The court was asked: ‘In what circumstances will a contract result when a written offer document states that it is not binding until signed by the offeree and the offeree does not sign but performs in the manner contemplated by its terms? ‘
Elias, Underhill LJJ, Cranston J
[2016] EWCA Civ 443
Bailii
England and Wales
Contract
Updated: 02 November 2021; Ref: scu.563143
The Court was asked as to: ‘the liability for Value Added Tax of a company which markets and arranges holiday accommodation through an on-line website. The outcome turns on the appropriate characterisation of the relationship between the company, the operators of the hotels, and the holiday-makers or their travel agents (which is an English law issue), and the impact of certain provisions of the relevant EU Directive on that relationship once it has been characterised (which is an EU law issue).
Held: The appeal of the taxpayer was successful. The correct legal analysis of the tripartite relationship between Med, hoteliers and customers was that Med marketed and sold hotel accommodation to customers as the agent of the hoteliers and was in these circumstances acting solely as an intermediary for VAT purposes.
Article 306 created two categories of travel agent, namely (a) those ‘who deal with customers in their own name and use supplies of goods or services provided by other taxable persons, in the provision of travel facilities’ and (b) those who ‘act solely as intermediaries’ (referred to for convenience as, respectively, ‘ article 306.1(a) ‘ and ‘ article 306.1(b)’), and provides for a special VAT scheme for transactions carried out by travel agents who fall within article 306.1(a). Med had been acting as an intermediary and not in its own name, and therefore fell within the provisions of article 306.1(b).
When assessing the VAT consequences of a particular contractual arrangement, the court should, at least normally, characterise the relationships by reference to the contracts and then consider whether that characterisation is vitiated by any relevant facts.
Lord Neuberger PSC said: ‘When interpreting an agreement, the court must have regard to the words used, to the provisions of the agreement as a whole, to the surrounding circumstances insofar as they are known to both parties, and to commercial common sense.’
Lord Neuberger, President, Lord Sumption, Lord Reed, Lord Hughes, Lord Hodge
[2014] UKSC 16, [2014] BVC 9, [2014] 2 All ER 685, [2014] STI 864, [2014] STC 937, UKSC 2013/0036
Bailii, Bailii Summary, SC, SC Summary
Directive 2006/112/EC 2.1(c)
England and Wales
Citing:
At CA – Secret Hotels2 Ltd v Revenue and Customs CA 3-Dec-2012
The Revenue appealed from a finding at the UTTC that the taxpayer company had acted not as a principal but rather as an agent.
Held: Morgan J was wrong to criticise the FTT for looking at ‘the whole facts of the case’ as opposed to . .
At FTTTx – Secret Hotels2 Ltd (Formerly Med Hotels Ltd) v Revenue and Customs FTTTx 15-Mar-2010
FTTTx Value Added Tax – Whether supplies of hotel and other holiday accommodation made by Appellant as agent for accommodation suppliers or as principal.
Value Added Tax – If Appellant is principal whether . .
At UTTC – Secrets Hotels2 Limited UTTC 29-Jul-2011
Value Added Tax – written agreements to provide hotel accommodation to holidaymakers – identity of supplier – was it hotel operator or company operating a bookings website – principles as to construction of written agreements – no difference because . .
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 – Van Ginkel Waddinxveen v Inspecteur der Omzetbelasting ECJ 12-Nov-1992
(Judgment) Article 26 of Directive 77/388: Sixth Directive, which concerns the special scheme applicable to travel agents in the matter of imposition of value added tax, must be interpreted as meaning that the fact that the transport of the . .
Cited – Commissioners of Customs and Excise v Madgett and Baldwin (trading as Howden Court Hotel) ECJ 22-Oct-1998
The court considered the criteria for determining whether the provision to guests by a hotelier of travel services (and in particular transport to and from the hotel and excursions) constituted supply which was ancillary to the supply of . .
Cited – Mercantile International Group Plc v Chuan Soon Huat Industrial Group Ltd CA 8-Mar-2002
The court was asked whether the claimants were a commercial agent of the defendants under the 1993 regulations.
Held: It is common for agents acting in the sale of financial products, eg many types of insurance policies, to fix its own . .
Cited – Halifax plc etc v Commissioners of Customs and Excise ECJ 21-Feb-2006
ECJ Sixth VAT Directive – Article 2(1), Article 4(1) and (2), Article 5(1) and Article 6(1) – Economic activity – Supplies of goods – Supplies of services – Abusive practice – Transactions designed solely to . .
Cited – A1 Lofts Ltd v Revenue and Customs ChD 30-Oct-2009
Lewison J said: ‘The court is often called upon to decide whether a written contract falls within a particular legal description. In so doing the court will identify the rights and obligations of the parties as a matter of construction of the . .
Cited – Commissioners for Her Majesty’s Revenue and Customs v RBS Deutschland Holdings ECJ 22-Dec-2010
ECJ Sixth VAT Directive – Right to deduction – Purchase of vehicles and use for leasing transactions – Differences between the tax regimes of two Member States – Prohibition of abusive practices
‘taxable . .
Cited – Henfling, Davin, Tanghe ECJ 14-Jul-2011
ECJ Taxation – Sixth VAT Directive – Article 6(4) – Exemption – Article 13(B)(f) – Gambling – Services provided by a commission agent ‘buraliste’ acting in his own name but on behalf of a principal operating a . .
Cited – Revenue and Customs v Aimia Coalition Loyalty UK Ltd SC 13-Mar-2013
The company managed a card loyalty scheme for retailers. The Revenue appealed against a decision that the company could reclaim VAT input tax on the goods purchased on the customers redeeming their points. The ECJ had decided that the service . .
Cited – Revenue And Customs v Newey ECJ 20-Jun-2013
ECJ Reference for a preliminary ruling – Sixth VAT Directive – Article 2(1) and Article 6(1) – Meaning of ‘supply of services’ – Supply of advertising and loan broking services – Exemptions – Economic and . .
At FTTTx – Secret Hotels2 Ltd (Formerly Med Hotels Ltd) v Revenue and Customs FTTTx 15-Mar-2010
FTTTx Value Added Tax – Whether supplies of hotel and other holiday accommodation made by Appellant as agent for accommodation suppliers or as principal.
Value Added Tax – If Appellant is principal whether . .
Cited by:
Cited – Airtours Holidays Transport Ltd v Revenue and Customs SC 11-May-2016
The court was asked whether the appellant, Airtours Holidays Transport Ltd (formerly MyTravel Group plc), was entitled to recover, by way of input tax VAT charged by PricewaterhouseCoopers LLP in respect of services provided by PwC and paid for by . .
Cited – Uber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
Cited – Uber Bv v Aslam and Others (Jurisdictional Points – Worker, Employee or Neither : Working Time Regulations) EAT 10-Nov-2017
Uber drivers are workers
JURISDICTIONAL POINTS – Worker, employee or neither
WORKING TIME REGULATIONS – Worker
‘Worker status’ – section 230(3)(b) Employment Rights Act 1996 (‘ERA’), regulation 36(1) Working Time Regulations 1998 (‘WTR’) and section 54(3) . .
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 . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors were as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Lists of cited by and citing cases may be incomplete.
VAT, European, Contract
Leading Case
Updated: 02 November 2021; Ref: scu.521994
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in which a term might be implied the House preferred to describe the different categories identified as no more than shades on continuous spectrum. A court could not in law to imply a term into a contract simply because it thought it reasonable to do so, however one of the established situations for implication of terms is that it is necessary for business efficacy.
The Court of Appeal had declined to imply into letting agreements for a building in multiple occupation, an obligation on a landlord to repair essential means of access to the building.
Held: The House rejected the suggestion of Lord Denning MR that the courts have power to introduce terms into contracts merely because they think them reasonable. Lord Cross distinguished between the importation of implied terms into a contract applicable to all cases of a defined type and cases where what the court was being in effect asked to do was to rectify a particular contract by inserting in it a term which the parties have not expressed. In the latter kind of case: ‘Here it is not enough for the court to say that the suggested term is a reasonable one the presence of which would make the contract a better or fairer one; it must be able to say that the insertion of the term is necessary to give – as it is put – ‘business efficacy’ to the contract and that if its absence had been pointed out at the time both parties – assuming them to have been reasonable men – would have agreed without hesitation to its insertion.’ The tenant’s appeal succeeded on other grounds.
Lord Cross of Chelsea: ‘When it implies a term in a contract the court is sometimes laying down a general rule that in all contracts of a certain type – sale of goods, master and servant, landlord and tenant and so on – some provision is to be implied unless the parties have expressly excluded it. In deciding whether or not to lay down such a prima facie rule the court will naturally ask itself whether in the general run of such cases the term in question would be one which it would be reasonable to insert. sometimes, however, there is no question of laying down any prima facie rule applicable to all cases of a defined type but what the court is being in effect asked to do is to rectify a particular – often a very detailed – contract by inserting in it a term which the parties have not expressed. Here it is not enough for the court to say that the suggested term is a reasonable one the presence of which would make the contract a better or fairer one; it must be able to say that the insertion of the term is necessary to give – as it is put – ‘business efficacy’ to the contract and that if its absence had been pointed out at the time both parties – assuming them to have been reasonable men – would have agreed without hesitation to its insertion.’
Lord Cross of Chelsea, Lord Wilberforce
[1976] UKHL 1, [1977] AC 239, [1976] 2 All ER 39
Bailii
England and Wales
Citing:
At CA – Liverpool City Council v Irwin CA 1976
The court considered the nature and extent of the obligations of landlords of a building in multiple occupation to repair essential means of access.
Held: Lord Denning MR (dissenting) suggested that the court had power to imply a term if it . .
Cited by:
Cited – Baker v Black Sea and Baltic General Insurance Co Ltd HL 20-May-1998
The question agreed to be before the court was ‘Where an insurer incurs costs in investigating settling or defending claims by his insured, can the insurer recover a proportion of these costs under a quota share or other form of proportional . .
Cited – Hughes and Another v Greenwich London Borough Council HL 26-Oct-1993
A headmaster’s occupation of a house in the school was not ‘for the better performance of his duties’, and so was not a tied house, and so he had the right to buy it. A term could not be implied into his contract to require him to occupy the house. . .
Cited – Robin Ray v Classic FM Plc PatC 18-Mar-1998
Contractor and Client Copyrights
The plaintiff had contributed a design for a system of classifying and selecting tracks to be played on a radio station. He did so under a consultancy contract.
Held: A Joint authorship claim required that the contributor had made some direct . .
Cited – Tai Hing Ltd v Liu Chong Hing Bank PC 1985
(Hong Kong) The relationship between banker and customer is principally a contractual one between debtor and creditor. As between the banker and his customer, the risk of loss through forgery of the customer’s signature falls on the banker unless . .
Cited – Donington Park Leisure Ltd v Wheatcroft and Son Ltd ChD 7-Apr-2006
Leave to apply was pursued under the provisions of a Tomlin order. The parties had disputed the extent to which parts of the order should be exhibited to the court.
Held: The Tomlin order should be amended to add terms necessary to give effect . .
Cited – Legal and General Assurance Society Ltd v Expeditors International (Uk) Ltd CA 24-Jan-2007
Leases contained break clauses which the tenant purported to exercise. The landlord replied that they were ineffective because the tenant had not complied with his repair covenants. The dispute appeared settled after negotiations, and the settlement . .
Cited – J and H Ritchie Ltd v Lloyd Ltd HL 7-Mar-2007
The appellants had bought a seed drill from the respondents. It had been repossessed but sold as near new. A fault was noticed after two days use, and it was returned. The defendants repaired it without agreeing this with the appellant, and then . .
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 – Westminster (Duke of) and others v Guild CA 30-Mar-1983
The landlord brought an action for non-payment of rent. The tenant sought to set off a failure by the landlord to repair the building of which his flat was part and which failure had caused him loss. The landlord said that it had no express duty to . .
Cited – Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
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 – R Griggs Group Ltd, R Griggs and Co Ltd, Airwair Ltd v Evans, Raben Footwear Pty Ltd, Lewy, Lewy CA 25-Jan-2005
The claimants distributed Doc Marten footwear. They asked an agency to prepare a logo. The agency paid an independent contractor to prepare it, but did not take an assignment of copyright to it. The contractor sold the rights in the logo to the . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another CA 14-May-2014
The court considered the operation of a break clause within a lease, and in particular ‘ Can the court imply a term which enables the lessee to get back that part of the advance payment of rent which relates to a period (‘the broken period’) after . .
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 – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Cited – Edwards v Kumarasamy SC 13-Jul-2016
The claimant sub-tenant had been injured entering the block of apartments. He said that the freeholder was responsible despite no report of the disrepair having been made. The lease excused the landlord from unnotified liability. The parties . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
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.
Contract, Landlord and Tenant
Leading Case
Updated: 02 November 2021; Ref: scu.248614
The claimant said that he had won a substantial sum on the online gaming platform operated by the defendants, but that they had refused to pay up. The defendants said that there had been a glitch in the game. The court faced a request for summary judgment for the claimant.
Held: The clauses in question fell foul of the requirements of the statutory obligation of fairness. The obscurity of the language, the context of the contract, and the failure adequately to signpost the exclusion clauses and explain their consequences to the player are inconsistent with the fairness envisaged by the Act as indicated in the light of the previous relevant case law.
Mrs Justice Foster DBE
[2021] EWHC 842 (QB)
Bailii
Consumer Rights Act 2015 62 64 68 69
England and Wales
Citing:
Cited – HRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .
Cited – Easyair Ltd (T/A Openair) v Opal Telecom Ltd ChD 2-Mar-2009
Principles Applicable on Summary Judgment Request
The court considered an application for summary judgment.
Held: Lewison J set out the principles: ‘the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as . .
Cited – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
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 – Spreadex Ltd v Cochrane ComC 18-May-2012
The spread betting bookmaker claimed summary judgment in respect of a consumer, Mr Cochrane, who had made certain initial personal trades with significant profitability. In his absence, without his knowledge and authorisation, his account was . .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – Director General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .
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: . .
Lists of cited by and citing cases may be incomplete.
Contract, Consumer
Updated: 02 November 2021; Ref: scu.661636
In an action of damages for fraudulent misrepresentation and breach of warranty, the plaintiff founded on a conversation between himself and the defendants’ representative. In this conversation the plaintiff said-‘I understand that you are bringing out a rubber company.’ The reply was-‘We are.’ The plaintiff then asked ‘if it was all right,’ and received the answer-‘We are bringing it out,’ to which he replied-‘That is good enough for me.’ He thereupon applied for and received an allotment of 5000 shares in the company at a premium, which subsequently fell in value. A jury having negatived fraudulent misrepresentation, but found that the company could not properly be described as a rubber company, and that the defendants had given a warranty to that effect, held that the intention to constitute a representation of the seller a warranty must be clearly proved, that the evidence put before the jury was insufficient to prove such intention, and should therefore not have been submitted by the judge to the jury as material on which to base a finding. The House considered the genesis of collateral contracts: ‘there may be a contract the consideration for which is the making of some other contract, ‘If you will make such and such a contract I will give you one hundred pounds’, is in every sense of the word a complete legal contract. It is collateral to the main contract.’ and
‘such collateral contracts must from their very nature be rare . . the more natural and usual way of carrying this out would be by so modifying the main contract and not by executing a concurrent and collateral contract. Such collateral contracts . . are therefore viewed with suspicion by the law. They must be proved strictly. Not only the terms of such contract but the existence of an animus contrahendi on the part of all the parties to them must be clearly shown.’ An innocent misrepresentation gives no right to damages.
Speaking as to De Lasalle v. Guildford: ‘With all deference to the authority of the Court that decided that case, the proposition which it thus formulates cannot be supported. It is clear that the Court did not intend to depart from the law laid down by Holt CJ. And cited above, for in the same judgment that dictum is referred to and accepted as a correct statement of the law. It is, therefore, evidence that the use of the phrase ‘decisive test’ cannot be defended. Otherwise it would be the duty of a judge to direct a jury that if a vendor states a fact of which the buyer is ignorant, they must, as a matter of law, find the existence of a warranty, whether or not the totality of the evidence shows that the parties intended the affirmation to form part of the contract; and this would be inconsistent with the law as laid down by Holt CJ. It may well be that the features thus referred to in the judgment of the Court of Appeal in that case may be criteria of value in guiding a jury in coming to a decision whether or not a warranty was intended; but they cannot be said to furnish decisive tests, because it cannot be said as a matter of law that the presence or absence of those features is conclusive of the intention of the parties. The intention of the parties can only be deduced from the totality of the evidence, and no secondary principles of such a kind can be universally true.’ It is of the greatest importance to ‘maintain in its full integrity the principle that a person is not liable in damages for an innocent misrepresentation, no matter in what way or under what form the attack is made.’
Investors in a new company claimed to have done so only on the basis of an alleged representation in the company’s name and by an intermediary that it was a rubber company. They sought damages when the company failed, saying that the representatin was a warranty.
Held: The appeal succeeded. The plaintiff had not shown that he had relied on any such representation, but rather on the general reputation of the appellants. Lord Moulton set out how to decide whether a clause was a warranty ‘The intention of the parties can only be deduced from the totality of the evidence’. The question whether a warranty was intended depends on the conduct of the parties, on their words and behaviour, rather than on their thoughts. If an intelligent bystander would reasonably infer that a warranty was intended, that will suffice. And this, when the facts are not in dispute, is a question of law.
Viscount Haldane LC, Lord Moulton
[1911-13] All ER 83, [1913] 82 LJKB 245, [1913] 107 LT 769, [1912] UKHL 2, [1913] AC 30, (1912) 107 LT 769, [1912] UKHL 642
Bailii, Bailii
England and Wales
Citing:
Cited – De Lasalle v Guildford CA 1901
When looking at a statement to see if a warranty was given: ‘In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a . .
Cited – Brownlie v Campbell; Brownlie v Miller HL 1880
Silence where there is a duty to speak, may amount to a misrepresentation. Lord Blackburn said: ‘where there is a duty or an obligation to speak, and a man in breach of that duty or obligation holds his tongue and does not speak, and does not say . .
Cited – Chandelor v Lopus 1603
The plaintiff sued for an alleged misrepresentation as to the character of a precious stone sold to him.
Held: The plaintiff must either declare on a contract, or if he declared in tort for a misrepresentation must aver a scienter. . .
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 – Medina v Stoughton 1699
. .
Cited – Peek v Derry CA 1887
The court considered an action for damages for deceit: ‘As I understand the law, it is not necessary that the mis-statement should be the motive, in the sense of the only motive, the only inducement of a party who has acted to his prejudice so to . .
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 . .
Criticised – De Lassalle v Guildford CA 1901
The court was asked whether a representation amounts to a warranty or not.
Held: AL Smith MR said: ‘In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or . .
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 – 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 – Esso Petroleum Limited v Commissioners of Customs and Excise HL 10-Dec-1975
The company set up a scheme to promote their petrol sales. They distributed coins showing the heads of members of the English football team for the 1970 World Cup. One coin was given with each for gallons of petrol. The Commissioners said that the . .
Cited – Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
Cited – Oscar Chess Ltd v Williams CA 11-Nov-1956
Where somebody warrants something, the person giving the warranty binds himself or herself to it. Lord Denning suggested that the test of an interpretation was what an intelligent bystander would reasonably infer contracting parties had agreed upon. . .
Cited – Evans and Son (Portsmouth) Ltd v Andrea Merzario Ltd CA 1976
The defendants had carried previously goods aboard ship for the plaintiffs. This time, they were asked for and gave an oral re-assurance to the plaintiffs that the goods would be carried below deck. This did not happen and the goods were swept . .
Cited – Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd CA 3-Mar-1965
When a person gives a promise or an assurance to another, intending that he should act on it by entering into a contract, and he does act on it by entering into the contract, it is binding.
Lord Denning MR said of a collateral warranty: . .
Lists of cited by and citing cases may be incomplete.
Contract, Torts – Other
Leading Case
Updated: 02 November 2021; Ref: scu.265974
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 assigned their causes of action to the ICS, could not later themselves sue to rescind their mortgages.
In construing a deed, in this case one of assignment, an ambiguity need not be established before the surrounding circumstances may be taken into account by the court.
Lord Hoffmann said: ‘Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.’ and
‘The meaning which a document . . would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax.’
However: ‘if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had’.
Lord Hoffmann declared that: ‘Almost all the old intellectual baggage of ‘legal’ interpretation has been discarded.’
Lord Goff of Chieveley, Lord Lloyd of Berwick, Lord Hoffmann, Lord Hope of Craighead, Lord Clyde
Times 24-Jun-1997, [1997] UKHL 28, [1998] 1 All ER 98, [1998] 1 WLR 896, [1998] AC 896
House of Lords, Bailii
Misrepresentation Act 1967, Financial Services Act 1986 54, Financial Services (Compensation of Investors) Rules 1990 2
England and Wales
Citing:
Appeal from – Investors Compensation Scheme Ltd v West Bromwich Building Society and Others CA 1-Nov-1996
Public policy rendered an assignment of a remedy void, where the assignment was an attempt to split it from another remedy. For the purpose of construing a contract the law excludes from the admissible factual background the previous negotiations of . .
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 – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
Cited – Porter v National Union of Journalists HL 1980
The House was asked to construe the rules of the defendant organisation. Lord Diplock said: ‘I turn to the interpretation of the relevant rules, bearing in mind that their purpose is to inform the members of the NUJ of what rights they acquire and . .
Cited – Charter Reinsurance Co Ltd v Fagan and Others HL 24-May-1996
The re-insurers appealed against a finding that they were liable to make payment under a contract which required them to pay ‘sums actually paid.’ They said that the company having become insolvent, no payment would in fact be made.
Held: The . .
Cited – Wilson v United Counties Bank Ltd HL 1920
Bank’s duty to client’s reputation and credit
Major Wilson had left England on active service soon after the beginning of the Great War, leaving his business affairs, in a fairly precarious state, with his bank. The jury found that the bank had failed in its duty to supervise his business . .
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 – Regina v Investors Compensation Scheme Ltd, ex Parte Bowden and Another HL 18-Jul-1995
A regulated firm, Fisher Prew-Smith, ran a scheme whereby elderly homeowners were persuaded to invest money in equity-linked funds by mortgaging their homes on terms that the interest would roll up unless and until the total mortgage debt reached a . .
Cited – Barclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
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 . .
At First Instance – Investors Compensation Scheme Ltd v West Bromwich Building Society; Etc ChD 10-Oct-1996
Part of a chose in action is not capable of being validly separately assigned in order to stop a court action. . .
Cited by:
Cited – Hallam Land Management Ltd v UK Coal Mining Ltd and another CA 30-May-2002
An option was granted for the sale of land subject to planning consent being granted. Eventually it was sought to exercise the option in respect of part only of the land.
Held: Though words in the contract made reference to all or part of the . .
Cited – Norwich and Peterborough Building Society, Regina (on the Application of) v Financial Ombudsman Service Ltd Admn 14-Nov-2002
The Ombudsman had found that the applicant had unfairly failed to notify its customers of the availability of better accounts, once it discontinued accounts of one type. The Society appealed saying that the finding of unfairness arose from matters . .
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 – National Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
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 – Westminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
Cited – McGeown v District Travel Insurance CA 12-Nov-2003
The claimant had holiday insurance protecting him against ‘any permanent disability which prevents you from doing all your usual activities’ She was injured in a road traffic accident, losing an eye.
Held: Before a court could judge wording . .
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 – Malekout v Allied Dunbar Assurance Plc CA 3-Feb-2004
The claimant appealed refusal of his claim under a Personal Retirement Policy. The issue was as to his right to a waiver of contributions benefit from inception or at all. He had been a dentist, but suffered an injury which became progressively more . .
Cited – Stent Foundations Ltd v M J Gleeson Group Plc TCC 9-Aug-2000
The defendant company sought to rely upon an exemption clause.
Held: Applying standard rules for contract interpretation, the exemption clause was to be construed against the one proposing it. At best the clause was ambiguous, and the . .
Cited – Denton v Denton and Other FD 1-Mar-2004
The solicitor had written in his client care letter that ‘we have agreed that a claim for costs will not be made until money is received at the end of the case’. The client resisted a request to pay counsel’s fees.
Held: Solicitors should take . .
Cited – Safdar v Shahid SCS 30-Apr-2004
The pursuer claimed repayments of loans made for the purchase of company shares. The defender denied any loan had been made, and claimed that any loans would require evidence in writing under the Act.
Held: The arguments should be allowed to . .
Applied – Partridge and others v Lawrence and others CA 8-Jul-2003
The appellants challenged a finding as to the width of a right of way over their land as exercised by the respondents.
Held: The appeal was allowed in part. Peter Gibson LJ said: ‘The claimants now have the security that this court is . .
Cited – Kay, Gorman, etc v London Borough of Lambeth, London and Quadrant Housing Trust CA 20-Jul-2004
The defendant local authority had licenced houses to a housing trust, which in turn granted sub-licences to the claimants who were applicants for housing under homelessness provisions, and who now asserted that they became secure tenants of the . .
Cited – Taylor v Rive Droite Music Ltd ChD 6-Jul-2004
The claimant music producer and songwriter had entered into a publishers agreement with the defendant, agreeing to work for it. He now sought to be free to work for another company. The factual background was unclear, and the contract documentation . .
Cited – Brennan v Bolt Burdon and Others, London Borough of Islington, Leigh Day and Co CA 29-Jul-2004
The claimant sought damages for injury alleged to have been suffered as tenant of a house after being subjected to carbon monoxide poisoning, and also from her former solicitors for their delay in her claim. The effective question was whether the . .
Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Cited – Sirius International Insurance Company (Publ) v FAI General Insurance Limited and others HL 2-Dec-2004
The appellant had taken certain insurance risks on behalf of the respondents, subject to banking indemnities. Disputes arose and were settled under a Tomlin order, which was now itself subject to challenge.
Held: The appeal was allowed. The . .
Cited – Precis (521) Plc v William M Mercer Ltd CA 15-Feb-2005
Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
Cited – Manchester City Football Club Plc v Royle CA 8-Mar-2005
The club had dismissed its manager, paying the compensation it thought due. The claimant disagreed and sued for more. The compensation varied according to the division in which the club was playing at the time of the dismissal. At the end of the . .
Cited – Leeds Rugby Ltd v Harris and Bradford Bulls Holdings Limited QBD 20-Jul-2005
The claimant sought damages from the defendants saying that the second defendant had induced a breach of contract by the first when he left to play rugby for the second defendant.
Held: The contract could not be said to be void as an agreement . .
Cited – Lex Services plc v Her Majestys Commissioners of Customs and Excise HL 4-Dec-2003
When taking a car in part exchange, the company would initially offer the correct market value. If the customer wanted, the company would agree a higher price. When cars were returned, the company at first reclaimed the VAT on the re-purchase price, . .
Cited – Barclays Bank Plc v Weeks Legg and Dean (a Firm); Barclays Bank Plc v Lougher and Others; Barclays Bank Plc v Hopkin John and Co CA 21-May-1998
The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because . .
Cited – Adam v Shrewsbury, Shrewsbury CA 28-Jul-2005
The neighbour parties disputed the existence of a right of way over one plot. The grant was for the use of a garage yet to be constructed, on ground to be excavated by the grantor, accessible only from a roadway which was only partly constructed, at . .
Cited – John Roberts Architects Ltd v Parkcare Homes (No. 2) Ltd TCC 25-Jul-2005
The defendant had taken a dispute to adjudication, but then abandoned those proceedings, upon which the adjudicator awarded costs against the defendant which the claimant now sought to enforce. The defendant argued that the award was outside the . .
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 – Sawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
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 – Allan Janes Llp v Johal ChD 23-Feb-2006
The claimant sought to enforce a restrictive covenant against the defendant a former assistant solicitor as to non-competition within a certain distance of the practice for a period of three years. After leaving she had sought to set up partnership . .
Cited – St Mary and St Michael Parish Advisory Company Ltd v The Westminster Roman Catholic Diocese Trustee, Her Majesty’s Attorney Genera and others ChD 6-Apr-2006
Parish members objected to the building within the church grounds of an education centre. They said that the land was to be used for the purposes of the members of the parish only under a trust deed of 1851.
Held: The deed had to be construed . .
Cited – BOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA 29-Apr-1999
The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
Held: The appeal . .
Cited – Forrest and others v Glasser and Another CA 31-Jul-2006
The claimants appealed a preliminary decision against them as to whether they had correctly served a sufficient notice of their intention to make a claim in a commercial investment syndicate agreement.
Held: The claimants’ solicitor had . .
Cited – 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 – Nearfield Ltd v Lincoln Nominees Ltd and Lincoln Trust Company Ltd ChD 9-Oct-2006
The claimant sought to enforce a joint venture agreement under which a loan had been made. They said the defendant had accepted an obligation to secure repayment or indemnify them. The defendant said it had adopted only an administrative role.
Cited – Becerra v Close Brothers ComC 25-Jun-1999
ComC Claim for fee for introducing successful bidder at a controlled auction – no express contract – no implied contract based on City practice – claim for quantum meruit failed because no express or implied . .
Cited – Phillips v Rafiq and Motor Insurers Bureau (MIB) CA 13-Feb-2007
The MIB appealed from a judgment making it liable for an award of damages to the estate of the deceased who had been a passenger in a vehicle which he knew to be being driven without insurance. The estate had not sued the MIB directly, but first . .
Cited – Scottish Power Plc v Britoil (Exploration) Limited CA 18-Nov-1997
Five contracts existed regarding sale of natural gas from a field in the North Sea. The parties disputed whether the terms prevented the sale of gas to others.
Held: ‘On the language of the contract, the Sellers are not entitled to sell gas to . .
Cited – National Bank of Sharjah v Dellborg and Others CA 9-Jul-1997
The parties disputed the meaning of a Tomlin order to which they had agreed.
Held: Saville LJ said ‘if the circumstances surrounding the making of the agreement showed to a reasonable man that to read paragraph 8 as covering only the amounts . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Another ChD 2-Mar-2007
The claimants had entered into an agreement with the defendant house-builder for the development of a site which the claimants had recently acquired. The structure of the agreement was that the developer would obtain planning permission and, under . .
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 – The Prudential Assurance Company Ltd v Ayres and Grew ChD 3-Apr-2007
The defendants argued that they were not liable as guarantors under an Authorised Guarantee Agreement for a lease when the assignee tenant had become insolvent.
Held: The guarantors were liable provided that the extent of the claim did not . .
Cited – AB and others v British Coal Corporation (Department of Trade and Industry) QBD 27-Jun-2007
The parties disputed the effect of the Claims Handling Agreement (CHA) which regulated claims for compensation for respiratory diseases incurred by people working for the defendant as regards the circumstances for claimants with chronic bronchitis. . .
Cited – Wolman v London Borough of Islington and Another CA 31-Jul-2007
The defendant had been given parking tickets for having parked his motor cycle so as to contravene the regulations which made it an offence to park a motor vehicle with one or more wheels on the pavement. He said that the cycle’s wheel did not rest . .
Cited – E Alton and Company Limited v Orchard (Development) Holdings Limited CA 27-Jan-1998
The court asked whether an option to purchase a development site had been determined by failure of a condition, described as a condition precedent; and so was no longer exercisable by the defendant, as grantee.
Held: The agreement required the . .
Cited – Tesco Stores Ltd. v Constable and others Comc 14-Sep-2007
The defendants provided insurance for the claimant to construct a train tunnel over which the claimant would build a supermarket. The tunnel collapsed, and the railway operator claimed for loss of revenues. The insurers denied responsibility saying . .
Cited – RDF Media Group Plc and Another v Clements QBD 5-Dec-2007
The defendant had sold his business to the claimants and in part consideration had accepted restrictive covenants as to his not competing with them. On indicating his desire to leave the claimants and work for a competitor, made statements which the . .
Cited – Megaro v Di Popolo Hotels Ltd CA 13-Mar-2007
Two properties had been in common ownership, but then divided. A fire escape on one property was to be available to the other. The servient tenement removed the fire escape. The owner of the dominent tenement (a hotel) sought relief.
Held: The . .
Cited – Bedfordshire Police Authority v Constable and others ComC 20-Jun-2008
The authority insured its primary liability for compensation under the 1886 Act through the claimants and the excess of liability through re-insurers. The parties sought clarification from the court of the respective liabilities of the insurance . .
Cited – Opua Ferries Ltd and Another v Fullers Bay of Islands Ltd PC 5-Mar-2003
PC (New Zealand) The Board was asked whether whether the effect of the registration of the repondent as licencees to provide ferry services permitted them to operate the ferry service with two vessels or with one . .
