or contempt – for example, an imputation of a clever fraud which, however much to be condemned morally and legally, might yet not excite what a member of the jury might understand as hatred or contempt.’

Bankes LJ, Atkin LJ, Scrutton LJ
[1924] 1 KB 461, [1923] All ER Rep 550, 130 LT 682
England and Wales
Citing:
Cited – Parmiter v Coupland And Another 1840
In an action for libel, the Judge is not bound to state to the jury, as matter of law, whether the publication complained of be a libel or not ; but the proper course is for him to define what is a libel in point of law, and to leave it to the jury . .

Cited by:
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – Turner v Royal Bank of Scotland Plc CA 24-Mar-1998
The plaintiff complained as to the provision of references by his bank. The bank said he had given an implied permission through the bank which had made the request. Later changes in the bankers code of practice would have required explicit written . .
Cited – Elli Christofi v Barclays Bank Plc PatC 19-Jan-1998
A bank’s duty of confidentiality did not arise as regards information received but already known pursuant to statutory duty. The claimant’s writ and statement of claim were struck out as disclosing no cause of action. As regards the allegation of an . .
Cited – Christofi v Barclays Bank Plc CA 28-Jun-1999
A bank is under no obligation of confidence to its customer so as to prevent it disclosing to another party a fact which was ascertainable from inspection of public registers, namely in this case that a caution against registration having been . .
Cited – Berkoff v Burchill and and Times Newspapers Limited CA 31-Jul-1996
The plaintiff actor said that an article by the defendant labelling him ugly was defamatory. The defendant denied that the words were defamatory.
Held: It is for the jury to decide in what context the words complained of were used and whether . .
Cited – Thornton v Telegraph Media Group Ltd QBD 16-Jun-2010
The claimant said that a review of her book was defamatory and a malicious falsehood. The defendant now sought summary judgment or a ruling as to the meaning of the words complained of.
Held: The application for summary judgment succeeded. The . .
Cited – Jeremy D Stone Consultants Ltd and Another v National Westminster Bank Plc and Another ChD 11-Feb-2013
The claimants asserted an equitable claim against funds held by the defendant bank in the name of a company owned by another defendant who they said defrauded them through a Ponzi investment scheme.
Held: The claim failed. On the evidence, the . .
Cited – Re C (A Child) FC 29-Sep-2015
There had been care proceedings as to C. The mother was treated by a psychiatrist, X, and an associate Y. They also prepared expert reports. M formally complained about X, and the charges having been dismissed, the doctors now sought disclosure of . .
Cited – Lipkin Gorman v Karpnale Ltd CA 1989
A partner in a firm of solicitors stole money from them, and spent it gambling with the defendants. The firm sued also their banker, who had been held to be aware of the defaulting partner’s weaknesses and activities.
Held: The solicitors . .

Lists of cited by and citing cases may be incomplete.

Banking, Contract, Intellectual Property

Leading Case

Updated: 12 November 2021; Ref: scu.216369

Xenos v Wickham: HL 1866

Delivery of document in Escrow

Blackburn J said that a deed is delivered ‘as soon as there are acts or words sufficient to [show] that it is intended by the party to be executed as his deed presently binding on him.’
Lord Cranworth said: ‘The maker (of a deed) may so deliver it as to suspend or qualify its binding effect. He may declare that it shall have no effect until a certain time has arrived or until some condition has been performed, but when the time has arrived, or the condition has been performed, the delivery becomes absolute, and the maker of the deed is absolutely bound by it, whether he has parted with possession or not. Until the specified time has arrived, or the condition has been performed, the instrument is not a deed; it is a mere escrow.’

Blackburn J, Lord Cranworth
(1866) LR 2 HL 296
England and Wales
Citing:
See Also – Xenos v Wickham 1862
. .
See Also – Xenos v Wickham 12-Jul-1862
. .
See Also – Stephanos Xenos And Another v Wickham, Chairman Of The Victoria Fire And Marine Insurance Company 18-Apr-1863
. .

Cited by:
Cited – Bolton Metropolitan Borough Council v Torkington CA 31-Oct-2003
The proposed landlord had sealed the lease, but the tenant was to seal and deliver his part by a certain date. The respondent purported to complete the lease later.
Held: Under the 1985 Act completion would require writing, intention and . .
Cited – Alan Estates Ltd v WG Stores Ltd and Another CA 1-Jul-1981
The proposed tenant wanted to get into possession, and was given a key and paid a quarter’s rent to the lessor’s solicitors to be held as stakeholders, before the lease had been formally granted. An undated lease and counterpart were executed and . .

Lists of cited by and citing cases may be incomplete.

Contract

Leading Case

Updated: 11 November 2021; Ref: scu.188674

Commission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd): CA 4 Mar 1995

The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to mislead the plaintiff into making the relevant mistake, the plaintiff had in fact made it, and this was sufficiently unconscionable conduct on the part of the defendant to render it liable to rectification. The deliberate attempt to hide the other’s mistake made the contract unenforceable. An offer and acceptance of a land contract may not be by letter. Rectification may in certain circumstances be ordered, where there has been no common mistake, but one party has proceeded on a base which the other knew to be mistaken. Where A intends B to be mistaken as to the construction of a contract and diverts B’s attention from discovering the mistake by making false and misleading statements and B makes the mistake which A intends, then suspicion and not actual knowledge of the mistake is enough for rectification to be granted.
Stuart-Smith LJ said: ‘[W]here a false representation is made for the purpose of inducing the other party to adopt a certain course of conduct and the representation is such as to influence a person behaving reasonably to adopt that course of conduct, the court should infer, in the absence of evidence to the contrary, that the representation did have that effect.’ and
‘In the case of unilateral mistake, that is to say where only one party is mistaken as to the meaning of the contract, rectification is not ordinarily appropriate. This follows from the ordinary rule that it is the objective intention of the parties which determines the construction of the contract and not the subjective intention of one of them. Also, it would generally be inequitable to compel the other party to execute a contract, which he had no intention of making, simply to accord with the mistaken interpretation of the other party: see Olympia Sauna Shipping Co SA v Shinwa Kaiun Kaisha Ltd [1985] 2 Lloyds Rep. 364, 371 per Bingham J. But the court will intervene if there are ‘additional circumstances that render unconscionable reliance on the document by the party who has intended that it should have effect according to its terms:’ Spry, Equitable Remedies, 4th ed. (1990), p.599. The debate in this case turns on what amounts to unconscionable conduct.’

Stuart-Smith LJ, Evans LJ, Farquharson LJ
Times 04-Mar-1995, Independent 15-Mar-1995, [1995] 2 All ER 929, [1995] Ch 259, [1995] 26 EG 129
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Cited by:
Cited – Well Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
Cited – George Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Cited – Coles and Others v William Hill Organisation Ltd ChD 18-Mar-1998
When agreeing an extension of an existing lease, the new lease by mistake included a break clause which had been intended by neither party. The tenant’s solicitors noticed the error in their client’s favour but did not mention it. The landlord only . .
Cited – North Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
Cited – Daventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.79287

Banco Santander Totta Sa v Companhia De Carris De Ferro De Lisboa Sa and Others: ComC 4 Mar 2016

The parties, both Portuguese had entered into now disputed interest rate swap agreements which provided for them to be subject to English law and jurisdiction. The bank claimant sought to enforce the agreements, and the defendant argued that, neither party having a connection with England, the matter should be heard in Portugal.
Held: The request for the matter to be dealth with in Portugal failed. Not every aspect of the contract had Portuguese only elements, and article 3 could only be applied if all were.

Blair J
[2016] EWHC 465 (Comm), [2016] WLR(D) 125, [2016] 4 WLR 49
Bailii, WLRD
Convention 80/934/EEC 3(3)

Contract, International, Financial Services

Updated: 11 November 2021; Ref: scu.560753

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 years, and the interruption was temporary. The doctrine of frustration was developed as an expedient to escape from injustice and is a modern and flexible doctrine not constricted by any arbitrary formula. ‘Frustration of a contract takes place where there supervenes an event (without default of either party and for which the contract makes no sufficient provision) which so significantly changes the nature (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulations in the new circumstances; in such case the law declares both parties to be discharged from further performance.’

Lord Hailsham of St Marylebone LC, Lord Wilberforce, Lord Simon of Glaisdale, Lord Russell of Killowen, Lord Roskill
[1981] AC 675, [1980] UKHL 8, [1981] 1 All ER 161
Bailii
England and Wales
Citing:
Cited – Cricklewood Property and Investment Trust Ltd v Leighton’s Investment Trust Ltd HL 1945
Wartime regulations were implemented which prohibited the building on land which was already subject to a building lease which required the lessees to erect several shops.
Held: Even if the doctrine of frustration could apply to a lease, the . .
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 – 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 . .
Cited – Jackson v Union Marine Insurance Co Ltd CCP 1874
The plaintiff ship owner, contracted under a charterparty to proceed with all possible dispatch to Newport. He insured the cargo. The ship ran aground before the cargo could be collected, and was delayed. The charterers threw up the charterparty and . .
Cited – Embiricos v Sydney Reid and Co 1914
What constitutes a frustrating event something to be ascertained only at the time when the parties to the contract are called on to make up their minds. . .
Cited – Denny, Mott and Dickson Ltd v James B Fraser and Co Ltd 1944
. .
Cited – W J Tatem Ltd v Gamboa 1939
The court considered a charterparty of one month’s duration, at a very high rate of freight, limited to trade from the northern ports in the hands of the Republican Government of Spain to ports in France and which made plain that the specific . .
Cited – Hirji Mulji v Cheong Yue Steamship Co Ltd 1926
Lord Sumner considered the doctrine of frustration, formulating it as a ‘device by which the rules as to absolute contracts are reconciled with a special exception which justice demands.’ . .
Cited – Tamplin Steamship Co Ltd v Anglo Mexican Petroleum Co 1916
Lord Loreburn formulated the doctrine of frustration as based on the answer to the question: ‘What in fact is the true meaning of the contract?’ . .
Approved – Davis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .
Cited – Tsakiroglou and Co Ltd v Noblee Thorl GmbH HL 1961
The arbitrator had determined a mixed question as to whether a c.i.f. contract had been frustrated.
Held: A mixed finding of fact and law by an arbitrator is open to review by a court. Though in the ultimate analysis whether a contract was . .

Cited by:
Cited – BAS Capital Funding Corporation, Deutsche Bank Ag London, Paine Webber Capital Inc, PW Exe Lp, Pw Partners 1999 Lp v Medfinco Limited, Abacus Holdings Limited, Andreas W Gerdes, HTC Inc, etc ChD 25-Jul-2003
The claimants wanted to bring actions in respect of various matters under shareholders agreements in complex international joint ventures. Leave was given to serve English proceedings in Malta, and the claim form and particulars of claim were faxed . .
Cited – Verner, Sheppard, Ridley v Derby City Council, Norfolk County Council, St Thomas More Roman Catholic High School QBD 14-Nov-2003
The question was whether, when a teacher has applied for and accepted ill-health retirement benefit, usually a lump sum and a pension, on the ground of permanent incapacity, there exists a public law duty on his employer to dismiss the employee.
Cited – Graves v Graves and others CA 3-Jul-2007
The parties had divorced and settled financial provision, but the former wife and her children came to need a house and one of the claimant’s properties became vacant, and she was allowed to occupy it as a tenant, with the majority of the rent being . .
Cited – Hussain v Mehlman CC 5-Mar-1992
(County Court) The defendant landlord granted the plaintiff a three year assured shorthold tenancy. He now appealed a finding that he was in breach of an implied covenant to maintain the space heating, and otherwise. The tenant had returned the . .
Cited – Reichman and Another v Beveridge CA 13-Dec-2006
The defendants were tenants of the claimant. They vacated the premises and stopped paying the rent. The claimant sought payment of the arrears of rent. The defendants said that the claimants should have taken steps to reduce their damages by seeking . .
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
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 . .
Cited – John Lewis Properties PLC v Viscount Chelsea ChD 1993
Three Leases of the Peter Jones site to T’s predecessor in 1934 contained covenants by T to redevelop the site in two phases, the second of which related to the MackMurdo and Simon’s Street buildings and was to be completed by December 25 1987. In . .

Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Leading Case

Updated: 11 November 2021; Ref: scu.186472

Ceska Sporitelna As v Gerald Feichter: ECJ 20 Sep 2012

ceska_feighterECJ2012

ECJ Opinion – Jurisdiction – Matters relating to a contract – Contract concluded by a consumer – Manager of a company – Credit agreement entered into by the company – Promissory note issued in incomplete form – Aval – Place for performance of the obligation

Sharpston AG
C-419/11, [2012] EUECJ C-419/11, [2013] EUECJ C-419/11
Bailii, Bailii
Regulation No 44/2001

European, Jurisdiction, Contract, Consumer

Updated: 11 November 2021; Ref: scu.464420

Doherty v Allman: HL 2 Apr 1878

Two leases were granted of pieces of land with some buildings on them, one granted in 1798 for 999 years, the other granted in 1824 for 988 years. There was no reservation of a power of re-entry for breach of covenant, nor was there any negative covenant obliging the lessee not to change the use of the premises. There was a power of re-entry, for rent in arrear and no sufficient distress on the premises. In each lease there was a covenant by the lessee that he, his executor, and co, will ‘during the term hereby granted preserve, uphold, support, maintain, and keep the said demised premises, and all improvements made and to be made thereon, in good and sufficient order, repair, and condition ; and at the end or sooner determination of this demise, shall and will so leave and deliver up the same unto,’ the lessor, his heirs, and co. The premises had been used as corn stores for some years ; and afterwards as artillery barracks, and dwellings for married soldiers. They had fallen into disrepair : it became necessary to repair them ; the lessee thought it would he beneficial to convert the store buildings into dwelling-houses, which would much increase their value, and was proceeding to convert them accordingly, when the lessor filed a bill to restrain him, alleging waste, Held, that this was not the case of enforcing a negative covenant where the words of contract were clear and indisputable; that the waste alleged was meliorating waste, and that, under the circumstances, the Court below had, in the due exercise of its discretion in such matters, properly refused to interfere by injunction.
An injunction will always issue to restrain a breach of a negative term in a contract. Lord Cairns LC said: ‘If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a court of equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such case, the injunction does nothing more than give the sanction of the process of the court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience, or of the amount of damage or of injury – it is the specific performance, by the court, of that negative bargain which the parties have made, with their eyes open, between themselves.’