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 – City Connect Management Ltd v Telia International Carrier UK and Another TCC 30-Jul-2004
The parties sought the expenses incurred in negotiating a development contract which failed before the documents were signed. . .
Cited – Murungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
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 – Best Beat Ltd v Mourant and Co Trustees Ltd and Another ChD 18-Dec-2008
The sale contract provided for completion to be delayed to allow the sellers to deal with a dispute. They now sought specific performance. The defendant said that the contract had been discharged.
Held: The claimant sought to rely on a . .
Cited – Data Direct Technologies Ltd v Marks and Spencer Plc ChD 26-Jan-2009
The claimant sought payment for annual maintenance fees for the use of its software by the defendant. The defendants had said that they did not wish to renew the contract, but the notice was not in the form set out in the contract.
Held: If . .
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 – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Cited – 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 – Attorney General of Belize and others v Belize Telecom Ltd and Another PC 18-Mar-2009
(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was . .
Cited – Sigma Finance Corporation, Re; (in administrative receivership) SC 29-Oct-2009
The court considered how the losses of the insolvent company were to be distributed as between secured creditors and preferential creditors, given the terms of the applicable trust deed.
Held: The court considered the interpretations of the . .
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 – Hammonds (A Firm) v Danilunas and others ChD 13-Feb-2009
The claimant firm of solicitors sought repayment of sums which it said were excess drawing from the defendants, former partners. Drawings had been taken against anticipated profits, and the retiring partners left as profits declined. The defendants . .
Cited – Westvilla Properties Ltd v Dow Properties Ltd ChD 15-Jan-2010
The owner sought specific performance of its contract to sell land to the defendant. The land was subject to a proposed lease which the defendant had concluded was uncertain and unattractive, and claimed to have rescinded the contract.
Held: . .
Cited – Novitskaya v London Borough of Brent and Another CA 1-Dec-2009
The claimant appealed refusal of her claim for arrears of housing benefit.
Held: The appeal was allowed. The claim had been defective in having been made informally, but ‘the distribution of benefits is different from many other areas of civil . .
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 – 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 – Khatri v Cooperatieve Centrale Raiffeisen-Boerenleenbank Ba CA 23-Apr-2010
The claimant appealed against refusal of summary judgment on his claim for payment of a discretionary employment bonus by the defendant.
Held: The appeal succeeded and summary judgment was given. The contract properly construed did give rise . .
Cited – Southern Cross Healthcare Co Ltd v Perkins and Others EAT 21-Apr-2010
EAT CONTRACTS OF EMPLOYMENT
Written Particulars
The employment tribunal can reformulate the juridical basis of a complaint so long as the facts upon which the complaint is based remain the same and . .
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 – Glentree Estates Ltd and Others v Favermead Ltd ChD 20-May-2010
The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original . .
Cited – Wickens v Cheval Property Developments Ltd ChD 8-Sep-2010
The buyer of land sought a reduction in the purchase price complaining of the removal of several items (worth possibly andpound;300,000) by intruders after exchange. The seller said that the fixtures had been excluded under the contract.
Held: . .
Cited – Pennock and Another v Hodgson CA 27-Jul-2010
In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .
Cited – Rio Football Services Hungary Kft v Sevilla Futbal Club Sad QBD 6-Oct-2010
The defendant sought leave to appeal against summary judgment on several elements of a claim under a football player financing agreement, arguing that the claims were made under a penalty provision, and otherwise. It was also said that the . .
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 – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
Cited – Royal Society for The Prevention of Cruelty To Animals v Sharp and Others CA 21-Dec-2010
The Society appealed against an order construing a will. The will had made a gift of the maximum allowed before payment of inheritance tax, and then a gift of a house. The Society argued that the house gift should be deducted before calculation of . .
Cited – Farstad Supply As v Enviroco Ltd SC 6-Apr-2011
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless . .
Cited – IG Index Plc v Leung-Cheun and Others QBD 17-Aug-2011
The claimants sought payment from the defendants under spread bets placed by them. The defendants counterclaimed saying that they had suffered greater losses after the claimants had failed as required to close out open bets.
Held: The claim . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – Coulson v Newsgroup Newspapers Ltd QBD 21-Dec-2011
coulson_NIQBD2011
The claimant had been employed by the defendant as editor of a newspaper. On leaving they entered into an agreement which the claimant said required the defendant to pay his legal costs in any action arising regarding his editorship. The defendant . .
Cited – Quirkco Investments Ltd v Aspray Transport Ltd ChD 23-Nov-2011
The defendant tenant said that it had exercised a break clause in the lease held of the claimant. The claimant said the break notice was ineffective because the defendant was in breach of the lease, not having paid an iinsurance service charge, and . .
Cited – Unique Pub Properties Ltd v Broard Green Tavern Ltd and Another ChD 26-Jul-2012
The claimant freeholder sought to install in the tenant’s pub, equipment to monitor sales. It claimed a right for this in the lease. The tenant refused access, saying that the proposed system was inaccurate. The claimant now sought summary relief. . .
Cited – AJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .
Cited – Pink Floyd Music Ltd and Another v EMI Records Ltd CA 14-Dec-2010
The defendant appealed against an order made on the claimant’s assertion that there were due to it substantial underpayments of royalties over many years. The issues were as to the construction of licensing agreements particularly in the context of . .
Cited – Century 2000 Enterprises Ltd and Another v SFI Group Plc CA 11-Dec-2001
The claimants appealed against rejection of their claim that an agreement entitled them to take a 35 years lease of the defendants. The contract had depended on complex conditions as to planning consents.
Held: The appeal failed: ‘Ultimately, . .
Cited – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
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 – English Bridge Union Ltd, Regina (on The Application of) v The English Sports Council and Others Admn 15-Oct-2015
The claimant Union claimed that the defendant should recognise the game of bridge as a sport. The defendant had adopted a definition from Europe which required physical activity, and the Union said that this was a misconstruction of its Royal . .
Cited – Radford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .
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 – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
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 . .
Cited – Rees and Another v Windsor-Clive and Others CA 1-Jul-2020
Reservation Derogation construed normally
Construction of tenancy agreement – correct approach to reservations made in favour of the landlord. The landlord required access to the tenanted farm to allow survey work anticipating development of his adjoining land. The tenant now appealed . .
Lists of cited by and citing cases may be incomplete.
Financial Services, Torts – Other, Contract
Leading Case
Updated: 02 November 2021; Ref: scu.158902
The plaintiff had bought shares in a company promoted by the defendant. The prospectus was fraudulent having failed to mention certain contracts which made the shares valueless.
Held: The shares being worthless, the plaintiff was entitled to have his price repaid.
Cockburn CJ said: ‘If a man buys a horse, as a racehorse, on the false representation that it has won some great race, while in reality it is a horse of very inferior speed, and he pays ten or twenty times as much as the horse is worth, and after the buyer has got the animal home it dies of some latent disease inherent in its system at the time he bought it, he may claim the entire price he gave; the horse was by reason of the latent mischief worthless when he bought; but if it catches some disease and dies, the buyer cannot claim the entire value of the horse, which he is no longer in a condition to restore, but only the difference between the price he gave and the real value at the time he bought.’
Cockburn CJ
(1877) 2 CPD 469, [1877] UKLawRpCP 43
Commonlii
Companies Act 1867 38
England and Wales
Cited by:
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – McConnel v Wright CA 24-Jan-1903
In an action by a shareholder in a limited company against a director for damages for misrepresentation in the prospectus, the time at which the damage is ordered to be assessed, is the date of the allotment to the plaintiff; accordingly, where the . .
Lists of cited by and citing cases may be incomplete.
Damages, Contract
Leading Case
Updated: 02 November 2021; Ref: scu.191171
The defendant’s car was damaged in a collision. It was taken to the plaintiff’s garage for repair. The defendant’s insurers contracted with the defendant to pay for the repairs for a specified amount. The plaintiff carried out repair work, and the defendant collected the car. The defendant did not agree that the repairs were satisfactory, and so the insurers refused to pay.
Held: The defendant’s appeal succeeded. The repair works were undertaken pursuant to two contracts: first, a contract with the insurer, under which the insurer agreed to pay for all the work covered by the insurance; second, a contract with the defendant, under which the plaintiff was obliged to carry out the works efficiently and expeditiously and the defendant was obliged to pay such part of the cost as was not covered by insurance, including the policy excess. When the insurer became insolvent, the defendant was not liable for the balance of the price.
Cairns LJ said: ‘In order to imply a promise by the owner to pay for these repairs, it is necessary to say not merely that it would be a businesslike arrangement to make but that any other arrangement would be so unbusinesslike that sensible people could not be supposed to have entered into it. It appears to me that it is very doubtful whether it could be said that it would be a businesslike arrangement to make, and I certainly am not prepared to say that it was so obvious a term that it ought to be implied in order to give business efficacy to the transaction. This being so, in my opinion it is not established that the owner ever contracted to pay for these repairs beyond the amount of the excess . .’
Buckley LJ agreed, saying: ‘Now, the inference of such an implied contract [i.e. that the defendant would be liable to pay the full amount] can, in my judgment, only be drawn if it is a matter of necessary inference, that is to say, if it is an inference which the business realities of the situation really make necessary to make sense of the dealings between the parties so that they can be implemented in a sensible manner. In my judgment, there is no sufficient material to be found either in the documentation in this case or in the oral evidence of the witnesses to support such an inference. On the contrary, it seems to me . . that all the indications, such as they are, are to the contrary. None of them individually is such as to make the matter clear beyond a peradventure, but taking them together, in my judgment, they clearly indicate that the arrangement between the parties was that the repairers would look to the insurance company for payment for the repairs, except to the extent of the excess . . That view of the agreement or agreements between the three parties is . . consistent with the documentary history of the matter, and particularly with the way in which the work was invoiced by the repairers. Of course, things which occur after the date at which the contract must have been entered into cannot alter the nature of the contract, but they may very well form valuable evidence showing what the parties conceived the contract to be.’
Cairns LJ, Buckley LJ
[1972] 1 WLR 997
England and Wales
Cited by:
Cited – AJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 02 November 2021; Ref: scu.471873
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘pounds 100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions.’ The plaintiff bought one and used it, but suffered influenza. Hawkins J had held that she was entitled to recover the pounds 100. The defendants appealed.
Held: The appeal failed. A contract had been made. The offer was a unilateral contract capable of acceptance by anyone satisfying the conditions. Notification of performance was not required to show acceptance. That the company intended this as a serious offer was reflected by their placing pounds 1000 on deposit for the purpose.
Lindley LJ said: ‘We must first consider whether this was intended to be a promise at all, or whether it was a mere puff which meant nothing. Was it a mere puff? My answer to that question is ‘No,’ and I base my answer upon this passage: ‘andpound;1000 is deposited with the Alliance Bank, shewing our sincerity in the matter.’ Now, for what was that money deposited or that statement made except to negative the suggestion that this was a mere puff and meant nothing at all? The deposit is called in aid by the advertiser as a proof of his sincerity in the matter-that is, the sincerity of his promise to pay this andpound;100 in the event which he has specified. I say this for the purpose of giving point to the observation that we are not inferring a promise; there is the promise, as plain as words can make it. There was ample consideration for the promise.’
Lindley LJ, Bowen LJ, Smith LJ
[1893] 1 QB 256, [1892] 4 All ER Rep 127, [1892] 62 LJ QB 257, [1892] 67 LT 837, [1892] 57 JP 325, [1892] 41 WR 210, [1892] 9 TLR 124, [1892] 4 R 176, [1892] EWCA Civ 1
lip, Hamlyn, Justis, Bailii
England and Wales
Citing:
Cited – Gerhard v Bates 1853
The promoter of companies had promised the bearers of share warrants that they should have dividends for so many years, and the promise as alleged was held not to shew any consideration.
Held: Any promise had been made to the original bearer . .
Cited – Spencer v Harding 1870
Willes J considered what promise had been made where parties had bid in response to an advertisement, and the bidder sought to enforce the contract: ‘In the advertisement cases, there never was any doubt that the advertisement amounted to a promise . .
Cited – Laythoarp v Bryant 30-Apr-1936
laythoarp_bryant1836
The Defendant purchased certain leasehold premises at an auction, and signed a memorandum of the purchase on the back of a paper containing the particulars of the premises, the name of the owner, and the conditions of sale: Held, that the Defendant . .
Cited – Harris’s Case 1584
. .
Cited – Victors v Davies 1854
. .
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:
Considered – Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd QBD 16-Jul-1952
The Society was responsible for ensuring that sales of controlled pharmaceuticals only took place under the supervision of a pharmacist. The defendants had adopted supermarket style arrangements where the purchaser selected the goods and took them . .
Considered – 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 . .
Referred to – Re Consort Deep Level Gold Mines ex parte Stark 1897
. .
Cited – Stolley v Maskelyne 1898
. .
Cited – Johnston v Boyes 1899
There is no custom that a purchaser at an auction can expect to have his personal cheque for a ten per cent deposit accepted. This applies even to those with a good credit standing as much as (here) for an apparent pauper.
Cozens Hardy J said . .
Cited – Chaplin v Hicks CA 1911
A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have . .
Cited – Reynolds v Atherton 1921
. .
Cited – Kennedy v Thomassen 1929
No binding contract comes into existence where the acceptance was never communicated or was communicated only to the acceptor’s own agent. . .
Cited – Rayfield v Hands 1958
. .
Cited – Rapalli v K L Take Ltd 1958
. .
Cited – Robophone Facilities Ltd v Bank CA 1966
Parties to a contract should be free to stipulate not only primary obligations and rights but also the secondary rights and obligations, ie those which arise upon non-performance of any primary obligation by one of the parties to the contract, but . .
Cited – United Dominions Trust (Commercial) Ltd v Eagle Aircraft Services Ltd Ltd; United Dominions Trust (Commercial) Ltd v Eagle Aviation Ltd CA 1968
An aircraft manufacturer was obliged under contract to buy back an aircraft from a hire purchase company on three conditions. (1) when the hire purchase company foreclosed on the purchasers, (2) where the manufacturer had been given notice of the . .
Cited – Confetti Records (A Firm), Fundamental Records, Andrew Alcee v Warner Music UK Ltd (Trading As East West Records) ChD 23-May-2003
An agreement was made for the assignment of the copyright in a music track, but it remained ‘subject to contract’. The assignor later sought to resile from the assignment.
Held: It is standard practice in the music licensing business for a . .
Cited – Bowerman and Another v Association of British Travel Agents Ltd CA 21-Nov-1995
The claimant was to take part in a school skiing trip. The first operator was a member of the defendant association, and ceased trading through insolvency.
Held: The ABTA notice displayed in the travel agent’s offices created a contract . .
Cited – Esso Petroleum Limited v Commissioners of Customs and Excise HL 10-Dec-1975
The company set up a scheme to promote their petrol sales. They distributed coins showing the heads of members of the English football team for the 1970 World Cup. One coin was given with each for gallons of petrol. The Commissioners said that the . .
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Cited – Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
Cited – Dresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 02 November 2021; Ref: scu.183107
The parties disputed the construction of a contract for land intended for a business park development. It provided for an uplift to be later payable in certain circumstances, and the uplift was now claimed. The question was as to whether the uplift was to be based on the gross sale proceeds.
Held: The appeal failed. Lord Hope said: ‘The context shows that the intention of the parties must be taken to have been that the base figure for the calculation of the uplift was to be the open market value of the subjects at the date of the event that triggered the obligation. In other words, it can be assumed that this is what the parties would have said if they had been asked about it at the time when the missives were entered into. The fact that this makes good commercial sense is simply a makeweight. The words of the contract itself tell us that this must be taken to have been what they had in mind when they entered into it. ‘
Lord Hope, Deputy President, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke
UKSC 2010/0229, [2011] UKSC 56
Bailii Summary, SC Summary, SC, Bailii
Scotland
Citing:
See Also – Aberdeen City Council v Stewart Milne Group Ltd SCS 3-Jun-2009
. .
Appeal from – Aberdeen City Council v Stewart Milne Group Ltd SCS 14-Oct-2010
. .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited by:
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 . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 02 November 2021; Ref: scu.449770
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form of an express and immediate dismissal automatically terminate the contract?’
Held: Mr Gey’s appeal succeeded (Lord Sumption dissenting). A wrongful repudiation terminates the contract only if and when accepted by the innocent party. This, the elective theory, was preferred to the automatic theory which gave the repudiator control to choose a date which suited him to the detriment of the innocent party.
Baroness Hale JSC summarised the circumstances in which a term might be implied into a contract: ‘it is important to distinguish between two different kinds of implied terms. First, there are those terms which are implied into a particular contract because, on its proper construction, the parties must have intended to include them . . Such terms are only implied where it is necessary to give business efficacy to the particular contract in question. Second, there are those terms which are implied into a class of contractual relationship, such as between landlord and tenant or between employer and employee, where the parties may have left a good deal unsaid, but the courts have implied the term as a necessary incident of the relationship concerned, unless the parties have expressly excluded it . .’
Lord Hope, Deputy President, Lady Hale, Lord Wilson, Lord Sumption, Lord Carnwath
[2012] UKSC 63, [2012] WLR(D) 394, [2013] 2 WLR 50, UKSC 2011/0110, [2013] 1 All ER 1061, [2013] ICR 117, [2013] IRLR 122, [2013] 1 AC 523
Bailii, Bailii Summary, SC Summary, SC, WLRD
England and Wales
Citing:
At ChD – Geys v Societe Generale, London Branch ChD 25-Mar-2010
The claimant said that he was entitled to payment of substantial sums on the determination of his employment contract.
Held: The court gave judgment for Mr Geys in a sum to be assessed, with a payment on account by 1 April 2010 of Euros 11m . .
Dissent Approved – Gunton v Richmond-upon-Thames London Borough Council CA 1980
The plaintiff college registrar had been the subject of disciplinary proceedings, but the defendant had not followed the contractual procedure. The judge had ordered an inquiry as to damages on the basis that the Plaintiff was entitled to remain in . .
Cited – Boyo v London Borough of Lambeth CA 8-Mar-1994
An employee dismissed by his employer’s act of repudiation of the contract, is entitled to receive money in lieu of notice as well as compensation for a reasonable period for carrying out the appropriate disciplinary procedure.
Ralph Gibson LJ . .
At CA – Societe Generale, London Branch v Geys CA 30-Mar-2011
The defendant appealed against an award of substantial damages on its summary dismissal of the respondent said to be contractually due to him on termination.
Held: The appeal was allowed in part. The appellant was dismissed on 18 December . .
Cited – Mackay v Dick and Stevenson HL 1881
One party contracted to supply to the other ‘a steam navvy of novel construction’ on condition that it achieved a stipulated rate of excavation in stipulated circumstances. The purchaser did not make available the ‘opened up face’ that was necessary . .
Cited – W and S Pollock and Co v Macrae HL 17-Jul-1922
Lord Dunedin said that to be effective, an exemption clause must be ‘most clearly and unambiguously expressed.’ . .
Cited – Alderslade v Hendon Laundry Ltd CA 1945
Exclusion allowed where only one possible cause of
Articles were sent by the plaintiff to the defendants’ laundry to be washed, and they were lost. In an action by the plaintiff against the defendants for damages, the defendants relied on the following condition to limit their liability: ‘The . .
Cited – Canada Steamship Lines Ltd v The King PC 21-Jan-1952
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .
Cited – White and Carter (Councils) Ltd v McGregor HL 6-Dec-1961
Contractor not bound to accept Renunciation
Mr McGregor contracted with the appellants for them to display advertisements for three years on litter bins. The contract was made on his behalf by an employee, without specific authority. On the day it was made, he sought to cancel the contract. . .
Limited – Sanders and Others v Ernest A Neale Limited NIRC 5-Jul-1974
The applicants appealed dismissal of their claims for redundancy payments.
Held: The Court considered the time of acceptance by an employee of an employer’s repudiatory actions. Sir John Donaldson P set out the principle which he regarded as . .
Cited – Thomas Marshall (Exports) Ltd v Guinle ChD 1979
The managing director defendant had resigned before the end of the contractual term. There was an express covenant in his contract against using or disclosing the company’s confidential information during or after his employment. It was submitted . .
Cited – London Transport Executive v Clarke CA 1981
The employee had taken unauthorised leave to go to Jamaica. After sending two letters to his home address asking for an explanation and giving an ultimatum, the employers wrote on 26 March saying that his name had been permanently removed from their . .
Cited – Cuckson v Stones 1-Nov-1859
. .
Cited – Denmark Productions Ltd v Boscobel Productions Ltd CA 1969
Where the award of damages at law may be inadequate, the court may order an account to be taken to determine precisely what is owing by one party to the other.
Salmon LJ doubted whether an unaccepted repudiation could bring an end to a contract . .
Cited – Decro-Wall International SA v Practitioners in Marketing Limited CA 1971
Once the court has concluded that a ‘reasonable notice’ requirement was to be implied into a contract, the question of what notice period was reasonable must be judged as at the time the notice was given.
Buckley LJ also set out the test for . .
Cited – Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd HL 26-Nov-1981
Even though a shipowner who had carried cargo on deck was not entitled to rely on the exceptions to liability in his contract, a limitation clause was different and should not be construed by reference to the specially exacting standards applicable . .
Cited – Pagnan SpA v Tradax Ocean Transportation SA 1986
When asked to interpret a contract with apparently conflicting provisions, the duty of the court is ‘to reconcile seemingly inconsistent provisions if that result can conscientiously and fairly be achieved’. . .
Cited – Miles v Wakefield Metropolitan District Council HL 1987
The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited by:
Cited – West London Mental Health NHS Trust v Chhabra SC 18-Dec-2013
The trust sought to begin disciplinary proceedings against the claimant, a consultant forensic psychologist alleging gross misconduct. She was said to have left confidential patient records on a train.
Held: Gross misconduct should be conduct . .
Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Cited – Newcastle Upon Tyne Hospitals NHS Foundation Trust v Haywood SC 25-Apr-2018
Notice of dismissal begins when received by worker
The court was asked: ‘If an employee is dismissed on written notice posted to his home address, when does the notice period begin to run? Is it when the letter would have been delivered in the ordinary course of post? Or when it was in fact . .
Cited – James-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .
Lists of cited by and citing cases may be incomplete.
Employment, Contract
Updated: 02 November 2021; Ref: scu.467185
The parties had contracted for the sale of land. The purchaser secured the rescinding of the contract for innocent misrepresentation. A notice of a relevant planning application had not been passed on by the seller’s solicitors. The seller appealed saying that the judge had been wrong to find that condition 7.1.3 of the Standard Conditions of sale failed under the 1977 Act.
Held: The appeal failed. ‘There is nothing self-evidently offensive, in terms of reasonableness and fairness, in a contractual term which restricts a purchaser’s right to rescind the contract in the event of the vendor’s misrepresentation to cases of fraud or recklessness or where the property differs substantially in quantity, quality or tenure from what the purchaser had been led to expect, and to confine the purchaser to damages in all other cases. That is a perfectly rational and commercially justifiable apportionment of risk in the interests of certainty and the avoidance of litigation.’
Longmore LJ said: ‘This case is a good example of the width of the interference with freedom of contract generated by section 11 of the Unfair Contract Terms Act 1977. My initial reaction was that a term restricting rescission (in non-fraudulent cases) to instances where the property differed substantially in quantity, quality or tenure from what it had been represented to be was, in general, a reasonable clause. The Law Society (with, of course, no axe to grind on behalf of either vendors or purchasers) had promulgated the clause, taking into account judicial criticism of its predecessors.
But the question is not whether the clause is, in general, a reasonable clause. The question is whether it was a reasonable clause in the contract made between this vendor and this purchaser at the time when the contract was made. On the particular facts of this case both parties were aware of and wished (if possible) to exploit the development potential of the property. The planning position (and any change to it between the answer to enquiries and completion) was of obvious materiality. Yet the mere existence of an application for planning permission can hardly be said to make the property different in quantity, quality or tenure from what it had been represented to be.’
Laws, Longmore, Etherton LJJ
[2011] EWCA Civ 929
Bailii
Misrepresentation Act 1967 3, Unfair Contract Terms Act 1977 11(1)
England and Wales
Citing:
Cited – Flight v Booth 24-Nov-1834
The auction particulars stated that the land was subject to covenants restricting use of the property for certain offensive purposes. After successfully bidding it was shown to be subject to other substantial restrictions against non-ofensive trades . .
Distinguished – Morgan and Another v Pooley and Another QBD 7-Oct-2010
morgan_pooleyQBD10
The claimants had bought a property from the defendants and now sought damages in misrepresentation saying that the defendants had failed to disclose a planning application for an adjacent farm as regards a track bordering the property.
Held: . .
Cited – George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd HL 1983
A seedsman sought to rely upon an exclusion clause preventing any claim by a purchaser by way of set off against its sales invoices. The House was asked whether a contractual term was ‘fair and reasonable’ within the meaning of section 55 of the . .
Cited – Overseas Medical Supplies Limited v Orient Transport Services Limited CA 20-May-1999
The appellant challenged a finding that it was responsible for the loss of medical equipment being transported from Tehran to the UK, and of failing to insure it as required, the contractual term exempting it from responsibility being an . .
Cited – Goff v Gauthier 1991
. .
Cited – Walker v Boyle 1982
A property was sold subject to the National Conditions of Sale (19th edition). Condition 17(1) of the conditions provided that ‘no error, the statement or omission in any preliminary answer concerning the property . . shall annul the sale’. There . .
Lists of cited by and citing cases may be incomplete.
Land, Contract
Updated: 02 November 2021; Ref: scu.443231
The presumption is that a contract document expresses all the terms in the contract with the effect that the court will only look to the document ‘in determining what the contract really was and what it really meant. Lord Blackburn preferred the dissenting opinion of Lord Gifford.
Lord Blackburn observed that: ‘Where parties agree to embody, and do actually embody, their contract in a formal written deed, then in determining what the contract really was and really meant, a court must look to the formal deed and to that deed alone. That is only carrying out the will of the parties’
Lord Blackburn
(1878) 3 AC 552
England and Wales
Citing:
Appeal from – A and J Inglis v Buttery and Co CA 1877
Surrounding circumstances are not admissible for any purpose of finding out which words the parties intended to use rather than did use in their contract. Lord Justice Clerk Moncreiff said that in all mercantile contracts ‘whether they be clear and . .
Cited by:
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: . .
Lists of cited by and citing cases may be incomplete.
Contract, Evidence
Leading Case
Updated: 02 November 2021; Ref: scu.374672
Mr Duval owed three separate sums to a firm Turnbull and Co including andpound;1,000 owed to the Jamaican branch for beer. Turnbulls’ manager and agent in Jamaica was a Mr Campbell. Mr Campbell was also an executor and trustee of a will under which Mrs Duval had a beneficial interest. Mr Campbell threatened to stop supplying beer to Mr Duval unless security was given for the debts owed and, with Mr Campbell’s knowledge, a document was prepared under which Mrs Duval charged her beneficial interest under the will to secure the payment of all debts owed by Mr Duval to Turnbull i.e. not only the money owed for beer but all the debts. Mr Duval put pressure on Mrs Duval to sign the document. She was under the impression that the document was to secure the beer debt only.
Held: A transaction may be set aside for misrepresentation or undue influence whether it was procured by the misrepresentation or undue influence of the party seeking to uphold the transaction or that of a third party.
Lord Lindley: ‘In the face of such evidence, their Lordships are of opinion that it is quite impossible to uphold the security given by Mrs. Duval. It is open to the double objection of having been obtained by a trustee from his cestui que trust by pressure through her husband and without independent advice, and of having been obtained by a husband from his wife by pressure and concealment of material facts. Whether the security could be upheld if the only ground for impeaching it was that Mrs. Duval had no independent advice has not really to be determined. Their Lordships are not prepared to say it could not. But there is an additional and even stronger ground for impeaching it. It is, in their Lordships’ opinion, quite clear that Mrs. Duval was pressed by her husband to sign, and did sign, the document, which was very different from what she supposed it to be, and a document of the true nature of which she had no conception. It is impossible to hold that Campbell or Turnbull and Co. are unaffected by such pressure and ignorance. They left everything to Duval, and must abide the consequences.’
Lord Lindley
[1902] AC 429
England and Wales
Cited by:
Cited – Barclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
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 . .
Lists of cited by and citing cases may be incomplete.
Contract, Undue Influence
Leading Case
Updated: 02 November 2021; Ref: scu.180580
The appellant owner had granted licences to the respondent to use the theatre for productions. After the initial six month’s period, the respondent was to have an option for further licences. The contract made no mention of a termination of that licence.
Held: The licence was not perpetual. On the giving of notice appropriate to the circumstances, the respondents would have a reasonable time to withdraw. The notice should allow them to ‘reap where they have sown’. The respondents had not in this case showed that they had been given insufficient ‘packing up’ time.
In the absence of any express term, a revocable licence can be revoked by whatever notice is reasonable in the circumstances.
Lord McDermott, Viscount Simon LC, Lord Porter
[1947] 2 All ER 381, [1948] AC 173, [1947] LJR 1422, (1947) 91 Sol Jo 504
England and Wales
Cited by:
Cited – In Re Spenborough Urban District Council’s agreement; Spenborough Corporation v Cooke Sons and Company Ltd ChD 1968
A contract regulating the flow of industrial effluents into a public sewer contained no power of termination notwithstanding that the agreement it replaced did.
Held: There is no presumption in law that a joint venture is not terminable.
Cited – Verrall v Great Yarmouth Borough Council CA 1980
In an appropriate case, a court will protect a contractual licence to occupy land by injunction or specific performance, where damages would not be an adequate remedy. A decree could issue where there was a wrongful repudiation of the licence, even . .
Cited – White v Blackmore CA 15-Jun-1972
The plaintiff attended a jalopy car race and was injured. It was a condition of his entry that he agreed that motor racing was dangerous and that he would not hold the organisers or others responsible if injured. He was injured when a safety rope, . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 02 November 2021; Ref: scu.450971
There was a contract by a father to allow his son to buy the father’s house on payment of the instalments of the father’s Building Society loan.
Held: Denning LJ reviewed the cases and said: ‘The result of all these cases is that, although a person who is let into exclusive possession is prima facie to be considered a tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice. Parties cannot turn a tenancy into a licence merely by calling it one. But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege, with no interest in the land, he will be held to be a licensee only.’ Lord Denning referred to a number of ‘exceptional circumstances which negatived the prima facie intention to create a tenancy, notwithstanding that the occupier enjoyed exclusive occupation.’ One of those exceptional circumstances was where the owner had no power to grant a tenancy.
Lord Denning considered the creation of the obligation: ‘The father’s promise was a unilateral contract – a promise of the house in return for their act of paying the instalments. It could not be revoked by him once the couple entered on performance of the act, but it would cease to bind him if they left it incomplete and unperformed, which they have not done. If that was the position during the father’s lifetime, so it must be after his death.’
Denning, Somervell, Hodson LJJ
[1952] 1 KB 290, [1951] EWCA Civ 2, [1952] 1 TLR 231, [1952] 1 All ER 149
Bailii
England and Wales
Cited by:
Cited – Street v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .
Cited – Gray and others v Taylor CA 2-Apr-1998
A right of occupation given by an almshouse under a charitable trust was an occupation under a licence without right of possession, not an assured tenancy. The plaintiff’s conditions of occupancy stated: ‘Residents are licensees and pay a . .
Cited – Crancour Ltd v Da Silvaesa and Another CA 26-Feb-1986
The plaintiff sought possession of two rooms in a house occupied by the defendants separately. The agreements stated that they were licences. The agreements excluded the occupiers between 10:30am and noon on each day. The occupiers claimed to be . .
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Cited – Binions v Evans CA 27-Jan-1972
The plaintiffs had bought a cottage subjecty to a tenancy to the defendant. They sought possession saying that she held under a tenancy at will. It was a renancy for her life but described as a tenancy at will. The judge had held that the other . .
Cited – Watts v Stewart and Others CA 8-Dec-2016
The court considered the status of residents of almshouses, and in particular whether they were licensees or tenants with associated security.
Held: The occupier’s appeal failed: ‘We do not accept the proposition that, if and insofar as Mrs . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant, Contract
Leading Case
Updated: 02 November 2021; Ref: scu.247615
There was a sufficiently close connection between an employee’s theft of silver from a customer’s container and the purpose of his employment to make it fair and just that his employer be held vicariously liable for his actions. Moore-Bick LJ said: ‘Whatever may have been the position in the past, the decisions in Lister v Hesley Hall, Dubai Aluminium v Salaam and the cases which have followed them have established that the test involves evaluating the closeness of the connection between the tort and the purposes for which the tortfeasor was employed. While all the circumstances have to be taken into account, the authorities support the view that when making that evaluation it is appropriate to consider whether the wrongful act can fairly be regarded as a risk reasonably incidental to the purpose for which the tortfeasor was employed.’
Longmore, Moore-Bick, Wilson LJJ
[2010] EWCA Civ 1207, [2011] IRLR 343
Bailii
England and Wales
Cited by:
Cited – Coulson v Newsgroup Newspapers Ltd QBD 21-Dec-2011
coulson_NIQBD2011
The claimant had been employed by the defendant as editor of a newspaper. On leaving they entered into an agreement which the claimant said required the defendant to pay his legal costs in any action arising regarding his editorship. The defendant . .
Cited – Weddall v Barchester Healthcare Ltd CA 24-Jan-2012
Parties appealed against judgments dismissing their claims of vicarious liability as against their employers after assaults by co-employees.
Held: Appeals were dismissed and allowed according to their facts.
In one case, one employee . .
Cited – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
Lists of cited by and citing cases may be incomplete.
Contract, Vicarious Liability
Updated: 02 November 2021; Ref: scu.425583
The Society was responsible for ensuring that sales of controlled pharmaceuticals only took place under the supervision of a pharmacist. The defendants had adopted supermarket style arrangements where the purchaser selected the goods and took them to a till. The Society said that a sale took place when the goods were selected, and at a time when the transaction was unsupervised. ‘The question is whether the offer is an offer of the purchaser, or an offer of the buyer.’
Held: There was in principle no difference between the supermarket type arrangement and an ordinary shop. ‘The mere exposure of goods for sale by a shopkeeper indicates to the public that he is willing to treat but does not amount to an offer to sell. I do not think I ought to hold that that principle is completerly reversed merely because there is a self-service scheme, such as this, in operation. In my opinion it comes to no more than that the customer is informed that he may himself pick up an article and bring it to the shopkeeper with a view to buying it, and if, but only if, the shopkeeper then expresses his willingness to sell, the contract for sale is completed. In fact, the offer is an offer to buy, and there is no offer to sell. . . ‘ There is no sale until acceptance of the price at the till. The shopkeeper has to be free to refuse to sell, and the buyer free to pick something up without having immediately bought it. ‘The offer, the acceptance of the price, and therefore the sale, take place under the supervision of the pharmacist.’
Lord Goddard CJ
[1952] 2 All ER 456, [1952] 2 QB 795, [1953] EWCA Civ 6
Bailii
Pharmacy and Poisons Act 1933 18(1)(a)(iii)
England and Wales
Citing:
Considered – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Unilateral Contract Liability
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘pounds 100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .
Cited by:
Appeal from – Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd CA 5-Feb-1953
The defendant was charged with selling controlled pharmaceutical products other than under the supervision of a pharmacist. The shop operated on a self-service basis. The Society appealed.
Held: The acquittal was confirmed. Somervell LJ said: . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 02 November 2021; Ref: scu.183108
There is no rule of law which prevents parties to a contract agreeing to limit their respective liabilities. It is a question of the construction of the particular clause as to whether it applies to a fundamental breach or not. The court doubted the value of continuing the doctrine of fundamental breach or breach of a fundamental term. Exemption clauses may be held inapplicable to certain breaches of contract as a matter of construction of the contract. The court will be reluctant to ascribe to an exemption condition a meaning which effectively absolves one party from all duties and liabilities. It is not necessary for parties to a contract, when stipulating a condition, to spell out the consequences of breach.
Lord Wilberforce recognised that ‘a deliberate breach may give rise to a right for the innocent party to refuse further performance because it indicates the other party’s attitude towards further performance.’ However, if a repudiation is not accepted and the innocent part elects to treat the contract as continuing, then it remains in existence for the benefit of the wrongdoer as well as of the innocent party.
Lord Upjohn said: ‘A fundamental term of a contract is a stipulation which the parties have agreed either expressly or by necessary implication or which the general law regards as a condition which goes to the root of the contract so that any breach of that term may at once and without further reference to the facts and circumstances be regarded as a fundamental breach . .’
. . And ‘there is no magic in the words ‘fundamental breach’; this expression is no more than a convenient shorthand expression for saying that a particular breach or breaches of contract by one party is or are such as to go to the root of the contract which entitles the other party to treat such breach or breaches as a repudiation of the whole contract. Whether such breach or breaches do constitute a fundamental breach depends on the construction of the contract and on all the facts and circumstances of the case.’
Lord Reid considered problems arising from exemption clauses: ‘Exemption clauses differ greatly in many respects. Probably the most objectionable are found in the complex standard conditions which are now so common. In the ordinary way the customer has no time to read them, and if he did read them he would probably not understand them. And if he did understand and object to any of them, he would generally be told he could take it or leave it. And if he then went to another supplier the result would be the same. Freedom to contract must surely imply some choice or room for bargaining. At the other extreme is the case where parties are bargaining on terms of equality and a stringent exemption clause is accepted for a quid pro quo or other good reason. . . This is a complex problem which intimately affects millions of people and it appears to me that its solution should be left to Parliament. If your Lordships reject this new rule [that an exemption clause necessarily does not avail against breach of a fundamental term, which their Lordships did reject] there will certainly be a need for urgent legislative action but that is not beyond reasonable expectation.’
Lord Upjohn, Lord Wilberforce
[1967] 1 AC 361, [1966] 2 All ER 61
England and Wales
Cited by:
Cited – Daewoo Heavy Industries Ltd and Another v Klipriver Shipping Ltd and Another CA 3-Apr-2003
The carrier had loaded the cargo on the ship’s deck, despite a clause requiring it to be stowed in a hold. The charterparty sought to use the breach to remove the carrier’s limit of liability. The older form of Hague rules applied.
Held: It . .
Cited – Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd; The New York Star PC 1980
A question arose, in the context of dispute between a consignee of goods and stevedores, whether the latter could rely on a time bar. It was argued that because of the fundamental nature of the breach, the stevedore had deprived itself of the . .
Cited – Super Chem Products Limited v American Life and General Insurance Company Limited and Others PC 12-Jan-2004
PC (Trinidad and Tobago) A fire occurred at premises in which the stock was insured under two policies. Both insurers denied the claims alleging arson, and that it was out of time. The claimant said that the . .
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 – 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 – 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 – Future Publishing Ltd v The Edge Interactive Media Inc and Others ChD 13-Jun-2011
The claimant said that the defendant had infriged its rights by the use of its logo on their publications. . .
Cited – Avintair v Ryder Airline Services Ltd SCS 30-Dec-1993
The pursuers asserted a contract between themselves and the defenders for a consultancy, and that reasonable remuneration was due under it. The Lord Ordinary had found that no contract had been completed, the parties being, at all points, in dispute . .
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 . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 02 November 2021; Ref: scu.181082
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent liquidation before the works were paid for. The claimant now sought payment direct from the insured. The defendants denied any contract with the claimant, despite mandates signed by them.
Held: The claims failed. It was both a perfectly possible reading of the mandate and far more consonant with the commercial common sense of the situation to interpret it to mean that, although the insurer will be responsible for paying the cost of the insured losses, the householder will remain liable for all other costs, namely the policy excess and any works not covered by the insurance.
The court considered the possible application of the contra preferentem rule: ‘The fact that the contra proferentem rule is a matter of common law whereas regulation 7 (2) is a creature of statute is no reason to differentiate between their applications; the 1999 Regulations give wholesale effect to a European Directive and it is unnecessary to suppose that they were intended to affect the common law relating to contractual interpretation. The occasions on which the principle of construction and the common-law rule apply are the same: their operation is limited to cases of genuine interpretative doubt or ambiguity’
The contracts were to be determined on the standard rules for construction. If the terms were unambiguous then the 1999 Regulation had no application, and ‘ it is impermissible to prejudge the construction of the mandates by presupposing an analysis that ignores them. The mandates were in fact signed. A common reason for having written express contracts is to impose and assume liabilities that would not otherwise be implied.’
Keyser QC J
[2013] EWHC 484 (QB)
Bailii
Unfair Terms in Consumer Contracts Regulations 1999 7
England and Wales
Citing:
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 – 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 – St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) CA 1973
When looking at a contract ‘one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances.’
The contra preferetem rule can only come into play . .
Cited – Mira Oil Resources of Tortola v Bocimar NV ChD 1999
Colman J discussed the application of the contra preferentem rule: ‘Further, this is not a case where the meaning of the words is so finely balanced that the contra proferentum rule should be applied in favour of the owners. If in the view of the . .
Cited – Association of British Travel Agents Ltd v British Airways Plc CA 2000
Sedley LJ described the common-law rule of contra preferentem, that any doubt as to the meaning of contractual words will be resolved by construing them against the party that put them forward, as ‘a principle not only of law but of justice’ and . .
Approved – The Financial Services Authority v Asset L I Inc and Others ChD 8-Feb-2013
The court was asked whether so-called ‘land-banking’ schemes were ‘collective investments schemes’ within section 235.
Held: Andrew Smith J discussed the difference in effect between the contra preferentem rule, and regulation 7 of the 1999 . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – Pink Floyd Music Ltd and Another v EMI Records Ltd CA 14-Dec-2010
The defendant appealed against an order made on the claimant’s assertion that there were due to it substantial underpayments of royalties over many years. The issues were as to the construction of licensing agreements particularly in the context of . .
Cited – Direct Travel Insurance v McGeown CA 12-Nov-2003
The contra proferentem interpretation rule is to be invoked only in cases of genuine doubt or ambiguity. Auld LJ said: ‘A court should be wary of starting its analysis by finding an ambiguity by reference to the words in question looked at on their . .
Cited – Du Plessis v Fontgary Leisure Parks Ltd CA 2-Apr-2012
The claimant, who owned a holiday mobile home on the respondent’s site challenged the raising of site fees, saying that the contract was unfair. Previously all site fees were equal within the site, but the respondent had introduced a scheme which . .
Cited – Brown and Davis Ltd v Galbraith CA 1972
The defendant’s car was damaged in a collision. It was taken to the plaintiff’s garage for repair. The defendant’s insurers contracted with the defendant to pay for the repairs for a specified amount. The plaintiff carried out repair work, and the . .
Cited – Curtis v Chemical Cleaning and Dyeing Co CA 1951
The defendant sought to rely on an exemption clause in its garment cleaning contract. The defendant’ shop assistant had said that it extended only to damage to beads and sequins, whereas by its terms it covered all liability for damage to articles . .
Cited – Amalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd CA 1982
The court explained the nature of an estoppel by convention.
Lord Denning MR said: ‘The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone . .
Cited – Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd CA 6-Apr-2006
Moore-Bick LJ discussed whether the court should give effect to a non-reliance clause in a contract saying: ‘It is common to include in certain kinds of contracts an express acknowledgement by each of the parties that they have not been induced to . .
Lists of cited by and citing cases may be incomplete.
Contract, Insurance, Consumer
Leading Case
Updated: 02 November 2021; Ref: scu.471743
Lord Bridge said that poor drafting in a contract itself provides: ‘no reason to depart from the fundamental rule of construction of contractual documents that the intention of the parties must be ascertained from the language that they have used interpreted in the light of the relevant factual situation in which the contract was made. But the poorer the quality of the drafting, the less willing the court should be to be driven by semantic niceties to attribute to the parties an improbable and unbusinesslike intention, if the language used, whatever it may lack in precision, is reasonably capable of an interpretation which attributes to the parties an intention to make provision for contingencies inherent in the work contracted for on a sensible and businesslike basis.’
Lord Bridge of Harwich
(1986) 33 BLR 14
England and Wales
Cited by:
Cited – Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd CA 3-Jul-2001
A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to . .
Cited – Sinochem International Oil (London) Co Ltd v Mobil Sales and Supply Corporaton and Another CA 17-Feb-2000
. .
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 – Multi-Link Leisure Developments Ltd v Lanarkshire Council SC 17-Nov-2010
The parties disputed the effect of an option clause in a lease, and particularly whether, when fixing the price, potential for development was to be included. The clause required the ‘full market value’ to be paid. The tenant appealed.
Held: . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – MT Hojgaard As v EON Climate and Renewables UK Robin Rigg East Ltd and Another SC 3-Aug-2017
The defendants had requested tenders for the design and construction of an offshore wind farm. The court now considered the situation arising because of inconsistencies between documents in the tender request. The successful tender was based upon an . .
Lists of cited by and citing cases may be incomplete.
Construction, Commonwealth, Contract
Leading Case
Updated: 02 November 2021; Ref: scu.273182
Madam Poussard was under contract with Spiers to sing in an opera at the Criterian Theatre. She fell sick and was unable to attend rehearsals. Her non-performance, being caused by sickness, was not a breach of contract on her part.
Held: The absence did excuse the Theatre Company from continuing to employ her.
Blackburn J
[1876] 1 QBD 410
England and Wales
Cited by:
Cited – Torquay Hotel v Cousins CA 17-Dec-1968
The plaintiff contracted to buy oil for his hotel from Esso. Members of the defendant trades union blocked the deliveries of oil by Esso to the Hotel because of a trade dispute they had with the management of the hotel. The hotel sued for an . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 02 November 2021; Ref: scu.272906
The parties disputed the effect of devaluation on a contract of sale and, in particular, on a letter of credit which was given for the price.
Held: Lord Denning MR said that: ‘The principle of waiver is simply this: If one party, by his conduct, leads another to believe that the strict right arising under the contract will not be insisted upon, intending that the other should act on that belief, and he does so act on it, then the first party will not afterwards be allowed to insist on the strict legal rights when it would be inequitable for him to do so.’
Lord Denning MR, Megan, Stephenon LJJ
[1972] 2 QB 189, [1972] EWCA Civ 12, [1972] 2 All ER 127, [1972] 1 Lloyd’s Rep 313, [1972] 2 WLR 800
Bailii
England and Wales
Cited by:
Cited – Mount v Barker Austin (a Firm) CA 18-Feb-1998
The plaintiff sought damages for professional negligence from his former solicitors in respect of their conduct of a claim on his behalf. He succeeded, but was awarded no damages because the judge had found that his action would be bound to fail. He . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 02 November 2021; Ref: scu.190235
A ticket, having on its face only the words ‘Dublin and Whitehaven’, was given to a passenger who, without looking at it, paid for it and went on board. Having lost all his luggage he brought an action against the company. The company pleaded that, on the back of the ticket, there was an intimation that they were not to be liable for losses of any kind, or from any cause.
Held: They were liable.
Lord Cairns Chancellor said that ‘It would be extremely dangerous to hold that where a document is complete on the face of it, but having on the back of it something which has not been brought to the knowledge of a contracting party, he shall be held to have assented to that which he has not seen and which he knows nothing.’
Lord Chelmsford said that a mere notice from the steam packet company without the passenger’s assent will not discharge them from performing the very essence of their duty, which is to carry safely and securely, unless prevented by unavoidable accidents.
Lord Hatherley said that a ticket is in reality nothing more than a receipt for the money which has been paid.
Lord O’Hagan said that when a company desire to impose special and stringent terms of on their customers, there is nothing unreasonable in requiring that those terms shall be distinctly declared and deliberately accepted
Lord Cairns Chancellor, Lord Chelmsford, Lord Hatherley, Lord O’Hagan
(1875) LR 2 Sc Ap 470, LR 2 HL Sc 470
Scotland
Cited by:
Cited – White v Blackmore CA 15-Jun-1972
The plaintiff attended a jalopy car race and was injured. It was a condition of his entry that he agreed that motor racing was dangerous and that he would not hold the organisers or others responsible if injured. He was injured when a safety rope, . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 02 November 2021; Ref: scu.650943
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their intention. Evidence of negotiations is not admissible. Assumptions which were made in offers and counter-offer may not be acceptable by the other party.
Lord Wilberforce said: ‘The time has long passed when agreements, even those under seal, were isolated from the matrix of facts in which they were set and interpreted purely on internal linguistic considerations. We must inquire beyond the language and see what the circumstances were with reference to which the words were used, and the object appearing from those circumstances, which the person using them had in view.’
and ‘It may be said that previous documents may be looked at to explain the aims of the parties. In a limited sense this is true: the commercial, or business object, of the transaction, objectively ascertained, may be a surrounding fact. Cardozo J. thought so in the Utica Bank case. And if it can be shown that one interpretation completely frustrates that object, to the extent of rendering the contract futile, that may be a strong argument for an alternative interpretation, if that can reasonably be found. But beyond that it may be difficult to go: it may be a matter of degree, or of judgment, how far one interpretation, or another, gives effect to a common intention: the parties, indeed, may be pursuing that intention with differing emphasis, and hoping to achieve it to an extent which may differ, and in different ways. The words used may, and often do, represent a formula which means different things to each side, yet may be accepted because that is the only way to get ‘agreement’ and in the hope that disputes will not arise. The only course then can be to try to ascertain the ‘natural’ meaning. Far more, and indeed totally, dangerous is it to admit evidence of one party’s objective – even if this is known to the other party. However strongly pursued this may be, the other party may only be willing to give it partial recognition, and in a world of give and take, men often have to be satisfied with less than they want.’
Lord Wilberforce continued: ‘There were prolonged negotiations between solicitors, with exchanges of draft clauses, ultimately emerging in clause 2 of the agreement. The reason for not admitting evidence of these exchanges is not a technical one or even mainly one of convenience, (though the attempt to admit it did greatly prolong the case and add to its expense). It is simply that such evidence is unhelpful. By the nature of things, where negotiations are difficult, the parties’ positions, within each passing letter, are changing and until the final agreement, though converging, still divergent. It is only the final document which records a consensus. If the previous documents use different expressions, how does construction of those expressions, itself a doubtful process, help on the construction of the contractual words? If the same expressions are used, nothing is gained by looking back; indeed, something may be lost since the relevant surrounding circumstances may be different. And at this stage there is no consensus of the parties to appeal to. It may be said that previous documents may be looked at to explain the aims of the parties. In a limited sense this is true: the commercial, or business object, of the transaction, objectively ascertained, may be a surrounding fact. Cardozo J. thought so in the Utica Bank case. And if it can be shown that one interpretation completely frustrates that object, to the extent of rendering the contract futile, that may be a strong argument for an alternative interpretation, if that can reasonably be found.’
and ‘But beyond that it may be difficult to go: it may be a matter of degree, or of judgment, how far one interpretation, or another, gives effect to a common intention: the parties, indeed, may be pursuing that intention with differing emphasis, and hoping to achieve it to an extent which may differ, and in different ways. The words used may, and often do, represent a formula which means different things to each side, yet may be accepted because that is the only way to get ‘agreement’ and in the hope that disputes will not arise. The only course then can be to try to ascertain the ‘natural’ meaning. Far more, and indeed totally, dangerous is it to admit evidence of one party’s objective — even if this is known to the other party. However strongly pursued this may be, the other party may only be willing to give it partial recognition, and in a world of give and take, men often have to be satisfied with less than they want. So, again, it would be a matter of speculation how far the common intention was that the particular objective should be realised . . . In my opinion, then, evidence of negotiations, or of the parties’ intentions, and a fortiori of Dr. Simmonds’ intentions, ought not to be received, and evidence should be restricted to evidence of the factual background known to the parties at or before the date of the contract, including evidence of the ‘genesis’ and objectively the ‘aim’ of the transaction.
As to the circumstances, and the object of the parties, there is no controversy in the present case. The agreement itself, on its face, almost supplies enough, without the necessity to supplement it by outside evidence. But *1386 some expansion, from undisputed facts, makes for clearer understanding and I include a reference to these in what follows’.
Lord Wilberforce
[1971] 1 WLR 1381, [1971] 3 All ER 237
England and Wales
Cited by:
Cited – Alan Wibberley Building Ltd v Insley CA 12-Nov-1997
Where adjoining fields are separated by a hedge and a ditch, who owns the ditch?
Held: The old presumption as to the location of a boundary based on the layout of hedges and ditches is irrelevant where the conveyance was by reference to an OS . .
Cited – Alan Wibberley Building Ltd v Insley CA 12-Nov-1997
Where adjoining fields are separated by a hedge and a ditch, who owns the ditch?
Held: The old presumption as to the location of a boundary based on the layout of hedges and ditches is irrelevant where the conveyance was by reference to an OS . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – P and S Platt Ltd v Crouch and Another CA 25-Jul-2003
The claimant sought a declaration that certain easements had been included by implication in a conveyance of part of land to him.
Held: Since the easements were capable of subsisting at law, and existed as quasi-easements at the time, and did . .
Cited – Westminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
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 – Youell and Others v Bland Welch and Co Ltd and Others CA 1992
The court considered whether an underwiter’s slip was admissible when construing the policy which followed.
Held: Staughton LJ said: ‘It is now, in my view, somewhat old-fashioned to approach such a problem armed with the parol evidence rule, . .
Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Cited – Catnic Components Ltd and Another v Hill and Smith Ltd HL 1982
The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The patent was for a novel type of galvanised steel lintel, which . .
Cited – Nearfield Ltd v Lincoln Nominees Ltd and Lincoln Trust Company Ltd ChD 9-Oct-2006
The claimant sought to enforce a joint venture agreement under which a loan had been made. They said the defendant had accepted an obligation to secure repayment or indemnify them. The defendant said it had adopted only an administrative role.
Cited – National Bank of Sharjah v Dellborg and Others CA 9-Jul-1997
The parties disputed the meaning of a Tomlin order to which they had agreed.
Held: Saville LJ said ‘if the circumstances surrounding the making of the agreement showed to a reasonable man that to read paragraph 8 as covering only the amounts . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Another ChD 2-Mar-2007
The claimants had entered into an agreement with the defendant house-builder for the development of a site which the claimants had recently acquired. The structure of the agreement was that the developer would obtain planning permission and, under . .
Applied – Partenreedesei Karen Oltmann v Scarsdale Shipping Co Ltd (The Karen Oltmann) 1976
The parties disputed the application of the word ‘after’ in a break-clause in a charter party which provided that ‘Charterers to have the option to redeliver the vessel after 12 months’ trading subject giving 3 months’ notice’. By their negotiations . .
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 – City Connect Management Ltd v Telia International Carrier UK and Another TCC 30-Jul-2004
The parties sought the expenses incurred in negotiating a development contract which failed before the documents were signed. . .
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: . .
Applied – Rolls Royce Motor Cars Ltd v Price and others EAT 2-Feb-1993
The company appealed against findings of unfair dismissal of the claimants, saying that they had been made redundant. The claimants said that the company had broken the agreed procedure, and that the dismissals were automatically unfair.
Held: . .
Cited – Inveresk Plc v Tullis Russell Papermakers Ltd SC 5-May-2010
The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that . .
Cited – Multi-Link Leisure Developments Ltd v Lanarkshire Council SC 17-Nov-2010
The parties disputed the effect of an option clause in a lease, and particularly whether, when fixing the price, potential for development was to be included. The clause required the ‘full market value’ to be paid. The tenant appealed.
Held: . .
Cited – Crema v Cenkos Securities Plc CA 16-Dec-2010
C sought payment of broker fees after assisting in raising funds for a venture capital company. The parties disputed the terms as to when payment was to be made.
Held: The appeal was allowed. The evidence did not allow the inference of the . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – 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 CA 22-Jul-2013
The court examined provisions in leases creating service charges. The disputed provision increased the service charge by 10% every year.
Held: Davis LJ discussed the thinking behind the clause: ‘Lack of correspondence between outlay and . .
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 – Jones and Another v Forest Fencing Limited CA 21-Nov-2001
The sellers of and disputed an order as to whether electrical equipment at the site hd been included in the contract.
Held: ‘the answer to the question ‘what meaning should be given to the words used in the memorandum’ cannot, I think, be a . .
Cited – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
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
Leading Case
Updated: 02 November 2021; Ref: scu.183681
The court was asked whether it was possible to assign as a chose in action a cause of action in tort for damages for personal injury, and if so under what circumstances it was possible.
Held: The appeal was dismissed. The claimant did not have an interest in the injured party’s claim of a kind that the law should or does recognise as sufficient to support an assignment of what would otherwise be a bare right of action. She was therefore guilty of ‘wanton and officious intermeddling with the disputes of others’ and ‘The assignment in this case plainly savours of champerty, given that it involves the outright purchase by Mrs. Simpson of a claim which, if it is successful, would lead to her recovering damages in respect of an injury that she has not suffered.’
Maurice Kay VP LJ, Janet Smith D, Moore-Bick LJ
[2011] EWCA Civ 1149, (2012) 124 BMLR 1, [2012] 1 Costs LO 9, [2012] 1 All ER 1423, [2012] PIQR P2, [2012] 2 WLR 873, [2012] QB 640
Bailii
England and Wales
Citing:
Cited – Trendtex Trading Corporation v Credit Suisse HL 1981
A party had purported to sue having taken an assignment of a dishonoured letter of credit, in the context of the abolition of maintenance and champerty as crimes and torts in the 1967 Act.
Held: The assignment was struck down as champertous, . .
Cited – Torkington v Magee 11-Jul-1902
Chose in Action defined
The effect of the 1873 Act was essentially procedural and it did not render choses in action that had not previously been assignable in equity capable of assignment.
Channell J defined a debt or other legal chose in action: ”Chose in Action’ . .
Cited – Ord v Upton CA 7-Jan-2000
A bankrupt labourer (aged 30) after the bankruptcy order issued a writ against a doctor who had treated him for back pain before the bankruptcy order, claiming damages for negligence, including damages for pain and suffering as well as damages for . .
Cited – Tolhurst v Associated Portland Cement Manufacturers Ltd 1902
. .
Cited – Sibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
Cited – British Cash and Parcel Conveyors Ltd v Lamson Store Service Co Ltd 1908
The court explained the law underlying the civil and criminal penalties for the maintenance of an action by third parties: ‘It is directed against wanton and officious intermeddling with the disputes of others in which the [maintainer] has no . .
Cited – Ellis v Torrington CA 1920
An assignment of the benefit of a covenant in a lease held to be sufficiently connected with enjoyment of the property as not to be a bare right of action. The assignment was not void.
Scrutton LJ stated that the assignee of a cause of action . .
Cited – Peters v General Accident Fire and Life Assurance Corporation Ltd 1938
Held: A policy of motor insurance was personal to the original policyholder and incapable of being assigned to a purchaser of the vehicle in respect of which it had been issued, since the identity of the insured was material to the risk undertaken . .
Cited – Compania Colombiana de Seguros v Pacific Steam Navigation Co 1964
The court considered the situation arising where an insurer took an sssignment of the right of action from the insured.
Held: Once there has been an effective assignment of a chose in action, the assignor has no continuing interest in the . .
Cited – Giles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
Cited – Regina (Factortame Ltd and Others) v Secretary of State for Transport, Local Government and the Regions (No 8) CA 3-Jul-2002
A firm of accountants had agreed to provide their services as experts in a case on the basis that they would be paid by taking part of any damages awarded. The respondent claimed that such an agreement was champertous and unlawful.
Held: The . .
Cited – Holden v Thompson 1907
Several children were removed by their impoverished parents from the care of a religious institution. A charity supporting them, employed solicitors to act for them to defend proceedings brought by the institution. The solicitors now sought their . .
Cited – Pressos Compania Naviera S A And Others v Belgium ECHR 20-Nov-1995
When determining whether a claimant has possessions or property within the meaning of Article I the court may have regard to national law and will generally do so unless the national law is incompatible with the object and purpose of Article 1. Any . .
Cited – Shaws (EAL) Ltd v Pennycook CA 2-Feb-2004
Tenant’s First Notice to terminate, stood
The landlord served a notice to terminate the business lease. The tenant first served a notice to say that it would not seek a new lease, but then, and still within the time limit, it served a second counter-notice seeking a new tenancy. The . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Torts – Other, Contract
Updated: 02 November 2021; Ref: scu.445405
The claimant had become entitled to payment for services and submitted its invoices. When the defendant failed to pay promptly, it added sums due under the 1998 Act. The defendant responded that errors on the invoices made the claims for the additional sums invalid.
Held: The claimant’s appeal succeeded. The Act gave power to remit any part of the claim for error, and therefore it was not the case that the court must reject any claim for any error. Policy did not require such an approach.
Lord Justice Sedley, Lord Justice Jacob and Lord Justice Lloyd
[2009] EWCA Civ 97, Times 04-Mar-2009, [2010] 1 All ER (Comm) 444, [2009] Bus LR D93, [2009] BLR 301
Bailii
Late Payment of Commercial Debts (Interest) Act 1998
England and Wales
Citing:
Appeal from – Ruttle Plant Hire Ltd v Secretary of State for Environment, Food and Rural Affairs (No. 3) TCC 20-Mar-2008
. .
See Also – Ruttle Plant Ltd v Secretary of State for Environment Food and Rural Affairs No. 2 TCC 30-Apr-2008
. .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 02 November 2021; Ref: scu.311760
The claimant estate agent appealed against dismissal of its claim for commission on the sale of the defendant’s property.
Held: The appeal failed. Glentree failed to establish that it was either ‘the’ or ‘an’ effective cause of the sale. What courts have understandably been anxious to avoid wherever possible is the liability of a vendor with multiple agents having to pay more than one commission, although there is no legal presumption either way.
Maurice Kay LJ VP, Richards, Leveson LJJ
[2011] EWCA Civ 755
Bailii
England and Wales
Citing:
Cited – Bow’s Emporium v A R Brett and Co Ltd 1927
The court considered a claim for an estate agent’s commission.
Held: The claim failed. Lord Shaw of Dunfermline said: ‘the continuity between the original relation brought about by the agent and the ultimate transaction has not been merely . .
Appeal from – Glentree Estates Ltd v Holbeton Ltd QBD 25-Nov-2010
The claimant estate agency sought payment of fees on the sale of a property. The defendants denied that the claimant had been the effective cause of the sale.
Held: The claim failed. The agents had not been sufficiently causative of the sale. . .
Cited – Foxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
Lists of cited by and citing cases may be incomplete.
Contract, Agency
Updated: 02 November 2021; Ref: scu.441439
By articles of agreement between the Plaintiff arid Defendant it was agreed on the part of the former that he should pay the latter so much per week to perform at his theatres, with her travelling expences of removing from one theatre to another except extra baggage ; and on the part of the defendant, that she should perform at the theatres such things as she should be required by the Plaintiff, and attend at the theatre beyond the usual hours on any emergency and at rehearsals or be subject to such fines as are established at the theatres, and be at the theatre half an hour before the performances begin, and abide by the regulations of the theatres and pay all fines ; and it was agreed by both parties ‘either of tbem neglecting to perform that agreemeut should pay to the other 200l. Assumpsit upon this agreement stating several breaches, and concluding to the Plaintiff’s damage of 200l. Held that the sum mentioned in the agreement was in the nature of a penalty, not of liquidated damages.
Lord Eldon confessed himself, not for the first time, ‘much embarrassed in ascertaining the principle on which [the rule was] founded’.
Lord Eldon
[1801] EngR 108, (1801) 2 Bos and Pul 346, (1801) 126 ER 1318
Commonlii
England and Wales
Cited by:
Cited – Parkingeye Ltd v Beavis CA 23-Apr-2015
The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of 85.00 pounds. The judge had found that the appellant was in breach of a . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.
Contract, Equity
Leading Case
Updated: 02 November 2021; Ref: scu.345354
The plaintiff alleged abuse of the discretion conferred on the club by the rules. His trainer’s licence had been suspended. He said that it was contrary to an implied term of an agreement between the trainer and the racing club that any action taken would be reasonable and fair and made on reasonable grounds. The plaintiff claimed a declaration of invalidity of the decision. The question before the court, was whether the special procedures which Order 53 of the Rules of the Supreme Court applied to applications for judicial review should have been followed.
Held: The power of the Stewards of the respondent racing club to impose penalties for breach of the Rules on owners of greyhounds, derives from a contract between the NGRC and owners and all those who took part in greyhound racing in stadia licensed by the NGRC. The status of the stewards was that of a domestic tribunal. By Rule 2 every owner and holder of a licence is deemed to have read the Rules and to submit himself to them.