Lord Cairns LC
[1878] 3 App Cas 709, [1878] UKLawRpAC 20
England and Wales
Cited by:
Applied – Attorney General v Barker CA 1990
A claim was made for an injunction to enforce an express covenant in a contract of employment by a member of the Royal Household by which he undertook (amongst other things) not to publish any information concerning a member of the family which came . .
Cited – Araci v Fallon CA 4-Jun-2011
The claimant said that the defendant jockey had agreed to ride the claimant’s horse in the Epsom Derby (to be run on the date of the hearing), and that he should not be allowed to ride another horse. The parties had entered into a Rider Retainer . .
Cited – Heythrop Zoological Gardens Ltd (T/A Amazing Animals) and Another v Captive Animals Protection Society ChD 20-May-2016
The claimant said that the defendant had, through its members visiting their premises, breached the licence under which they entered, by taking photographs and distributing them on the internet, and in so doing also infringing the performance rights . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Leading Case

Updated: 11 November 2021; Ref: scu.440456

Eastwood v Kenyon: 1840

eastwood_kenyon1840

Defendant may shew, under non assumpsit, that the promise was within stat. 29 Car. 2, c. 3, 8, 4, and was not in writing. Section 4 of that statute, as to promises to pay the debt of another, contemplates only promises made to the person to whom another is liabIe; therefore a promise by defendant to plaintiff to pay A. B, a debt due from plaintiff to A. B. is not within the statute. A pecuniary benefit, voluntarily conferred by plaintiff and accepted by defendant, is not such a consideration as will support an action of assumpsit on a subsequent express promise by defendant to reimburse plaintiff. There where the declaration in assumpsit stated that plaintiff was executor of the father of defendant’s wife, who died intestate as to his land, leaving defendant’s wife, an infant, his only child and heir ; that plaintiff acted as her guardian and agent during infancy, and in that capacity expended money on her maintenance and education, in the management and improvement of the land, and in paying the interest of a mortgage on it; that the estate was benefitted thereby to the full amount of such expenditure ; that plaintiff, being unable to repay himself out of the personal assets, borrowed money of A, B, on his promissory note; that defendant’s wife, when of age and before marriage, assented to the loan and the note, and requested plaintiff to give up the maniagement of the property to her, and promised to pay the note, and did in fact pay one year’s interest on it; that plaintiff thereupon gave up the management accordingly ; that defendant, after his marriage, assented to the plaintiff’s accounts, and upon such accounting a certain sum was found due to plaintiff for monies so spent and borrowed ; that defendant, in right of his wife, received all the benefit of plaintiff’s said services and expenditure, and thereupon in consideration of the premises, promised plaintiff to pay and discharge the note : Held, on motion in arrest of judgment, that the declaration was bad as not disclosing a sufficient consideratjon for defendant’s promise.

[1840] EngR 80, (1840) 11 Ad and E 438, (1840) 113 ER 482
Commonlii
Cited by:
Cited – Shadwell v Shadwell and Another CCP 11-Jan-1860
. .
Cited – Shadwell v Shadwell And Another 1858
. .
Cited – Jayawickreme and Another v Amarasuriya Since Deceased PC 4-Jun-1918
(Ceylon) . .

Lists of cited by and citing cases may be incomplete.

Contract

Leading Case

Updated: 11 November 2021; Ref: scu.309506

George Wimpey UK Ltd v VI Construction Ltd: CA 3 Feb 2005

A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was incorrect. The appeal was allowed: ‘There is, as it seems to me, a paradox in the notion of what an honourable and reasonable person would do in the context of an arm’s-length commercial negotiation. This is a context in which honour (or honesty) and rationality (or reasonableness) are frequently not on speaking terms.’
The court continued to consider the place of mistake: ‘The phrase ‘honest and reasonable’ is not a term of art. It is a judicial attempt to sketch a line beyond which conduct may be regarded as unconscionable or inequitable. Its duality, however, is a recognition that honesty alone is too pure a standard for business dealings because it omits legitimate self-interest; while reasonableness alone is capable of legitimising Machiavellian tactics.
Mistake is a concept which sits awkwardly in this space. Absent a prior accord which has simply not been carried into effect, absent also a dishonest inducement to contract, one is looking for a mistake on the claimant’s own part which the defendant was honour-bound, despite his own legitimate business interests, to point out to him. I am unable to accept that this was such a case on any tenable view of the evidence.
There are at least two kinds of mistake. One is a literal misunderstanding of some fact material to the proposed contract. The other is an error of judgment in entering into the contract. I find it difficult to think that the second kind has any relevance to the law of unilateral mistake. Nobody is bound, even in honour, to help his opposite number to negotiate to the best advantage.’
The defendant was entitled to assume that the claimant knew what it was agreeing to. Dishonesty had not been pleaded, and the judge was not entitled to find it.
Sedley LJ discussed the situation as to representations made during a negotiation: ‘There is, as it seems to me, a paradox in the notion of what an honourable and reasonable person would do in the context of an arm’s length commercial negotiation. This is a context in which honour (or honesty) and rationality (or reasonableness) are frequently not on speaking terms. I doubt that [counsel’s] submission that the two epithets qualify each other does more than compound the paradox.
Take the present case. An honourable person negotiating for [the Defendant] would probably have asked [the Claimant] if they realised that E had been left out, but I very much doubt whether a reasonable negotiator would have done so. His first duty would have been to his own principal, whose interests undoubtedly lay in leaving E out and not alerting [the Claimant] to the omission.,br />The phrase ‘honest and reasonable’ is not a term of art. It is a judicial attempt to sketch a line beyond which conduct may be regarded as unconscionable or inequitable. Its duality, however, is a recognition that honesty alone is too pure a standard for business dealings because it omits legitimate self-interest; while reasonableness is capable of legitimising Machiavellian tactics.’

Lord Justice Peter Gibson Mr Justice Blackburne Lord Justice Sedlay
[2005] EWCA Civ 77, Times 16-Feb-2005, [2005] BLR 135
Bailii
England and Wales
Citing:
Cited – Commission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd) CA 4-Mar-1995
The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to . .
Cited – Britoil plc v Hunt Overseas Oil Inc CA 1994
After the failure of the attempt by the Texan oil tycoon, Nelson Bunker Hunt, in the 1970s to corner the world silver market, his fortune collapsed and his companies were forced to sell off assets. In 1979 two of those companies (the defendants in . .
Approved – Thomas Bates and Sons Ltd v Wyndham’s Lingerie Ltd CA 21-Nov-1980
An application was made for rectification of a rent review clause in a lease. When executing the lease, the tenants’ officer, Mr Avon, noticed that the rent review clause in the lease drafted by the landlords was defective in not including a . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – A Roberts and Co Ltd v Leicestershire County Council ChD 1961
The court considered the circumstances required for rectification of a contract after a unilateral mistake. Pennycuick J said: ‘a party is entitled to rectification of a contract upon proof that he believed a particular term to be included in the . .
Cited – Riverlate Properties Ltd v Paul CA 1974
A lessor sought to have the lease rectified against the tenant, saying the tenant had sufficient knowledge of the error in the lease to permit that remedy.
Held: The tenant had no such knowledge as would have brought the doctrine into play. In . .
Cited – London Borough of Barnet v Barnet Football Club Holdings Ltd CA 30-Jul-2004
An application was made for the rectification of a transfer.
Held: The fact that the contract has been negotiated by a person who is not the decision-taker and has made an error is irrelevant unless it can be shown that the decision-taker . .
Cited – Baden v Societe Generale pour Favoriser le Developpement du Commerce et de l’Industrie en France SA (Note) 1993
The court looked to various forms of knowledge which could be attributed to a party when considering a rectification. Knowledge may be proved affirmatively or inferred from circumstances. The various mental states which may be involved are (i) . .
Cited – Lee Ting Sang v Chung Chi-Keung PC 8-Mar-1990
Deciding Whether person was an employee
(Hong Kong) The Board considered the conclusion that the applicant stone mason was not an employee of the defendant: ‘even if I leaned towards the opposite conclusion, it would nevertheless be quite impossible for me to say that no tribunal . .

Cited by:
Cited – Littman and Another v Aspen Oil (Broking) Ltd CA 19-Dec-2005
A lease had been granted with a break clause, which the tenant exercised. The Landlord said it had not complied with its obligations and was not free to exercise that clause. The clause had included the word ‘landlord’ where it should have read . .
Cited – Connolly Ltd v Bellway Homes Ltd ChD 23-Apr-2007
connolly_bellwayChD2007
The claimant sought rectification of a contract for the sale of land, or damages in deceit. They said that it had been agreed that the price would be adjusted to reflect any change in values. The formula inserted made no great sense mathematically, . .
Cited – Daventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .
Cited – Daventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 11 November 2021; Ref: scu.222174

Thomas v Farr Plc and Another: CA 20 Feb 2007

The employee, the former chairman of the company, appealed a finding that his contract which restricted his being employed for one year in the same field after termination, was valid and enforceable. The company had provided insurance services to the social housing sector. His proposed new employer was a new entrant in the field and an intended direct competitor.
Held: Provided the employer was able to particularise the information said to be confidential so as to allow the court to be satisfied that it has a legitimate interest to protect, it is no argument against a restrictive covenant that it may be very difficult for either the employer or the employee to know where exactly the line may lie between information which remains confidential after the end of the employment and the information which does not. In the nature of things, the employee had been exposed to much confidential information, and the company was entitled to have it protected.

Chadwick, Scott Baker, Toulson LJJ
[2007] EWCA Civ 118, Times 27-Feb-2007, [2007] IRLR 419, [2007] ICR 932
Bailii
England and Wales
Citing:
Cited – Herbert Morris Ltd v Saxelby HL 1916
For a covenant in restraint of trade to be treated as reasonable in the interests of the parties ‘it must afford no more than adequate protection to the benefit of the party in whose favour it is imposed.’ There is a need for the court to consider . .
Cited – Printers and Finishers Limited v Holloway 1965
The court considered the questions arising from the use of information acquired by an employee during his employment after that employment had ended, and noted that information the future use of which will not be restrained is information not . .
Cited – Commercial Plastics Ltd v Vincent CA 1964
When considering whether an employer could misuse information learned in one employment in a later one the court thought that the defendant would be likely, when the need arose, to dredge up from the recesses of his memory’ the particular item of . .
Cited – Faccenda Chicken Ltd v Fowler CA 1986
Nature of Confidentiality in Information
The appellant plaintiff company had employed the defendant as sales manager. The contract of employment made no provision restricting use of confidential information. He left to set up in competition. The company now sought to prevent him using . .
Cited – Lansing Linde v Kerr CA 1991
Staughton LJ held that ‘trade secrets’ embrace information used in a trade, restricted in its dissemination, and the disclosure of which would be liable to cause real or significant harm to the party claiming confidentiality. He considered the . .
Cited – Lancashire Fires Ltd v S A Lyons and Co Ltd CA 1996
It was claimed that a loan to the employee from a customer of the employer coupled with an exclusive supply agreement by the employee as and when the competing business becomes operative was in breach of an non-compete clause.
Held: The . .
Cited – Stenhouse Australia Ltd v Phillips PC 2-Oct-1973
(Australia) An employer’s claim for protection from competition by a former employee under a restrictive covenant must be based upon the identification of some advantage or asset inherent in the business which can properly be regarded as, in a . .
Cited – FSS Travel and Leisure Systems Limited v Johnson and Chauntry Corporation Limited CA 19-Nov-1997
The court considered a covenant said to be in restraint of trade. The employee was a 25 year old computer programmer who had worked entirely upon a computerised booking system for the travel industry.
Held: The employer had failed to identify . .
Cited – PSM International PLC v Whitehouse CA 1992
The question of what constituted a trade secret or similar is a question of degree. . .
Cited – Scully UK Limited v Lee CA 9-Feb-1998
The employer sought to enforce a post employment restrictive covenant to protect confidential information known to the former employee.
Held: Aldous LJ said: ‘In cases where a restrictive covenant is sought to be enforced, the confidential . .
Cited – Littlewoods Organisations Ltd v Harris CA 1977
When construing restrictive covenants in an employment contract, the court should construe the contract in the light of the object and intent of the contract as a whole. It may be read down and need not be read literally. Lord Denning said that it . .

Cited by:
Cited – Intercall Conferencing Services Ltd v Steer QBD 15-Mar-2007
The claimant company sought an interim injunction to prevent the defendant, a former employee, from working for a competitor in breach of a clause in his contract and from divulging any confidential information. The defendant said that the . .

Lists of cited by and citing cases may be incomplete.

Employment, Contract

Leading Case

Updated: 11 November 2021; Ref: scu.248921

Kleinwort Benson Limited v City of Glasgow District Council: HL 19 Jun 1997

Restitution when Contract Void ab initio

A claim for restitution of money paid under a contract which was void ab initio is not a claim in contract, nor tort, nor delict, it was justiciable only in the court of domicile. The Brussels Convention does not decide jurisdiction. ‘But it is clearly recognised that article 5 is in derogation from the basic principle of domicile in article 2 and that as a result the provisions of article 5 are to be construed restrictively.’ The House rejected the argument that a claim for unjust enrichment fell within Article 5(3) because, other than in exceptional circumstances, such a claim did not pre-suppose either a harmful event or a threatened wrong.

Lord Goff
Gazette 19-Nov-1997, Times 31-Oct-1997, [1997] UKHL 43, [1999] 1 AC 153, [1997] 4 All ER 641, [1997] 3 WLR 923
House of Lords, Bailii
Civil Jurisdiction and Judgments Act 1982, Brussels Convention 1968 5
England and Wales
Citing:
Cited – Kalfelis v Bankhaus Schroder, Munchmeyer, Hengst and Co and others ECJ 27-Sep-1988
kalfelisECJ1988
ECJ For Article 6(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters to apply, a connection must exist between the various actions brought . .