The National Greyhound Racing Club was not amenable to judicial review. It was a matter of private law which could be dealt with by originating summons
Lawton LJ said: ‘A stewards’ inquiry under the defendants’ Rules of Racing concerned only those who voluntarily submitted themselves to the stewards’ jurisdiction. There was no public element in the jurisdiction itself. Its exercise, however, could have consequences from which the public benefited, as, for example by the stamping out of malpractices, and from which individuals might have their rights restricted by, for example, being prevented from employing a trainer whose licence had been suspended. Consequences affecting the public generally can flow from the decisions of many domestic tribunals . . the courts have always refused to use the orders of certiorari to review the decisions of domestic tribunals.’ and ‘In my judgment, such powers as the stewards had to suspend the plaintiff’s licence were derived from a contract between him and the defendants. This was so for all who took part in greyhound racing in stadia licensed by the defendants. A stewards’ enquiry under the defendants’ Rules of Racing concerned only those who voluntarily submitted themselves to the stewards’ jurisdiction. There was no public element in the jurisdiction itself.’
Fox LJ said: ‘Accordingly, in my view, the authority of the stewards to suspend the license of the plaintiff derives wholly from a contract between him and the defendants. I see nothing to suggest that the defendants have rights or duties relating to members of the public as such. What the defendants do in relation to the control of greyhound racing may affect the public, or a section of it, but the defendants’ powers in relation to the matters with which this case is concerned are contractual.’
Slade LJ said: ‘the rules of racing of the NGRC and its decision to suspend the plaintiff in purported compliance with those rules have not been made in the field of public law. Furthermore, its authority to perform judicial or quasi judicial functions in respect of persons holding licenses from it is not derived from statute or statutory instruments or from the Crown. It is derived solely from contract. Rule 2 of the NGRC’s Rules of Racing provides that every person who is the holder of a license shall be deemed to have read the rules and to submit himself to them and to the jurisdiction of the NGRC. The relief, by way of declaration and injunction, sought by the plaintiff in his originating summons is correspondingly based primarily and explicitly on alleged breach of contract.’
Lawton, Fox, Slade LLJ
[1983] 1 WLR 1302, [1983] EWCA Civ 6, [1983] 3 All ER 300
Bailii
England and Wales
Cited by:
Cited – Flaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .
Cited – Regina v Disciplinary Committee of the Jockey Club, ex parte Aga Khan CA 4-Dec-1992
No Judicial Review of Decisions of Private Body
Despite the wide range of its powers, the disciplinary committee of the Jockey Club remains a domestic tribunal. Judicial review is not available to a member. Tne relationship is in contract between the club and its member. Sir Thomas Bingham MR: . .
Cited – Mullins, Regina (on the Application of) v The Jockey Club Admn 17-Oct-2005
The claimant’s horse had been found after a race to have morphine in his system. It was not thought that the claimant was at fault, but the horse was disqualifed. He sought judicial review of the decision.
Held: The decision was a disciplinary . .
Lists of cited by and citing cases may be incomplete.
Contract, Judicial Review
Leading Case
Updated: 02 November 2021; Ref: scu.220132
The Defendant purchased certain leasehold premises at an auction, and signed a memorandum of the purchase on the back of a paper containing the particulars of the premises, the name of the owner, and the conditions of sale: Held, that the Defendant was bound by his contract, notwithstanding it was not signed by the vendor.
Tindal CJ defined ‘consideration’: ‘Any act of the plaintiff from which the defendant derives a benefit or advantage, or any labour, detriment, or inconvenience sustained by the plaintiff,provided such act is performed or such inconvenience suffered by the plaintiff, with the consent, either express or implied, of the defendant.’
Tindal CJ
[1836] 3 Scott 238, [1836] EngR 652, (1836) 2 Bing NC 735, (1836) 132 ER 283
Commonlii
Citing:
Appeal from – Laythoarp v Bryant 16-Jan-1835
Plaintiff put up to sale by auction a lease of premises, which he occupied as assignee of the lease, stipulation not to produce any title prior to the lease. In an action against a purchaser for not completing his purchase, in which action Plaintiff . .
Cited by:
Cited – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Unilateral Contract Liability
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘pounds 100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 02 November 2021; Ref: scu.267731
The defendant had acquired a vehicle in lieu of payment of a debt. The vehicle was subject to an HP agreement with the claimant, who now sought possession of it. The defendant argued that it had the protection of section 27, there having been a disposition of the vehicle. The claimant now sought summary judgment.
Held: Summary judgment was granted. The term ‘disposition’ was limited to a specific transaction where the vehicle was transferred in return for money. That there was no need to stretch the definition to cover less straightforward transactions: ‘There may be scope for argument about how far the Sections cover payment of a genuine price by means other than cash. Part exchange is it seems covered by the section no doubt because there is at least some passing of money and that process is a very common if not usual incident of buying a car. The distinction may become more difficult when the value of the car to be traded in reaches or exceeds the price of the car being acquired – where in Mr Stone’s submissions the transactions would not be protected – but that is not this case. There is no suggestion here that the Vehicle was sold for a price and payment subsequently agreed to be made by set-off of debts. The debts are only half the value of the ‘invoice’. This was some odd barter.’
Judge Mackie QC
[2013] RTR 29, [2013] EWHC 346 (QB), [2013] 1 WLR 2987, [2013] 1 Lloyd’s Rep 462, [2013] WLR(D) 91
Bailii
Hire-Purchase Act 1964 27 29(1)
Citing:
Cited – Robshaw Brothers Limited v Mayer 1956
Upjohn J considered what would amount to a sale. He quoted the following passage from an article which he said correctly stated the law: ‘But it is well established by judicial authority that in English law the primary meaning of the word ‘sale’ is . .
Cited – In Re Westminster Property Group plc 1984
The court considered the meaning of the word ‘sale’ in the phrase ‘sale or purchase’ in Order 14A RSC. Nourse J said: ‘The authorities establish that in legislative usage and in the absence of a special context the word ‘sale’ denotes an exchange of . .
Cited – Royscott Trust v Burno Daken Ltd and David Ball QBD 9-Jul-1993
R let a vehicle on hire purchase terms to one E(SS), who passed it to BD in breach of his obligations under the hire purchase agreement. E(SS) drew up an ‘invoice’ stating the value of the car to be a certain sum, X. At the time, E(SS) owed BD . .
Lists of cited by and citing cases may be incomplete.
Consumer, Contract
Updated: 02 November 2021; Ref: scu.471303
Ship owners formed themselves into an association to protect their trading interests which then caused damage to rival ship owners. The plaintiffs complained about being kept out of the conference of shipowners trading between China and London.
Held: There was no unlawful element in what they were then doing or planning to do. There was no predominant purpose to injure so that the defendants were not liable whether for conspiracy to injure or conspiracy to injure by unlawful means. The court distinguished between a criminal conspiracy which was indictable on proof of the conspiracy, without any acts done in furtherance of it or damage caused, on the one hand, and a civil conspiracy where ‘it is the damage which results from the unlawful combination itself with which the civil action is concerned’
and ‘No man, whether trader or not, can, however, justify damaging another in his commercial business by fraud or misrepresentation. Intimidation, obstruction, and molestation are forbidden; so is the intentional procurement of a violation of individual rights, contractual or other, assuming always that there is no just cause for it.’
and ‘And in this case it is clear that if the object were unlawful, or if the object were lawful but the means employed to effect it were unlawful, and if there were a combination either to effect the unlawful object or to use the unlawful means, then the combination was unlawful, then those who formed it were misdemeanants and a person injured by their misdemeanour has an action in respect of his injury.’
Lord Coleridge CJ
(1884-1885) 15 QBD 476, [1885] UKLawRpKQB 135
Commonlii
England and Wales
Cited by:
Appeal from – Mogul Steamship Company Limited v McGregor Gow and Co CA 2-Jul-1889
Ship-owners formed an association which in this action others claimed to be a tortious conspiracy.
Held: There is a cause of action against the conspirators where there is an agreement which constitutes an indictable conspiracy and that . .
Cited – Mahonia Limited v JP Morgan Chase Bankwest Lb Ag QBD 3-Aug-2004
The Claimant claimed on a letter of credit issued by the Defendant on behalf of Enron Ltd, who asserted it was not liable to pay there having been unlawful behaviour by Enron Ltd. Swap agreements had been entered into, and the defendant said the . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
At First Instance (1) – Mogul Steamship Co Ltd v McGregor, Gow and Co HL 18-Dec-1891
An association of shipowners agreed to use various lawful means to dissuade customers from shipping their goods by the Mogul line.
Held: The agreement was lawful in the sense that it gave the Mogul Company no right to sue them. But (majority) . .
Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Cited – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Cited – Rhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .
See Also – Mogul Steamship Company Limited v McGregor Gow and Co QBD 31-Oct-1888
The defendants, who were firms of shipowners trading between China and Europe, with a view to obtaining for themselves a monopoly of the homeward tea trade and thereby keeping up the rate of freight, formed themselves into an association, and . .
Lists of cited by and citing cases may be incomplete.
Torts – Other, Contract
Leading Case
Updated: 02 November 2021; Ref: scu.200478
The claimant sought damages from the defendant surveyor. He had asked the defendant whether the house he was to buy was subject to aircraft noise. After re-assurance, he bought the house. The surveyor was wrong and negligent. A survey would not normally cover this question, but he had been asked the question and he had answered it. Could the buyer claim damages for non-pecuniary loss?
Held: The contract was a contract to secure pleasure, relaxation and peace of mind. That did not need to be the very object of the contract for damages to be awarded. The surveyor could not escape liability by saying he had not contracted to produce the result requested. Nor was the claimant obliged to move house or surrender his claim. The innocent party is entitled to be placed in the position that he would have been in had the party in breach exercised due care. Damages might be recoverable for distress and inconvenience for breach of contract where the matter was important to the claimant, that had been made clear to the defendant, and the required action had been incorporated into the contract. The court viewed an award of 10,000 pounds for the discomfort of suffering aircraft noise, as high and at the very top of an appropriate bracket.
Lord Steyn
Times 15-Oct-2001, Gazette 18-Oct-2001, [2001] UKHL 49, [2002] 2 AC 732, [2001] 3 WLR 899, [2001] All ER 801
House of Lords, Bailii
England and Wales
Citing:
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Cited – 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 – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Appeal from – Farley v Skinner CA 6-Apr-2000
A surveyor was engaged to report on a property, and was specifically requested to advise on the levels of aircraft noise from a nearby airport which might affect the property. He failed to report on the proximity of a navigation beacon.
Held: . .
Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Cited by:
Cited – Dennis and Dennis v Ministry of Defence QBD 16-Apr-2003
The applicants owned a substantial property near an airbase. They complained that changes in the patterns of flying by the respondents were a nuisance and sought damages. Walcot Hall was subjected to very high noise levels from military aircraft. . .
Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Applied – 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.
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence, Damages, Contract
Leading Case
Updated: 02 November 2021; Ref: scu.166572
ECJ (Judgment) Reference for a preliminary ruling – Regulation (EC) No 44/2001 – Area of Freedom, Security and Justice – Concept of ‘irreconcilable judgments’ – Actions having different subject-matters brought against several defendants domiciled in various Member States – Conditions for the prorogation of jurisdiction – Jurisdiction clause – Concept of ‘matters relating to a contract’ – Verification of the lack of a valid contractual link
C-366/13, [2016] EUECJ C-366/13, [2016] WLR(D) 202, ECLI:EU:C:2016:282
Bailii, WLRD
Regulation (EC) No 44/2001
England and Wales
Contract
Leading Case
Updated: 01 November 2021; Ref: scu.562823
Quinn was treasurer of a Belfast butchers’ association. Leathem, who traded as a butcher, employed some non-union men, although when the union made difficulties he asked for them to be admitted to the union, and offered to pay their dues. The union put pressure on Munce, a wholesale customer of Leathem, to stop buying his meat. It also called out Dickie, one of Leathem’s employees. The jury found for Leathem, holding that there had been a malicious conspiracy between Quinn and other officers of the union. The Irish Court of Appeal affirmed this.
Held: The appeal failed. A conspiracy ‘wrongfully and maliciously’ to induce customers and servants of the plaintiff not to deal with him was actionable on proof of damage. Though the coming together of a group of people is lawful, even though it results in injury to the interests of others, such an agreement for no purpose other than the pursuit of a malicious purpose to injure another would be unlawful. Any violation of legal rights, including rights under contract, committed knowingly and without justification, is a tortious act.
Lord MacNaghten said of Lumley v Gye: ‘I have no hesitation in saying that I think the decision was right, not on the ground of malicious intention – that was not, I think, the gist of the action – but on the ground that a violation of a legal right committed knowingly is a cause of action, and that it is a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference.’
He explained the rationale of the tort as follows: ‘a person’s liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffer from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact-in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done.’
Lord Lindley said that Lumley v Gye tort was an example of causing loss by unlawful means: ‘If the above reasoning is correct, Lumley v. Gye was rightly decided, as I am of opinion it clearly was. Further, the principle involved in it cannot be confined to inducements to break contracts of service, or indeed to inducements to break any contracts. The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual and actually damaging him.’ and
‘a person’s liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffer from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact – in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified – the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done.’
Lord Shand distinguished Allen v Flood: ‘As to the vital distinction between Allen v Flood and the present case, it may be stated in a single sentence. In Allen v Flood the purpose of the defendant was by the acts complained of to promote his own trade interest, which it was held he was entitled to do, although injurious to his competitors, whereas in the present case, while it is clear there was combination, the purpose of the defendants was ‘to injure the plaintiff in his trade as distinguish from the intention of legitimately advancing their own interest.”
Earl of Halsbury LC said: ‘. . a case is only an authority for what it actually decides.’
Lord Shand, Lord Macnaghten, Lord Lindley, Earl of Halsbury LC
[1901] AC 495, [1901] UKHL 2
Bailii
England and Wales
Citing:
Distinguished – Allen v Flood HL 14-Dec-1898
Tort of Malicicious Inducement not Committed
Mr Flood had in the course of his duties as a trade union official told the employers of some ironworkers that the ironworkers would go on strike, unless the employers ceased employing some woodworkers, who the ironworkers believed had worked on . .
Cited by:
Cited – OBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – GWK Ltd v Dunlop Rubber Co Ltd 1926
GWK company made motor cars and the ARM company made tyres. GWK contracted to fit all their new cars with ARM tyres and to show them with ARM tyres at trade exhibitions. On the night before a motor show in Glasgow, Dunlop employees removed the ARM . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Cited – Torquay Hotel v Cousins CA 17-Dec-1968
The plaintiff contracted to buy oil for his hotel from Esso. Members of the defendant trades union blocked the deliveries of oil by Esso to the Hotel because of a trade dispute they had with the management of the hotel. The hotel sued for an . .
Cited – Close v Steel Company of Wales Ltd 1962
The pursuer sought damages after injury arising from the use of a tool for a purpose other than that for which it was intended to be used. Lord Denning quoted Sir Frederick Pollock to say: ‘Judicial authority belongs not to the exact words used in . .
Cited – Air Canada and Others v Emerald Supplies Limited and Others CA 14-Oct-2015
Appeal against case management directions given by Peter Smith J. . .
Cited – Youngsam, Regina (on The Application of) v The Parole Board Admn 7-Apr-2017
The claimant challenged being recalled to prison from licence after being found in an area from which he was excluded as a condition of his parole. . .
Cited – JSC BTA Bank v Khrapunov SC 21-Mar-2018
A had been chairman of the claimant bank. After removal, A fled to the UK, obtaining asylum. The bank then claimed embezzlement, and was sentenced for contempt after failing to disclose assets when ordered, but fled the UK. The Appellant, K, was A’s . .
Cited – Secretary of State for Health and Another v Servier Laboratories Ltd and Others SC 2-Jul-2021
Economic tort of causing loss by unlawful means
The Court was asked whether the ‘dealing requirement’ is a constituent part of the tort of causing loss by unlawful means; whether a necessary element of the unlawful means tort is that the unlawful means should have affected the third party’s . .
Lists of cited by and citing cases may be incomplete.
Torts – Other, Contract, Constitutional
Leading Case
Updated: 01 November 2021; Ref: scu.223001
The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of 85.00 pounds. The judge had found that the appellant was in breach of a contract entered into when parking. The charge had been a penalty, but one which was commercially justifiable in the light of the 2012 Act.
The court noted the development of ‘a tendency to recognise that a simple dichotomy between liquidated damages and penalty is inadequate, because it fails to take into account the fact that some clauses which require payment on breach of a sum which cannot be justified as liquidated damages in accordance with established principles should nonetheless be enforceable because they are not extravagant and unconscionable and are justifiable in other terms.’
Held: The appeal failed. The court approved the judges interpretation.
Moore-Bick LJ said ‘The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss suffered by the innocent party is inappropriate. In order to achieve a just outcome it is necessary in my view to return to the principles which underlie what is ultimately no more than a rule grounded in public policy, namely, that the court will not enforce an agreement for the payment in the event of breach of an amount which is extravagant and unconscionable, despite the importance which it would normally attach to enforcing contracts freely entered into’
Nor did the company breah the requirements of the 1999 Regulations.
Moore-Bick LJ VP, Patten LJ, Sir Timothy Lloyd
[2015] EWCA Civ 402, [2015] WLR(D) 190
Bailii, WLRD
Unfair Terms in Consumer Contracts Regulations 1999, Protection of Freedoms Act 2012 56
England and Wales
Citing:
Cited – Astley v Frances Weldon CCP 27-Jan-1801
Clause was a Penalty – Not Estimate of Loss
By articles of agreement between the Plaintiff arid Defendant it was agreed on the part of the former that he should pay the latter so much per week to perform at his theatres, with her travelling expences of removing from one theatre to another . .
Cited – Kemble v Farren 6-Jul-1829
Liquidated Damages Clause to Specify Which Loss
The manager of Covent Garden sought damages from an actor (a principal comedian) in the form of liquidated damages for breach of a contract. He had contracted to perform for four seasons, but had refused to continue after the first.
Held: . .
Cited – Clydebank Engineering Co v Castaneda HL 19-Nov-1904
The House considered a contract for the construction by a Scottish shipbuilder of four torpedo boats for the Spanish government. The contract provided that: ‘The penalty for late delivery shall be at the rate of andpound;500 per week for each . .
Cited – Cavendish Square Holdings Bv and Another v El Makdessi ComC 14-Dec-2012
The parties disputed whether clauses in a share sale agreement between them amounted to a penalty and as such were rendered unenforeable.
Held: Burton J felt able to escape those constraints, and concluded that the two provisions were valid . .
Cited – Lordsvale Finance Plc v Bank of Zambia QBD 20-Mar-1996
The court looked at a facility agreement opened by a bank in favour of the defendant which provided that in the event of default the defendant should pay interest during the period of default at an aggregate rate equal to the cost to the bank of . .
Cited – Cine Bes Filmcilik Ve Yapimcilik and Another v United International Pictures and Others CA 21-Nov-2003
The parties entered into agreements licensing the exclusive distribution of encrypted television channels within Turkey. A clause provided a calculation of damages for a breach amounting to the balance of licence fees due, and other penalties, . .
Cited – Murray v Leisureplay Plc CA 28-Jul-2005
The court considered the extent to which the content of negotiations leading up to the signing of a contract were admissible. Arden LJ said: ‘Lord Dunedin in the Dunlop case makes the point that, although the issue is one of construction, the court . .
Cited – El Makdessi v Cavendish Square Holdings Bv and Another CA 26-Nov-2013
The appellants had agreed for the sale of his company by way of a share sale agreement. The price to be paid was to vary accoriding to the operating profits. A large part of the price reflected goodwill. The agreement contained a clause providing . .
Cited – Director General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .
Cited by:
Appeal from – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.
Consumer, Contract, Road Traffic, News
Updated: 01 November 2021; Ref: scu.545936
For an estate agent to recover his commission, it was ‘necessary’ to show that the agent’s introduction was an ‘efficient’ (namely effective) cause in bringing about the transaction.
Sir Richard Henn Collins MR
(1903) 19 TLR 575
England and Wales
Cited by:
Cited – The County Homesearch Company (Thames and Chilterns) Ltd v Cowham CA 31-Jan-2008
The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed from a finding that they were obliged to pay his commission. The judge found . .
Cited – Foxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
Cited – Charania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
Agency, Contract
Leading Case
Updated: 01 November 2021; Ref: scu.264092
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as ‘a trust which is declared by the law to affect the conscience of [the survivor’s] executor and of the volunteers who are devisees or legatees under his will.’ and ‘Those who undertake to establish such an agreement [ie of mutual wills] assume a heavy burden of proof’.
Dixon J set down the principles for mutual wills: ‘It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will he undertook would be his last will . . The purpose of an arrangement for corresponding wills must often be, as in this case, to enable the survivor during his life to deal as absolute owner with the property passing under the will of the party first dying. That is to say, the object of the transaction is to put the survivor in a position to enjoy for his own benefit the full ownership so that, for instance, he may convert it and expend the proceeds if he choose. But when he dies he is to bequeath what is left in the manner agreed upon. It is only by the special doctrines of equity that such a floating obligation, suspended, so to speak, during the lifetime of the survivor can descend upon the assets at his death and crystallize into a trust. No doubt gifts and settlements, inter vivos, if calculated to defeat the intention of the compact, could not be made by the survivor and his right of disposition, inter vivos, is, therefore, not unqualified. But, substantially, the purpose of the arrangement will often be to allow full enjoyment for the survivor’s own benefit and advantage upon condition that at his death the residue shall pass as arranged.’
Dixon J, Latham CJ
(1937) 57 CLR 666, [1937] HCA 52
Austlii
Australia
Citing:
Cited – Dufour v Pereira 1769
Nature of Joint and Mutual Wills
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
Cited – Re Oldham; Hadwen v Myles 1925
The court was asked whether an agreement for mutual wills should be inferred. The court said that it is inherently improbable that a testator should be prepared to give up the possibility of changing his or her will in the future, whatever the . .
Cited by:
Cited – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – In re Cleaver dec’d, Cleaver v Insley ChD 1981
Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
Nourse J said: ‘The principle of all these cases is that a court of . .
Cited – Goodchild v Goodchild ChD 13-Dec-1995
The husband and wife had made mirror wills. They divorced, and the husband made a new will. After his death, the child and the third wife of the deceased made a claim against the second wife.
Held: The wills were in identical terms, but . .
Cited – The Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
Cited – Walters v Olins CA 4-Jul-2008
The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
Cited – Healey v Brown ChD 25-Apr-2002
The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: . .
Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate, Contract, Trusts, Equity
Leading Case
Updated: 01 November 2021; Ref: scu.183791
Bingham LJ discussed the nature of frustration of contract: ‘The essence of frustration is that it is caused by some unforeseen supervening event over which the parties to the contract have no control and for which they are therefore not responsible. To say that the supervening event occurs without the default or blame or responsibility of the parties is, in the context of the doctrine of frustration, but another way of saying it is a supervening event over which they have no control; still less can it apply in a situation in which the parties owed a contractual duty to one another to prevent the frustrating event from occurring.’
He identified five particular conditions for frustration: ‘(a) The mitigation of the law’s insistence on literal performance of absolute promises so as to avoid injustice.
(b) Because frustration operated ‘to kill the contract’, it was not to be lightly invoked.
(c) Frustration brought an end to the contract forthwith.
(d) The essence of frustration was that it should not be due to the act or election of the party seeking to rely on it and must instead be due to some outside event or extraneous change of situation.
(e) A frustrating event had to take place without blame or fault on the side of the party seeking to rely on it.’
Bingham LJ, Dillon LJ
[1989] EWCA Civ 6, [1990] 1 Lloyds Rep 1
Bailii
England and Wales
Citing:
Cited – Bank Line Ltd v Arthur Capel and Co HL 12-Dec-1918
The defendant ship-owners contracted to lease the ship on charter to the plaintiffs. Before the term, the ship was requisitioned for the war effort. The plaintiffs did not exercise the contractual right given to them to cancel the charterparty. The . .
Cited by:
Cited – CTI Group Inc v Transclear Sa Comc 14-Sep-2007
The parties had contracted for the sale of concrete. The buyers appealed findings by an arbitrator that the contracts were both frustrated for the inability of the seller to complete after the intervention of a company with an effective monopoly, . .
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 . .
Applied – Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust QBD 5-Feb-2014
The court was asked whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor’s retainer. The Costs judge had held that, as a matter of law, . .
Cited – Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust CA 27-Jan-2015
This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement. The issue was whether the CFA terminated automatically by . .
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: 01 November 2021; Ref: scu.259378
Musurus Bey had been the accredited Ambassador of the Sultan of Turkey in London for some thirty years prior to his recall in December 1885. He wound up his official and personal business and in February 1886 he returned to Turkey where he lived until his death in 1890. In 1892 his executors brought proceedings against the defendants who sought to counterclaim in debt for money lent by them to Musurus Bey in 1873 while he was Ambassador in London and which, it was alleged, had never been repaid.
Held: The counterclaim was not statute barred. The wrongdoer may be entitled to diplomatic immunity at the time of the tort. No cause of action could accrue against a debtor during such period as he enjoyed diplomatic immunity, though an envoy’s immunity from suit and legal process in respect of acts done in his private capacity endures only so long as he is ‘en poste’ and for a sufficient time thereafter to enable him to wind up his affairs
AL Smith and Davey LJJ
[1894] 2 QB 352
England and Wales
Contract, Limitation
Leading Case
Updated: 01 November 2021; Ref: scu.561222
A contract to hire a steam boat to view the royal review of the naval fleet at Spithead as part of the celebrations for the coronation of Edward VII was not frustrated by cancellation of the review on the King’s illness because the fleet was still at Spithead to be viewed.
Vaughan Williams LJ said that because the purposes (of seeing the review and being taken around the fleet) became impossible that did not mean the contract was frustrated. The happening of the naval review was not the foundation of the contract: ‘ . . Mr. Hutton, in hiring this vessel, had two objects in view: first, of taking people to see the naval review, and, secondly, of taking them round the fleet. Those, no doubt, were the purposes of Mr. Hutton, but it does not seem to me that because, as it is said, those purposes became impossible, it would be a very legitimate inference that the happening of the naval review was contemplated by both parties as the basis and foundation of this contract . . On the contrary, when the contract is properly regarded, I think the purpose of Mr. Hutton, whether of seeing the naval review or of going round the fleet with a party of paying guests, does not lay the foundation of the contract within the authorities.’
Romer LJ said: ‘it is a contract for the hiring of a ship by the defendant for a certain voyage, though having, no doubt, a special object, namely, to see the naval review and the fleet; but it appears to me that the object was a matter with which the defendant, as hirer of the ship, was alone concerned, and not the plaintiffs, the owners of the ship’ . . And: ‘so far as the plaintiffs are concerned, the objects of the passengers on this voyage with regard to sight-seeing do not form the subject-matter or essence of this contract.’
Stirling LJ referring directly to the fact that part of the stated purpose, the ‘day’s cruise round the fleet’, had remained possible, saying: ‘It seems to me that the reference in the contract to the naval review is easily explained; it was inserted in order to define more exactly the nature of the voyage, and I am unable to treat it as being such a reference as to constitute the naval review the foundation of the contract so as to entitle either party to the benefit of the doctrine in Taylor v Caldwell. I come to this conclusion the more readily because the object of the voyage is not limited to the naval review, but also extends to a cruise round the fleet. The fleet was there, and passengers might have been found willing to go round it. It is true that in the event which happened the object of the voyage became limited, but, in my opinion, that was the risk of the defendant whose venture the taking the passengers was.’
Vaughan Williams, Stirling, Romer LJJ
[1902] 2 KB 683
Cited by:
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: 01 November 2021; Ref: scu.564154
The claimant conservatory installers claimed wrongful repudiation of the contract by the defendant householders. The defendants, living in Ayrshire, said that the English courts had no jurisdiction over the contract.
Held: The court gave its reasons for accepting the defendants’ submission. The mere fact that Oak Leaf’s primary focus in advertising is on England did not correctly reflect the statutory test or determine the outcome of the application. While the primary focus of the claimant’s business may be in England and most of the business had been in England, it was apparent from its websites and its overall activity (including the acceptance of previous projects in Scotland as well as that of the Weirs) that Oak Leaf was envisaging doing business with consumers domiciled in Scotland. Accordingly, the action must be brought in Sotland.
Stuart-Smith J
[2013] EWHC 3197 (TCC)
Bailii
Civil Jurisdiction and Judgments Act 1982 16(1) Sch 4
England and Wales
Citing:
Applied. – Peter Pammer v Reederei Karl Schluter GmbH and Co KG etc ECJ 7-Dec-2010
ECJ (Grand Chamber) Jurisdiction in civil and commercial matters – Regulation (EC) No 44/2001 – Article 15(1)(c) and (3) – Jurisdiction over consumer contracts – Contract for a voyage by freighter – Concept of . .
Lists of cited by and citing cases may be incomplete.
Contract, Jurisdiction, Consumer
Updated: 01 November 2021; Ref: scu.517363
The 24 month charterparty vessel suffered a major engine breakdown after nearly a year. The repairs would take several months. The charterers said they had no further use for the vessel but the owner did the repairs and sought to hold the charterers liable for hire for the rest of the period of the charterparty, once the repairs had been completed – some seven months. On an arbitration, the award was that the owners had no legitimate interest in pursuing their claim for hire rather than asserting a claim for damages. The owners appealed.
Held: The appeal was dismissed. Given the defendants’ conduct when called on to honour their clear obligations and because of their policy of non-cooperation during the proceedings, including admitting liability only at the last moment, it would not be equitable to deny the claimants their statutory rights.
Lloyd J reviewed the case law and said: ‘this court is bound to hold that there is some fetter [on the innocent party’s right to elect to disregard the repudiation], if only in extreme cases; and for want of a better way of describing that fetter it is safest for this court to use the language of Lord Reid, which, as I have already said, was adopted by a majority of the Court of Appeal in The Puerto Buitrago.’ The correct analysis was that, the court, on equitable grounds, refused to allow the innocent party to enforce his full contractual rights.
Lloyd J
[1984] 1 All ER 129, [1983] 2 Lloyds Rep 645
England and Wales
Citing:
Cited – Attica Sea Carriers Corporation v Ferrostaal Poseidon Bulk Reederei GmbH, The Puerto Buitrago CA 1976
The parties entered into a charterparty by demise of a bulk carrier. It was in a state of disrepair. The owners required the charterers to repair it before redelivery, and claimed hire losses until it was returned repaired. The extensive repairs . .
Cited by:
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 . .
Lists of cited by and citing cases may be incomplete.
Contract, Transport
Leading Case
Updated: 01 November 2021; Ref: scu.396614
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 Agreement under which the defendant had been paid to ride the claimant’s horses as and when requested, and not to ride any other rival horse instead. The defendant’s evidence had been found ‘verging on fanciful’, but the judge had refused an injunction, saying that damages were an adequate remedy. The claimant appealed.
Held: The grant of such an injunction remained a discretionary remedy, though: ‘Where the defendant is proposing to act in clear breach of a negative covenant, in other words to do something which he has promised not to do, there must be special circumstances (e.g. restraint of trade contrary to public policy) before the court will exercise its discretion to refuse an injunction.’ In this case whilst the court could not assess any possible damages they may be substantial and there was no evidence that the defendant would or would not be able to meet any award. The defendant had special knowledge of the claimant’s intended tactics in the race and the lost prestige was not remediable. An awrd of damages alone may not be adequate.
This was an exceptional case where it would be proper to reverse the discretion exercised by the judge: ‘The defendant voluntarily entered into a contract for substantial reward containing both positive and negative obligations. There is nothing special about the world of racing which entitles the major players to act in flagrant breach of contract. The defendant has promised in the context of a commercial agreement that he will not compete against Native Khan in the Derby this afternoon. In my view, that promise should be enforced.’
Elias LJ said: ‘In a case where the breach of a negative covenant is clear, there is no magic in the fact that the injunction is being sought at an interlocutory stage. All questions of balance of convenience are then immaterial.’
Jackson, Elias LJJ
[2011] EWCA Civ 668
Bailii
England and Wales
Citing:
Cited – 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 . .
Cited – Hampstead and Suburban Properties Ltd v Diomedous ChD 1969
A covenant against causing nuisance or annoyance is to be read to refer to wider nuisance than is referred to by the tort of nuisance. It is to be applied ‘according to robust and common sense standards’ Megarry J granted an interlocutory injunction . .
Mentioned – 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 – Warner Brothers Pictures v Nelson 1936
Bette Davis contracted with the plaintiff film company to render her services as an actress exclusively to that company. With nearly six years of the contractual term yet to run, Ms Davis contracted with a third person to appear as a film artist. . .
Cited – Hadmor Productions Ltd v Hamilton HL 1982
The Court of Appeal was not in general entitled to reverse the decision of the Administrative Court in the grant of discretionary interlocutory relief: ‘it is I think appropriate to remind your Lordships of the limited function of an appellate court . .
Cited by:
Cited – NATS (Services) Ltd v Gatwick Airport Ltd and Another TCC 2-Oct-2014
NATS had tendered unsuccessfully for a contract to provide air traffic control services at Gatrwick airport, and challenged the award. GAL denied that the Regulations applied and now sought disapplication of the automatic suspension from the award . .
Lists of cited by and citing cases may be incomplete.
Contract, Litigation Practice
Updated: 02 November 2021; Ref: scu.440444
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 contract had been created. The parties initially intended that there should be a written contract between them which was executed by each and exchanged between them. As to whether the arrangement remained subject to contract: ‘the question was, objectively speaking, whether the parties’ intentions took a new turn at some stage such that they intended to be bound by the ‘final draft contract’ without the need for its formal execution.’ and ‘essentially all the terms were agreed between the parties and that substantial works were then carried out and the agreement was subsequently varied in important respects. The parties treated the agreement of 25 August as a variation of the agreement that they had reached by 5 July. Nobody suggested in August that there was no contract and thus nothing to vary. It was not until November, by which time the parties were in dispute, that points were taken as to whether there was a contract.’
Lord Clarke, set out the tests for the intention to create a contract: ‘The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.’
Lord Phillips, President, Lord Mance, Lord Collins, Lord Kerr, Lord Clarke
[2010] UKSC 14, [2010] WLR (D) 75, [2010] 3 All ER 1, (2010) 129 Con LR 1, [2010] 1 WLR 753, [2010] 2 All ER (Comm) 97, [2010] 1 CLC 388, [2010] Bus LR 776, [2010] CILL 2868, [2010] BLR 337
Bailii, WLRD, SC, SC Summary
England and Wales
Citing:
At First Instance – 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 – 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.
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 . .
Appeal from – 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 – British Steel Corporation v Cleveland Bridge and Engineering Co Ltd 1983
An ‘if contract’ is where one party makes an offer capable of acceptance on the basis that ‘if you do this for us, we will do that for you’. Often used in the construction industry.
Goff J said: ‘the question whether . . any contract has come . .
Cited – Pagnan SpA v Feed Products Ltd ChD 1987
An agreement can be enforceable as an agreement on main terms only, with the detailed terms to be agreed later. Bingham J said: ‘The Court’s task is to review what the parties said and did and from that material to infer whether the parties’ . .
Cited – Pagnan SpA v Feed Products Ltd CA 2-Jan-1987
Contractually Bound – but Further Terms to Agree
The parties had gone ahead with performance of the arrangement between them, but without a formal agreement being in place.
Held: Parties may intend to be bound forthwith even though there are further terms still to be agreed. If they then . .
Cited – J Jarvis and Sons Plc v Galliard Homes Ltd CA 12-Nov-1999
. .
Cited by:
Cited – Parties Named In Schedule A v Dresdner Kleinwort Ltd and Another QBD 28-May-2010
The defendant merchant banks resisted two group claims for annual bonuses for 2008 made by the employee claimants. They now sought summary judgment against the claims. The employer had declared a guaranteed minimum bonus pool available to make the . .
Principal Judgment – RTS Flexible Systems Ltd v Molkerei Alois Muller Gmbh and Company Kg (UK Production) No 2 – Order and Costs SC 21-Jul-2010
The main judgment had not attempted to settle all issues between the parties, and much remained to be done. Any order would not be a final one. As to costs, each party had succeeded in one respect or another, but ‘at the end of this whole process . .
Applied – Mulcaire v News Group Newspapers Ltd ChD 21-Dec-2011
The claimant, a private investigator had contracted with the News of the World owned by the defendant but since closed. He had committed criminal offences in providing information for the paper, had been convicted and had served his sentence. He . .
Cited – Dresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 02 November 2021; Ref: scu.402571
The claimant sought damages saying that his bookmaker had continued to accept his bets after he had made it known that he was a compulsive gambler.
Held: The bookmaker was not liable for the gambler’s losses when he failed to uphold the agreement not to accept the gambler’s further bets. A bookmaker does not accept responsibility for the gambler’s risks. It was difficult to see how the court could extricate one set of losses from gambling where the gambler might have lost or expected to lose elsewhere.
Sir Anthony May, President, Lord Justice Lloyd and Lord Justice Etherton
[2008] EWCA Civ 1427, Times 30-Dec-2008, [2009] Ch 330, [2009] 2 WLR 1065
Bailii
England and Wales
Citing:
Appeal from – Calvert v William Hill Credit Ltd ChD 12-Mar-2008
The claimant said that the defendant bookmakers had been negligent in allowing him to continue betting when they should have known that he was acting under an addiction. The defendant company had a policy for achieving responsible gambling, . .
See Also – Calvert v William Hill Credit Ltd CA 4-Jul-2008
The claimant had begun an appeal against a failure of his claim in negligence against his bookmakers saying that they should not have allowed him to lay bets. The respondents then sought interim orders as to costs which were settled, and now sought . .
Lists of cited by and citing cases may be incomplete.
Contract, Negligence
Updated: 02 November 2021; Ref: scu.278781
The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in breach of this condition. The Court considered whether it was appropriate to protect the identities of those who had advertised tickets for sale. The Union, appealing, argued that in assessing whether the order is proportionate, the court should evaluate the impact that the disclosure of the information will have on the individual concerned against the value to the applicant of the information that can be obtained about that particular individual.
Held: The Union’s appeal failed, and disclosure was not ordered. The request was disproportionate as between the applicants and the intended targets.
As to the argument that in accepting the respondent’s web-site terms, they had consented to such disclosure: ‘such consent as may have been given by acceptance of the terms and conditions did not include an agreement to disclose personal data other than when it was proportionate to do so. Viagogo could not be required by law to disclose personal data other than when it was concluded that it was proportionate to require it to do so. A court order requiring its disclosure could not be made without the necessary underpinning of proportionality.’
Lord Kerr of Tonaghmore discussed the Charter: ‘The Charter was given direct effect by the adoption of the Lisbon Treaty in December 2009 and the consequential changes to the founding treaties of the EU which then occurred. Article 6(1) of the Treaty on European Union (TEU) now provides:
‘The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.’
Although the Charter thus has direct effect in national law, it only binds member states when they are implementing EU law – article 51(1). But the rubric, ‘implementing EU law’ is to be interpreted broadly and, in effect, means whenever a member state is acting ‘within the material scope of EU law’ . . Moreover, article 6(1) of TEU requires that the Charter must be interpreted with ‘due regard’ to the explanations that it contains.’
Lord Phillips, Lady Hale, Lord Kerr, Lord Clarke, Lord Reed
[2012] UKSC 55, [2012] 1 WLR 3333, [2012] WLR(D) 342, UKSC 2012/0030, [2013] 1 CMLR 56, [2013] HRLR 8, [2013] 1 All ER 928
Bailii, Bailii Summary, SC Sumary, SC, WLRD
Directive 95/46/EC 1(1) 6 7, Data Protection Act 1998, Charter of Fundamental Rights of the European Union
England and Wales
Citing:
At First Instance – The Rugby Football Union v Viagogo Ltd QBD 30-Mar-2011
The claimant objected to the resale through the defendant of tickets to matches held at the Twickenham Stadium. The tickets contained terms disallowing resales at prices over the face value. They sought orders for the disclosure of the names of the . .
Appeal from – Rugby Football Union v Viagogo Ltd CA 20-Dec-2011
The Union complained that the defendant operators of a web-site had permitted the sale of its tickets at far above their face value. The Court considerer whether it was proper to make a Norwich Pharmacal order which would entail the disclosure of . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
Cited – Koo Golden East Mongolia v Bank of Nova Scotia and others CA 19-Dec-2007
When making an order for the production of documents by a third party to an action, Sir Anthony Clarke MR said that it is necessary to consider all the circumstances in the light of the fact that Norwich Pharmacal relief is a flexible remedy. . .
Cited – Totalise Plc v Motley Fool Ltd and Another QBD 15-Mar-2001
A web site operator who declined responsibility for the moderation of a chat room on the site, but did take steps to remove a poster making defamatory remarks, could not rely upon the Act to resist disclosure of the identity of the author. The Act . .
Cited – Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners HL 1974
An application was made to inspect documents held by the Customs and Excise Commissioners. The plaintiff sought to inspect the documents to discover whether calculations of taxes were correct. The Commissioners swore an affidavit identifying . .
Cited – X Ltd v Morgan-Grampian (Publishers) Ltd HL 1990
In a case where a contemnor not only fails wilfully and contumaciously to comply with an order of the court but makes it clear that he will continue to defy the court’s authority if the order should be affirmed on appeal, the court must have a . .
Cited – The President of the State of Equatorial Guinea and Another v Bank of Scotland International PC 27-Feb-2006
(Guernsey) Lord Bingham said: ‘Norwich Pharmacal relief exists to assist those who have been wronged but do not know by whom. If they have straight forward and available means of finding out, then it will not be reasonable to achieve that end by . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Cited – Clift v Clarke QBD 18-Feb-2011
The claimant sought disclosure of identities of posters to the defendant’s web-site.
Held: ‘In my view, the postings are clearly one or two-liners, in effect posted anonymously by random members of the public who do not purport, either by . .
Cited – Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU ECJ 18-Jul-2007
The provisions of article 13, as referred to in article 15(1) of Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector ([2002] OJ L201/37) must be interpreted as . .
Cited – Zagorski and Baze, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills and Others Admn 29-Nov-2010
The claimants, in the US awaiting execution for murders, challenged the permitting by the defendant for export of the chemical Sodium Thipental which would be used for their execution. The respondent said that its use in general anaesthesia practice . .
Cited – Bonnier Audio AB v Perfect Communication Sweden AB ECJ 19-Apr-2012
ECJ The applicants, publishers with exclusive rights to reproduce etc, certain audio books, claimed that their exclusive rights had been infringed by the public distribution of the works without their consent by . .
Cited by:
Cited – Davis and Others, Regina (on The Application of) v Secretary of State for The Home Department and Others Admn 17-Jul-2015
The applicants said that section 1 of the 2014 Act was unlawful in that it went against decisions of the European Court.
Held: Section 1 was indeed inconsistent with European Union Law. Section 1, of the Act should be disapplied: (1) insofar . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Cited – Mircom International Content Management and Consulting Ltd and Others v Virgin Media Ltd and Another ChD 16-Jul-2019
The claimants, producers of pornographic films, sought disclosure by the defendant internet service provider of certain internet protocol addresses, wishing to pursue those it said had wrongfully downloaded their films. The court was asked first . .
Cited – Cartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Information, Contract, Human Rights, European
Leading Case
Updated: 01 November 2021; Ref: scu.465937
The boxing manager and boxer each said that the other owed him money.
Held: The contract entitled the claimant to take some share of the boxers earnings but as part of the overall management fee, but as a part of the overall sum and at a share to be apprtioned between the managers. On the other hand the claimant had not waived payment by failing to call for payment in earlier years. In summary, unpaid comission remained payable, the balance of any payment for one particular fight was due from a company now in liquidation (not Mr Warren), but no sum was payable in respect of the promoter agreement.
Knowles CBE J
[2014] EWHC 3671 (QB)
Bailii
England and Wales
Citing:
Cited – Allied Marine Ltd v Vale do Rio Doce SA (The Leonidas D) CA 1985
One party sought to construct an agreement to abandon an ongoing, if stalled, arbitration out of mere silence.
Held: Robert Goff LJ said that silence will not normally amount to acceptance of an offer since acceptance cannot be inferred from . .
Cited – Liberty Insurance Pte Ltd and Another v Argo Systems Fze CA 21-Dec-2011
Aikens LJ said that the waiver of a contractual right by election or by estoppel requires ‘that the person who is alleged to have ‘waived’ the relevant contractual right has made an unequivocal representation, by words or conduct, that he does not, . .
Cited – Behzadi v Shaftsbury Hotels CA 1992
The court must distinguish between an open contract such as Green v. Sevin where no date for completion is fixed by the contract and the more normal case where a completion date is fixed but time is not of the essence of the date specified. In the . .
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 – Valilas v Januzaj CA 8-Apr-2014
The parties, dentist working together, disputed the contract between them.
Held: Floyd LJ described the assessment to be made when deciding if a contract had been breached: ‘Whether a breach or threatened breach does give rise to a right to . .
Lists of cited by and citing cases may be incomplete.
Contract, Estoppel
Updated: 01 November 2021; Ref: scu.538724
The claimant objected to the resale through the defendant of tickets to matches held at the Twickenham Stadium. The tickets contained terms disallowing resales at prices over the face value. They sought orders for the disclosure of the names of the sellers and the tickets advertised.
Held: The application succeeded. The order was necessary. The RFU had a proper requirement and need. The defendant had given no effective right of privacy to its customers, and the customers should not object to the claimant knowing who had tickets. There was a good arguable case that those who had received tickets from the RFU and the subsequent sellers and buyers of the tickets had been guilty of breach of contract and/or conversion
Tugendhat J
[2011] EWHC 764 (QB)
Bailii
England and Wales
Citing:
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Unilever Plc v Gillette (UK) Limited CA 1989
Unilever claimed infringement of its patent. The court was asked whether there was a good arguable case against the United States parent company of the existing defendant sufficient to justify the parent company to be joined as a defendant and to . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
Cited – The President of the State of Equatorial Guinea and Another v Bank of Scotland International PC 27-Feb-2006
(Guernsey) Lord Bingham said: ‘Norwich Pharmacal relief exists to assist those who have been wronged but do not know by whom. If they have straight forward and available means of finding out, then it will not be reasonable to achieve that end by . .
Cited – United Company Rusal Plc and Others v HSBC Bank Plc and Others QBD 1-Mar-2011
The claimants sought an order for discovery here from a third party of documents required to support proposed litigation in Russia.
Held: Tugendhat J said: ‘the court [has] to be as satisfied as it can be, having regard to the limitations . .
Cited – Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credit Guarantee Department CA 23-Jul-1997
The bank claimed that it had been defrauded, and that since an employee of the defendant had taken part in the fraud the defendant was had vicarious liability for his participation even though they knew nothing of it.
Held: Where A becomes . .
Cited – United Company Rusal Plc and Others v HSBC Bank Plc and Others QBD 1-Mar-2011
The claimants sought an order for discovery here from a third party of documents required to support proposed litigation in Russia.
Held: Tugendhat J said: ‘the court [has] to be as satisfied as it can be, having regard to the limitations . .
Cited by:
Appeal from – Rugby Football Union v Viagogo Ltd CA 20-Dec-2011
The Union complained that the defendant operators of a web-site had permitted the sale of its tickets at far above their face value. The Court considerer whether it was proper to make a Norwich Pharmacal order which would entail the disclosure of . .
At First Instance – The Rugby Football Union v Consolidated Information Services Ltd SC 21-Nov-2012
The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Contract
Updated: 01 November 2021; Ref: scu.431656
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 supplied and paid for on the basis set out in that draft contract but the railway company did not complete the formalities and the draft stayed (uncompleted) in a drawer at their offices.
Held: The court asked how the later conduct of the parties, in which the coal was supplied and paid for at the prices agreed in the draft contract, was be accounted for. There was a contract between the parties and the rights and obligations of the parties had to be considered as if the unexecuted draft had been completed.
Lord Cairns LC said: ‘But, my Lords, over and above that, I must say that having read with great care the whole of this correspondence, there appears to me clearly to be pervading the whole of it the expression of a feeling on the one side and on the other that those who were ordering the coals were ordering them, and those who were supplying the coals was supplying them, under some course of dealing which created on the one side a right to give the order, and on the other an obligation to comply with the order.’ and ‘there may be a consensus between the parties far short of a complete mode of expressing it, and that consensus may be discovered from letters or from other documents of an imperfect and incomplete description.’
Lord Cairns LC, Lord Blackburn
[1877] 2 AC 666
England and Wales
Cited by:
Cited – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Unilateral Contract Liability
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘pounds 100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .
Cited – 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.
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 . .
Cited – Grant v Bragg ChD 22-Jan-2009
The parties disputed whether they had a contract for the sale and purchase of shares.
Held: The parties had reached agreement, but both anticipated that this would be concluded by formal contracts. An email accepted the outstanding disputed . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 01 November 2021; Ref: scu.251176
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 of the figures. The developer had misconstrued a provision designed to provide only for minor unanticipated costs. Some variations were allowed accordingly.
Coulson J
[2008] EWHC 2379 (TCC)
Bailii
England and Wales
Citing:
Cited – Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
Cited – A Meredith Jones and Co Ltd v Vangemar Shipping Co Ltd (‘The Apostolis’) CA 11-Jul-2000
The proper construction of a contractual clause must not consider that clause in isolation, but must consider the clause in the context of the contract as a whole. . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
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 – Martin v David Wilson Homes Ltd CA 28-Jun-2004
The court considered the construction of a restrictive covenant, and was asked whether an indefinite article ‘a private dwellinghouse’ was to be construed as a limitation of number or whether it was to be construed as being as to the manner of use. . .
Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Cited – Westminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
Cited – Miller v Emcer Products Ltd CA 20-Dec-1955
An express term in a contract excludes the possibility of implying any term dealing with the same subject-matter as the express term. . .
Cited – Stocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
Cited – Morrell v Studd and Millington 1913
The fact that a date has not been inserted into a deed does not generally affect its validity, which usually takes effect from the date of its delivery. Parol evidence is admissible to show when it was written and from what date it was intended to . .
Cited – The Shackleford CA 2-Jan-1978
The Notice of Readiness was to discharge at the port of Constanza and was required ‘vessel also having been entered at the Customs House and the laydays will then commence on the next business day, whether in berth or not, whether in port or not, . .
Cited – Bremer Handelsgesellschaft v Vanden Avenne-Izegem HL 1978
The House considered a contractual provision which provided for the cancellation of a contract for the sale of soya beans on the happening of various events
Held: Lord Wilberforce said that there were three factors that determined whether a . .
Cited – Lark v Outhwaite 1991
The plaintiff asserted an intention to create legal relations but there was evidence from his agent which unambiguously showed that subjectively he did not have any such intention.
Held: The claim failed. Though the test for whether a promise . .
Cited – Toepfer v Warinco AG 1978
The buyer’s representatives had failed to see that the cargo was coarse-ground meal rather than fine-ground meal. The seller defended pleading waiver, based on this omission.
Held: The defence failed because the buyer’s supervisor had failed . .
Cited – Bottiglieri Di Navigazione Spa v Cosco Qingdao Ocean Shipping Company (The Bunga Saga Lima) ComC 4-Feb-2005
Application for permission to appeal against the decision of an arbitral tribunal and, in particular, a finding that, because the charterers had not insisted on cleaning being done at the first load port, they had lost the right to claim for the . .
Cited – Pearce and High Ltd v Baxter and Another CA 24-Mar-1999
The clause in JCT specifying procedures for claiming against contractors did not oust the employers’ common law rights. An employer failing to give notice under the defects liability clause in time, could still sue under common law for the defect. . .
Cited – London Borough of Merton v Leach 1985
The defendant agreed to construct 287 dwellings for the plaintiff. There were disputes on various matters and an arbitration took place. Eleven issues were appealed.
Held: There was an implied term that the plaintiff would not hinder the . .
Lists of cited by and citing cases may be incomplete.
Land, Contract
Updated: 01 November 2021; Ref: scu.277758
The claimant sought summary judgment to enforce an arbitration award in a construction dispute. The defendants argued that the contract was not sufficiently evidenced in writing to accord with the 1996 Act. The claimants replied that any oral variations were trivial.
Held: Akenhead J set out the requirements for writing as follows: ‘(a) For there to be a construction contract in writing for the purposes of Section 107 and Part II of the HGCRA, all the terms of the contract must be in writing and recorded in one of the ways set out in Section 107.
(b) Whilst adjudicators (and indeed judges) should be robust in determining whether trivial matters said to have been agreed only orally between the parties can prevent what would otherwise be a written contract for the purpose of Section 107 being a written contract, the exercise of determining what is trivial must be an objective one in relation to the particular contract and parties concerned. What may be ‘trivial’ in one contract may not be in another. Thus, for example, an oral agreement on a million pound project as to which of two mildly differing shades of light blue paint might be used may be trivial on one development but not on another.
(c) It is always necessary to determine whether a so-called agreement made orally was in reality expected or intended to be binding as between the parties. Thus, the parties having discussed and agreed something orally might later have reduced their agreement into writing in such a way as to supersede the earlier oral agreement. A later oral agreement may not be binding; for instance, it may lack consideration or otherwise may not be intended to be binding.’
Implied terms are placed in a contract by operation of law, and do not make the contract as whole not in writing. However in this case there was a triable issue as to whether some terms were sufficiently serious to mean that the contract was not in writing as required.
Akenhead J
[2008] EWHC 2802 (TCC), [2009] TCLR 1, 123 Con LR 1
Bailii
Housing Grants, Construction and Regeneration Act 1996 107
England and Wales
Citing:
Cited – RJT Consulting Engineers Ltd v DM Engineering (NI) Ltd CA 8-Mar-2002
The court considered what would amount to a contract in writing under the 1996 Act. Ward LJ said: ‘Section 107(2) gives three categories where the agreement is to be treated in writing. The first is where the agreement, whether or not it is signed . .
Cited – Trustees of the Stratfield SAYE Estate v AHL Construction Limited TCC 6-Dec-2004
The court was asked what was meant by a contract in writing under section 10. Jackson J applied RJT saying: ‘The principle of law which I derive from the majority judgments in RJT is this: an agreement is only evidenced in writing for the purposes . .
Cited – Connex South Eastern Ltd v MJ Building Services Group Plc TCC 25-Jun-2004
The court was asked whether the existence of implied terms converts an otherwise written construction contract into one that is no longer a written contract for the purposes of Section 107. Richard Havery QC J said: ‘The first question I must . .
Cited – Galliford Try Infrastructure Ltd and Another v Mott Macdonald Ltd TCC 17-Jul-2008
The court was asked whether the implication of terms into a written contract implied that it was not a contract in writing under ection 107. HHJ Seymour QC said: ‘it may be necessary to consider carefully the effect of s. 107 of the 1996 Act as . .
Lists of cited by and citing cases may be incomplete.
Construction, Contract
Updated: 01 November 2021; Ref: scu.277879
Recovery was sought of money (pounds 200) paid an error of fact. There had been a life policy, but it had lapsed before the death of the life assured. The policy had been marked ‘lapsed’ but the marking had been overlooked.
Held: Where money is paid to another under the influence of a mistake in circumstances where if the true facts had been known the money would not have been paid, an action lies to recover the money and it is against the conscience of the recipient to retain it. Parke B said of Bilbie v Lumley that ‘All that that case decides is, that money paid with full knowledge of all the facts cannot be recovered back by reason of its having been paid in ignorance of the law’
A payment made in the knowledge that there was a ground to contest liability will be irrecoverable (Lord Abinger CB).
Lord Abinger CB accepted that Baron CB had put the matter too broadly at trial by using the expression ‘means of knowledge’. This was a very vague expression, and: ‘The safest rule however is, that if the party makes the payment with full knowledge of the facts, although under ignorance of the law, there being no fraud on the other side, he cannot recover it back again. There may also be cases in which, although he might by investigation learn the state of facts more accurately, he declines to do so, and chooses to pay the money notwithstanding; in that case there can be no doubt that he is equally bound. Then there is a third case, and the most difficult one, – where the party had once a full knowledge of the facts, but has since forgotten them. I certainly laid down the rule too widely to the jury, when I told them that if the directors once knew the facts they must be taken still to know them, and could not recover by saying that they had since forgotten them. I think the knowledge of the facts which disentitles the party from recovering, must mean a knowledge existing in the mind at the time of payment.’
Parke B agreed and said: ‘If, indeed, the money is intentionally paid, without reference to the truth or falsehood of the fact, the plaintiff meaning to waive all inquiry into it, and that the person receiving shall have the money at all events, whether the fact be true or false, the latter is certainly entitled to retain it; but if it is paid under the impression of the truth of a fact which is untrue, it may, generally speaking, be recovered back, however careless the party paying may have been, in omitting to use due diligence to inquire into the fact. In such a case the receiver was not entitled to it, nor intended to have it.’
Rolfe B mentioned two interpretations of the facts available to the jury: ‘first, that the jury may possibly find that the directors had not in truth forgotten the fact; and secondly, they may also come to the conclusion, that they had determined that they would not expose the office to unpopularity, and would therefore pay the money at all events.’
Parke B, Lord Abinger CB, Gurney B, Rolfe B
(1841) 9 M and W 54, [1841] EngR 1087, (1841) 152 ER 24
Commonlii
England and Wales
Citing:
Cited – Bilbie v Lumley and Others 28-Jun-1802
Contract Not Set Aside for Mistake as to Law
An underwriter paid a claim under a policy which he was entitled in law to repudiate for non-disclosure. Although he knew the relevant facts, he was not aware of their legal significance. He claimed back the money he had paid.
Held: A contract . .
Cited by:
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – Fisher v Brooker and Another ChD 20-Dec-2006
The claimant said that he had contributed to the copyright in the song ‘A Whiter Shade of Pale’ but had been denied royalties. He had played the organ and particularly the organ solo which had contrbuted significantly to the fame of the record.
Contract, Equity
Leading Case
Updated: 01 November 2021; Ref: scu.236536
The parties disputed the effect of a contract between them for the sale of a leasehold property. After exchange the solicitors failed to obtain the landlord’s consent to the proposed assignment as required by the lease. In the meantime the proposed assignees set out to enfranchise the lease under the 1967 Act as envisaged by the contract. The notice proved defective and after difficulties with the licence to assign, the purchaser purported to rescind (but offering a reduced price).
Held: The purchaser was not disentitled to rescind for failure to apply for the licence to assign, since that duty fell on the sellers under the standard conditions. It had however failed to provide accounts as requested by the landlord. They had been provided later, and the question of whether they were in breach of the contract was to be asked not at the time fixed or completion but at the time when the notice to rescind was given. The standard conditions provided for the possibility that the landlord’s consent might not have been obtained before the date fixed for completion, and apportioned risk between the parties in contuing to act on the basis of the contract’s continued existence. This in turn implied a limitation on the freedom to rescind. The purchasers had not acted promptly as required, and ‘An equitable approach to the exercise of rights between the parties contained in contracts for the sale of land has been established for a very long time.’
Sales J
[2008] EWHC 2675 (Ch)
Bailii, Times
Leasehold Reform Act 1967
England and Wales
Citing:
Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Cited – Re Hewitt’s Contract 1963
The interpretation and effect of standard conditions governing the sale of land are informed by the background rules of equity governing the operation of contracts for the sale of land. . .
Cited – ICI Chemicals and Polymers Ltd v TTE Training Ltd CA 13-Jun-2007
The Defendant had applied for summary judgment under CPR Part 24. One argument was a short point of construction. The Judge suggested the parties agree that he should decide the point as a preliminary issue. They were unwilling so he proceeded on . .
Cited – Bowman v Hyland 1878
A vendor’s right to rescind a contract for the sale of land on receipt of a requisition was not to be exercised for reasons unconnected with the contract. . .
Cited – Smith v Wallace 1895
Romer J said that a vendor of land wanting to exercise the right of rescission given him by the relevant contract term must do so ‘fairly, and to determine promptly whether he [will] exercise the power or not. He [is] not entitled to take advantage . .
Cited – Aubergine Enterprises Limited v Lakewood International Limited CA 26-Feb-2002
A sought confirmation that it had successfully rescinded a contract for the purchase of a leasehold property from L. Either party was to be able to rescind, if consent to the assignment had not obtained before three days before completion. There . .
Cited – Selkirk v Romar Investments Ltd PC 1963
A vendor of land may properly only rescind a contract on receipt of requisitions for reasons associated with the contract. . .
Cited – St Leonard’s Shoreditch Vestry v Hughes 1864
The vendor of land is only allowed a reasonable time within which to make his decision whether to rescind or not in reliance on a contractual term providing for this right where requisitions have been raised which he cannot fulfil. . .
Cited – Dedman v British Building and Engineering Appliances CA 1973
The claimant sought to bring his claim under a provision which required a complaint to the industrial tribunal to be made within four weeks of the dismissal unless the employment tribunal was satisfied that this was not ‘practicable’. He did not . .
Lists of cited by and citing cases may be incomplete.
Land, Contract
Updated: 01 November 2021; Ref: scu.277552
The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed from a finding that they were obliged to pay his commission. The judge found that it was not implied into the contract that the commission would be payable only if the agent was an effective contributor to the transaction.
Held: The appeal was dismissed. The main reason for implying the term would be to avoid the client having to pay two commissions, but that was already precluded, and express terms were inconsistent with the term sought to be implied, and ‘The fact that it may be arguable whether a term should be implied . . does not mean that there is a doubt about the meaning of a written term’.
Longmore LJ
[2008] EWCA Civ 26, [2008] 1 EGLR 24, [2008] 1 WLR 909, [2008] NPC 10, [2008] 15 EG 178
Bailii
Estate Agents Act 1979, Unfair Terms in Consumer Contracts Regulations 1999 (1999 SI No. 2083) 7(2)
England and Wales
Citing:
Cited – The Moorcock CA 1889
Unless restricted by something else, an employer ought to find work to enable a workman to perform his part of the bargain, namely, to do his work. A term will be implied into a contract only to the extent required to give the contract efficacy: ‘if . .
Cited – Shirlaw v Southern Foundries (1926) Ltd CA 1939
The court warned against the over-ready application of any principle to justify the implication of terms into a contract. McKinnon LJ set out his ‘officious bystander’ test: ‘If I may quote from an essay which I wrote some years ago, I then said: . .
Cited – Brian Cooper and Co v Fairview Estates (Investments) Ltd CA 13-Mar-1987
A substantial property developer sought a tenant for its office block and agreed with his selling agent to pay ‘a full scale letting fee . . should you introduce a tenant by whom you are unable to be retained and with whom we have not been in . .
Cited – Toulmin v Millar HL 1887
The agent claimed a second commission when his principal, who had already paid a commission for the procuring of a tenant, was asked to pay a second commission on the purchase of the property by the tenant at a later date.
Held: Where there . .
Cited – Doyle v Mount Kidston Mining and Exploration Property Ltd 1984
(Queensland) McPherson J considered an estate agent’s contract: ‘it would have been quite artificial to suppose that the parties intended that the agent should earn his commission simply by finding an individual who, independently of any further . .
Cited – Shirlaw v Southern Foundries (1926) Ltd HL 1940
Where a party enters into an arrangement which can only take effect by the continuance of an existing state of circumstances, there is an implied engagement on his part that he will do nothing of his own motion to put an end to that state of . .
Cited – Millar Son and Co v Radford CA 1903
For an estate agent to recover his commission, it was ‘necessary’ to show that the agent’s introduction was an ‘efficient’ (namely effective) cause in bringing about the transaction. . .
Cited by:
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 – Foxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
Cited – Glentree Estates Ltd and Others v Favermead Ltd ChD 20-May-2010
The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original . .
Lists of cited by and citing cases may be incomplete.
Contract, Agency, Consumer
Updated: 01 November 2021; Ref: scu.264035
A person of unsound mind was sued on a promissory note. He had signed it as surety. The jury found that he was insane when he signed the note but there was no finding as to the creditor’s knowledge of such insanity. The judge entered a verdict against the creditor, who appealed.
Held: A contract made by a person who lacked the capacity to make it was not void, but could be avoided by that person provided that the other party to the contract knew (or, as is now generally accepted, ought to have known) of his incapacity.
The submission that there was no authority that a man could be sued and made liable on an executory contract which he had made when of unsound mind, except in the case of a contract for necessaries was rejected. Lord Esher MR: ‘I shall not try to go through the cases bearing on the subject; but what I am about to state appears to me to be the result of all the cases. When a person enters into a contract, and afterwards alleges that he was so insane at the time that he did not know what he was doing, and proves the allegation, the contract is as binding on him in every respect, whether it is executory or executed, as if he had been sane when he made it, unless he can prove further that the person with whom he contracted knew him to be so insane as not to be capable of understanding what he was about.’
Fry LJ said: ‘It thus appears that there has been grafted on the old rule the exception that the contracts of a person who is non compos mentis may be avoided when his condition can be shown to have been known to the plaintiff. So far as I know, that is the only exception.’
Lopes LJ said: ‘In order to avoid a fair contract on the ground of insanity, the mental incapacity of the one must be known to the other of the contracting parties. A defendant who seeks to avoid a contract on the ground of his insanity, must plead and prove, not merely his incapacity, but also the plaintiff s knowledge of that fact, and unless he proves these two things he cannot succeed.’