Cited by:
Cited – Shahar v Tsitsekkos and others ChD 17-Nov-2004
The defendant wished to make a claim against another party outside the jurisdiction and was granted permission to serve documents which were headed ‘defence and counterclaim’. The proposed defendant argued that such a document could be served in . .
Cited – Casio Computer Co Ltd v Sayo and others CA 11-Apr-2001
The court was asked whether a constructive trust claim based on dishonest assistance is a matter ‘relating to tort, delict or quasi delict’ for the purpose of Article 5(3) of the Brussels Convention?
Held: A constructive trust claim based upon . .
Cited – Gomez and others v Vives CA 3-Oct-2008
The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Leading Case

Updated: 11 November 2021; Ref: scu.135204

Calor Gas Ltd v Chorley Bottle Gas Ltd and Another: QBD 22 Jul 2020

Search and Seizure – Concerns for Public Safety

The claimant supplied branded liquid gas containers and the gas, on condition that only its liquid gas would be used within the containers. The sought a search and seizure order against the defendants, saying that the public health and safety risks should be taken into account when granting such an order.
Held: The without notice application was granted. Where it so required, the court may look beyond the narrow focus on danger or harm to the applicant alone, and allow for broader questions of real danger to public health and safety, legitimately invoked by the applicant and linked to a cause of action of the applicant: ‘It would, in my judgment, the regrettable and harmful to the public interest and the interests of justice if this broader perspective could not properly be invoked in an appropriate case. That is not to say that the applicant somehow takes on the mantle of a public authority regulator, nor that the court transforms into a public law court in imposing an order in the public interest. Rather, the position is far more modest. It is that the court can properly be asked to have regard to public health and safety risks, in considering the claimant’s position: linked to the cause of action; linked to the implications of not making the order; and the risks as to evidence and as to property.’

Fordham J
[2020] EWHC 2426 (QB), [2020] WLR(D) 501
Bailii, WLRD
Civil Procedure Act 1997 7(1)(a)(b)
England and Wales
Citing:
Cited – Calor Gas Ltd v Stanford ChD 13-Nov-2009
Judgment on the return date following a search order which had been successfully obtained without notice from Wyn Williams J. The claimant said that the defendant had been refilling the claimant’s Liquid Petroleum Gas cylinders with gas from other . .
Cited – Bayerische Motoren Werke Ag (Bmw) v Premier Alloy Wheels (Uk) Ltd and Others ChD 8-Jun-2018
Application for a search order, interim injunction and related relief. The claimant alleged the manufacture of fake BMW wheels by the defendant.
Mr Justice Henry Carr gave his reasons for granting a search order, interim injunction and related . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 11 November 2021; Ref: scu.653954

Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others: ChD 13 May 2010

The claimant sought a delaration that it had a right of way over an access road. The defendants said that the agreement fell foul of the 1989 Act.
Held: The claimant was not entitled to the declaration. Agreements under the 1990 Act are enforceable at the instance of the Authority only and not by third parties. Though it might have been intended that the agreement was almost as described by the claimants, they were not party to the section 106 agreement. However, it would substantially frustrate the statutory scheme contained in section 106 of the 1990 Act to interpret section 2 of the 1989 Act as invalidating section 106 agreements which benefit third parties.
A declaration would be futile: ‘Milebush claims no private law right enforceable against either Tameside or Hillingdon. It seeks declaratory relief against Tameside on the footing that it is directly affected by the interpretation placed upon the Principal Agreement. But why should the Court grant Milebush a declaration against Tameside in circumstances where, even if Milebush was right on the construction of clause 3.5 as it presently stands, Hillingdon would retain a discretion to decide not to enforce, or to vary, clause 3.5? It would be a pointless exercise.’

Arnold J
[2010] EWHC 1022 (Ch), [2010] 2 EGLR 93, [2010] NPC 58, [2010] JPL 1303, [2010] 20 EG 145, [2010] 30 EG 64
Bailii
Town and Country Planning Act 1990 106, Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Citing:
Cited – Davill v Pull and Another CA 10-Dec-2009
The court was asked to interpret grants of rights of way over land. The claimant intended to increase the use of the right. The servient owners objected. The claimant appealed against refusal of relief.
Held: The appeal succeeded. There was . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Doubted – Jelson Ltd v Derbyshire County Council CA 1-Aug-1999
Section 2 of the 1989 Act had to bite at the point where a party could be compelled, in certain circumstances, which could or could not come about, to sell or dispose of an interest in land. The agreement here contained in effect an option for the . .
Cited – Colchester Estates (Cardiff) v Carlton Industries plc ChD 30-Mar-1984
If a decision of a court has been reached after full consideration of an earlier decision which went the other way, it should not be open to review on a third occasion when the same point arose for decision.
Nourse J said: ‘There must come a . .
Cited – Attorney-General ex rel. Scotland v Barratt Manchester Ltd CA 2-Jan-1990
Nicholls LJ discussed the nature and enforcement of agreements under section 106 of the 1990 Act, saying: ‘A section 106 agreement may be enforced against the original covenantor in contract, and against successors in title to the original . .
Cited – Firstpost Homes Ltd v Johnson and Others CA 14-Aug-1995
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the . .
Cited – McCausland and Another v Duncan Lawrie Ltd and Another CA 18-Jun-1996
The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. . .
Cited – Nweze and Another v Nwoko CA 29-Mar-2004
The parties had settled their dispute in an oral compromise agreement under which it was agreed that land would be sold at the best price reasonably obtainable. One now argued this was unenforceable as an agreement for the disposal of land requiring . .
Cited – R G Kensington Management Co Ltd v Hutchinson IDH Ltd ChD 2003
Neuberger J decided that he could not follow the court in Jelson, saying: ‘The defendant’s case is that the reference to ‘the parties’ in s.2(3) is to the parties to the proposed conveyance or transfer. Two strands of authority are put forward as . .

Lists of cited by and citing cases may be incomplete.

Land, Planning, Contract

Updated: 11 November 2021; Ref: scu.415090

Zouch, Ex Dimiss Abbot And Hallet v Parsons: 23 Nov 1765

Contract by Children for Necessities

Lord Mansfield said that: ‘miserable must the condition of minors be; excluded from the society and commerce of the world; deprived of necessaries, education, employment, and many advantages; if they could do no binding acts. Great inconvenience must arise to others, if they were bound by no act. The law, therefore, at the same time that it protects their imbecility and indiscretion from injury through their own imprudence, enables them to do binding acts, for their own benefit; and, without prejudice to themselves, for the benefit of others.’

Lord Mansfield
[1765] EngR 89, (1765) 3 Burr 1794, (1765) 97 ER 1103
Commonlii
England and Wales
Cited by:
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

Leading Case

Updated: 11 November 2021; Ref: scu.373850

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 paid a deposit of andpound;25 but when the procession did not take place refused to pay the balance. Krell claimed the balance, and Henry sought repayment of his deposit.
Held: The court asked whether there was an implied condition that the contract was void if the procession did not take place. Such a condition could be inferred from the surounding circumstances. The parol evidence rule was inapplicable. He examined the substance of the contract, and then determined whether the contract was founded on the assumption of the existence of a particular state of affairs. Krell had only granted Henry a license to use the rooms for a particular purpose (watching the coronation). The court compared the contract to the hire of a cab to get to a race. If the race did not occur on the particular day the passenger had thought, he would not be discharged from paying the driver; but in this case the room here had a special quality. Cancellation of the coronation could not reasonably have been anticipated by the parties at the time the contract was made.
Williams LJ said: ‘I do not think that the principle of the civil law as introduced into the English law is limited to cases in which the event causing the impossibility of performance is the destruction or non-existence of some thing which is the subject matter of the contract or of some condition or state of things expressly specified as a condition of it. I think that you first have to ascertain, not necessarily from the terms of the contract, but, if required, from necessary inferences, drawn from surrounding circumstances recognised by both contracting parties, what is the substance of the contract, and then to ask the question whether that substantial contract needs for its foundation the assumption of the existence of a particular state of things. If it does, this will limit the operation of the general words, and in such a case, if the contract becomes impossible of performance by reason of the non-existence of the state of things assumed by both contracting parties as the foundation of the contract, there will be no breach of the contract thus limited.’

Williams LJ, Romer, Stirling J
(1903) 2 KB 740
England and Wales
Citing:
Cited – 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 . .

Cited by:
Cited – Graves v Graves and others CA 3-Jul-2007
The parties had divorced and settled financial provision, but the former wife and her children came to need a house and one of the claimant’s properties became vacant, and she was allowed to occupy it as a tenant, with the majority of the rent being . .
Cited – Maritime National Fish Ltd v Ocean Trawlers Ltd PC 12-Apr-1935
(Nova Scotia En Banco) The parties contracted for a charter of a fishing ship. It then became unlawful for a ship to use otter trawl, the only equipment available to the ship, without a licence, but the number of licences was restricted and did not . .
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
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: 11 November 2021; Ref: scu.251178

Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd: CA 1990

A loan was to be made. An agent of the borrower came to know of the fraudulent nature of the loan, but said nothing.
Held: A failure to disclose a known fraud may itself amount to a misrepresentation, but nondisclosure (whether dishonest or otherwise) does not as such give rise to a claim in damages: ‘without a misrepresentation there can be no fraud in the sense of giving rise to a claim for damages in tort’ but ‘We can see no sufficient reason on principle or authority why a failure to speak should not be capable of giving rise to liability in negligence under Hedley Byrne principles, provided that the two essential conditions are satisfied.’ The two essential conditions were ‘that there has been on the facts a voluntary assumption of responsibility in the relevant sense and reliance on that assumption.’ and ‘These features may be much more difficult to infer in a case of mere silence than in a case of misrepresentation.’

Slade LJ
[1990] 1 QB 665
England and Wales
Cited by:
Appeal from – Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd HL 1991
Banks had made loans against property which the borrower had said was valuable, and, also insurance policies against any shortfall on the realisation of the property. The borrower was a swindler and the property worthless. The insurers relied upon a . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – Hamilton and others v Allied Domecq Plc (Scotland) HL 11-Jul-2007
The pursuers had been shareholders in a company which sold spring water. The defenders took shares in the company in return for promises as to the promotion and distribution of the bottled water. The pursuers said that they had failed to promote it . .

Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Leading Case

Updated: 11 November 2021; Ref: scu.219300

Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali: HL 1 Mar 2001

Cere Needed Releasing Future Claims

A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead to a claim were unknown to either party, and such losses were not contemplated by either of them. Whilst a party may release even future claims, courts should be reluctant to say that he released claims of which he could not have known. ‘To ascertain the intention of the parties the court reads the terms of the contract as a whole giving the words used their natural and ordinary meaning in the context of the agreement, the parties’ relationship and all the relevant facts surrounding the transaction so far as is known to the parties.’ and ‘the primary source for understanding what the parties meant is their language interpreted in accordance with conventional usage’.
The relevant surrounding circumstances were those which a reasonable man would have regarded as relevant, and the court was not ‘encouraging a trawl through ‘background’ which could not have made a reasonable person think that the parties must have departed from conventional usage’.
Lord Bingham said: ‘In construing this provision, as any other contractual provision, the object of the court is to give effect to what the contracting parties intended. To ascertain the intention of the parties the court reads the terms of the contract as a whole, giving the words used their natural and ordinary meaning in the context of the agreement, the parties’ relationship and all the relevant facts surrounding the transaction so far as known to the parties. To ascertain the parties’ intentions the court does not of course inquire into the parties’ subjective states of mind but makes an objective judgment based on the materials already identified.’

Lord Bingham, Lord Hoffmann
Times 06-Mar-2001, Gazette 12-Apr-2001, [2001] UKHL 8, [2001] 1 All ER 961, [2001] 2 WLR 735, [2002] 1 AC 251, [2001] ICR 337, [2001] IRLR 292, [2001] Emp LR 359
House of Lords, Bailii
England and Wales
Citing:
Cited – Associated Deliveries Ltd v Harrison CA 1984
A landlord, having forfeited the lease could not recover for damage to the property caused by third parties before possession was finally given. The election to forfeit was unequivocal, and damages were irrecoverable from the date of service of the . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
At First Instance – Bank of Credit and Commerce International Sa (In Liquidation) v Ali and Another ChD 17-Feb-1999
A compromise of a claim involved a settlement with the value given, and a release did not import requirement for any consideration. A compromised claim could not be set aside for lack of knowledge, and no duty of disclosure of any wrongdoing . .
Appeal from – Bank of Credit and Commerce International Sa (In Liquidation) v Ali and Others (No 4) CA 2-Mar-2000
The claimant and his former employers had compromised the employee’s claim for damages, but the claimant then sought to sue for stigma damages after these were awarded elsewhere. The general language of the release was sufficiently comprehensive to . .
Cited – Salkeld v Vernon 1758
A party may, at any rate in a compromise agreement supported by valuable consideration, agree to release claims or rights of which he is unaware and of which he could not be aware, even claims which could not on the facts known to the parties have . .
Cited – Grant v John Grant and Sons Pty Ltd 1-Jun-1954
(High Court of Australia) Contract – Deed of release – Recitals – Limitation – Claims not in contemplation unaffected – Equitable considerations affecting release – General words.
Dixon CJ said: ‘No doubt it is possible a priori that the . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – 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 by:
Cited – Capital Trust Investment Limited v Radio Design AB and others CA 15-Feb-2002
The claimant appealed an order staying its action on the basis that the agreement between the parties provided for arbitration in Sweden. Shares had been purchased, and the claimant said that because of misrepresentations by the respondent, they had . .
Cited – JIS (1974) Ltd v MCP Investment Nominees I Ltd CA 9-Apr-2003
The parties agreed for a lease to be granted of a new building. Part had been intended to be excluded for shops, but permission was not obtained, the shops area was included and leased back. When the tenants sought to determine the lease, the . .
Cited – Portsmouth City Football Club v Sellar Properties (Portsmouth) Limited, Singer and Friedlander Properties Plc ChD 17-Sep-2003
Various contracts were entered into for the sale of land, with compensation being paid in certain circumstances. One contract required a calculation of consideration as a set figure less a sum to be calculated as the cost of acquiring land. The sum . .
Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Cited – Warborough Investments Ltd v Berry and others ChD 18-Dec-2003
The landlord sought to recover arrears of rent after forfeiting the lease. The lease had been held by trustees for a youth centre.
Held: The lease clearly intended that the liability of the trustee’s did not extend beyond those assets they . .
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 – Morshead Mansions Ltd v Mactra Properties Ltd CA 3-Apr-2006
Tenants of a block of flats were in dispute with their management company. Some tenants had ceased paying rent, and forfeiture proceedings had begun. There had been a compromise of the forfeiture proceedings. The parties now disputed the extent to . .
Cited – Barrett v Universal-Island Records Ltd and others ChD 15-May-2006
The claimant was entitled to share in the copyright royalties of Bob Marley and the Wailers, and claimed payment from the defendants. The defendants said that the matters had already been settled and that the claim was an abuse of process, and also . .
Cited – Great Hill Equity Partners Ii Lp v Novator One Lp and others ComC 22-May-2007
The parties disputed whether oral statements had been incorporated into an option agreement.
Held: Evidence of negotiations before the written contract was signed were inadmissible, because it is only on the signing of the first document that . .
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 – Trygort (Number 2) Ltd v UK Home Finance Ltd and Another SCS 29-Oct-2008
The landlords claimed that the tenants remained bound under the lease to occupy and use the premises and pay rent. The tenant said that it had exercised a break option. The landlord said that the break was not exercisable because it had otherwise . .
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 – Pratt v Aigaion Insurance Company SA (‘the Resolute’) CA 27-Nov-2008
The court considered the interpretation of a term in a contract of insurance to the effect that ‘Warranted Owner and/or Owner’s experienced skipper on board and in charge at all times and one experienced crew member.’, asking whether ‘at all times’ . .
Cited – Chopra v Bindra CA 19-Mar-2009
The parties sought to have declared the effect of a deed of trust under which the on the death of either co-owner, the survivor became entitled to the entirety of the proceeds of sale absolutely. The gift was defective as self defeating. The judge . .
Cited – Norwich City Council v Marshall LT 23-Oct-2008
LT LANDLORD AND TENANT – service charges – liability – whether lessee liable for management costs – held lessee liable for costs incurred in providing specified services under lease but not otherwise – Landlord . .
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 – Horwood and Others v Land of Leather Ltd and Others ComC 18-Mar-2010
The claimants sought to claim for personal injuries against the defendant company, now in administration, and their insurers using the 1930 Act. The insurers said they were not liable to indemnify the company. The parties disputed the standing of an . .
Cited – Margerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .
Cited – Pink Floyd Music Ltd and Another v EMI Records Ltd ChD 11-Mar-2010
The claimant sought summary judgment for a claim under Licensing agreements under which the defendants had marketed and sold the claimant’s products. The remaining disputes concerned differences as to royalties from digital downloads sold through . .
Cited – Serious Organised Crime Agency v Szepietowski and Others ChD 15-Oct-2010
The court was asked whether, as second mortgagee on the defendant’s properties, the claimant agency had the equitable power of marshalling of prior charges. The first chargee had charges over two properties, and sold the first, satisfying it debt, . .
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 – Lloyds TSB Foundation for Scotland v Lloyds Banking Group Plc SC 23-Jan-2013
A predecessor bank had created a trust into which it paid a small proportion of its profits. The parties now disputed the calculation of profits when the Bank declared a loss which allowed for an unrealised gain on the acquisition of HBOS. . .
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 – Arnold v Britton and Others SC 10-Jun-2015
Absurdity did not defeat a clear clause
A standard lease of plots on a caravan park, contained a provision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: The tenants’ appeal failed . .
Cited – Foster v McNicol and Another QBD 28-Jul-2016
Incumbent Labour leader did not need nominations
The claimant challenged a decision of the National Executive Committee of the Labour Party to allow its present Leader to stand in the leadership election challenging his position without the need for him to submit first the otherwise standard . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .

Lists of cited by and citing cases may be incomplete.

Employment, Contract

Leading Case

Updated: 11 November 2021; Ref: scu.159110

Robertson v Swift: SC 9 Sep 2014

Notice Absence did not Remove Right to Cancel

The defendant had contracted to arrange the removal of the claimant’s household goods on moving house. The claimant cancelled the contract, made at his housel, but refused to pay the cancellation fee, saying that the contract not having been made at the defendant’s premises. The Court of Appeal had found the contractor unable to recover the cancellation fee, but also that the consumer appellant was unable to recover the deposit he had paid.
Held: The appeal succeeded. A failure by a trader to give written notice of the right to cancel does not deprive a consumer of the statutory right to cancel under regulation 7(1) of the 2008 Regulations.
A national court must interpret domestic legislation, so far as possible, in the light of the wording and purpose of the Directive which it seeks to implement. The requirement to give notice of the right to cancel is not a technical prerequisite to the arousal of the right but a means of ensuring that the consumer is made aware that he is entitled to cancel the contract after a period of reflection. Any implementation of this requirement must reflect its purpose. To hold that the consumer did not have the right to cancel because the trader had not served written notice of the right to cancel would run directly counter to the overall purpose of the Directive in ensuring that a consumer has the opportunity to withdraw from a contract without suffering significant adverse consequences.
‘ it is clear from the decisions . . that the objective of the Directive where a contract is cancelled is that the consumer should not suffer adverse consequences; that, in effect, he should be placed in the position that he would have been in if he had not entered the agreement in the first place. That the achievement of this objective should be dependent on whether the trader has given written notice to the consumer of his right to cancel would be incongruous’

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge
[2014] UKSC 50, [2014] WLR(D) 396, [2014] ECC 32, [2015] 1 CMLR 15, [2014] 1 WLR 3438, [2014] BUS LR 1029, [2014] 4 All ER 869, [2014] 2 All ER (Comm) 1083, UKSC 2013/0033
Bailii Summary, Bailii, WLRD, SC, Sc Summary
The Cancellation of Contracts made in a Consumer’s Home, or Place of Work etc Regulations 2008, Council Directive (85/577/EEC)
England and Wales
Citing:
Appeal from – Robertson v Swift CA 15-Jan-2013
The claimant removal company sought payment of its fees after the defendant purported to cancel the arrangement for moving his goods. The defendant now appealed against rejection of his claim that the the contract was cancellable within the 2008 . .
Cited – Eva Martin Martin v EDP Editores, SL ECJ 17-Dec-2009
ECJ Directive 85/577/EEC Article 4 Consumer protection – Contracts negotiated away from business premises – Right of cancellation – Obligation on the trader to give notice of that right – Contract void – . .
Cited – Schulte v Deutsche Bausparkasse Badenia AG ECJ 25-Oct-2005
ECJ Environment and Consumers – Consumer protection – Doorstep selling – Purchase of immovable property – Investment financed by a secured loan – Right of cancellation – Effects of cancellation.
‘when . .
Cited – Eva Martin Martin v EDP Editores, SL ECJ 7-May-2009
ECJ Opinion – Directive 85/577 – Consumer Protection in the case of contracts concluded away from business premises – Termination – Failure to inform the consumer of his right to terminate the contract of . .
Cited – Vodafone 2 v HM Revenue and Customs CA 22-May-2009
To avoid a restriction unlawful under European law of a company’s freedom of establishment in the context of the profits of a foreign controlled company and that company’s right of freedom of establishment, the court could properly read into the . .
Cited – Heininger v Bayerische Hypo-und Vereinsbank AG ECJ 13-Dec-2001
ECJ Consumer protection – Doorstep selling – Right of cancellation – Agreement to grant credit secured by charge on immovable property. . .
Cited – E. Friz GmbH v Carsten von der Heyden (Environment And Consumers) ECJ 15-Apr-2010
ECJ Consumer protection – Contracts negotiated away from business premises Scope of Directive 85/577/EEC – Entry into a closed-end real property fund established in the form of a partnership – Cancellation.
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .

Cited by:
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Contract, Consumer, European

Leading Case

Updated: 11 November 2021; Ref: scu.536472

Bowling and Co Solicitors v Edehomo: ChD 2 Mar 2011

The court was asked ‘when an innocent vendor whose signature is forged on the documents for the conveyance of land suffers damage, for the purposes of limitation of an action arising from a solicitor’s breach of duty. Is it on the exchange of contracts, in which case the present claim is said to be time barred; or is it only on completion, in which case the claim was just commenced in time?’
Held: The loss was suffered on the exchange. It was at that time that she could have commenced proceedings.

Roth J
[2011] EWHC 393 (Ch)
Bailii
Limitation Act 1980 2
England and Wales
Citing:
Cited – Nouri v Marvi and Others CA 14-Oct-2010
The claimant was the registered owner of a leasehold flat, allowing the defendant to live in the flat while he was out abroad. The defendant first re-mortgaged the property in the claimant’s name, forging the claimant’s signature on the mortgage . .
Cited – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
Cited – Ahmed v Kendrick 1987
The effect of the passing of a beneficial interest by a fraudster owner of that interest to a third party is to sever the beneficial joint tenancy. . .
Cited – Nouri v Marvi and Others CA 14-Oct-2010
The claimant was the registered owner of a leasehold flat, allowing the defendant to live in the flat while he was out abroad. The defendant first re-mortgaged the property in the claimant’s name, forging the claimant’s signature on the mortgage . .
Cited – Bell v Peter Browne and Co CA 1990
Mr Bell asked his solicitors to transfer the matrimonial home into his wife’s sole name. He was to receive a one-sixth interest of the gross proceeds on a sale. His interests were to be protected by a trust deed or mortgage. The solicitor drafted . .
Cited – Edwards v Lloyd’s TSB Bank plc ChD 2004
A contract in which one co-owner’s signature has been forged by the other is not a nullity but remains valid in relation to the fraudulent co-owner. . .

Lists of cited by and citing cases may be incomplete.

Limitation, Contract

Updated: 11 November 2021; Ref: scu.430246

Stocznia Gdynia Sa v Gearbulk Holdings Ltd: CA 13 Feb 2009

Orders were placed for the construction of ships. They were not delivered. The buyer, the defendant, cancelled the orders. The defendants sought the loss of profit. The claimants said they were entitled only to the repayment of instalments. The arbitrator found in favour of the purchaser. The yard appealed successfully. The purchaser now appealed in turn.
Held: The appeal was allowed, and the arbitrator’s award re-instated. The contract provided for termination for a major breach, and liquidated damages, but that was not this situation. The parties had intended the schedule to provide a remedy additional to those that would ordinarily be available to Gearbulk on termination of the contract. The yard’s breaches amounted to a repudiation. A repudiation may be shown to have been accepted even where a contract comes to an end under an express right to terminate
Moore-Bick LJ said: ‘but where the contract provides a right to terminate which corresponds to a right under the general law (because the breach goes to the root of the contract or the parties have agreed that it should be treated as doing so) no election is necessary. In such cases it is sufficient for the injured party simply to make clear that he is treating the contract as discharged . .’

Ward LJ, Smith LJ, Moore-Bick LJ
[2009] EWCA Civ 75, [2010] QB 27, [2009] CILL 2708, [2009] BLR 196, [2009] 1 Lloyds Rep 461, [2009] 1 CLC 134, [2009] 3 WLR 677
Bailii
Arbitration Act 1996
England and Wales
Citing:
Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
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 – Modern Engineering (Bristol) Ltd v Gilbert Ash (Northern) Ltd HL 1974
The court considered how to construe a clause in a contract which excluded a remedy provided by law. Lord Diplock said: ‘It is, of course, open to parties to a contract . . to exclude by express agreement a remedy for its breach which would . .
Cited – Lockland Builders v Rickwood 1995
A contract for the construction of a house gave the building owner the right to determine the contract if the rate of progress, materials or workmanship proved unsatisfactory as certified by an independent third party and the building contractor . .
Cited – Latvian Shipping Company and Others v Stocznia Gdanska Sa CA 21-Jun-2002
A payment condition was just that and that a failure to pay entitled the seller to terminate at common law. Rix LJ said: ‘It is established law that, where one party to a contract has repudiated it, the other may validly accept that repudiation by . .
Appeal from – Stocznia Gdynia Sa v Gearbulk Holdings Ltd ComC 2-May-2008
The claimants sought damages for repudiatory breach of three contracts to construct ships. . .
Distinguished – United Dominions Trust Limited v Ennis CA 1968
The defendant, a waterman in the Port of London, entered into a hire-purchase contract with the claimant finance company in respect of a motor car. After the first instalment, his wages were reduced by a dock strike. He wrote with the keys and log . .
Cited – Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of India (The Kanchenjunga) HL 1990
A ship was caught in harbour when an air raid broke out. The master took the ship to sea where it suffered damage.
Held: The shipowners were protected by a war risks clause in the charterparty agreement. As to waiver by election, Lord Goff of . .
Cited – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
Cited – Campbell Discount Company Ltd v Bridge HL 1962
The parties disputed the validity of a clause in a car hire contract relating to the consequences of a breach.
Held: (Majority) The agreement had been terminated by breach rather than by the exercise of an option, so that the stipulated . .
Cited – Lep Air Services v Rolloswin Investments Ltd; Moschi v LEP Air Services HL 1973
The obligation of a guarantor under a contract ‘is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something.’ When a repudiatory breach is accepted by the injured . .
Cited – Harbutt’s Plasticine Ltd v Wayne Tank and Pump Co Ltd CA 1970
The plaintiffs’ factory in an old mill, burned down because Wayne Tank had installed a pipeline made of unsuitable and dangerous plastic material and wrapped in heating tape attached to a useless thermostat. It had been switched on and the plant . .
Cited – Dalkia Utilities Services Plc v Celtech International Ltd ComC 27-Jan-2006
The Court was asked to decide (i) which, if either, of the two parties to a 15 year agreement lawfully terminated it; (ii) whether, if one of them did so, it was by giving notice under a contractual termination clause or by way of acceptance of the . .