Lord Esher MR, Fry LJ, Lopes LJ
[1892] 1 QB 599
England and Wales
Cited by:
Cited – Bailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
Cited – McLaughlin v Daily Telegraph Newspaper Co. Ltd 15-Jul-1904
(High Court of Australia) The court considered the law on the effect of mental incapacity on a contract in the two cases Imperial Loan, and Molton v Camroux: ‘The principle of the decision seems, however, to be the same in both cases, which, in our . .
Cited – Hart v O’Connor PC 22-Apr-1985
Effect of insanity on making of contract
(New Zealand) The parties disputed the effect in law of an agreement for the sale of land. The transferor had proved not to be of sound mind.
Held: The validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by . .
Cited – Archer v Cutler 1980
(New Zealand) The purchaser of land sought specific performance of the contract. The vendor and purchaser had been neighbours. The neighbour needed part of the vendor’s land for access.
Held: A contract made by a person of insufficient mental . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – Josife v Summertrot Holdings Ltd Admn 4-Apr-2014
The claimant sought to avoid liability under a banking guarantee, saying that he had lacked mental capacity to grant it.
Held: The appeal failed. The judge had correctly applied the law. The execution of the guarantee had been especially . .
Cited – Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust CA 27-Jan-2015
This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement. The issue was whether the CFA terminated automatically by . .
Cited – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .
Lists of cited by and citing cases may be incomplete.
Contract, Health
Leading Case
Updated: 01 November 2021; Ref: scu.238883
[2013] ScotCS CSOH – 117
Bailii
Scotland
Contract, Agency
Updated: 01 November 2021; Ref: scu.512291
A claim was made under a re-insurance policy which supported film finances. The re-insurers resisted the claim on the grounds of misrepresentation. Rix LJ: ‘In principle it would seem to me that it is always admissible to look at prior contracts as part of the matrix or surrounding circumstances of a later contract. I do not see how the parol evidence rule can exclude prior contracts, as distinct from mere negotiations. The difficulty of course is that, where the later contract is intended to supersede the prior contract, it may in the generality of cases simply be useless to try to construe the later contract by reference to the earlier one. . Where, however, it is not even common ground that the later contract is intended to supersede the earlier contract, I do not see how it can ever be permissible to exclude reference to the earlier contract.’
Lord Justice Aldous Lord Justice Rix and Mr Justice Lloyd
[2001] EWCA Civ 735, [2001] 2 Lloyds Rep 161, [2001] LLR IR 224
Bailii
England and Wales
Citing:
See also – HIH Casualty And General Insurance Limited and Others v The Chase Manhattan Bank and Others CA 31-Jul-2001
Parties syndicating finance for a film obtained the security of an insurance which is designed to pay up to the sum insured, if the revenues generated by the film were insufficient to repay the loan finance plus associated expenses. The polices were . .
Cited by:
Cited – Amiri Flight Authority v BAE Systems Plc CA 17-Oct-2003
The appellant had contracted to purchase maintenance from the defendant of aircraft it had also purchased from them. They sought damages for negligence, saying the defendants had failed to prevent a known risk of corrosion. The defendants argued . .
See also – HIH Casualty And General Insurance Limited and Others v The Chase Manhattan Bank and Others CA 31-Jul-2001
Parties syndicating finance for a film obtained the security of an insurance which is designed to pay up to the sum insured, if the revenues generated by the film were insufficient to repay the loan finance plus associated expenses. The polices were . .
Cited – Taylor v Rive Droite Music Ltd ChD 6-Jul-2004
The claimant music producer and songwriter had entered into a publishers agreement with the defendant, agreeing to work for it. He now sought to be free to work for another company. The factual background was unclear, and the contract documentation . .
Cited – Limit (No 3) Ltd and others v PDV Insurance Company CA 11-Apr-2005
There had been substantial oil leaks in Venezuela, which had been insured and then re-insured in London. Permission had been given to serve the defendant out of the jurisdiction, but that permission had been set aside. The claimant now appealed.
Cited – KPMG Llp v Network Rail Infrastructure Ltd ChD 31-Jan-2006
. .
Cited – Crown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .
Lists of cited by and citing cases may be incomplete.
Insurance, Contract
Leading Case
Updated: 01 November 2021; Ref: scu.147555
The House was asked as to the treatment of the idea of remoteness of damages in a claim under contract in Scotland.
Held: A supplier was not to be imputed with knowledge of his purchaser’s technical processes.
Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Jauncey of Tullichettle, Lord Brown Wilkinson, Lord Nolan
Times 23-Mar-1994, [1994] UKHL 11, [1994] CLC 321, 1994 SC (HL) 20, 1994 SLT 807
Bailii
Scotland
Damages, Contract
Leading Case
Updated: 01 November 2021; Ref: scu.78106
The court was asked whether a debtor’s liability to his creditor is discharged when the creditor recovers an equivalent amount to the debt from a bank that has provided a standby letter of credit.
Held: they were entitled at common law to collect it from the customer on the ground that they had compulsorily discharged the customer’s liability for the price: ‘ the seller looks to the letter of credit for payment of the price. Thus it is, I think, received wisdom that when an issuing bank honours a letter of credit its payment will discharge the obligation that gave rise to the need for the letter of credit.’
Rimer, McFarlane, Lewison LJJ
[2012] EWCA Civ 640, [2012] 2 All ER (Comm) 1167, [2013] 2 WLR 768, [2013] 1 Ch 400, [2012] 2 Lloyd’s Rep 13, [2012] 4 All ER 160, [2012] 2 BCLC 1, 2012] 2 CLC 240
Bailii
England and Wales
Cited by:
Cited – Bailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 01 November 2021; Ref: scu.457752
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 third parties (iTunes).
Held: Looking at the words at issue it was difficult to see how sales by third parties could be excluded. EMI’s defence had no prospect of success, and the court declared accordingly.
Rt Hon Sir Andrew Morritt, Chancellor of the High Court
(2010) 107(12) LSG 25, [2010] EWHC 533 (Ch)
Bailii
England and Wales
Citing:
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 – 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 – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Cited – Doncaster Pharmaceuticals Group Ltd and Others v The Bolton Pharmaceutical Company 100 Ltd CA 26-May-2006
Appeals were made against interlocutory injunctions for alleged trade mark infringement.
Held: The court should hesitate about making a final decision for summary judgment without a trial, even where there is no obvious conflict of fact at the . .
Cited by:
Appeal from – Pink Floyd Music Ltd and Another v EMI Records Ltd CA 14-Dec-2010
The defendant appealed against an order made on the claimant’s assertion that there were due to it substantial underpayments of royalties over many years. The issues were as to the construction of licensing agreements particularly in the context of . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 01 November 2021; Ref: scu.408847
The defendants (E) were liable to F after a serious offshore accident, but sought a contribution from a third party (A), the main charterers, seeking to rely on section 3(2) o the 1940 Act saying that ‘if sued they might have been liable’. The court was asked to interpret the section, saying whether this answer was affected the existing charterparty under which F had in any event given an indemnity to A, and if so, the existence of the indemnity disqualified A as a person who might have been held liable.
Held: E was not entitled to a contribution from A because the indeminty provision meant that it could not satisfy the requirement that ‘if sued’ A would have been liable. The charterparty agreement affected the situation because it effectively excused A from liability.
Lord Clarke said: ‘if Asco is not liable to the owner because it has a contractual defence under the charterparty, Enviroco will not be entitled to contribution from Asco and . . the reason for that cannot be described as the result of a ‘whim’ on the part of the owner but is the result of deliberate contractual arrangements apportioning risk between them as owner and charterer under the charterparty.’
Lord Collins of Mapesbury JSC considered what was ‘membership’ of a company, saying: ‘The starting point is that the definition of ‘member’ in what is now section 112 of the 2006 Act . . reflects a fundamental principle of United Kingdom company law, namely that, except where express provision is made to the contrary, the person on the register of the members is the member to the exclusion of any other person . . Ever since the Companies Clauses Consolidation Act 1845 and the Companies Act 1862 . . membership has been determined by entry on the register of members. The company’s legislation proceeds on that basis and would be unworkable if that were not so . . For those and other purposes the legislation makes it clear that the member is the person on the register, and where it is necessary to apply the legislation to persons who are not on the register, special provision is made . .’
Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lord Mance, Lord Clarke
[2010] UKSC 18, [2010] WLR (D) 113, [2010] 1 CLC 692, [2010] 2 Lloyd’s Rep 387, [2010] Bus LR 1087, 2010 SCLR 379
SC, SC Summ, Bailii, Bailii Summary, WLRD
Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 3, Companies Act 2006 112, Companies Clauses Consolidation Act 1845, Companies Act 1862
Scotland
Citing:
See also – Farstad Supply As v Enviroco Ltd and Another SCS 23-Apr-2008
(Outer House) The pursuers alleged that the defendant service company was responsible in negligence for damage by fire to its oil rig supply vessel. It was said that oil they had failed to clear was released by piping when opened flowing onto a hot . .
Cited – Comex Houlder Diving Ltd v Colne Fishing Co Ltd HL 19-Mar-1987
The House considered the means of imposing liability under the 1940 Act. The House was asked whether or not a draft agreement was binding notwithstanding that it had not been formally executed as apparently envisaged by the parties.
Held: No . .
See Also – Enviroco Ltd v Farstad Supply A/S CA 18-Dec-2009
A company which would otherwise undoubtedly be the subsidiary of another company ceased to be so when the shares in the former company were charged by the latter company to a Scottish bank. . .
Appeal from – Farstad Supply AS v Enviroco Ltd and Another SCS 1-May-2009
. .
Cited – Power v Central SMT Co Ltd SCS 23-Mar-1949
Lord Keith said that the words ‘if sued’ in the subsection assume that the person from whom the contribution was sought had been: ‘relevantly, competently and timeously sued; in other words, that all the essential preliminaries to a determination of . .
Cited – Post Office v Hampshire County Council 1980
Leading counsel for the appellants argued unsuccessfully that a pre-1875 edition of Bullen and Leake’s Precedents of Pleadings had referred to an equitable doctrine of circuity in certain classes of cases, but that nothing had been heard of it for a . .
Cited – French Marine v Compagnie Napolitaine d’Eclairage et de Chauffage par le Gaz HL 1921
A ship had been requisitioned after an instalment of advance hire had become due, leading to the frustration of the charterparty. The parties disputed whether the charterers were still liable to pay the hire in full.
Held: They were. The . .
Cited – Post Office v Hampshire County Council 1980
Leading counsel for the appellants argued unsuccessfully that a pre-1875 edition of Bullen and Leake’s Precedents of Pleadings had referred to an equitable doctrine of circuity in certain classes of cases, but that nothing had been heard of it for a . .
Cited – Workington Harbour and Dock Board v Towerfield (Owners) (‘The Towerfield’) HL 1951
The occasions upon which the master is called upon to exercise his reserve of authority either by interfering with the conduct of the ship or by taking the navigation out of the hands of a competent pilot are rare and should the master exercise that . .
Cited by:
Cited – Eckerle and Others v Wickeder Westfalenstahl Gmbh and Another ChD 23-Jan-2013
By acting together, two shareholders had first refused the proposed dividend, and replaced the board. They then acquired fiurther shares and achieved a majority of more than 75%, sufficient to pass a special resolution, and proposed the cancellation . .
Lists of cited by and citing cases may be incomplete.
Damages, Contract, Company
Updated: 01 November 2021; Ref: scu.409978
‘The main question to be disposed of under this appeal is that which is raised by the fact that the pursuer in building the walls of the house used milled lime instead of cement mortar as required by the specification.
In making that departure from the specification the pursuer was acting in accordance with the orders of the architect, but I am of opinion that nevertheless he must be regarded as being in breach of his contract in a question with the defender if the architect was not authorised by the latter to substitute the one material for the other.’
Lord Low
[1907] ScotCS CSIH – 4, 1907 SC 360, [1907] SLR 44 – 291
Bailii, Bailii
Scotland
Construction, Contract
Leading Case
Updated: 01 November 2021; Ref: scu.279272
The parties disagreed as to the curial law of an arbitration agreement. The proper law of the building contract and the arbitration agreement was English but the reference was conducted in Scotland.
Held: Evidence of behaviour after a contract had been made is inadmissible to assist in the construction of an entirely written contract. An application for the appointment of an arbitrator stated that there was a submission to arbitration within the meaning of the Arbitration Act 1950, but the arbitration was held to be subject to the law of Scotland. While evidence of subsequent conduct is admissible to determine the existence of a contract, it is not admissible to determine the terms of a contract.
Lord Reid: ‘It has been assumed in the course of this case that it is proper, in determining what was the proper law, to have regard to actings of the parties after their contract had been made. Of course the actings of the parties (including any words which they used) may be sufficient to show that they made a new contract. If they made no agreement originally as to the proper law, such actings may show that they made an agreement about that at a later stage. Or if they did make such an agreement originally such actings may show that they later agreed to alter it. But with regard to actings of the parties between the date of the original contract and the date of Mr. Underwood’s appointment I did not understand it to be argued that they were sufficient to establish any new contract, and I think they clearly were not. As I understood him, counsel sought to use those actings to show that there was an agreement when the original contract was made that the proper law of that contract was to be the law of England. I must say that I had thought that it is now well settled that it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made. Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later.’
Lord Hodson: ‘I should add that I cannot assent to the view which seems to have found favour in the eyes of the Master of the Rolls and Widgery LJ. that as a matter of construction the contract can be construed not only in its surrounding circumstances but also by reference to the subsequent conduct of the parties.’
Viscount Dilhorne: ‘I do not consider that one can properly have regard to the parties’ conduct after the contract has been entered into when considering whether an inference can be drawn as to their intention when they entered into the contract, though subsequent conduct by one party may give rise to an estoppel.’
Lord Wilberforce said: ‘once it was seen that the parties had made no express choice of law, the correct course was to ascertain from all relevant contemporary circumstances including, but not limited to, what the parties said or did at the time, what intention ought to be imputed to them on the formation of the contract. Unless it were to found an estoppel or a subsequent agreement, I do not think that subsequent conduct can be relevant to this question.’
Lord Reid, Lord Hodson, Viscount Dilhorne, Lord Wilberforce,
[1970] AC 572, [1970] 1 Lloyds Rep 269, [1970] 1 All ER 796, [1970] AC 583
England and Wales
Citing:
Appeal from – Whitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd CA 1969
The parties, one in England and one in Scotland agreed to perform certain actions in Scotland. Any dispute was to be settled by arbitration, but it was not said whether this would be in England or Scotland. The curial law of arbitration would decide . .
Cited by:
Cited – Montgomery v Johnson Underwood Ltd CA 9-Mar-2001
A worker who had strictly been employed by an agency but on a long term placement at a customer, claimed to have been unfairly dismissed by the customer when that placement ended.
Held: To see whether she was an employee the tribunal should . .
Cited – Halpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
Cited – Beale v Harvey CA 28-Nov-2003
Land had been divided into three lots on its development, but the site plan did not match the line of a fence actually erected.
Held: The court was not bound by the Watcham case, and would not follow it to allow reference to the later . .
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 – AB and others v British Coal Corporation (Department of Trade and Industry) QBD 27-Jun-2007
The parties disputed the effect of the Claims Handling Agreement (CHA) which regulated claims for compensation for respiratory diseases incurred by people working for the defendant as regards the circumstances for claimants with chronic bronchitis. . .
Cited – Sattar v Sattar and Another ChD 20-Feb-2009
The parties disputed the effect of a Tomlin order settling litigation between them. Under the order, if certain sums were not paid, the company was to be sold.
Held: Later behaviour could not be used to help interpret an agreement, and in this . .
Cited – Lexington Insurance Co v AGF Insurance Ltd HL 30-Jul-2009
The respondent insurers had been held liable in Washington, and had been granted indemnity against the appellants by the Court of Appeal. The insurance contract had been under the law of Pennsylvania, but that of the re-insurance under the law of . .
Cited – Radford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .
Lists of cited by and citing cases may be incomplete.
Contract, Arbitration
Leading Case
Updated: 01 November 2021; Ref: scu.194302
The defendant, a British army officer in India, had given a promissory note to the plaintiff moneylenders. Unable to pay, he suggested they apply to his father, Sir Richard Temple. In reply, Sir Richard Temple’s solicitors wrote saying they were instructed to offer Rs1500 (a sum less than the debt) in full settlement. They enclosed a draft for that amount and sought that promissory notes be handed over against payment of that sum. The plaintiffs cashed and retained the proceeds of the draft and afterwards brought an action against the debtor for the balance of the debt.
Held: The creditor’s action against the debtor failed. A court will not support an action whose effect is circuitous, to recover damages awarded against that party in another action. Where one party releases another from liability, a third party will not later be allowed to sue on the same cause. Where a cheque for a smaller sum than the amount due is drawn by a person other than the debtor and delivered in satisfaction of his debt, it is clear that the debt is discharged if the cheque be accepted on that basis and duly paid.
Fletcher Moulton LJ said: ‘These being the facts, we have to consider how they affect the debt on the note in point of law. I am of opinion that by that transaction between the plaintiffs and Sir Richard Temple the debt on the promissory note became extinct. I agree with the view expressed by Willes J. in Cook v Lister. The effect of such an agreement between a creditor and a third party with regard to the debt is to render it impossible for the creditor afterwards to sue the debtor for it. The way in which this is worked out in law may be that it would be an abuse of the process of the Court to allow the creditor under such circumstances to sue, or it may be, and I prefer that view, that there is an extinction of the debt; but, whichever way it is put, it comes to the same thing, namely that, after acceptance by the creditor of a sum offered by a third party in settlement of the claim against the debtor, the creditor cannot maintain an action for the balance.
That being my view, namely, that either the debt is extinguished, or that the Court will not allow the creditor to assert his claim, I will only say a few words upon . . the decision in Foakes v. Beer [in the Library], the old doctrine that a debtor cannot discharge himself from his debt by payment of an amount smaller than that of the debt was recognized by the House of Lords as law of such old standing that it could not be challenged … But in the present case we are dealing with the question of the effect of money paid by a third person. In such a case there is no difference between payment of the total amount and payment of a portion of it only, so long as it is paid in settlement of the debt. If a third person steps in and gives a consideration for the discharge of the debtor, it does not matter whether he does it in meal or in malt, or what proportion the amount given bears to the amount of the debt. Here the money was paid by a third person, and I have no doubt that, upon the acceptance of that money by the plaintiffs with full knowledge of the terms on which it was offered, the debt was absolutely extinguished.
Vaughan Williams LJ thought that prima facie ‘an accord and satisfaction must be by virtue of an agreement made between a person who is under an obligation to another person, which he ought to have and has not performed, and that other person.’ Since the draft for Rs1500 had been sent by the father and retained and cashed by the Plaintiffs, the Court should conclude that they had agreed to accept it on the terms upon which it was sent. None of the plaintiffs were called as witnesses and no evidence was given to negative the presumption which arose from their keeping the draft that the plaintiffs had agreed to take it on the terms upon which it was sent. He considered what defence, if any, could be pleaded by the defendant (the debtor) on this basis, finding that, in the hands of the plaintiffs, the negotiable instrument on which they sued had ceased to be a negotiable instrument. Alternatively, from the moment the draft was cashed by the plaintiffs, a trust was created as between the father and the moneylenders in favour of the former so that any money the moneylenders might receive on the promissory note would be held in trust for the father.
Fletcher Moulton LJ, Vaughan Williams LJ
[1911] 2 KB 11, [1911] 2 KB 330
England and Wales
Citing:
Cited – Foakes v Beer HL 16-May-1884
Mrs Beer had obtained judgment against Dr Foakes for andpound;2,090 19s. He asked for time to pay and they agreed with him, acknowledging the debt, and paying part immediately and undertaking to pay the balance over a period of time. In . .
Cited – Cook And Another v Lister 19-Jan-1863
Three parties including the defendant had drawn bills against each other, which bills came to the plaintiff as bona fide holder for value indorsee. Various sums had been paid on account, and the plaintiff sued the defendant but giving him credit . .
Cited by:
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 – South West Trains Ltd v Wightman and Others ChD 14-Jan-1998
The trades’ union had agreed with the employer that what had been irregular and non-pensionable payments made to employees would, in future, be paid regularly, but that only certain parts of the payments become pensionable. The employer now sought . .
Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
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 – D and C Builders Ltd v Rees CA 1966
The plaintiff builders had been chasing payment of their undisputed invoice. Knowing that the builders were in financial difficulties, the defendant offered rather less, saying that if it was not accepted, she would pay nothing. She made the payment . .
Cited – Morris v Wentworth-Stanley CA 4-Sep-1998
Two actions had been brought by a contractor against the partners in a farming partnership. Those actions were consolidated. One of the partners died and when the plaintiff found that out he discontinued his claims against the deceased partner and . .
Cited – T and N Limited, Associated Companies of T and N Ltd (In Administration) v Royal and Sun Alliance Plc, and others ChD 9-May-2003
T and N had exposure to asbestosis claims; these claims were insured by Lloyd’s but on terms that if payments were to be made, T and N should make certain reimbursements to Lloyd’s. T and N then insured with a captive company known as Curzon their . .
Cited – Stour Valley Builders (a Firm) v Stuart and Another CA 21-Dec-1992
The plaintiff builders had invoiced and pursued a revised account of andpound;10,163 after the defendants had disputed a number of items. The defendants ultimately offered a cheque in the sum of andpound;8,471 in full and final settlement of all . .
Lists of cited by and citing cases may be incomplete.
Contract, Litigation Practice
Leading Case
Updated: 01 November 2021; Ref: scu.186670
A buyer may lawfully reject goods on the grounds of breach of condition, even though he did not know of the breach of condition at the time of the rejection; and the rejection will not be wrongful merely because he mistakenly alleged the breach of some other condition.
Where the contract contains a detailed description of the goods, minor discrepancies between the delivered goods and their description may entitle the purchaser to reject the goods.
Lord Atkin said: ‘If a condition is not performed the buyer has a right to reject. I do not myself think that there is any different between business men and laywers on this matter. No doubt, in business, men often find it unnecessary or inexpedient to insist on their strict legal rights. In a normal market if they get something substantially like the specified goods they may take them with or without grumbling and a claim for an allowance. But in a falling market I find that buyers are often as eager to insist on their legal rights as courts of law are ready to maintain them.’
Lord Buckmaster, Lord Blanesburgh, Lord Warrington of Clyffe, Lord Atkin, Lord Macmillan
[1933] UKHL 1, [1933] AC 470
Bailii
England and Wales
Contract
Leading Case
Updated: 01 November 2021; Ref: scu.248486
The c;aimant alleged breach of contract and or professional negligence by the defendant solicitors when acting for it in the purchase of land. Contracts had been exchnged but on the discovery of proposed development nearby, they had failed to complete, forfeiting the deposit. The claimant said that the solicitors had failed to reveal the planning proposals.
Held: The defendant had failed in its duties. ‘ the defendants could not be criticised if in fact they had not carried out a Plansearch. This follows from the first of the general propositions set out above. However, having carried out such a search, then in my judgment Mr Baker came under a duty to explain the results of that search to his client. ‘ and ‘The duty to communicate matters actually known to a solicitor is to communicate information that may be material, thereby setting the threshold for information to be communicated at an intentionally low level. Solicitors do not generally advise on the business merits of transactions they are instructed to facilitate. The business judgments involved are those of the client, not the solicitor, and it is for the client to judge the impact of the material that may be relevant, not the solicitor.’
Pelling QC HHJ
[2015] EWHC 1963 (Ch), [2015] PNLR 33, [2015] 6 Costs LO 667
Bailii
England and Wales
Citing:
Cited – Boateng v Hughmans (A Firm) CA 10-May-2002
The court was asked: ‘What has to be proved by the claimant in a case where the negligence of his solicitor has consisted of the failure to give him proper advice, in order to establish a sufficient causal link between the solicitor’s negligence and . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence, Costs, Contract, Legal Professions
Updated: 01 November 2021; Ref: scu.550034
Sir Thomas Bingham MR, Lord Justice Mann and Mr Justice Peter Gibson
Times 30-Jul-1993, Independent 06-Aug-1993, [1993] 4 All ER 961, [1993] EWCA Civ 1, (1994) 68 P and CR 69, [1993] EGCS 127, [1993] 40 EG 149, [1994] 1 WLR 327
Bailii
Law of Property (Miscellaneous Provisions) Act 1989
England and Wales
Citing:
Cited – Walford v Miles HL 1992
Agreement to Negotiate is Unworkable as a Contract
The buyers and sellers of a company agreed orally for the sellers to deal with the buyers exclusively and to terminate any negotiations between them and any other competing buyer. The sellers later decided not to proceed with their negotiations with . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 01 November 2021; Ref: scu.84745
Under a voyage charterparty, for a voyage from Trouville to London, pressed hay was to be loaded at Trouville and brought to London where it was to be taken from the ship alongside. The charterer’s agent told the master that the consignees under the bills of lading would require the hay to be delivered to them at a particular wharf in Deptford Creek and that he should proceed there on his arrival in London, which the master promised to do. On arriving in the Thames, the master learned for the first time that by an Order in Council France had been declared to be an infected country, and it was illegal to land in Great Britain any hay brought from that country. The Order had been made and published before the charter party was entered into, but neither the master of the ship nor the charterer’s agent was aware of it. On learning of the Order, the master refrained from landing the cargo at the wharf. After some delay, during which the contractual number of laydays elapsed, the charterer received the cargo from alongside the ship into another vessel and exported it. The owner claimed for detention. The claim was resisted by the charterer on the ground that the contract was unenforceable for illegality, because the purpose of the contract was the delivery of the consignment to London, which was prohibited by law.
Held: The defence failed. Where the party or parties were not aware that the intended performance was illegal and, on discovery, are subsequently content that the contract be performed in a legal manner within its terms, the contract is enforceable.
Blackburn J distinguished the case before him from one where the contract could not be performed without illegality or which was entered into for the object of satisfying an illegal purpose. He observed that all that the owner had bargained for, and could properly be said to have intended, was that on the ship’s arrival in London his freight should be paid and the hay taken out of the ship. As to an illegal object, he never contemplated that the charterer would violate the law. He contemplated that the charterer would land the goods and thought that this would be lawful; but if he had thought of the possibility of the landing being prohibited, he would probably, and correctly, have expected the charterer not to break the law. He continued: ‘We quite agree, that, where a contract is to do a thing which cannot be performed without a violation of the law it is void, whether the parties knew the law or not. But we think, that in order to avoid a contract which can be legally performed, on the ground that there was an intention to perform it in an illegal manner, it is necessary to show that there was the wicked intention to break the law; and, if this be so, the knowledge of what the law is becomes of great importance.’
Blackburn J
(1873) LR 8 QB 202
Contagious Diseases (Animals) Act 1869
England and Wales
Cited by:
Cited – 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 . .
Approved – Anglo Petroleum Ltd and Another v TFB (Mortgages) Ltd CA 16-May-2007
Challenge to validity of mortgages executed by company – allegation that funds used for financial assistance in purchase of own shares – effect on loan.
Toulson LJ approved the case of Waugh v Morris, saying: ‘130 years later, this statement of . .
Lists of cited by and citing cases may be incomplete.
Contract, Transport
Leading Case
Updated: 01 November 2021; Ref: scu.536187
The court considered whether there had been an error in the contract and how it should be dealt with. Lord President Dunedin said: ‘it is a very delicate matter to interfere with a written contract expressed in clear terms, and that parole proof should not be rashly allowed in such a case. But there are cases in which it would be truly a disgrace to any system of jurisprudence if there was no way available of rectifying what would otherwise be a gross injustice.’
Lord President Dunedin
[1907] ScotCS CSIH – 7, (1907) 15 SLT 36, 1907 SC 903
Bailii
Cited by:
Cited – Anderson v Lambie HL 25-Jan-1954
As the result of a mistake, a disposition of property conveyed the entirety of an estate which consisted mainly of a farm, but also included other property. The preceding missives of sale were capable of more than one meaning as to the extent of the . .
Lists of cited by and citing cases may be incomplete.
Scotland, Contract
Leading Case
Updated: 01 November 2021; Ref: scu.279275
The claimants sought commission or a quantum meruit for the part they had taken in finding a suitable site for the defendant’s High Commission in London.
Held: The works undertaken were consistent with the claimant seeking work from the defendant. No contract had been signed, and the defendant had indicated a reluctance to agree to the terms proposed. The company had not been the effective cause of the purchase. The company had been acting as an estate agent within the 1989 Act and was under a duty to provide the information required by the regulations. No contract had been formed. The company itself had only been formed part way through the work for which it claimed payment. For assorted reasons, the claims in quantum meruit failed also.
Christophe Clarke J
[2009] EWHC 121 (QB)
Bailii
Estate Agents Act 1989 18, Estate Agents (Provision of Information) Regulations 1991 (1991/859). 18(4)
England and Wales
Citing:
Mentioned – Jenning and Chapman Ltd v Woodman Matthews and Co 1952
. .
Mentioned – Brewer Street Investment v Barclays Woollen Co CA 1953
A prospective tenant for whom a landlord had carried out alterations on the premises was not permitted to break off negotiations for the lease solely to escape liability for the cost of such alterations. Lord Denning said: ‘What, then, is the . .
Mentioned – William Lacey (Hounslow) Ltd v Davis 1957
The builder tendered for work, apparently not on the basis that the tender might or might not be accepted but so that the owner could use the tender for what was described as ‘some extraneous or collateral purpose’, for negotiating a claim for . .
Mentioned – British Steel Corporation v Cleveland Bridge and Engineering Co Ltd 1983
An ‘if contract’ is where one party makes an offer capable of acceptance on the basis that ‘if you do this for us, we will do that for you’. Often used in the construction industry.
Goff J said: ‘the question whether . . any contract has come . .
Cited – Wood (John D) and Co v Dantata; Beauchamp Estates v Dantata CA 1987
The purchaser liked inspecting houses and the vendor had appointed ten firms to act for him as estate agents. Each of the estate agents was approached by this purchaser and each of the estate agents took the would be purchaser over the property of . .
Mentioned – Marston Construction C Ltd v Kigass Ltd 1989
. .
Cited – Regalian Properties Plc and Another v London Docklands Development Corporation ChD 25-Jan-1995
Negotiations intended to result in a contract were expressly on the basis that each party was free to withdraw from the negotiations at any time, the costs of a party in preparing for the intended contract were incurred at its own risk and it was . .
Cited – Countrywide Communications Limited v ICL Pathway Ltd 1996
The court considered the authorities bearing on the question of whether or not a claim under a quantum meruit can successfully be made for work done in anticipation of a contract which does not materialise. Strauss J concluded: ‘I have found it . .
Cited – Standard Life Assurance Company (Incorporated Under Laws of Scotland By Act of Parliament) v Egan Lawson Limited CA 21-Nov-2000
The defendant appealed against judgment in favour of his (buyer’s) estate agent for his commission in finding the property for it. A previous offer was rejected by the seller, but a subsequent agent of the buyer obtained the acceptance of a further . .
Cited – Baird Textiles Ltd v Marks and Spencer plc CA 28-Feb-2001
The more embryonic is an oral ‘agreement’, the less likely it is that the parties intended to create legal relations at that stage. For there to be an agreement formed by conduct, there must be a course of dealing from which a contract is . .
Lists of cited by and citing cases may be incomplete.
Agency, Contract
Updated: 01 November 2021; Ref: scu.280257
(Court of Common Pleas) The payment of a lesser sum on the day in satisfaction of a greater, cannot be any satisfaction for the whole. The gift of a horse, hawk, robe, etc., in satisfaction, is good. Payment of part before the day and acceptance may be in satisfaction of the whole; so payment of part at a different place. The payment of part ought to be pleaded to be paid in full satisfaction; it is not sufficient to aver that it was accepted in full satisfaction. The manner of the tender, and of the payment, shall be directed by him who made them, not by him who accepts. An acknowledgment of satisfaction by deed is a good bar, without anything received.
(1602) 5 Co Rep 117 a, [1558-1774] All ER Rep 612, (1602) 77 ER 237, [1572] EngR 290, (1572-1616) 5 Co Rep 117, (1572) 77 ER 237
Commonlii
England and Wales
Cited by:
Applied – Foakes v Beer HL 16-May-1884
Mrs Beer had obtained judgment against Dr Foakes for andpound;2,090 19s. He asked for time to pay and they agreed with him, acknowledging the debt, and paying part immediately and undertaking to pay the balance over a period of time. In . .