Cited by:
Cited – Geldof Metaalconstructie Nv v Simon Carves Ltd CA 11-Jun-2010
The parties contracted for the supply and installation of pressure vessels by Geldof (G) for a building constructed by Simon Carves (SC). The contract contained a clause denying the remedy of set-off. G sued for the sale price, and SC now sought an . .
Cited – Force India Formula One Team Ltd v Etihad Airways PJSC and Another QBD 4-Nov-2009
force_india_etihadQBD2009
The parties had entered into a sponsorship agreement, with the claimants undertaking to display the name of the defendants on their car. After the agreement, the claimant company had been taken over by parties with interests competing with those of . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 November 2021; Ref: scu.282632

Lyde v Barnard: CExC 1836

The question before the court was whether a misrepresentation, that a particular fund in which Lord Edward Thynne had a life interest was charged with only three annuities, was a representation relating to Lord Edward’s credit or ability within the statute. Gurney B explained the mischief to which Lord Tenterden’s Act of 1828 was aimed: ‘But a series of cases, commencing with the case of Pasley v Freeman (3 TR 51), had occurred, in which defendants were charged, not strictly and specifically as guarantees for the solvency of others, but on alleged representations and assurances respecting them and their credit or ability, averred to be false and fraudulent.
There is no doubt that there have been many cases in which false and fraudulent representations of the ability of others have been made, in order to obtain credit for them, by which honest men have suffered. On the other hand, there has been but too much reason to fear that innocent persons have been the victims, not merely of intentionally false, but of unintentionally exaggerated statements of conversations.
If inquiry were made and information given respecting the credit or ability of the person whom the inquirer was called upon to trust either with money or with goods, the inquiry would be private, the communication would be private, and, if the inquirer was a competent witness, on his evidence alone, without the possibility of contradiction or explanation, the case must rest.
It has been a subject of complaint that these cases had trenched upon the security intended to be afforded by the Statute of Frauds, and it was considered by the legislature that a person so circumstanced was entitled to the same protection as the Statute of Frauds had given to the person whom a plaintiff sought to charge for the debt or miscarriage of another. To afford this protection, among other purposes, the statute of 9 Geo.4, c. 14 was passed.
That act is intituled, ‘An Act for rendering written Instrument necessary to the Validity of certain Promises and Engagements.”
Alderson B said: ‘According to the view which I take of the act, the representation, in order to be within it, must, therefore, be of the third person’s trustworthiness, as evidenced by his character, conduct, ability, credit, trade, or dealings, and must be one whereby, if true, that trustworthiness is increased. If indeed the real clause as drawn by Lord Tenterden stood thus, ‘To the intent that such third person might obtain money or goods upon credit,’ which is highly probable, this conclusion would be strengthened. But I do not rely on that which is, after all, only matter of probable conjecture from the ungrammatical state of the sentence as it now stands.’
Parke B said: ‘The words of the clause in question are, it is to be observed, clearly inaccurate, probably from a mistake in the transcriber into the Parliamentary roll. We must make an alteration in order to complete the sense, and must either transpose some words, and read the sentence as if it were ‘to the intent or purpose that some other person may obtain money or goods upon credit,’ or interpolate others, and read it as if it were ‘to the intent or purpose to obtain credit, money, or goods on such representation.’ If we assume Lord Tenterden’s object to have been merely to prevent evasion of the Statute of Frauds, as we think it was, and use this a key for the construction of the clause, it would induce one to prefer the former alteration, by which the clause is made clearly to apply only to cases where the purpose of the representation is to obtain personal credit for the third person: but then, it would not apply to all cases of such credit, for it would include money and goods only, not work and labour done for the third person, or houses or land let to him, on the faith of such representation; which, however, are cases by no means of so frequent occurrence as transactions in money and goods. On the other hand, if we make the latter alteration, using the same key to the construction of the clause, we must reject the words ‘money or goods’ as surplusage, as they would be included in the general term credit. I think it highly probable that the first correction would make the clause such as Lord Tenterden originally wrote it; . .’
Lord Abinger CB said: ‘With regard to the remarks which have been made upon the introduction into the statute of the word ‘upon’, without any grammatical relation to the other words of the sentence, I must observe, that I am decidedly of the opinion that this word must be rejected as nonsensical, and that we cannot admit a conjectural transposition of it in order to interpret that statute. Neither do I think that either of the conjectures offered gives the most probable account for the introduction of the word. The manuscript of this clause most probably contained the word ‘thereupon’; on revising it, the author considered that the word was superfluous to express his meaning, and that it might possibly, if it had any effect, rather narrow the construction. He has therefore meant to strike it out, but has not carried his erasure with sufficient force through the latter part of the word. The word upon has, therefore, found its way into the print, and has escaped notice afterwards when the bill was in committee. The printers of bills for the two houses seldom commit an error on the side of omission. Every thing which is not beyond doubt erased in MS. is sure to be served up in print, and, if it should afterwards escape detection in committee, finds its way upon the rolls of Parliament, and into the Statute Book.’

Gurney B, Parke B, Alderson B, Lord Abinger CB
[1836] 1 M and W 101, [1836] EngR 146, (1836) 150 ER 363
Commonlii
Statute of Frauds (Amendment) Act 1828
England and Wales
Citing:
Cited – Pasley v Freeman 1789
Tort of Deceit Set Out
The court considered the tort of deceit. A representation by one person that another person was creditworthy was actionable if made fraudulently. A false affirmation made by the defendant with intent to defraud the plaintiff, whereby the plaintiff . .

Cited by:
Cited – Contex Drouzhba Ltd v Wiseman and Another CA 20-Nov-2007
The defendant was a director of a company. He signed a letter for the company promising to pay for goods ordered. The representation was found to have been made fraudulently because he knew the company was insolvent, and unable to pay. He now . .
Cited – Lindsay v O’Loughnane QBD 18-Mar-2010
lindsay_oloughnaneQBD11
The claimant had purchased Euros through a foreign exchange dealer. The dealer company became insolvent, causing losses to the claimant, who sought to recover from the company’s managing director, the defendant, saying that he was aware of the . .
Cited – Roder UK Ltd v West and Another CA 12-Oct-2011
The claimant sought to allege that the defendant company director was personally liable after misrepresentations as to the company’s creditworthiness in ordering goods when the defendant was really insolvent.
Held: The defendant’s appeal . .

Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Leading Case

Updated: 11 November 2021; Ref: scu.263275

Kingsway Hall Hotel Ltd v Red Sky IT (Hounslow) Ltd: TCC 6 May 2010

The claimant said that the software supplied to it was not fit for purpose. The defendant said that the company had relied on its own inspections of what was a standard package, and had not made known its desire to use it in a specific context. The claimant had originally pleaded reliance on the defendant’s stadard terms but now sought to amend to say that the standard terms were not incorporated.
Held: The claim succeeded.
The longer a party took after a factual position became clear to withdraw an admission, the slower the court will be to allow it. In this case the evidence for the terms not being incorporated was not strong, and it would not be an injustice to the claimants to refuse the associated amendment so shortly beore the trial.
The 1977 Act did apply, the parties were not of equal bargaining power, there was no inducement to accept the standard terms, and there was no long course of dealing such as to raise an inference that the defendant’s terms were known.
This was not bespoke software. A purchaser would come to know whether the software was adequate only after seeing the manuals, but these were not made available unil after the contract was signed.
The company varied its prices continually so as to maximise occupancy, and the practical difficulties in operating the defendant’s software limited the hotel’s ability to maximise its occupancy. Judgment accordingly.

Toulmin QC J
[2010] EWHC 965 (TCC)
Bailii
Civil Procedure Rules, Unfair Contract Terms Act 1977 3 11(1)
England and Wales
Citing:
Cited – Watford Electronics Ltd v Sanderson CFL Ltd CA 23-Feb-2001
The plaintiff had contracted to purchase software from the respondent. The system failed to perform, and the defendant sought to rely upon its exclusion and limitation of liability clauses.
Held: It is for the party claiming that a contract . .
Cited – Braybrook v The Basildon and Thurrock University NHS Trust 7-Oct-2004
Sumner J gave guidance on the withdrawal of an admission under the CPR: ‘From the cases and the CPR I draw the following principals:
1. In exercising its discretion, the court will consider all the circumstances of the case and seek to give . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Contract

Updated: 11 November 2021; Ref: scu.412291

Armour v Thyssen Edelstahlwerke AG: OHCS 1986

1986 SLT 452
Scotland
Cited by:
Appeal from OHCS – Armour v Thyssen Edelstahlwerke AG 1989
. .
At OHCS – Armour v Thyssen Edelstahlwerke AG HL 1990
The defendant supplied steel to a manufacturing company under a contract which contained a retention of title clause. The contract was governed by German law. The plaintiffs, who had been appointed as receivers, brought proceedings against the . .

Lists of cited by and citing cases may be incomplete.

Contract

Leading Case

Updated: 11 November 2021; Ref: scu.617941

Adams v Lindsell: KBD 5 Jun 1818

No Contract by Post until Acceptance Received

The defendant sent his offer of wool for sale to the plaintiff by post. The plaintiff’s acceptance was at first misdirected. Before receiving the reply the defendant had sold the wool elsewhere, but this was only after he would have received the acceptance in the normal course of post. The buyer claimed he had accepted the offer.
Held: The offer had not been accepted, and there was no contract.
Lord Ellenborough said: ‘the defendants who have proposed by letter to sell this wool, are not to be held liable, even though it be now admitted that the answer did not come back in due course of post. Till the plaintiffs’ answer was actually received, there could be no binding contract between the parties; and before then, the defendants had retracted their offer, by selling the wool to other persons.’

Lord Ellenborough
(1818) 1 B and Ald 681, [1818] EngR 497, (1818) 106 ER 250
Bailii, Commonlii
England and Wales
Cited by:
Cited – Wilson v Truelove ChD 25-Mar-2003
The claimants requested a declaration that an option to repurchase land was void under the 1964 Act.
Held: The option to repurchase land was prima facie void. The right arose on the coming into existence of the agreement, or at the latest on . .
Cited – Four Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .
Cited – Entores Ltd v Miles Far East Corporation CA 1955
The plaintiff traded from London, and telexed an offer to purchase cathodes to a company in Holland, who signified their acceptance by return, again by telex. Entores later wanted to sue the defendant, the parent company of the Dutch party. It was . .

Lists of cited by and citing cases may be incomplete.

Contract

Leading Case

Updated: 11 November 2021; Ref: scu.194832

Love v Halfords Ltd: QBD 8 Apr 2014

The claimant had purchased a new bicycle from the defendants who also maintained it. Several months later, the steerer tube broke causing an accident and severe injury. The cycle had been finally assembled by the defendant after importation, but that element was already put together.
Held: The claim failed. The expert evidence had been difficult, but the accident happened when the tube failed after being weakened by a previous, unknown, incident in which it was assumed to have been bent and straightened. The claimant worked in an engineering environment in which such repairs would have been possible. His denial of such a repair was not accepted.

Sir Colin Mackay
[2014] EWHC 1057
Bailii
Consumer Protection Act 1987, Supply of Goods and Services Act 1982, Sale of Goods Act 1979
England and Wales
Citing:
Cited – Rhesa Shipping Co SA v Edmonds (The Popi M) HL 16-May-1985
The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was . .
Cited – Ide v ATB Sales Ltd and Another CA 28-Apr-2008
Each appellant challenged how the judge had decided between alternative proofs of causation of the respective loss. In Ide, the claimant asserted a fault in a cycle handlebar, and in Lexus, the claimant asserted that it caught fire whilst . .
Cited – McGlinchey v General Motors UK SCS 4-Dec-2012
. .

Lists of cited by and citing cases may be incomplete.

Contract, Consumer, Personal Injury

Updated: 11 November 2021; Ref: scu.523597

Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd: ComC 4 Aug 2010

Lost Expenses as Damages for Contract Breach

The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had been able to re-hire the vehicle at a higher rate. The owner sought payment of his costs.
Held: The appeal succeeded. Reliance losses are a species of expectation losses and that they are neither ‘fundamentally different’ nor awarded on a different ‘juridical basis of claim’, and ‘the expectation loss analysis does provide a rational and sensible explanation for the award of damages in wasted expenditure cases. The expenditure which is sought to be recovered is incurred in expectation that that the contract will be performed. It therefore appears to me to be rational to have regard to the position that the claimant would have been in had the contract been performed.’ The tribunal erred in regarding a claim for wasted expenses and a claim for loss of profits as independent claims not to be ‘mixed’. However, both claims are governed by the fundamental principle in Robinson v Harman, requiring the court to compare the claimant’s position and what it would have been had the contract been performed: ‘Where steps have been taken to mitigate the loss which would otherwise have been caused by a breach of contract that principle requires the benefits obtained by mitigation to be set against the loss which would otherwise have been sustained. To fail to do so would put the claimant in a better position than he would have been in had the contract been performed.’

Teare J
[2010] WLR (D) 230, [2010] EWHC 2026 (Comm)
Bailii, WLRD
England and Wales
Citing:
Cited – Wertheim v The Chicoutimi Pulp Company PC 18-Mar-1910
(Quebec) The buyer sought damages for late delivery of goods calculated on the difference between the market price at the place of delivery when the goods should have been delivered and the market price there when the goods were in fact delivered. . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – L Albert and Son v Armstrong Rubber Co 1949
(United States Court of Appeals, Second Circuit) A purchaser of machines designed to recondition rubber sought damages for breach of contract, namely, the cost of the foundation on which the machines were placed. However, the purchaser did not prove . .
Cited – Anglia Television v Oliver Reed CA 1971
The television company had agreed with the actor defendant for him to appear in a production. He breached the contract. The company sought both loss of profits and for the expense incurred. The issue before the Court of Appeal was whether such . .
Cited – Cullinane v British ‘Rema’ Manufacturing Co Ltd CA 1954
The court considered the possibility of a claim in breach of contract for damages for both capital loss and loss of profit.
Lord Evershed MR said: ‘It seems to me, as a matter of principle, that the full claim of damages in the form in which . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – C and P Haulage v Middleton CA 27-Jun-1983
The parties entered into an agreement allowing the defendant to occupy the plaintiff’s land. They had disputed whether it was a licence or a lease. The occupier had expended sums on improving the premises, but had then been summarily ejected. He now . .
Cited – Bowlay Logging Limited v Domtar Limited 1978
(Canada) The parties contracted for the claimant to cut timber and the defendant to haul it. The plaintiff said that the defendant breached the contract by supplying insufficient trucks to haul the timber away, and claimed as damages his wasted . .
Cited – Lloyd v Stanbury 1971
A purchaser who had been let into possession before completion and had spent money on improvements to the property was not entitled to claim for such expenses because they would not usually have been within the contemplation of the parties. As to . .
Cited – Commonwealth of Australia v Amann Aviation Pty Ltd 12-Dec-1991
(High Court of Australia) In a claim for damages for breach of contract, wasted expenditure was claimed and there was a complex dispute as to what the consequences of performing the contract would have been.
Held: The law should not, when . .
Cited – CCC Films (London) Ltd v Impact Quadrant Films Ltd 1984
The claimants purchased a licence to promote three films, but the defendant lost the film prints and CCC could not therefore promote them. After their claim for loss of profit failed in the absence of evidence, they claimed for the expenditure they . .
Cited – Wallington v Townsend ChD 1939
The parties exchanged contracts for the sale and purchase of land, but the contract had attached an incorrect plan, including a strip of land now disputed. Neither party had properly attended to what they were signing. The plaintiff buyer maintained . .
Cited – Surrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
Cited – Filobake Ltd v Rondo Ltd and Another CA 11-May-2005
Unsuitability of baking equipment installation. A claimant in a breach of contract claim has a choice whether to claim loss of profits or wasted expenditure. . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 11 November 2021; Ref: scu.421533

Heath v Kelly and Another: ChD 24 Jul 2009

The defendant and the deceased had purchased a house as joint tenants in equity. The claimant sought to enforce an agreement for the sale of the defendant’s half share. Payment having been made. The defendant argued that the agreement was uncertain and unenforceable.
Held: The agreement appeared to have been made under a misapprehension as to the legal position. The mistake appeared to have been created by the party seeking to rely on it, and equity could refuse specific performance of the contract. The claimant had also delayed her action. Specific performance was refused. Declaration as to interests accordingly.

Purle QC J
[2009] EWHC 1908 (Ch), [2009] Fam Law 1044, [2010] 1 FLR 610, [2009] 2 P and CR DG21
Bailii
England and Wales
Citing:
Cited – Great Peace Shipping Ltd v Tsavliris (International) Ltd CA 14-Oct-2002
The parties contracted for the hire of a ship. They were each under a mistaken impression as to its position, and a penalty became payable. The hirer claimed that the equitable doctrine of mutual mistake should forgive him liability.
Held: . .
Cited – Milward v Earl Thanet CA 1801
Lord Alvanley MR said: ‘a party cannot call upon a Court of Equity for specific performance, unless he has shewn himself ready, desirous, prompt, and eager.’ . .
Cited – P and O Nedlloyd Bv v Arab Metals Co and others CA 13-Dec-2006
An order for specific performance had been refused in a disputed contract for carriage. The claimant argued that normal limitation periods should not be applied by analogy.
Held: Because there was no corresponding legal remedy the remedy in . .
Cited – Williams v Greatrex CA 1956
A purchaser agreed to buy land to be laid out in building plots. On payment of a deposit and giving notice, the purchaser was to be entitled to enter onto a particular plot in order to build on it. The arrangement met with difficulties, with the . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Updated: 11 November 2021; Ref: scu.361469

Balfour Beatty Regional Construction Ltd v Grove Developments Ltd: CA 13 Oct 2016

Contractor’s responsibility for stage payments

Appeal by a building contractor against a decision that there is no entitlement to interim payments in the period after the contractual date for practical completion. The principal issues are (i) how some rather unusual amendments to the standard form building contract should be construed and (ii) how section 109 of the 1996 Act applies in the circumstances of this case.

Longmore, Jackson, Vos LJJ
[2016] EWCA Civ 990, [2016] WLR(D) 522
Bailii, WLRD
Housing Grants, Construction and Regeneration Act 1996 109
England and Wales

Construction, Contract

Updated: 11 November 2021; Ref: scu.570174

Warren v Hide: QBD 12 Dec 2008

The claimant, the defendant boxer’s former manager, sought a declaration that he did not owe a sum of money from a purse as claimed by the defendant. The issue had first been referred to arbitration and an order made. The defendant became bankrupt but it was later annulled. A sum of andpound;50,000 was payable. The claimant made such a payment, but not to the defendant’s receiver, and the defendant claimed that had been made for a different purpose, and the sum remained due. The claimant had sent a cheque for the sum but had then stopped payment. The defendant admitted receiving a sum which was not paid to his receiver.
Held: Whilst the court found difficulty in accepting the case of either party, that of the claimant was inherently more plausible. Declaration granted.

Tugendhat J
[2008] EWHC 3049 (QB)
Bailii
England and Wales

Contract

Updated: 11 November 2021; Ref: scu.278801

Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd: CA 2 Apr 2009

The appellant entered into two aircraft leasing agreements but were unable to maintain payments. They appealed against rejection of their argument that the agreements were not exempt from the controls under the 1977 Act by being international supply agreements.
Held: The appeal failed. The intention of section 26 was to exclude such agreements entirely from control, and the section could be satisfactorily construed to do this: ‘although the aircraft were to be delivered to the lessee in this country, both parties were well aware that they were being leased by First Flight for use in their business and were to be taken to India for that purpose. If, therefore, as its language suggests, subsection (4)(a) is not limited to contracts under which goods must be carried across national boundaries in order to fulfil a contractual obligation, a contract of this kind must fall within it.’

Lord Justice Waller, Lady Justice Arden and Lord Justice Moore-Bick
[2009] EWCA Civ 290
Bailii, Times
Unfair Contract Terms Act 1977 26, Misrepresentation Act 1967 3
England and Wales
Citing:
Appeal From – Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd Comc 17-Jul-2008
Trident entered into Aircraft Operating Lease Agreements in identical terms with First Flight in respect of two ATP model aircraft. The leases represented the culmination of negotiations between a representative of the manufacturer, BAE Systems . .
Cited – Premium Nafta Products Ltd (20th Defendant) and others v Fili Shipping Company Ltd and others; Fiona Trust and Holding Corporation v Privalov HL 17-Oct-2007
The owners of a ship sought to rescind charters saying that they had been procured by bribery.
Held: A claim to rescind a contract by reason of bribery fell within the scope of an arbitration clause under which the parties had agreed to refer . .
Cited – Handelskwekerij GJ Bier Bv v Mines De Potasse D’Alsace Sa ECJ 30-Nov-1976
Europa Where the place of the happening of the event which may give rise to liability in tort, delict or quasi-delict and the place where that event results in damage are not identical, the expression ‘place . .
Cited – Alfred Dunhill Ltd v Diffusion Internationale De Maroquinerie De Prestige Sarl QBD 1-Feb-2001
The words of Article 5(3) are to be given an autonomous meaning and are not to be interpreted by reference to the definition of a cause of action under the particular national law concerned. . .
Cited – Sunderland Marine Mutual Insurance Company Ltd v Wiseman and others ComC 22-Jun-2007
The parties disputed as to whether the claim should be tried in England or Scotland. . .
Cited – Dolphin Maritime and Aviation Services Ltd v Sveriges Angartygs Assurans Forening ComC 2-Apr-2009
The defendant sought to strike out the claim for want of jurisdiction and that it had no prospect of success. . .

Lists of cited by and citing cases may be incomplete.

Consumer, Contract

Updated: 11 November 2021; Ref: scu.329548

Ogden and Another v Trustees of the RHS Griffiths 2003 Settlement and others; In Re Griffiths deceased: ChD 25 Jan 2008

A life-time transfer which had been made under a mistake as to the donor’s chances of surviving long enough for the transfer to be exempt from Inheritance Tax was set aside. Unbeknown to the donor, he had lung cancer at the time.
Held: Lewison J said: ‘It is plain in my judgment that a mistake of fact is capable of bringing the equitable jurisdiction into play. All that is required is a mistake of a sufficiently serious nature. In my judgment a mistake about an existing or pre-existing fact if sufficiently serious is enough to bring the jurisdiction into play. If and to the extent that Millett J intended to restrict the scope of the equitable jurisdiction to a mistake about the effect of a transaction, I respectfully disagree.’

Lewison J
[2008] EWHC 118 (Ch), [2008] STC 776, [2008] 2 All ER 654, [2009] 2 WLR 394, [2009] Ch 162, [2008] WTLR 685, [2008] STI 250, [2009] BTC 8027
Bailii
England and Wales
Cited by:
Approved – Fender (Administrator of FG Collier and Sons Ltd) v National Westminster Bank Plc ChD 26-Sep-2008
The administrator sought declarations as to whether to treat the bank as a secured or unsecured creditor.
Held: The court directed the Administrator to recognise the Bank as a secured creditor, as if the Deed of Release had never been . .
Cited – Pitt and Another v Holt and Others ChD 18-Jan-2010
The deceased had created a settlement in favour of his wife. He suffered serious injury and placed the damages in trust, but in a form which created an unnecessary liability to Inheritance Tax on his death. The wife’s mental health act receiver now . .
Cited – Pitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .
Cited – Futter and Another v Futter and Others ChD 11-Mar-2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .
Cited – Brazzill and Others v Willoughby and Others CA 27-May-2010
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .
Cited – Futter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .

Lists of cited by and citing cases may be incomplete.

Contract, Equity, Trusts

Updated: 11 November 2021; Ref: scu.264025

General Billposting Company Limited v Atkinson: HL 1908

The employers had dismissed their employee manager ‘in deliberate disregard of the terms of the contract’ in such a way as ‘to evince an intention no longer to be bound by the contract.’ The manager had successfully brought an action for wrongful dismissal and then commenced business on his own behalf. His original contract of service contained a clause restricting his right to trade within a specified area for two years after his engagement with the company terminated. The employer brought an action against him for breach of the restraint of trade provision.
Held: The employer’s claim failed. The compay had in effect repudiated the contract, and the employee ‘was thereupon justified in rescinding the contract and treating himself as absolved from the further performance of it on his part’ so as no longer to be bound by the restrictive trade covenant which the employers were seeking to enforce.

[1909] AC 118, (1908) 1 Ch 537, [1908-1910] All ER 619, (1908) 25 TLR 178
England and Wales
Cited by:
Doubted – Campbell v Frisbee ChD 14-Mar-2002
The defendant appealed a summary judgement on the claimant’s claim with respect to her alleged disclosure of details Miss Campbell’s private life. The claimant sought an action for account of profits for breach of the terms of a contract of service. . .
Cited – Frisbee v Campbell CA 14-Oct-2002
The claimant sought an account against her former employee for the disclosures made by her of their activities. The respondent had signed a confidentiality agreement. The respondent counterclaimed for assault. She now appealed from dismissal of her . .
Cited – Stone and Another (T/A Tyre 20) v Fleet Mobile Tyres Ltd CA 31-Aug-2006
The defendants appealed an injunction which prevented them soliciting business from any customer of the claimant for one year, granted pursuant to a restrictive covenant contained in a franchise agreement.
Held: The injunction was discharged. . .
Cited – Rock Refrigeration Limited v Jones and Seward Refrigeration Limited CA 10-Oct-1996
The claimant sought to enforce a post employment restrictive covenant given by the defendant. The defendant replied that the clause was too widely framed and was unreasonable since it applied to a temination of his contract ‘howsoever occasioned’. . .

Lists of cited by and citing cases may be incomplete.

Employment, Contract

Leading Case

Updated: 11 November 2021; Ref: scu.179824

North Eastern Properties Ltd v Coleman and Another: CA 19 Mar 2010

The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts had omitted an agreement for the payment of a 2% finders fee on exchange. The appellants intended to sell on the flats to buyers as they found them, by the assignment of the contracts, and the terms had been omitted at the appellants’ request to avoid its benefit being assigned to the sub-purchasers.
Held: The buyers’ appeals failed. It had not been the intention of the 1989 Act to make it easier for purchasers to escape from contractual liability, though ‘because of the rigorous discipline which it imposes upon parties to land contracts, it does indeed enable persons who have genuinely contracted to do just that.’ It was legitimate to interpret the 1989 Act so as to avoid the creation of an injustice, and ‘there is nothing contrary to common sense in construing such a clause as having the alternative meaning that the parties have agreed that the terms of some other part of the composite transaction are not to be conditions for the performance of the land contract.’
In this case the notices to complete gave an unreasonably short time period for completion of the construction works, and the purchaser could not rely on them.
Briggs J set out the principles: ‘A party seeking to avoid a land contract under section 2 must identify a term which the parties have expressly agreed, which is not to be found in the single, or exchanged, signed document. It is not sufficient merely to show that the land contract formed part of a larger transaction which was subject to other expressly agreed terms which are absent from the land contract. The expressly agreed term must, if it is required by section 2 to be included in the single document, be a term of the sale of the land, rather than a term of some simultaneous contract (whether for the sale of a chattel or the provision of a service) which happens to take place at the same time as the land contract, and to form part of one commercial transaction. Section 2(1) does not prohibit parties from structuring a transaction, for example, for the sale of the whole of a company’s assets, in such a way that the land sale is dealt with in a different document from the sale of stock, work in progress or goodwill, unless the sale of the land is conditional upon the sale of the other assets. For an illustration of this point, see Grossman v. Hooper [2001] 2 EGLR 82, paras 19-22, per Chadwick LJ.
. . In my judgment, the apparent disharmony constituted by the dicta on this point may be reconciled as follows: (i) Nothing in section 2 of the 1989 Act is designed to prevent parties to a composite transaction which includes a land contract from structuring their bargain so that the land contract is genuinely separated from the rest of the transaction in the sense that its performance is not made conditional upon the performance of some other expressly agreed part of the bargain. Thus, in Chadwick LJ’s example in Grossman v. Hooper [2001] 2 EGLR 82, parties may agree to the sale and purchase both of a house and of its curtains and carpets in a single composite transaction. None the less it is open to them to agree either (a) that completion of the purchase of the house is dependent upon the sale of the carpets and curtains, or (b) that it is not. They are free to separate the terms of a transaction of type (b) into two separate documents (one for the house and the other for the carpets and curtains) without falling foul of section 2. They may also agree to structure a transaction which includes the sale of two or more parcels of land by way of separate contracts for each, so that none of the land contracts is conditional upon the performance of any of the others. (ii) By contrast, the parties to a composite transaction are not free to separate into a separate document expressly agreed terms, for example as to the sale of chattels or the provision of services, if upon the true construction of the whole of the agreement, performance of the land sale is conditional upon the chattel sale or service provision. That would, albeit for reasons which seem to me to frustrate rather than serve the purposes for which the 1989 Act was passed, fall foul of section 2(1), however purposively construed. So would a series of separate contracts for the sale of separate parcels of land, if each was conditional upon the performance of the other. (iii) Since the splitting into separate contracts of parts of a composite transaction is inherently likely to give rise to uncertainties as to whether performance of the one is conditional upon performance of the other, the parties are free, and in my opinion should be positively encouraged, to make plain by express terms whether or not that conditionality exists. To do so serves rather than evades or frustrates the purposes of section 2, an important part of which is to encourage clarity rather than uncertainty in land transactions.’