Cited – Collier v P and M J Wright (Holdings) Ltd CA 14-Dec-2007
Agreement for payment by joint debtor not contract
The claimant appealed against refusal of an order to set aside a statutory demand. He said that he had compromised a claim by the creditors. He argued for an extension to the Rule in Pinnel’s case, so that where a debtor agrees to pay part of a . .
Cited – Williams v Roffey Brothers and Nicholls (Contractors) Ltd CA 23-Nov-1989
The defendant subcontracted some of its work under a building contract to the plaintiff at a price which left him in financial difficulty and there was a risk that the work would not be completed by the plaintiff. The defendant agreed to make . .
Cited – In Re Selectmove Ltd CA 21-Dec-1993
Promisse to Pay Tax due is not Consideration
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
Cited – Chelsea Building Society v Nash CA 19-Oct-2010
The defendant customer of the Society appealed against an order as to the sum due under a joint mortgage. She said that the ‘full and final settlement’ of the debt with Ms Nash’s former husband and joint mortgagor had the effect of releasing Ms Nash . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 01 November 2021; Ref: scu.222036
The claimant appealed against refusal of summary judgment on his claim for payment of a discretionary employment bonus by the defendant.
Held: The appeal succeeded and summary judgment was given. The contract properly construed did give rise to a bonus calculated according to the formula. Appying Elias J’s ‘only referable’ test, it would be quite wrong to infer from all the circumstances that the claimant had accepted changes to his contract, changes which were wholly to his disadvantage both by removing his right to performance related bonus and imposing restrictive covenants. Doing nothing, like saying nothing (in the absence of an obligation to communicate or act) is inherently ambiguous. The court had been asked whether the employee’s act of continuing to work constituted the acceptance of adverse changes to his contract. In this case it did not.
Rix LJ, Longmore LJ, Jacob LJ
[2010] EWCA Civ 397
Bailii
England and Wales
Citing:
Approved – Nigeria v Santolina Investment Corp and others ChD 7-Mar-2007
The federal government sought to recover properties from the defendants which it said were the proceeds of corrupt behaviour by the principal defendant who had been State Governor of a province. The claimant sought summary judgment.
Held: . .
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 – Commerzbank Ag v Keen CA 17-Nov-2006
The bank had sought summary dismissal of a claim for non-payment of bonuses to the claimant a former employee, and now appealed refusal of its request for summary dismissal, saying that the claim had no prospect of success. The claimant said that . .
Cited – Cantor Fitzgerald International v Horkulak CA 14-Oct-2004
The employee claimed under a bonus clause which ‘contained in a contract of employment in a high earning and competitive activity in which the payment of discretionary bonuses is part of the remuneration structure of employers.’
Held: The . .
Cited – Rigby v Ferodo Ltd HL 1988
The House considered a claim for constructive dismissal where the employer had changed the terms of the employment contract by unilaterally imposing a pay cut.
Held: It was possible for an employee to continue to work under protest as to the . .
Cited – Jones v Associated Tunnelling Co Ltd EAT 16-Oct-1981
The tribunal had been asked as to the circumstances under which the acceptance of new employment terms can be inferred from an employee’s continuing to work.
Browne-Wilkinson P said: ‘The starting point must be that a contract of employment . .
Cited – Solectron Scotland Ltd v Roper and others EAT 31-Jul-2003
The court was asked whether, following a TUPE transfer, a contractual term with regard to the making of enhanced redundancy payments had been preserved.
Held: Elias J said: ‘The fundamental question is this: is the employee’s conduct, by . .
Cited by:
Cited – Parties Named In Schedule A v Dresdner Kleinwort Ltd and Another QBD 28-May-2010
The defendant merchant banks resisted two group claims for annual bonuses for 2008 made by the employee claimants. They now sought summary judgment against the claims. The employer had declared a guaranteed minimum bonus pool available to make the . .
Lists of cited by and citing cases may be incomplete.
Employment, Contract
Updated: 01 November 2021; Ref: scu.408599
The owner sought specific performance of its contract to sell land to the defendant. The land was subject to a proposed lease which the defendant had concluded was uncertain and unattractive, and claimed to have rescinded the contract.
Held: Specific performance was ordered in favour of the seller. Vos J said: ‘The question is what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to have meant the percentage to be, judged from the language they used. It may be, of course, that a reasonable person could simply not have known, even relying upon the appropriate factual matrix, which I have already held to have included the material in the auction pack. In that event, the Contract would indeed be too uncertain to be enforced, and notwithstanding the Court’s reluctance to reach such a conclusion, it would be driven to it in this case.’ In this case the issue was whether there was an obvious set of words which might properly correct the contract. There was. It was clear that a figure representing a percentage of the service charge had been omitted by mistake.
However, applying Quadrangle, the purchase had not been ready willing and able to complete during the period after the service of the notice to complete, and therefore was unable to exercise any right to rescind.
Vos J
[2010] EWHC 30 (Ch), [2010] 2 P and CR 19, [2010] 2 P and CR DG4
Bailii
England and Wales
Citing:
Cited – Brown v Gould 1972
A lease of business premises contained an option to renew the lease and provided for any such new lease: ‘to be for a further term of 21 years at a rent to be fixed having regard to the market value of the premises at the time of exercising this . .
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 – Ogilvie v Foljambe 25-Jul-1817
Sir William Grant said: ‘The subject-matter of the agreement is left, indeed, to be ascertained by extrinsic evidence; and, for that purpose, such evidence may be received. The defendant speaks of ‘Mr Ogilvie’s house’ . . and parol evidence has . .
Cited – Plant v Bourne CA 1897
Parol evidence was admitted to identify the 24 acres of land that had been agreed to be sold. It was clear that there was a contract. Its object were the 24 freehold acres of land which the parties had discussed. All evidence to identify the land . .
Cited – Quadrangle Development and Construction Co Ltd v Jenner CA 1974
A Notice to Complete binds both parties to a land contract.
Buckley LJ said that the party giving the notice must be ready and willing at the time of the giving of the notice to fulfill his own outstanding obligations under the contract, and . .
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 – Trustees In the Charity of Sir John Morden v Mayrick; Graham v Mayrick CA 12-Jan-2007
The claimant had owned tracts of land in London for very many years, but the title deeds had been lost. The defendant had purchased a part from a company who had in turn purchased from the claimants, but the parties disputed an adjacent strip of . .
Lists of cited by and citing cases may be incomplete.
Land, Contract
Updated: 01 November 2021; Ref: scu.392993
The House was asked whether an option to purchase certain land had been validly exercised. The farm assets had been transferred into a company in order to generate cash. Mr Simmers was apparently gven a right for five years to purchase the business. The landowner now appealed against a decision that it had been validly exercised, saying that time should have been held to be of the essence.
Held: The appeal was dismissed. The agreement requiring completion before a certain day was not sufficient to make time of the essence, and indeed the agreement taken as a whole supported this by permitting a notice to exercise the option to be served at any time up to the day before the date supposedly fixed.
Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Neuberger of Abbotsbury
[2008] UKHL 24, 2008 GWD 13-235, 2008 SC (HL) 137, 2008 SCLR 533, 2008 SLT 407
Bailii, HL
Scotland
Citing:
See Also – Simmers and Others, Re Petition for an Order ScS 4-Apr-2003
. .
See Also – In Petition of Arthur Simmers and others for an Order Under Sec 461 of the Companies Act 1985 In Respect of Scotpigs Limited SCS 24-Apr-2003
. .
See Also – Simmers and others vInnes for an Order Under Section 461 of the Companies Act 1985 OHCS 17-Dec-2003
. .
See Also – Arthur William Simmers v James Grigor Innes OHCS 11-Jul-2005
. .
Appeal from – Simmers v Innes OHCS 2-Feb-2007
The parties disputed whether an option to purchase land had been validly exercised after a dispute as to the means of valuing it.
Held: The option had been validly exercised. . .
Cited – Rodger (Builders) Ltd v Fawdry 1950
Where the owner of land sells it, but, knowing the purchaser not to have registered the title sells it again to a purchaser who then knowingly seeks to register the second transfer, the court will disallow the transfer: ‘offside goals are . .
Cited – United Scientific Holdings v Burnley Borough Council HL 1978
The House was asked whether a failure by a lessor to keep strictly to the timetable laid down in a rent review clause in a lease necessarily deprived the lessor of the benefit of the rent review.
Held: A stipulation as to time in an option . .
Cited – Visionhire Ltd v Britel Fund Trustees Ltd 1991
. .
Lists of cited by and citing cases may be incomplete.
Land, Contract
Updated: 01 November 2021; Ref: scu.266936
The court re-stated the principles applicable in testing whether an employee’s restrictive covenant was reasonable: ‘The court cannot say that a covenant in one form affords no more than adequate protection to a covenantee’s relevant legitimate interests if the evidence shows that a covenant in another form, much less far-reaching and less potentially prejudicial to the covenantor, would have afforded adequate protection.’
The court nevertheless identified a prototype non-solicitation covenant likely to be effective in most cases where there was a need to protect a client connection or a goodwill: ‘At least at first sight, a suitably drafted covenant precluding the defendants, for a reasonable period of time after the termination of their employment, from soliciting or dealing with clients of the plaintiff with whom they had dealt during the period of their employment would appear to have been quite adequate for the plaintiff’s protection in this context.’
Sir Christopher Slade said: ‘The employer’s claim for protection must be based upon the identification of some advantage or asset inherent in the business which can properly be regarded as,in a general sense, his property, and which it would be unjust to allow the employee to appropriate for his own purposes, even though he, the employee, may have contributed to its creation.’
Sir Christopher Slade
[1991] IRLR 215
England and Wales
Citing:
Cited – Kores Manufacturing Co Ltd v Kolok Manufacturing Ltd CA 1959
When considering a post employment restrictive covenant on an employee, the court should allow that an employer has a legitimate interest in maintaining a stable and trained workforce. However, even accepting that interest, an employer has no . .
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 – 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 by:
Cited – Allan Janes Llp v Johal ChD 23-Feb-2006
The claimant sought to enforce a restrictive covenant against the defendant a former assistant solicitor as to non-competition within a certain distance of the practice for a period of three years. After leaving she had sought to set up partnership . .
Cited – Dentmaster (UK) Limited v Kent CA 2-May-1997
The court was asked as to whether a post-employment non-solicitation restrictive covenant was reasonable.
Held: The covenant was upheld. It extended for a period of twelve months to customers within the last six months with whom the employee . .
Cited – Dawnay, Day and Co Limited; Wilcourt Investments Limited v D’Alphen; Johnston; Parkman; Cantor Fitzgerald International CA 22-May-1997
The defendants were investment managers who left the plaintiff’s employment to take up posts with a rival. DD issued these proceedings claiming to enforce inter alia contractual undertakings by the defendants not to compete with the business of DDS, . .
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 – Assembly Solutions and Tools Ltd v Mitchell SCS 7-Dec-2007
. .
Cited – Norbrook Laboratories (GB) Ltd v Adair and Another QBD 6-May-2008
The claimants sought a post employment injunction to prevent the defendant revealing confidential materials relating to inventions created during his employment. . .
Cited – WRN Ltd v Ayris QBD 21-May-2008
The claimant sought to enforce post employment contracts against the defendant. One issue was whether or not business cards that had been given to the employee in the course of his employment, as well as cards that were already in his possession and . .
Cited – Kynixa Ltd v Hynes and others QBD 30-Jun-2008
Complaint of breaches of employment contracts and shareholders’ agreements. . .
Cited – Accounting, Secretarial and Personnel Limited T/a ASAP Recruitment v Stuart Hallford SCS 10-Aug-2000
. .
Cited – Thurstan Hoskin and Partners v Jewill Hill and Bennett (A Firm) and others CA 5-Feb-2002
. .
Cited – Axiom Business Computers Ltd v Frederick ScS 20-Nov-2003
Lord Bracadale re-iterated the principles used in assessing whether a proposed employment condition operated as an unlawful restraint on trade: ‘(i) A covenant in restraint of trade is void unless it is reasonable in the interests of the parties and . .
Cited – Beckett Investment Management Group Ltd and others v Hall and others CA 28-Jun-2007
The company sought to enforce restrictive covenants entered into by employees of its subsidiary. The employees said that the covenants did not benefit them.
Held: The court should take a realistic view of corporate identity in such situations. . .
Cited – Greck v Henderson Asia Pacific Equity Partners (Fp) Lp and others SCS 8-Jan-2008
. .
Cited – Seabrokers Ltd v Riddell SCS 15-Aug-2007
. .
Cited – TFS Derivatives Ltd v Morgan QBD 15-Nov-2004
The claimant sought to enforce a post employment restrictive covenant. There was a 6 months’ prohibition, post-termination of employment (less any period of garden leave) on any employment which was competitive with the business of a former . .
Cited – Leeds Rugby Ltd v Harris and Bradford Bulls Holdings Limited QBD 20-Jul-2005
The claimant sought damages from the defendants saying that the second defendant had induced a breach of contract by the first when he left to play rugby for the second defendant.
Held: The contract could not be said to be void as an agreement . .
Cited – Beckett Investment Management Group Ltd. Beckett Financial Services Ltd. Beckett Asset Management Ltd and others v Hall and others QBD 16-Feb-2007
. .
Cited – Bridgend County Borough Council v Stephens EAT 10-Dec-1999
. .
Cited – Bridgend Borough Council v Sutton EAT 22-Jan-2002
. .
Cited – Watts v Information Commissioner IT 20-Nov-2007
. .
Cited – Duarte v The Black and Decker Corporation and Another QBD 23-Nov-2007
Attempt to enforce restrictive covenant in employment contract. . .
Cited – Associated Foreign Exchange Ltd v International Foreign Exchange (UK) Ltd and Another ChD 26-May-2010
The claimant sought interim injunctions to enforce a restrictive covenant against solicitation of customers in a former employee’s contract. The employee, a FOREX dealer, had been placed on garden leave for three months and then his contract . .
Lists of cited by and citing cases may be incomplete.
Employment, Contract
Leading Case
Updated: 01 November 2021; Ref: scu.240032
The pursuers ordered large quantities of cork shavings. They were not delivered and claimed in damages after the prices in the open market rose. The defenders said that no contract had been concluded, that the negotiations between the parties resulted in nothing more than an offer on the part of the pursuers to purchase the goods; that this offer required acceptance on the part of the defenders, and that they did not accept it.
Held: The pursuers’ appeal succeeded. A contract had been concluded. They party negotiating for the defenders had apparent authority to make the contract and it was not for the pursuers to question his status.
Lord Pearson
1909 1 SLT 540, 1909 SC 1113, [1909] ScotCS CSIH – 2
Bailii
Scotland
Contract
Leading Case
Updated: 01 November 2021; Ref: scu.279294
K instructed a dealer to sell a car which K held under an hire purchase agreement. The dealer found a who wanted hire purchase terms. K signed, at the dealer’s request, a document for the purposes of the transaction. Later, the dealer told K he had sold the car, and asked him to sign a paper which the dealer said was the release note; pointing to the document, the dealer said ‘Just sign there and that will clear you with the vehicle.’ The document was on the dealer’s untidy desk, and only two or three inches of it was showing it’s heading ‘Indemnity form’ being hidden. The document was an indemnity, and to be signed by a person willing to act as a surety. K signed without looking at the full contents, although there was nothing to prevent him from doing so, and he was literate. K thought it was for passing his right to the dealer and protecting the dealer when he resold the car. The buyer on the resale defaulted. In the action against K to enforce the indemnity, K pleaded non est factum.
Held: What has to be established, if a plea of non est factum is to succeed, is that the misrepresentation which caused the signature was a misrepresentation of the character and class of the document in question, and not a misrepresentation simply as to its contents. The document signed by K was a document wholly different in its class and character from that which he intended to sign, and the case was not a case of misrepresentation only as to the contents of the document; Accordingly the plea of non est factum succeeded and the indemnity was not enforceable against K.
Donovan LJ said that: ‘The plea of non est factum is a plea which must necessarily be kept within narrow limits.’
Donovan LJ
[1963] 1 All ER 81, [1963] 1 QB 904
England and Wales
Cited by:
Cited – Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society HL 9-Nov-1970
The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 01 November 2021; Ref: scu.253149
A seller’s title to retain a deposit or instalment is conditional upon his completing the contract. Rights of restitution for failure of consideration do not depend on the absence of fault of the plaintiff.
A party who commits a repudiatory breach which leads to a contract being terminated is not thereby deprived of the right to claim in unjust enrichment.
Stable J said: ‘In my judgment there would be a manifest defect in the law if, where a buyer had paid for his goods but was unable to accept delivery, the vendor could retain the goods and the money quite irrespective of whether the money so retained bore any relation to the amount of damage, if any, sustained as a result of the breach. The seller is already amply protected, since he can recover such damage as he has sustained and can, it seems, set off his claim for damages against the claim for the return of the purchase price.’
Stable J
[1939] 1 KB 724
England and Wales
Cited by:
Cited – Stocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
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 . .
Lists of cited by and citing cases may be incomplete.
Contract, Equity
Leading Case
Updated: 01 November 2021; Ref: scu.238537
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 that the damages were too remote.
Held: The case was to be retried.
Alderson B said: ‘Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may be fairly and reasonably be considered either as arising naturally, ie according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made where communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary circumstances, nor were the special circumstances, which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants. The Judge ought, therefore, to have told the jury, that, upon the facts then before them, they ought not to take the loss of profits into consideration at all in estimating the damages. There must therefore be a new trial in this case.’
Alderson B
[1854] EWHC Exch J70, [1854] EngR 296, (1854) 9 Exch 341, (1854) 156 ER 145
Bailii, Commonlii
England and Wales
Cited by:
Cited – G and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .
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 – Platform Home Loans Ltd v Oyston Shipways Ltd and others HL 18-Feb-1999
The plaintiffs had lent about 1 million pounds on the security of property negligently valued at 1.5 million pounds. The property was sold for much less than that and the plaintiffs suffered a loss of 680,000 pounds. The judge found that the . .
Cited – Caledonian North Sea Ltd v London Bridge Engineering Ltd and Others HL 7-Feb-2002
Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Jackson and Davies (Trading As Samson Lancastrian) v Royal Bank of Scotland CA 28-Jun-2000
In error, the bank disclosed to one customer, the mark up being taken by another in selling on goods to that first customer. The second customer went to make its purchasers direct, and the first customer sought damages from the bank. The bank . .
Applied – 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 . .
Restated – 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 . .
Cited – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Applied – Cox v Philips Industries Ltd 15-Oct-1975
Damages for distress, vexation and frustration, including consequent ill-health, could be recovered for breach of a contract of employment if it could be said to have been in the contemplation of the parties that the breach would cause such distress . .
Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Cited – Croudace Construction Limited v Cawoods CA 1978
A clause in a contract provided that: ‘We are not under any circumstances to be liable for any consequential loss or damage caused or arising by reason of late supply or any fault, failure or defect in any material or goods supplied by us or by . .
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 – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
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 – 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 – 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 – Sempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
Cited – Penwith District Council v VP Developments Ltd TCC 2-Nov-2007
The council sought to appeal against an interim arbitration award.
Held: Leave to appeal was refused. The application was wholly unjustified. This was an appeal on the facts dressed up as an appeal on law. . .
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 – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .
Cited – Markerstudy Insurance Company Ltd and Others v Endsleigh Insurance Services Ltd ComC 18-Feb-2010
The claimant insurers alleged the mishandling of insurance claims by the defendant of many claims leading to substantial losses. The parties asked the court to determine a basis for calculation of damages under the contract.
Held: A similar . .
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.
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Applied – Herbert Clayton and Jack Waller Ltd v Oliver HL 1930
When awarding damages for breach of contract courts should take care to confine the damages to their proper ambit: making good financial loss. When considering an award of damages to an actor who should have been billed to appear at the London . .
Lists of cited by and citing cases may be incomplete.
Contract, Damages
Leading Case
Updated: 01 November 2021; Ref: scu.182804
The House looked at the effect of rescission of a contract: ‘It was, however, argued before your Lordships that . . the old contracts were discharged because a varied contract is not the old contract, and as you cannot have a new and varied contract and an old and unvaried contract, regulating the same thing at the same time, the old contract, like other old things, must be disregarded. As a matter of formal logic, this may possibly be so, but such was not the view taken by this House in Morris v Baron, since, if their Lordships had thought that any variation whatever would make a new contract and discharge the old one, they would have said so expressly . . The variation may be a new contract, so as to make writing, duly signed, indispensible to its admissibility, for this is a matter of form and of the words of the statute, but the discharge of the old contract must depend on intention, tested in the manner settled in Morris v Baron.’ . . And ‘I do not think that the case, as reported, lays it down that a buyer, who has repudiated a contract for a given reason which fails him has, therefore, no other opportunity of defence either as to the whole or as to part, but must fail utterly. If he had repudiated, giving no reason at all, I suppose all reasons and all defences in the action, partial or complete, would be open to him. His motives certainly are immaterial and I do not see why his reasons should be crucial.’
Lord Atkinson said: ‘A written contract may be rescinded by parol either expressly or by the parties entering into a parol contract entirely inconsistent with the written one, or, if not entirely inconsistent with, inconsistent with it to an extent that goes to the very root of it.’ However, in this particular case no such rescission could be found, the purpose of the parol contract being ‘merely to vary the written contract with respect to one of its provisions.’
Lord Sumner, Lord Atkinson
[1923] AC 48, [1922] All ER 224
England and Wales
Citing:
Adopted – Morris v Baron and Co HL 1918
The House drew a distinction between a variation of a contract required to be evidenced in writing, and the rescission (or discharge) of such a contract. The former was itself required to be evidenced in writing; the latter was not.
Lord . .
Cited by:
Cited – Jagdeo Sookraj v Buddhu Samaroo PC 12-Oct-2004
PC (Trinidad and Tobago) Each party claimed to have entered into a contract to purchase the same land. It was contended that one contract had been rescinded and replaced by another. The issue was whether this . .
Cited – United Dominions Corporation (Jamaica) Ltd v Shoucair PC 1969
(Jamaica) A moneylending law required, for the enforceability of a loan bearing interest at more than ten per cent, a written memorandum containing all the terms of the loan with the borrower’s signature. A bank lent money at nine per cent secured . .
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 . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 01 November 2021; Ref: scu.237253
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not managed to include the terms in the contract, which was only made when the deivery was received. Damages on a quantum meruit were substituted. Where a party wishes to incorporate particularly onerous or unusual conditions, it is necessary to do something to draw the attention of the other party to those conditions. A delivery of goods at the request of a potential customer may constitute an offer to supply the goods, which the customer accepts by keeping the goods. There should be no over-arching principle of good faith, but rather piecemeal solutions in response to demonstrated problems of unfairness.
Lord Justice Dillon said: ‘It has to be said, however, that the holding fee charged by the plaintiffs by condition 2 is extremely high and in my view exorbitant . . It would seem therefore that the defendants would have had a strong case for saying that condition 2 was void and unenforceable as a penalty clause; but that point was not taken in the court below or in the notice of appeal.’
Lord Justice Bingham described ‘an overriding principle’ recognised by the law of obligations ‘in many civil law systems, and perhaps in most legal systems outside the common law world’ that ‘in making and carrying out contracts parties should act in good faith’.
However English law recognised no such principle: ‘English law . . . has developed piecemeal solutions in response to demonstrated problems of unfairness. Many examples could be given. Thus equity has intervened to strike down unconscionable bargains. Parliament has stepped in to regulate the imposition of exemption clauses and the form of certain hire-purchase agreements. The common law also has made its contribution, by holding that certain classes of contract require the utmost good faith, by treating as irrecoverable what purport to be agreed estimates of damage but are in truth a disguised penalty for breach, and in many other ways.’
The defendant was to be relieved of the liability imposed by the standard terms sought because the plaintiff had not done ‘what was necessary to draw this unreasonable and extortionate clause fairly to [the defendant’s] attention’.
But ‘In reaching the conclusion I have expressed I would not wish to be taken as deciding that condition 2 was not challengeable as a disguised penalty clause. This point was not argued before the judge nor raised in the notice of appeal. It was accordingly not argued before us. I have accordingly felt bound to assume, somewhat reluctantly, that condition 2 would be enforceable if fully and fairly brought to the defendants’ attention.’
Dillon and Bingham LJJ
[1989] QB 433, [1998] 1 All ER 348, [1987] EWCA Civ 6
lip, Bailii
England and Wales
Citing:
Cited – Hood v Anchor Line (Henderson Bros) Ltd HL 1-Jul-1918
An English court may exercise its jurisdiction in personam over the liquidator to enforce the contract between the chargee and the company, and may require the liquidator to pay the proceeds to the chargee, The Scottish courts did not recognise the . .
Cited – McCutcheon v David MacBrayne Ltd HL 21-Jan-1964
The appellant had asked his brother-in-law to have a car shipped from Islay to the mainland. The appellant had personally consigned goods on four previous occasions. On three of them he was acting on behalf of his employer; on the other occasion he . .
Cited – Parker v South Eastern Railway Co CA 1877
The plaintiff took a parcel to a railway company depot for delivery, and received a ticket on which were printed conditions including a disclaimer. On the front of the ticket were printed the words ‘see back’. The jury was asked only if they . .
Cited – Spurling (J ) Ltd v Bradshaw CA 1956
A person will not be bound by terms of a contract of which he has not received reasonable notice. Denning LJ: ‘I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen . .
Cited – Thornton v Shoe Lane Parking Ltd CA 18-Dec-1970
The claimant had suffered damage at the defendant’s car park. The defendant relied upon an exemption clause printed on the ticket, and now appealed against rejection of its defence under the clause.
Held: The appeal failed. The more extreme an . .
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 . .
Cited – Amiri Flight Authority v BAE Systems Plc CA 17-Oct-2003
The appellant had contracted to purchase maintenance from the defendant of aircraft it had also purchased from them. They sought damages for negligence, saying the defendants had failed to prevent a known risk of corrosion. The defendants argued . .
Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Cited – Revenue and Customs v Debenhams Retail Plc CA 18-Jul-2005
The store introduced a system whereby when a customer paid by credit card, the charges made to them for card handling were expressed as a separate amount on the receipt. The store then said that VAT was payable only on the net amount allocated to . .
Cited – Brodie, Marshall and Co (Hotel Division) Ltd v Sharer 1988
The defendant resisted payment of his estate agent’s charges. The agency contract gave the agent sole selling rights, but the purchaser was found on the vendor’s own initiative. The terms made commission was payable if ‘we introduce directly of . .
Cited – Euro London Appointments Ltd v Claessens International Ltd CA 6-Apr-2006
The court considered whether a clause in an employment agency’s terms and conditions amounted to a penalty and was unenforceable. The contract provided that if the offer was withdrawn by the eventual employer after acceptance but before the . .
Cited – Stretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .
Cited – Sumukan Ltd v The Commonwealth Secretariat CA 21-Mar-2007
The appellants sought to challenge a finding that they had by their contract with the defendants excluded the right to appeal to a court on a point of law. The defendants replied that the appeal court had no jurisdiction to hear such an appeal.
Cited – Bankway Properties Ltd v Penfold-Dunsford and Another CA 24-Apr-2001
A grant of an assured tenancy included a clause under which the rent would be increased from pounds 4,680, to pounds 25,000 per year. It was expected that the tenant would be reliant upon Housing Benefit to pay the rent, and that Housing Benefit . .
Cited – Green v Petfre (Gibraltar) Ltd (T/A Betfred) QBD 7-Apr-2021
Onerous Contract Terms Unclear – Not Incorporated
The claimant said that he had won a substantial sum on the online gaming platform operated by the defendants, but that they had refused to pay up. The defendants said that there had been a glitch in the game. The court faced a request for summary . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 01 November 2021; Ref: scu.177484
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the buyers were re-introduced by a subsequent agent. The claimants claimed entitlement because the sale was to ‘a purchaser introduced by’ them.
Held: The appeal succeeded. Lord Neuberger of Abbotsbury said: ”A purchaser introduced by us’ meant a person who becomes a purchaser as a result of our introduction’. This was consistent with the intent of the 1991 Regulations, and the claimants interpretation would leave the sellers open to a claim at whatever future point the buyer was persuaded.
Lord Neuberger examined the case law and said: ‘More generally the judgments in those cases establish the following propositions. First, the term identified in Article 57 of Bowstead is ‘very readily’ implied, especially in a residential consumer context, unless the provisions of the particular contract or the facts of the particular case negative it . . Secondly, the main reason for implying the term is to minimise the risk of a seller having to pay two commissions . . Thirdly, it is not entirely clear whether the test is ‘an effective cause’ or ‘the effective cause’ . . Fourthly, whether an agent was the effective cause is a question whose resolution turns very much on the facts of the particular case . . Fifthly, while two commissions are to be avoided, there will be cases where the terms of the relevant contracts and the facts compel such a result . . Sixthly, where the term is implied, the burden is on the agent seeking the commission to establish that he was the effective cause.’
Lord Neuberger of Abbotsbury
[2008] EWCA Civ 419, Times 01-May-2008, [2008] All ER (D) 328 (Apr), [2008] 2 EGLR 23
Bailii
Estate Agents (Provision of Information) Regulations 1991
England and Wales
Citing:
Cited – Millar Son and Co v Radford CA 1903
For an estate agent to recover his commission, it was ‘necessary’ to show that the agent’s introduction was an ‘efficient’ (namely effective) cause in bringing about the transaction. . .
Cited – The County Homesearch Company (Thames and Chilterns) Ltd v Cowham CA 31-Jan-2008
The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed from a finding that they were obliged to pay his commission. The judge found . .
Cited – Burney v The London Mews Company Ltd CA 7-May-2003
The defendant sought to appeal judgment against him for his estate agent’s commission. They had been appointed sole agents. A second firm obtained the particulars for their own retained clients, but then copied the particulars onto their own . .
Cited – Standard Life Assurance Company (Incorporated Under Laws of Scotland By Act of Parliament) v Egan Lawson Limited CA 21-Nov-2000
The defendant appealed against judgment in favour of his (buyer’s) estate agent for his commission in finding the property for it. A previous offer was rejected by the seller, but a subsequent agent of the buyer obtained the acceptance of a further . .
Cited – Luxor (Eastbourne) v Cooper HL 1941
The vendor company had instructed agents to sell properties on its behalf and had agreed to pay commission on completion of the sale. The sale was agreed with a prospective purchaser introduced by the agents. Before the sale was completed, the . .
Cited – Brian Cooper and Co v Fairview Estates (Investments) Ltd CA 13-Mar-1987
A substantial property developer sought a tenant for its office block and agreed with his selling agent to pay ‘a full scale letting fee . . should you introduce a tenant by whom you are unable to be retained and with whom we have not been in . .
Cited – Chasen Ryder and Co v Hedges CA 1993
The vendor first instructed the plaintiffs to sell his residential home. They introduced several people, but no offers were made. The vendor went to another firm of agents. An extended planning consent was obtained, and one of the original enquirers . .
Cited – Peter Yates v Bullock 1992
Whether an introduction of a purchaser by an estate agent to the vendor was the ‘effective cause’ of the transaction which ultimately takes place must be resolved by an examination of the facts as a whole. . .
Cited – Wood (John D) and Co v Dantata; Beauchamp Estates v Dantata CA 1987
The purchaser liked inspecting houses and the vendor had appointed ten firms to act for him as estate agents. Each of the estate agents was approached by this purchaser and each of the estate agents took the would be purchaser over the property of . .
Cited by:
Cited – Charania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
Cited – Glentree Estates Ltd and Others v Favermead Ltd ChD 20-May-2010
The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original . .
Cited – Nicholas Prestige Homes v Neal CA 1-Dec-2010
The estate agent had sought their commission on the sale of property, but phrased it now as a claim for damages for the property owners having breached their sole agency contract by appointing other agents who had been the effective cause of the . .
Cited – Glentree Estates Ltd v Holbeton Ltd CA 5-Jul-2011
Agent to establish effective cause of a sale
The claimant estate agent appealed against dismissal of its claim for commission on the sale of the defendant’s property.
Held: The appeal failed. Glentree failed to establish that it was either ‘the’ or ‘an’ effective cause of the sale. What . .
Lists of cited by and citing cases may be incomplete.
Contract, Agency
Updated: 01 November 2021; Ref: scu.267045
The Board considered a banking transaction and the application of a chargeback by the bank, under which a loan was made only after a deposit by a third party against which it was secured, and particularly in the context of the insolvency of the bank itself.
Held: Lord Mustill discussed the need to construe a contract contra preferentem: ‘the basis of the contra proferentem principle is that the person who puts forward the wording of a proposed agreement may be assumed to have looked after his own interests, so that if words leave room for doubt about whether he is intended to have a particular benefit there is reason to suppose that he is not.’