Longmore, Smith LJJ, Briggs J
[2010] EWCA Civ 277, [2010] 2 EGLR 161, [2010] 12 EG 97 (CS), [2010] BLR 579, [2010] 3 All ER 528, [2010] NPC 39, [2010] TCLR 4, [2010] 1 WLR 2715, [2010] 2 All ER (Comm) 494
Bailii
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Citing:
Cited – Tiverton Estates Ltd v Wearwell Ltd CA 1975
“Subject to Contract” not to be diluted
‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in . .
Cited – Commission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd) CA 4-Mar-1995
The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to . .
Cited – Tootal Clothing Ltd v Guinea Properties Ltd CA 1992
By a single commercial transaction the parties agreed to the grant of a lease, on terms that Tootal (the intending lessee), would carry out shop-fitting works, have the benefit of a three months rent-free period during the which the works were to be . .
Cited – Grossman v Hooper CA 11-Apr-2001
The parties had lived together in the house, each contributing but held in the name of one only. The parties disputed the effect under the 1989 Act of a letter signed by each of them setting out their agreement as to the basis on which it was held. . .
Cited – Stickney v Keeble HL 1917
The purchaser had made repeated complaints about the seller’s delay in completing construction.
Held: The repeated complaints formed a principal ground for justification of the short specified notice period.
Lord Parker of Waddington set . .
Cited – British Commonwealth Holdings plc v Quadrex Holdings Inc 1989
In considering the reasonableness of a time set in a notice to complete for construction works, the time it would actually take to complete the work is not the only consideration. . .
Cited – Oun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
Cited – Business Environment Bow Lane Ltd v Deanwater Estates Ltd CA 27-Jun-2007
Enforcement of repairing obligations in lease after assignments, and the use of collateral contracts. Sir Andrew Morritt C said: ‘The law relating to collateral contracts is well-established but in connection with sales or leases of land needs to be . .
Cited – Godden v Merthyr Tydfil Housing Association CA 15-Jan-1997
The Plaintiff was a building contractor; the Defendant a housing association engaged in developing suitable sites for residential accommodation for letting to tenants. Before the contract the parties had successfully completed what was been called . .
Cited – Inntrepreneur Pub Co v East Crown Ltd 2000
The ‘entire agreement’ clause contained in a lease not only had the effect of rendering evidence of an alleged collateral warranty inadmissible, but also deprived the warranty of all legal effect. It did not collapse the lease in on itself. Lightman . .
Appeal from – North Eastern Properties Ltd v Coleman and Another ChD 20-Aug-2009
The parties agreed for the developer to build and the defendants to purchase several apartments. The properties were not completed after a notice to complete and the purchasers purported to rescind the contract. The claimant completed the flats and . .

Cited by:
Cited – Keay and Another v Morris Homes (West Midlands) Ltd CA 11-Jul-2012
The claimants sought damages alleging breach of contract. The defendants argued that the contract related to land, and since it was an oral agreement it was unenforceable under the 1989 Act.
Held: It was not possible for a contract which was . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 11 November 2021; Ref: scu.403471

Nolan v Wright: ChD 26 Feb 2009

The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement amounted to an extortionate bargain would not be a substantive relief, and was therefore not subject to a time bar. The claimant had admitted leaving agreements to run unenforced to avoid arguments over whether the agreement was extortionate.
Held: The defendant was required under the rules to give notice to apply for such an order, and therefore ‘a claim to reopen a credit agreement as an extortionate credit bargain is an action upon a specialty to which in principle, and subject to section 9 (and the other provisions) of the 1980 Act, a limitation period of 12 years from the date of entry into the relevant credit agreement applies.’ It was clear that many of the defendant’s assertions were fanciful, and contradicted by his own contemporaneous and later documents. However there were similarly doubts about the claimants own case which required investigation at trial.

Hodge QC J
[2009] EWHC 305 (Ch)
Bailii
Consumer Credit Act 1974 137 138 139 140, Limitation Act 1980 8
England and Wales
Citing:
Cited – Collin v Duke of Westminster CA 1985
In 1975 the tenant sought to exercise his right to purchase the freehold reversion of his property. The landlord argued that the rent payable precluded any such entitlement. Under the law as then understood, the landlord’s contention appeared . .
Cited – Hill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .
Cited – Bray v Stuart A West and Co 1989
The court’s inherent supervisory jurisdiction over legal professions are not proceedings founded on any cause of action, and so are not subject to the Limitation Act. . .
Cited – Paragon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .
Cited – First National Bank Plc v Syed CA 1991
The court can exercise the supervisory jurisdiction over consumer contracts under the 1974 Act irrespective of any application made by a party. . .
Cited – Re Priory Garage (Walthamstow) Limited ChD 2001
The court considered the relevance of a statutory limitation period in relation to applications to set aside transactions as being at an undervalue or as voidable preferences under section 238 to 241 of the 1986 Act. Applications to set aside . .
Cited – Rahman v Sterling Credit Ltd CA 17-Oct-2000
A lender sought repossession of a property securing a loan from 1998. The borrower sought to assert that the loan was an extortionate credit bargain under the Act. The lender asserted that that claim was out of time.
Held: A claim under a . .
Cited – Letang v Cooper CA 15-Jun-1964
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking . .
Cited – National Westminster Bank v Daniel CA 1993
The defence contained two contradictory grounds, and the defendant’s evidence again contradicted the defences. The plaintiff sought summary judgment.
Held: A judge, when considering whether a claim should be determined then or allowed to . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England HL 18-May-2000
The applicants alleged misfeasance against the Bank of England in respect of the regulation of a bank.
Held: The Bank could not be sued in negligence, but the tort of misfeasance required clear evidence of misdeeds. The action was now properly . .
Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Cited – Nationwide Building Society v Dunlop Haywards Ltd and Another ComC 14-Jun-2007
Claims in deceit with regard to valuations of commercial properties. . .
Cited – Extraktionstechnik Gesellschaft fur Anlagenbau GmbH v Oskar CA 1984
Where there are unexplained features of both the claim and the defence which are disturbing because they bear the appearance of falsity and disreputable business dealings and questionable conduct, the Court should not make tentative assessments of . .

Lists of cited by and citing cases may be incomplete.

Limitation, Contract, Consumer

Updated: 11 November 2021; Ref: scu.304541

Lampleigh v Brathwait: KBD 24 Mar 1615

Acting on Request can found Consideration

B had been convicted of murder and was to be hung. L agreed to do what was in his power to obtain a pardon. He succeeded, and B then promised to pay him 100 pounds, but failed to do so, and L now sought recovery.
Held: He succeeded. Though the consideration had preceded the promise, the actions taken were at the defendant’s request. ‘a meer voluntary curtesie will not have a consideration to uphold an assumpsit. But if that curtesie were moved by a suit or request of the party that gives the assumpsit, it will bind, for the promise, though it follows, yet it is not naked, but couples it self with the suit before, and the merits of the party procured by that suit, which is the difference.’

[1615] EWHC KB J17, (1615) Hobart 105, 80 ER 255
Bailii
England and Wales

Contract

Leading Case

Updated: 11 November 2021; Ref: scu.248368

Barclays Bank v WJ Simms and Cooke (Southern) Ltd: QBD 1979

The customer made out a cheque to pay his builder, but countermanded it. The bank paid the cheque when it was presented by mistake, and now sought repayment from the builder.
Held: The bank succeeded. The court discussed the extent of a banker’s obligations to its customers.
Robert Goff J set out the defences to a claim in restitution: ‘(1) If a person pays money to another under a mistake of fact which causes him to make the payment, he is prima facie entitled to recover it as money paid under a mistake of fact. (2) His claim may however fail if (a) the payer intends that the payee shall have the money at all events, whether the fact be true or false, or is deemed in law so to intend; or (b) the payment is made for good consideration, in particular if the money is paid to discharge and does discharge a debt owed to the payee (or a principal on whose behalf he is authorised to receive the payment) by the payer or by a third party by whom he is authorised to discharge the debt; or (c) the payee has changed his position in good faith or is deemed in law to have done so.’
‘It is a basic obligation owed by a bank to its customers that it will honour on presentation cheques drawn by the customer on the bank, provided that there are sufficient funds in the customer’s account to meet the cheque, or the bank has agreed to provide the customer with overdraft facilities sufficient to meet the cheque. Where the bank honours such a cheque, it acts within its mandate, with the result that the bank is entitled to debit the customer’s account with the amount of the cheque, and further that the bank’s payment is effective to discharge the obligation of the customer to the payee on the cheque, because the bank has paid the cheque with the authority of the customer.
In other circumstances, the bank is under no obligation to honour its customer’s cheques. If however a customer draws a cheque on the bank without funds in his account or agreed overdraft facilities sufficient to meet it, the cheque on presentation constitutes a request to the bank to provide overdraft facilities sufficient to meet the cheque. The bank has an option whether or not to comply with that request. If it declines to do so, it acts entirely within its rights and no legal consequences follow as between the bank and its customer. If however the bank pays the cheque, it accepts the request and the payment has the same legal consequences as if the payment had been made pursuant to previously agreed overdraft facilities; the payment is made within the bank’s mandate, and in particular the bank is entitled to debit the customer’s account, and the bank’s payment discharges the customer’s obligation to the payee on the cheque.
In other cases, however, a bank which pays a cheque drawn or purported to be drawn by its customer pays without mandate. A bank does so if, for example, it overlooks or ignores notice of its customer’s death, or if it pays a cheque bearing the forged signature of its customer as drawer, but, more important for present purposes, a bank will pay without mandate if it overlooks or ignores notice of countermand of the customer who has drawn the cheque. In such cases the bank, if it pays the cheque, pays without mandate from its customer; and unless the customer is able to and does ratify the payment, the bank cannot debit the customer’s account, nor will its payment be effective to discharge the obligation (if any) of the customer on the cheque, because the bank had no authority to discharge such obligation.
It is against the background of these principles, which were not in dispute before me, that I have to consider the position of a bank which pays a cheque under a mistake of fact. In such a case, the crucial question is, in my judgment, whether the payment was with or without mandate. The two typical situations, which exemplify payment with or without mandate, arise first where the bank pays in the mistaken belief that there are sufficient funds or overdraft facilities to meet the cheque, and second where the bank overlooks notice of countermand given by the customer. In each case there is a mistake by the bank which causes the bank to make the payment. But in the first case, the effect of the bank’s payment is to accept the customer’s request for overdraft facilities; the payment is therefore within the bank’s mandate, with the result that not only is the bank entitled to have recourse to its customer, but the customer’s obligation to the payee is discharged. It follows that the payee has given consideration for the payment; with the consequence that, although the payment has been caused by the bank’s mistake, the money is irrecoverable from the payee unless the transaction of payment is itself set aside. Although the bank is unable to recover the money, it has a right of recourse to its customer. In the second case, however, the bank’s payment is without mandate. The bank has no recourse to its customer; and the debt of the customer to the payee on the cheque is not discharged. Prima facie, the bank is entitled to recover the money from the payee, unless the payee has changed his position in good faith, or is deemed in law to have done so.’

Robert Goff J
[1979] 3 All ER 522, [1980] QB 677
England and Wales
Cited by:
Cited – Sandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
Cited – Lloyds Bank Plc v Independent Insurance Co Ltd CA 26-Nov-1998
The bank had made an electronic transfer of funds for a customer in satisfaction of that customer’s proper debt, but it was done under a mistake of fact as to the cleared status of funds received.
Held: The appeal was turned down. The bank was . .
Cited – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
Cited – Portman Building Society v Hamlyn Taylor Neck (a Firm) CA 22-Apr-1998
The mortgage advance had been against an express requirement that the client use the property as his private residence. After the client defaulted, the appellant lender discovered that the solicitors acting for themselves and the lay client had . .
Cited – Marine Trade Sa v Pioneer Freight Futures Co Ltd Bvi and Another ComC 29-Oct-2009
The parties stood to make substantial losses against each other under contracts for differences after the dramatic fall in the freight market in the financial turmoil of late 2008. . .

Lists of cited by and citing cases may be incomplete.

Banking, Contract

Leading Case

Updated: 11 November 2021; Ref: scu.194776

British Broadcasting Corporation v Harpercollins Publishers Ltd and Another: ChD 4 Oct 2010

The claimant sought an injunction and damages to prevent the defendant publishing a book identifying himself as ‘the Stig’ saying that this broke his undertaking of confidentialty as to his identity, a necessary part of the character in the TV programme Top Gear.
Held: The claimant was refused an injunction. The driver had worked for the BBC through a service company. The signatures had been given by him in his capacity as the service company, and he was not personally bound to confidentiality by the contract. Nevertheless he was bound, as was accepted, but also beyond the term of any series in which he appeared was first broadcast.
At the same time there had come to be substantial press and internet speculation as to his identity to the point where no continued confidence could exist, and also the service companies published accounts which sufficiently identified him as the Stig. The material went beyond speculation to statements as to his identity, and the identification had been made. Any confidence was now lost.

Morgan J
[2010] EWHC 2424 (Ch), HC10C02684, [2011] EMLR 6
Bailii
Human Rights Act 1998 12
England and Wales
Citing:
Cited – Terrapin v Builders Supply Co (Hayes) ChD 1967
The defendants made up prefabricated portable buildings to the plaintiffs’ design, provided to them only for this purpose. When the contract ended, the defendants then offered their own prefabricated buildings using much of the material, including . .
Cited – Vestergaard Frandsen A/S and Others v Bestnet Europe Ltd and Others ChD 26-Jun-2009
Arnold J reviewed the authorities and expressed his conclusion that an injunction will not be granted to prevent a future publication of information that has ceased to be confidential. He qualified this statement in relation to information that . .
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – Schering Chemicals Ltd v Falkman Ltd CA 1982
The Defendants’ professional skills were engaged to present the plaintiff company in a good light, and an injunction was granted to restrain them from doing the opposite. Sach LJ said: ‘even in the commercial field, ethics and good faith are not to . .
Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
Cited – Schering Chemicals Ltd v Falkman Ltd CA 1982
The Defendants’ professional skills were engaged to present the plaintiff company in a good light, and an injunction was granted to restrain them from doing the opposite. Sach LJ said: ‘even in the commercial field, ethics and good faith are not to . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – Roger Bullivant Ltd v Ellis CA 1987
The plaintiffs sought various remedies against an ex-employee who had set up a company in competition with the plaintiffs. One was for breach of confidence in respect of a card index of customer contacts, a copy of which the first defendant had . .
Cited – Universal Thermosensors Ltd v Hibben and Others ChD 8-Jul-1992
After complex litigation, the remaining issues were a claim for damages by the claimant in respect of the defendant’s misuse of confidential information and a counterclaim by the defendants for loss falling within the claimant’s cross-undertaking in . .

Lists of cited by and citing cases may be incomplete.

Contract, Media, Employment, Intellectual Property

Updated: 11 November 2021; Ref: scu.424853

Edgington v Fitzmaurice: CA 7 Mar 1885

False Prospectus – Issuers liable in Deceit

The directors of a company issued a prospectus, falsely stating that the proceeds were to be used to complete alterations to the buildings of the company, to purchase horses and vans and to develop the trade of the company. In fact it was to pay off pressing liabilities. The company became insolvent. The plaintiff was also mistaken in thinking that the bond would be secured on the company’s assets, but this mistake was not the fault of the defendant.
Held: The directors were liable in deceit. A misrepresentation need not have been the only matter upon which a representee relied for sufficient reliance to be demonstrated. A misstatement of fact could be actionable at the suit of the plaintiffs.
Fry LJ said: ‘The prospectus was intended to influence the mind of the reader. Then this question has been raised: the Plaintiff admits that he was induced to make the advance not merely by this false statement, but by the belief that the debentures would give him a charge on the company’s property, and it is admitted that this was a mistake of the Plaintiff. Therefore it is said that the Plaintiff was the author of his own injury. It is quite true that the Plaintiff was influenced by his own mistake, but that does not benefit the Defendant’s case. The Plaintiff says: I had two inducements, one my own mistake, the other the false statement of the Defendants. The two together induced me to advance the money. But in my opinion if the false statement of fact actually influenced the Plaintiff, the Defendants are liable, even though the Plaintiff may have been also influenced by other motives. I think, therefore, the Defendants must be held liable.’
A statement of a man’s intentions may be a statement of fact. Bowen LJ said: ‘This is an action for deceit, in which the Plaintiff complains that he was induced to take certain debentures by the misrepresentations of the Defendants, and that he sustained damage thereby . . In order to sustain his action he must first prove that there was a statement as to facts which was false; and secondly, that it was false to the knowledge of the Defendants, or that they made it not caring whether it was true or false. For it is immaterial whether they made the statement knowing it to be untrue, or recklessly, without caring whether it was true or not, because to make a statement recklessly for the purposes of influencing another person is dishonest. It is also clear that it is wholly immaterial with what object the lie is told. … But, lastly, when you have proved that the statement was false, you must further shew that the plaintiff has acted upon it and has sustained damage by so doing: you must shew that the statement was either the sole cause of the plaintiff’s act, or materially contributed to his so acting.’
and ‘there must be a misstatement of an existing fact: but the state of a man’s mind is as much a fact as the state of his digestion’ and ‘The real question is, what was the state of the plaintiff’s mind, and if his mind was disturbed by the misstatement of the defendants, and such disturbance was in part the cause of what he did, the mere fact of his also making a mistake himself could make no difference. It resolves itself into a mere question of fact.’
Cotton LJ said that in a case involving misrepresentation: ‘It is true that if he had not supposed he would have a charge he would not have taken the debentures; but if he also relied on the misstatement in the prospectus, his loss none the less resulted from that misstatement. It is not necessary to show that the misstatement was the sole cause of his acting as he did. If he acted on that misstatement, though he was also influenced by an erroneous supposition, the defendants will still be liable.’

Cotton, Bowen, Fry LJJ
(1885) 29 Ch D 459, (1885) 55 LJCh 650, (1885)32 WR 849, [1885] UKLawRpCh 83
Commonlii
England and Wales
Cited by:
Re-affirmed – Standard Chartered Bank v Pakistan National Shipping Corporation, Standard Chartered Bank v Pakistan National Shipping Corporation and Others and Another and Others (Nos 2 and 4) HL 6-Nov-2002
Fraudulent Misrepresentation by Company Director
Fraudulent bills of lading had been issued in order to rely upon letters of credit issued by the bank. The director signing the bills sought to avoid personal liability, saying it was the Act of the company. The defendant company also appealed on . .
Cited – Keays v Guardian Newspapers Limited, Alton, Sarler QBD 1-Jul-2003
The claimant asserted defamation by the defendant. The parties sought a decision on whether the article at issue was a comment piece, in which case the defendant could plead fair comment, or one asserting fact, in which case that defence would not . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Approved – St Paul Fire and Marine Insurance Co (UK) Ltd v McConnell Dowell Constructors Ltd CA 1995
The court discussed the general principles as to the meaning of ‘inducement’ in the context of insurance contract.
Held: If the three underwriters who gave evidence had been told the truth, on no view would they have underwritten the insurance . .
Cited – Spice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .
Cited – Oliver v The Governor and Company of the Bank of England CA 1902
Sterling LJ said: ‘It has often been held in actions for misrepresentation that where a misrepresentation is proved and is shown to have been relied upon, that is enough, although the person who enters into the transaction on the faith of the . .
Cited – Standard Chartered Bank v Pakistan National Shipping Corporation, Seaways Maritime Ltd, SGS United Kingdom Ltd, Oakprime International Ltd, Arvind Mehra (No 2) CA 27-Jul-2000
Where a deceit was established leading to an award of damages, that award of damages was not capable of being reduced under the 1949 Act through a contribution to the loss occasioned by the claimant’s own behaviour, where that behaviour did not fall . .
Cited – Man Nutzfahrzeuge Ag and Another v Freightliner Ltd CA 12-Sep-2007
. .
Cited – Derry v Peek HL 1-Jul-1889
The House heard an action for damages for deceit or fraudulent misrepresentation.
Held: The court set out the requirements for fraud, saying that fraud is proved when it is shown that a false representation has been made knowingly or without . .
Cited – BP Exploration Operating Co Ltd v Chevron Transport (Scotland) HL 18-Oct-2001
A ship owned by the defenders caused substantial damage whilst moored at the claimant’s docks. The claim was made against different members of the defendants as they asserted and denied responsibility. The last company asserted that the claim was . .
Cited – Branson v Bower (No 1) CA 24-May-2001
The test of whether comment was fair comment is simply that of whether the opinion was honestly expressed, and on the basis of facts accurately stated. There is no special rule for imputations of corruption or dishonest motives. Nor is there any . .
Cited – Morris v Jones and others CA 6-Dec-2002
. .
Cited – Regina (Williamson and Others) v Secretary of State for Education and Employment CA 12-Dec-2002
The claimants sought a declaration that the restriction on the infliction of corporal punishment in schools infringed their human right of freedom of religion. The schools concerned were Christian schools who believed that moderate corporal . .
Cited – Inland Revenue v Hashmi and Another CA 3-May-2002
The question for the court was whether when there was more than one purpose of a transaction the proscribed purpose under the section had to be dominant or not.
Held: It was not necessary for the proscribed purpose to be the dominant purpose; . .
Cited – Mayor and Burgesses of the London Borough of Waltham Forest v Roberts CA 15-Jul-2004
Secure tenancy obtained by misleading application – grant of possession order . .
Cited – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .

Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Leading Case

Updated: 11 November 2021; Ref: scu.182803

Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another: ComC 21 Jan 2011

The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under the 1677 Act not being in writing and signed.
Held: There was no limit to the number of documents to which reference is made to establish the agreement. The guidance in Timmins was not strictly applicable in construing an agreement as such rather than a memorandum of agreement. There was an arguable case since the documents might be read together.
Where a document is executed by an agent which records the terms of the sale, it is not necessary, in order to satisfy the Statute, that the agent should have been authorised to execute the document as a record of the transaction; but it is necessary that the document, which is a record of the transaction, is one that he is authorised to execute by the person sought to be charged. The e-mails which constitute the contract were sufficiently signed by the electronically printed signature of the persons who sent them. It was argued the document itended to be signed by both parties had not been so signed, and ‘The question is whether the charterparty was drawn up with the authority of SMI and records the terms of the guarantee; not whether Howe Robinson was authorised to draw it up as a record of the guarantee, nor whether Howe Robinson was authorised to sign it as a contract. In fact, however, it was drawn up and signed on behalf of the Owners.’ The claimant had an arguable claim that valid contracts existed, that the charter had been repudiated, and that the agreement did not fall foul of the 1677 Act. The claim being governed by English law, the English court could exercise jurisdiction.

Christopher Clarke J
[2011] EWHC 56 (Comm), [2011] 2 All ER (Comm) 95, [2011] 1 CLC 125, [2011] CILL 3022, [2011] 1 WLR 2575
Bailii
Statute of Frauds 1677
England and Wales
Citing:
Distinguished – Timmins v Moreland Street Property Co Ltd CA 1958
The Court considered the effect of a note or memorandum evidencing the sale of a property where it was described as ‘6,8 and 41, Boundary Street, Shoreditch (freehold).’ It was sought to connect the signature on a purchaser’s deposit cheque with an . .
Cited – Elias v George Sahely and Co (Barbados) Ltd PC 1982
(Barbados) The parties entered into an oral agreement for the sale of land to the plaintiff. The plaintiff’s solicitor then wrote to the defendant’s solicitor confirming the oral agreement and setting out its terms. He enclosed a cheque for 10 . .
Cited – In re Hoyle CA 1893
ALSmith LJ discussed the 1677 Act: ‘The object of the Statute was to prevent fraud and perjury by taking away the right to sue on certain agreements if only established by verbal evidence . . The object of the statute being merely to exclude parol . .
Mentioned as incorrect – Law v Jones 1974
A ‘subject to contract’ document might be evidence of an antecedent or oral contract and satisfy section 40 of the Law of Property Act 1925 if the stipulation was later waived. A memorandum or note must, if it is to be effective, not only state the . .
Cited – Tiverton Estates Ltd v Wearwell Ltd CA 1975
“Subject to Contract” not to be diluted
‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in . .
Cited – Carlton Communications Plc, Granada Media Plc v The Football League ComC 1-Aug-2002
The applicants sought a declaration that they had not provided guarantees to support a contract between a joint venture company owned by them, OnDigital, and the respondent to screen football matches. The company had become insolvent.
Held: . .
Cited – Actionstrength Limited v International Glass Engineering In Gl En SpA and others HL 3-Apr-2003
Actionstrength agreed with Inglen to provide construction staff to build a factory for St-Gobain. Inglen failed to pay. Actionstrength claimed against for the amount due. Inglen went into liquidation. The claim was now against St-Gobain. The claim . .
Cited – Westhead And Others v Sproson And Piper 1-May-1861
. .
Cited – Evans v Hoare 1892
A defendant sought to deny liability under a document relying on the 1677 Statute. the relevant document had been drawn up by a duly authorised agent of the Defendants. The document was a letter from the Plaintiff and the words ‘Messrs Hoare, Marr . .
Cited – John Griffiths Cycle Corporation, Limited v Humber and Co, Limited 1899
Smith v Webster was not to be taken as meaning that the agent must have had authority to sign the document as a record of the contract. All that Smith v Webster decided was that, in order to satisfy the Statute, it must be shown that the agent . .
Cited – Elpis Maritime Company Limited v Marti Chartering Company Limited (The Maria D) HL 1991
Brokers (Marti) were to guarantee a charter on the Gencon form, which contained, as one of the additional typed clauses a provision (Clause 24) in the following terms: ‘Demurrage guaranteed and payable directly by charterers to owners. However Marti . .
Cited – Smith v Webster CA 1876
P verbally agreed to buy an inn from D. On the next day D told his solicitors that he had entered into a verbal arrangement for the sale and instructed them to prepare an agreement. On the same day they forwarded a draft formal contract to P’s . .
Cited – Daniels v Trefusis 1914
Mr Trefusis agreed with an agent called Mr Girdlestone to buy a house for andpound;700. Girdlestone was in fact acting for a Mr Daniels but later claimed to be a principal who had bought from Mr Daniels for andpound;600 and was sub-selling to Mr . .
Cited – North -v Loomes 1919
N agreed to sell to L certain premises in Chinnor for andpound; 590 and gave him a receipt for a andpound; 50 deposit. The receipt, which was regarded by both parties as their contract, was in the following terms: ‘Received of [L] the sum of . .
Cited – Bluck v Gompertz 7-Jun-1852
The defendant had signed an undertaking to procure the acceptance of two bills for andpound;200 and andpound;146 for wine supplied to an MP and agreed to see that they were duly paid. The latter draft should have been for andpound;150. The plaintiff . .
Cited – Leeman v Stocks 1951
The plaintiff’s was the highest bid for premises at an auction. The auctioneer used a borrowed form for sale by private treaty, though some clauses were inappropriate. A solicitor present edited the document and put in the date for completion. The . .
Cited – Caton v Caton HL 1867
A document began by referring to ‘the under mentioned parties’ and then referred to the parties in question by name in relation to various promises. Neither party signed the document and the question was whether the document constituted a sufficient . .
Cited – Lindsay v O’Loughnane QBD 18-Mar-2010
lindsay_oloughnaneQBD11
The claimant had purchased Euros through a foreign exchange dealer. The dealer company became insolvent, causing losses to the claimant, who sought to recover from the company’s managing director, the defendant, saying that he was aware of the . .
Cited – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
Cited – Armagas Ltd v Mundogas SA (‘The Ocean Frost’) HL 22-May-1985
Ostensible authority creates estoppel
Apparent authority as agent can arise where an employer by words or conduct has represented that his employee, who has purported to act on behalf of the employer, is authorised to do what he is purporting to do. Ostensible authority depends on a . .
Cited – First Energy (UK) Ltd v Hungarian International Bank Ltd CA 16-Apr-1993
A manager, though he lacked actual authority to authorise and offer a particular loan facility to the plaintiff, still did so by sending him a letter of offer which was accepted.
Held: Albeit the manager lacked actual authority to make the . .
Cited – The Suwalki 1989
Generally speaking a chartering broker has no actual authority to charter a ship: ‘A broker, or even an exclusive broker, is not in the shipping trade regarded as having authority to commit his principals without reference back to them.’ . .

Cited by:
Appeal from – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another CA 9-Mar-2012
The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial . .

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 11 November 2021; Ref: scu.428241

Henthorn v Fraser: 1892

Definition of postal acceptance of offer

The parties had discussed the sale of properties to the plaintiff. The defendant wrote out an offer to sell and handed it to the buyer, who took it away to consider it. A new buyer turned up and a contract was concluded, the defendant writing to the buyer to withdraw the offer. Before that letter was received, the defendant had, through his solicitor written back to accept the first offer. The plaintiff sought specific performance.
Held: The contract had been made.
Lord Herschell set out the postal rule in contract situations: ‘It strikes me as somewhat artificial to speak of the person to whom the offer is made as having the implied authority of the other party to send his acceptance by post. He needs no authority to transmit the acceptance through any particular channel; he may select what means he pleases, the Post Office no less than any other. The only effect of the supposed authority is to make the acceptance complete so soon as it is posted, and authority will obviously be implied only when the tribunal considers that it is a case in which this result ought to be reached. I should prefer to state the rule thus: Where the circumstances are such that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted.’

Lord Herschell, Lindley LJ, Kay LJ
[1892] 2 Ch 27
England and Wales
Cited by:
Cited – Holwell Securities Ltd v Hughes CA 5-Nov-1973
An option was to be exercised ‘by notice in writing’ before a certain date. The solicitors’ letter doing so was addressed to the defendant at his residence and place of work, the house which was the subject of the option to purchase, was posted by . .

Lists of cited by and citing cases may be incomplete.

Contract

Leading Case

Updated: 11 November 2021; Ref: scu.276453