Lord Mustill
[1996] 2 BCLC 69, [1996] UKPC 69
Bailii
England and Wales
Citing:
Cited – In Re Conley CA 1938
A loan had been made, secure by a deposit by a third party. The company was said to have repaid the secured overdraft to secure the release of the deposit and its release from the hands of the general creditors. The court was asked whether the . .
Cited – In re Charge Card Services Ltd ChD 1987
The court discussed the historic availability of set-off in an insolvency: ‘By the turn of the [20th] century, therefore, the authorities showed that debts whose existence and amount were alike contingent at the date of the receiving order, and . .
Cited – Morris and Others v Agrichemicals Ltd and Others CA 20-Dec-1995
No mandatory set off on liquidation without the requirement for mutuality. The Court accepted a proposition that a chargeback arrangement was inefficiency, no implication followed as to the recourse against the Depositor of a collateral security. . .
Cited by:
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 – Peabody Trust v Reeve ChD 2-Jun-2008
The court was asked to sanction the unilateral alteration by the landlord of the terms of some ten thouand tenancies. The agreements contained a clause which the landlord said allowed for variations under the Housing Act 1985. The landlord was a . .
Cited – Oxonica Energy Ltd v Neuftec Ltd CA 9-Jul-2009
The parties had entered into a patent and know-how licensing agreement, the interpretation of which was now disputed. . .
Lists of cited by and citing cases may be incomplete.
Contract, Banking
Leading Case
Updated: 01 November 2021; Ref: scu.273187
The claimant sought to have struck out as abuse of process parts of the defence, saying that the factual issues raised had already been resolved in arbitration proceedings, but as against a different oarty. The defendant replied that the arbitration had been confidential to the parties to it.
Held: The application was refused.
Independently of the res judicata doctrine, it can be an abuse of process for a party to later proceedings to seek to relitigate issues determined in previous proceedings: ‘It can, in my view, be an abuse of process for a party which was successful overall in earlier proceedings to seek to relitigate an issue on which it was unsuccessful. Likewise, whilst it may be decisive under the doctrine of res judicata to identify whether or not a particular finding was obiter, there is no reason to take such a restrictive view in the case of abuse of process. The focus in the latter case is not so much on the binding nature of the finding, but upon the undesirability of having the same matter adjudicated upon again where it would be manifestly unfair to do so, or would bring the administration of justice into disrepute.’ However, in this case, there were significant doubts as to the effect of the order sought by Petrom as regards the issues that would, and would not, remain live at trial.
Blair J
[2014] EWHC 242 (Comm)
Bailii
Limitation Act 1980 32
England and Wales
Citing:
Cited – The Secretary of State for Trade and Industry v Bairstow CA 11-Mar-2003
The Secretary of State attempted, in the course of director’s disqualification proceedings, to rely upon findings made against Mr Bairstow in an earlier wrongful dismissal action to which he had been a party but the Secretary of State not. The . .
Cited – Gleeson v J Wippell and Co Ltd ChD 1977
The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. ‘Second, it seems to me that the sub-stratum of the doctrine is that a man ought . .
Cited – Arts and Antiques Ltd v Richards and Others ComC 5-Nov-2013
The court was asked whether the findings of a private arbitration could be relied upon as between other parties in an abuse of process argument. . .
Cited – Michael Wilson and Partners Ltd v Sinclair and Others ComC 21-Sep-2012
The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .
Cited – North West Water Ltd v Binnie and Partners 1990
In relation to court proceedings, it can be an abuse of process for a defendant to seek to reopen issues decided against it as defendant in previous court proceedings. . .
Cited – Sun Life Assurance Company of Canada and others v The Lincoln National Life Insurance Co CA 10-Dec-2004
The court considered the effect of findings in one arbitration on a subsequent arbitration. The arguments being directed to res judicata.
Held: Mance LJ pointed to important differences between litigation and arbitration as a consensual . .
Cited – Simms v Conlon and Another CA 20-Dec-2006
Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .
Cited – Hunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
Cited – Calyon v Michailaidis and Others PC 15-Jul-2009
(Gibraltar) The test for applying an abuse of process argument is an exacting one. . .
Cited by:
See Also – OMV Petrom Sa v Glencore International Ag ComC 13-Mar-2015
. .
Appeal from – OMV Petrom Sa v Glencore International Ag CA 21-Jul-2016
‘This case concerns the measure of damages for deceit.’ . .
Appeal from – OMV Petrom Sa v Glencore International Ag CA 27-Mar-2017
This appeal raises a straightforward but important point concerning the interest that the court may award when a claimant’s CPR Part 36 offer is rejected, but the claimant achieves a greater award at trial.
Sir Geoffrey Vos C said: ‘The parties . .
Lists of cited by and citing cases may be incomplete.
Arbitration, Contract, Litigation Practice
Updated: 01 November 2021; Ref: scu.521089
The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, including a contract for a holiday, damages can be recovered for mental distress and vexation. The damages awarded by the county court judge were inadequate. The descriptions in the brochure were representations or warranties, but after the 1967 Act, it was no longer necessary to decide which since damages were available for either. The measure of damages was the loss of entertainment and enjoyment which was promised, and not delivered.
Lord Denning said: ‘In a proper case damages for mental distress can be recovered in contract, just as damages for shock can be recovered in tort. One such case is a contract for a holiday or any other contract to provide entertainment and enjoyment. If the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach. I know that it is difficult to assess in terms of money, but it is no more difficult than the assessment which the courts have to make every day in personal injury cases for loss of amenity. Take the present case. Mr Jarvis has only a fortnight’s holiday in the year. He books it far ahead and looks forward to it all that time. He ought to be compensated for the loss of it . . Here Mr Jarvis’s fortnight’s winter holiday has been a grave disappointment. It is true that he was conveyed to Switzerland and had meals and bed in the hotel. But that is not what he went for. He went to enjoy himself with all the facilities which the defendant said he would have. He is entitled to damages for the lack of those facilities and for his loss of enjoyment.’
Edmund Davies LJ said: ‘The court is entitled, and indeed bound, to contrast the overall quality of the holiday so enticingly promised with that which the defendant in fact provided . . When a man has paid for and properly expects an invigorating and amusing holiday and, through no fault of his, returns home dejected because his expectations have been largely unfulfilled in my judgment it would be quite wrong to say his disappointment must find no reflection in the damages to be awarded.’
Lord Denning MR, Edmund Davies and Stephenson LJJ
[1973] 1 All ER 71, [1972] 3 WLR 954, [1973] QB 233, [1972] EWCA Civ 8
lip, Bailii
Misrepresentation Act 1967
England and Wales
Citing:
Not Followed – Hobbs v London and South Western Railway Co 1875
The court considered an application for damages for inconvenience in a breach of contract case: ‘for the mere inconvenience, such as annoyance and loss of temper, or vexation, or for being disappointed in a particular thing which you have set your . .
Cited – Bailey v Bullock 1950
The court awarded damages against solicitors for the inconvenience to the plaintiff of having to live in an overcrowded house. . .
Cited – Stedman v Swan’s Tours CA 1951
The plaintiffs sought damages for their disappointing holiday in Jersey. Instead of enjoying the superior rooms with a sea view in a first class hotel expected, the holiday party found that the rooms reserved for them were very inferior and had no . .
Cited – Bruen v Bruce (Practice Note) CA 1959
. .
Cited – Feldman v Allways Travel Service 1957
The claimant sought damages after a disappointing holiday.
Held: Such damages were capable of being awarded. . .
Not Followed – Hamlin v Great Northern Railway Co 19-Nov-1856
A plaintiff can recover whatever damages naturally resulted from the breach of contract, but damages cannot be given ‘for the disappointment of mind occasioned by the breach of contract.’ . .
Cited – Griffiths v Evans CA 1953
The parties disputed the terms on which the solicitor had been engaged, and in particular as to the scope of the duty undertaken by and entrusted to the solicitor as regards advising the client.
Held: Where there is a dispute between a . .
Cited by:
Applied – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
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 – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Lists of cited by and citing cases may be incomplete.
Consumer, Contract, Damages
Leading Case
Updated: 01 November 2021; Ref: scu.174316
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an objective observer would have understood – just as Barclays in fact understood – that the accession deeds were not intended to do more than fill the gap in the security.
‘we are unable to accept that the objective test of rectification for common mistake articulated in Lord Hoffmann’s obiter remarks in the Chartbrook case correctly states the law. We consider that we are bound by authority, which also accords with sound legal principle and policy, to hold that, before a written contract may be rectified on the basis of a common mistake, it is necessary to show either (1) that the document fails to give effect to a prior concluded contract or (2) that, when they executed the document, the parties had a common intention in respect of a particular matter which, by mistake, the document did not accurately record. In the latter case it is necessary to show not only that each party to the contract had the same actual intention with regard to the relevant matter, but also that there was an ‘outward expression of accord’ – meaning that, as a result of communication between them, the parties understood each other to share that intention.’
Flaux, Leggatt, Rose LJJ
[2019] EWCA Civ 1361
Bailii
England and Wales
Citing:
Not Followed – 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 – 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 – Henkle v Royal Exchange Assurance Company 14-Nov-1749
(Court of Chancery) Lord Hardwicke LC was in ‘no doubt, that this court has jurisdiction to relieve in respect of a plain mistake in contracts in writing as well as against frauds in contracts: so that if reduced into writing contrary to intent of . .
Cited – The Right Honourable Mary Countess Dowager of Shelburne, John Hamilton Fitzmaurice, An Infant, By The Said Countess, His Grandmother And Next Friend v Morough Earl of Inchiquin And Others 22-Mar-1781
On a claim to rectify a written agreement made in contemplation of marriage, Lord Thurlow LC considered it ‘impossible to refuse, as incompetent, parol evidence, which goes to prove, that the words taken down in writing were contrary to the current . .
Cited – The Marquis Townshend v Stangroom 21-Jul-1801
. .
Cited – Calverley v Williams, Williams v Calverley 2-Jul-1790
The question was whether a particular piece of land was correctly included in the description of the land to be conveyed under a contract of sale.
Lord Thurlow LC said that:
‘ . . if both [parties] understood the whole was to be conveyed, . .
Cited – Fowler v Fowler 12-May-1859
Lord Chelmsford LC said that a party seeking rectification must establish clearly ‘that the alleged intention to which he desires’ (the instrument) ‘to be made conformable continued concurrently in the minds of all parties down to the time of its . .
Cited – Mackenzie v Coulson 1869
James V-C said: ‘Courts of Equity do not rectify contracts; they may and do rectify instruments purporting to have been made in pursuance of the terms of contracts. But it is always necessary for a plaintiff to show that there was an actual . .
Cited – Lovell and Christmas Ltd v Wall CA 1911
The written contract contained a restrictive covenant limiting the defendant’s freedom to carry on the business of a ‘provision merchant’ other than on behalf of the plaintiff company. On the facts found, the parties in their discussions before the . .
Cited – Shipley Urban District Council v Bradford Corporation ChD 1936
The parties had reached a clear common understanding in their negotiations as to how they intended the price of water supplied to the plaintiff council by the defendant corporation to be calculated; but, as each party only had power to contract . .
Cited – Crane v Hegeman-Harris Co Inc CA 1939
Judgment approved . .
Cited – Crane v Hegeman-Harris Co Inc ChD 1939
A continuing common intention of the parties to a document alone will not suffice to justify rectification. For rectification to be appropriate, there must be convincing proof that the concluded instrument does not represent the common intention of . .
Cited – Frederick E Rose (London) Limited v William H Pim Junior and Co Limited 1953
The plaintiffs, who were London merchants, had been asked by Egyptian buyers to supply ‘feveroles’. Not knowing what this term meant, they asked the defendants’ representative, who responded that ‘feveroles’ meant horsebeans. Relying on this . .
Cited – London Weekend Television Ltd v Paris and Griffith ChD 1969
Megaw J said: ‘Where two persons agreed expressly with one another what was the meaning of a particular phrase but did not record their definition in the contract itself, if one of the parties sought to enforce the agreement on the basis of some . .
Cited – Joscelyne v Nissen CA 1970
A father entered into a written contract with his daughter by which he transferred to her his car hire business in return for her agreement to pay him a pension and discharge certain expenses. In their discussions it had been agreed between them . .
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 . .
Appeal From – FSHC Group Holdings Ltd v Barclays Bank Plc ChD 22-Jun-2018
Claim for rectification of two Deeds . .
Cited – Re Butlin’s Settlement Trusts 1976
Sir Billy Butlin had executed a voluntary settlement to allow a majority of trustees to exercise a power under the settlement. By a drafting error the settlement did not give effect to this intention.
Held: The court could rectify the . .
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 . .
Cited – Gallaher Limited v Gallaher Pensions Limited, C Foster, D Silver ChD 21-Jan-2005
Construction of amendments to pension scheme. . .
Cited – Munt v Beasley CA 4-Apr-2006
Mummery LJ expressed the view that an outward expression of accord, although established on the facts of that case, was not a strict legal requirement for rectification where the party resisting rectification had in fact admitted that his true state . .
Cited – Tartsinis v Navona Management Company ComC 19-Jan-2015
The parties disputed the price to be paid in a sale of shares under a contract for their sale. The company which owned a fleet of ships. The shares were sold by two Greek businessmen, Mr Mihail Tartsinis and Mr Antonis Nikolaou, to Navona Management . .
Cited – Ryledar Pty Ltd v Euphoric Pty Ltd 20-Apr-2007
Campbell JA asked rhetorically: ‘If two negotiating parties each had a particular intention about the agreement they would enter, and their intentions were identical, but that intention was disclosed by neither of them, and they later entered [into] . .
Cited – JIS (1974) Ltd v MCP Investment Nominees I Ltd ChD 2002
Hart J said: A particular intention may, as it seems to me, as a matter of the general nature of human discourse, be communicated by one party to another without express words necessarily being used. It may therefore sometimes be possible for the . .
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 – Re IBM Pension Plan ChD 2012
The court considered an application to rectify a pension scheme.
Held: Warren J said: ‘There needs to be cogent evidence of the intentions of both the trustee and the employer where the power of amendment requires the consent of both. . . In a . .
Cited – Caraman, Rowley and May v Aperghis 1923
Two contracts for the sale of sultanas on cif terms were drawn up by a broker acting for the sellers. By mistake, the broker used a form intended for spot contracts instead of the form for cif contracts with the result that the written contracts did . .
Cited – Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales 1982
(High Court of Australia) Mason J said: ‘The implication of a term is to be compared, and at the same time contrasted, with rectification of the contract. In each case the problem is caused by a deficiency in the expression of the consensual . .
Cited – Cooperative Insurance Society Ltd v Centremoor Ltd CA 1983
Rectification of a contract was sought.
Held: While it must be shown what was the common intention, the exact form of words in which the common intention is to be expressed is immaterial if, in substance and in detail, the common intention can . .
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 – American Airlines Inc v Hope HL 1974
A claim was made for the rectification of an aviation insurance contract.
Lord Diplock said: ‘Rectification is a remedy which is available where parties to a contract, intending to reproduce in a more formal document the terms of an agreement . .
Cited – Thomas Bates and Sons Ltd v Wyndham’s Lingerie Ltd CA 21-Nov-1980
An application was made for rectification of a rent review clause in a lease. When executing the lease, the tenants’ officer, Mr Avon, noticed that the rent review clause in the lease drafted by the landlords was defective in not including a . .
Cited – Agip SpA v Navigazione Alta Italia SpA, ‘The Nai Genova’ CA 1984
Rectification was sought of an escalation clause in a charter-party which provided for a base figure in US dollars to be increased by reference to Italian inflation. The plaintiffs claimed that an accord had been reached that the base figure should . .
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 . .
Cited – Holaw (470) Ltd v Stockton Estates Ltd ChD 2000
In a sale and immediate sub-sale of land, the contracts used different standard terms and conditions. The result was that the sub-sale excluded a right of access to the property.
Neuberger J summarised the law in what were then uncontroversial . .
Cited – Swainland Builders Ltd v Freehold Properties Ltd CA 2002
Swainland Builders Ltd owned the freehold of a block of flats. It had granted 99-year leases at ground rents of all the flats except numbers 11 and 18. It had intended to sell the block subject to the retention of flats 11 and 18 which it initially . .
Cited – Re Hetherington 1990
The court looked to whether a decision of a superior court was binding when the point had not been argued: ‘In my judgment the authorities clearly establish that even where a decision of a point of law in a particular sense was essential to an . .
Cited – Kadhim v Housing Benefit Board, London Borough of Brent CA 20-Dec-2000
A lower court was not bound to follow a decision of a higher court, where the decision at issue had been based, on the relevant point, on an unargued assumption about the law, which had in turn been pivotal to the decision of that higher court: ‘The . .
Cited – Kiriacoulis Lines Sa v Compagnie D’Assurances Maritime Aeriennes Et Terrestres (Camat) and Another (‘The Demetra K’) CA 16-Jul-2002
The court set out the elements to be satisfied before ordering a rectification of a commercial contract, in particular, the need for an antecedent agreement with outward expression of a common intent, and convincing evidence sufficient to discharge . .
Cited – Crossco No 4 Unltd and Others v Jolan Ltd and Others ChD 31-Mar-2011
. .
Cited – Day and Another v Day CA 27-Mar-2013
Appeal against refusal of order to rectify a conveyance of 1985.
Held: The conveyance was in the nature of a voluntary settlement and in such a case what is relevant is the subjective intention of the settlor. . .
Cited – Mackenzie v Coulson 1869
James V-C said: ‘Courts of Equity do not rectify contracts; they may and do rectify instruments purporting to have been made in pursuance of the terms of contracts. But it is always necessary for a plaintiff to show that there was an actual . .
Cited – Lovell and Christmas Ltd v Wall CA 1911
The written contract contained a restrictive covenant limiting the defendant’s freedom to carry on the business of a ‘provision merchant’ other than on behalf of the plaintiff company. On the facts found, the parties in their discussions before the . .
Cited – Inland Revenue Commissioners v Raphael and Ezra HL 1935
Parties to a contract should be presumed to have intended what in fact they have said.
The function of the recitals in a lease is to narrate the history leading up to the making of the lease.
Lord Wright said: ‘ . . the principle of the . .
Cited – George Cohen Sons and Co Ltd v Docks and Inland Waterways Executive CA 1950
The landlord negotiating a new lease proposed to the tenant that ‘the terms and conditions contained in the present lease to be embodied in the new lease where applicable.’ The tenant accepted this offer, but the new lease as executed made the . .
Cited – The Olympic Pride (Etablissements Georges et Paul Levy v Adderley Navigation Co Panama SA 1980
In the case of a bilateral transaction, there must be convincing proof that the concluded instrument does not represent the common intention of the parties to allow rectification. The policy reason for the need for convincing proof is that certainty . .
Cited – Westland Savings Bank v Hancock 1987
Tipping J set out the requirements for rectification for common mistake: ‘(1) That, whether there is an antecedent agreement or not, the parties formed and continued to hold a single corresponding intention on the point in question.
(2) That . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – Pimlico Properties Limited v Driftwood Developments Limited 10-Nov-2009
Court of Appeal of New Zealand – Rectification is an equitable remedy whereby a written contract which does not reflect the common intention of the parties can be modified or corrected so that it does. . .
Cited – Pimlico Properties Limited v Driftwood Developments Limited 10-Nov-2009
Court of Appeal of New Zealand – Rectification is an equitable remedy whereby a written contract which does not reflect the common intention of the parties can be modified or corrected so that it does. . .
Cited – Ahmad v Secret Garden (Cheshire) Ltd CA 6-Aug-2013
The tenant appealed against an order for the rectification of the lease agreement between the parties. The recorder at first instance had found that both parties had been mistaken in their belief about the effect of a lease and had granted . .
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 – Robb v James 28-Feb-2014
(New Zealand Court of Appeal) The Court contrasted ‘the state of some uncertainty as to the requisites for rectification in English law’ (referring to the Daventry case) with the ‘relatively settled’ position in New Zealand where ‘Tipping J’s 1987 . .
Cited – Rawlinson and Hunter Trustees SA and Others v Director of The Serious Fraud Office CA 31-Jul-2014
Documents had been disclosed in error in related proceedings, and the appellants now challenged refusal of an order that their use within the current proceedings should be restrained. . .
Cited – Simic v New South Wales Land and Housing Corporation 7-Dec-2016
(HIGH COURT OF AUSTRALIA) In holding that certain performance bonds should be rectified in order to correct a common mistake, applied the traditional test of asking what was the actual or true common intention of the parties
Kiefel J (with . .
Cited – Tartsinis v Navona Management Company ComC 19-Jan-2015
The parties disputed the price to be paid in a sale of shares under a contract for their sale. The company which owned a fleet of ships. The shares were sold by two Greek businessmen, Mr Mihail Tartsinis and Mr Antonis Nikolaou, to Navona Management . .
Cited – LSREF III Wight Ltd v Millvalley Ltd ComC 8-Mar-2016
. .
Cited – Van der Linde v Van der Linde ChD 1947
Evershed J said that the remedy of rectification is not appropriate if the grantor’s real intention: ‘be no more precise than this, namely, that he intended, by whatever formulation of words was appropriate or possible, to achieve the result that he . .
Cited – Racal Group Services Limited v Ashmore CA 1995
The company had covenanted to pay an annual sum to charity. Since the last payment under the covenant was to be made less than three years after the execution of the deed, an intended tax advantage was not secured.
Held: The company’s appeal . .
Cited – AMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
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
Updated: 01 November 2021; Ref: scu.640097
The parties set out to conclude a contract for insurance, but the final email omitted an essential warranty which had previously been agreed. The court was asked whether a contract had been concluded. The judge had found that the contract had been conclusively completed.
Held: The appeal against the judgment that a contract existed failed. The slip was intended to be the final reference point, and Mannai could not be relied on to amend it, and ‘the mutual indicia of finality about the email exchange are so strong that it would be wrong to interpret them as ending in a mere offer and counter-offer. The reasonable reader of these exchanges would conclude that Aigaion was agreeing to the terms set out in the slip, on the basis that that was what Aigaion had itself quoted.’
Laws LJ, Rix LJ, Moses LJ
[2008] EWCA Civ 1455
Bailii, Times
England and Wales
Citing:
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 01 November 2021; Ref: scu.278971
Claimed wrongful repudiation of contract to broadcast television award ceremony.
Tugendhat J
[2008] EWHC 1835 (QB)
Bailii
England and Wales
Contract, Media
Updated: 01 November 2021; Ref: scu.271312
Damages for wrongful dismissal could not confer on an employee extra benefits that the contract did not oblige the employer to confer. There is a clear distinction between expectations, however reasonable, and contractual obligations.
Diplock LJ said: ‘the first task of the assessor of damages is to estimate as best he can what the plaintiff would have gained in money or money’s worth if the defendant had fulfilled his legal obligations and had done no more. Where there is an anticipatory breach by wrongful repudiation, this can at best be an estimate, whatever the date of the hearing. It involves assuming that what has not occurred and never will occur has occurred or will occur, ie that the defendant has since the breach performed his legal obligations under the contract and, if the estimate is made before the contract would otherwise have come to an end, that he will continue to perform his legal obligations thereunder until the due date of its termination. But the assumption to be made is that the defendant has performed or will perform his legal obligations under his contract with the plaintiff and nothing more.’
Diplock LJ, Lord Denning MR, Russell LJ
[1967] 1 QB 278, [1966] EWCA Civ 4, [1966] 3 All ER 683, [1966] 1 KIR 312, [1966] 3 WLR 706
Bailii
England and Wales
Citing:
Cited – Brace v Calder 1895
The dissolution of the employing partnership brings a contract of employment to an end.
Rigby LJ said: ‘a contract to serve four employers cannot, without express language, be construed as being a contract to serve two of them . . the . .
Cited by:
Approved – North Sea Energy Holdings Nv (Formerly Midland and Scottish Holdings Nv) v Petroleum Authority of Thailand CA 16-Dec-1998
The buyers repudiated an oil purchase agreement and the sellers accepted their repudiation. The sellers could not show that they would have been able to obtain the oil to sell.
Held: They were not entitled to substantial damages. . .
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 – Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
Cited – Nestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
Lists of cited by and citing cases may be incomplete.
Damages, Employment, Contract
Leading Case
Updated: 01 November 2021; Ref: scu.252494
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance was addressed would have understood the author to be using the words to mean. Notice, however, that it is not, as is sometimes said, ‘the meaning of the words the author used’, but rather what the notional addressee would have understood the author to mean by using those words. The meaning of words is a matter of convention, governed by rules, which can be found in dictionaries and grammars. What the author would have been understood to mean by using those words is not simply a matter of rules. It is highly sensitive to the context of and background to the particular utterance. It depends not only upon the words the author has chosen but also upon the identity of the audience he is taken to have been addressing and the knowledge and assumptions which one attributes to that audience. ‘ The effect of article 69 is to give the claims what the European Patent Office has called a ‘central role’, and claims are no longer merely a point of departure but the decisive basis for determining the extent of protection. New technology is a situation in which the Protocol questions may be unhelpful, but if the claim can be construed in a way which is sufficiently general to include the new technology, the Protocol questions tend to answer themselves. The acts complained of were not infringing. What counts as a new product? It would be most unfortunate if the House upheld the validity of a patent which would on identical facts have been revoked in opposition proceedings. The patent was therefore invalid for anticipation. ‘Having invented a perfectly good and ground-breaking process for making EPO and its analogues, they were determined to try to patent the protein itself, notwithstanding that, even when isolated, it was not new. Hence the patenting of the two product-by-process claims which have failed, one because the last-minute amendment to distinguish the product from the natural EPO turned out to based upon the false premise that all uEPO had the same molecular weight and the other because the factual basis on which the European Patent Office allowed it turned out to be wrong.’
Lord Hoffmann: ‘No one has ever made an acontextual statement. There is always some context to any utterance, however meagre.’
The trial judge had cited Lord Hoffmann’s concept of a general principle of beneficial effect in Biogen. Lord Hoffmann commented: ‘This gave rise to a good deal of argument about what amounted to a ‘principle of general application’. In my opinion there is nothing difficult or mysterious about it. It simply means an element of the claim which is stated in general terms. Such a claim is sufficiently enabled if one can reasonably expect the invention to work with anything which falls within the general term. For example, in Genentech I/Polypeptide expression (T 292/85) [1989] OJ EPO 275, the patentee claimed in general terms a plasmid suitable for transforming a bacterial host which included an expression control sequence to enable the expression of exogenous DNA as a recoverable polypeptide. The patentee had obviously not tried the invention on every plasmid, every bacterial host or every sequence of exogenous DNA. But the Technical Board of Appeal found that the invention was fully enabled because it could reasonably be expected to work with any of them.’
Lord Hoffmann, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood
[2004] UKHL 46, [2005] RPC 9, (2005) 28(7) IPD 28049, [2005] 1 All ER 667, [2005] RPC 169
House of Lords, Bailii
Protocol on the Interpretation of Article 69 of the European Patent Convention, Patents Act 1977
England and Wales
Citing:
Appeal from – Kirin Amgen Inc and others v Hoechst Marion Roussel Ltd and others CA 31-Jul-2002
The claimants sought damages for infringement of their patent. The defendants denied infringement, and sought a revocation of the patent.
Held: The patent concerned gene technology. Although an error had been made, the patent was valid, since . .
Cited – Biogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
Cited – British United Shoe Machinery Co Ltd v A Fussell and Sons Ltd CA 1908
In patent claims, the court emphasised the need to distinguish between the part of the specification in which the patentee discharged his duty to disclose the best way of performing the invention and the section which delimited the scope of the . .
Cited – Electric and Musical Industries Ltd v Lissen Ltd HL 1938
The House described the status of patent claims: ‘The function of the claims is to define clearly and with precision the monopoly claimed, so that others may know the exact boundary of the area within which they will be trespassers. Their primary . .
Cited – Catnic Components Ltd and Another v Hill and Smith Ltd HL 1982
The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The patent was for a novel type of galvanised steel lintel, which . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
Cited – 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 – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
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 . .
Doubted in part – Rockwater Ltd v Technip France Sa (Formerly Coflexip Sa), Technip Offshore UK Limited (Formerly Coflexip Stena Offshore Limited) CA 1-Apr-2004
. .
Cited – Clark v Adie HL 1877
The court should look to the ‘pith and marrow’ of the invention to see whether a patent infringement had occurred. For a claim be made for a ‘subordinate’ invention, it would have been necessary distinctly to claim it in the patent. . .
Cited – C Van Der Lely NV v Bamfords Ltd HL 1963
The pith and marrow doctrine on the construction of patents claims was ‘necessary to prevent sharp practice.’ As to the doctrine of enablement as explained by Lord Westbury: ‘Lord Westbury must have meant experiments with a view to discovering . .
Cited – Improver Corporation v Remington Consumer Products Ltd ChD 1989
Protocol Tests For Onbviousness Set Out
The invention was based upon the discovery that an arcuate rod with slits, when rotated at high speed, would take the hair off the skin by means of the opening and closing of the slits. The claim was to a rod in the form of an ‘helical spring’ but . .
Cited – PLG Research Ltd and Another v Ardon International Ltd and Others ChD 25-Nov-1994
A patent infingement claim was met by the assertion that the material covered had been disclosed before the patent had been obtained. The court was asked as to the test of whether the information in a claim had been disclosed. Aldous J said: ‘Mr. . .
Cited – Southco Inc v Dzus Fastener Europe Ltd 1992
. .
Cited – PLG Research Ltd and Another v Ardon International Ltd and Others CA 1995
As to Catnic: ‘Lord Diplock was expounding the common law approach to the construction of a patent. This has been replaced by the approach laid down by the Protocol. If the two approaches are the same, reference to Lord Diplock’s formulation is . .
Cited – Assidoman Multipack Ltd v The Mead Corporation 1995
In patents law, the Catnic approach accords with the Protocol. . .
Cited – Wheatley, Bortec Limited v Drillsafe Limited, Force Group Services Plc, Foster, Foster, Carter, Davies CA 25-Jul-2000
In a claim for infringement of a patent, where variations on a patent were to be considered, the court should look to the three tests set down in Improver (‘the Protocal questions’), and the claim should be interpreted in a purposive and contextual . .
Cited – Genentech’s (Human Growth Hormone) Patent ChD 1987
The applicant sought a patent for a hormone: ‘It is trite law that you cannot patent a discovery, but if on the basis of that discovery you can tell people how it can be usefully employed, then a patentable invention may result. This in my view . .
Cited – Genentech’s (Human Growth Hormone) Patent CA 1989
A patent claim for an important protein called Tissue Plasminogen Activator was objected to on the basis of the obviousness of the gene sequence.
Held: The court considered the categories of exclusion in the context of what was said to be a . .
Cited – American Home Products Corporation, Professor Roy Calne v Novartis Pharmaceuticals UK Limited ChD 2000
A patent was granted for a product, produced by the bacterium streptomyces hygroscopicus, called rapamycin, which was useful to suppress transplant rejection. Because rapamycin was a known product at the priority date, it could not be patented: . .
Cited – American Home Products Corporation, Professor Roy Calne v Novartis Pharmaceuticals UK Limited, Novartis Pharma AG CA 27-Jul-2000
The invention was a second medical use for a known drug rapamycin, which was found to have an immuno-suppressive effect. The court asked whether a claim to rapamycin should be construed to include derivatives.
Held: A person skilled in the art . .
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 – Merrell Dow Pharmaceuticals Inc and Another v H N Norton and Co Ltd; Same v Penn Etc HL 26-Oct-1995
A patent for a substance which had been produced naturally before the application of the process was invalid. The patent was invalidated after the discovery that the effect was produced naturally from an acid metabolite. Patent infringement does not . .
Cited – International Flavors and Fragrances Inc EPO 1984
A patentee who wishes to complain of dealings in a product made by his patented process must rely on his process claim and article 64(2). The United Kingdom is the only Member State of the EPC which accepted product-by-process claims. The EPO will . .
Cited – British Thomson-Houston Company Ltd v Corona Lamp Works Ltd HL 1922
The claim required the filament of tungsten used in the lamp to be ‘of large diameter’. The Court of Appeal had accepted that the word ‘large’ was ambiguous in that it did not enable the skilled person to decide when the claim was infringed.
Cited – Genentech I/Polypeptide expression EPO 1989
The patentee claimed in general terms a plasmid suitable for transforming a bacterial host which included an expression control sequence to enable the expression of exogenous DNA as a recoverable polypeptide. The patentee had obviously not tried the . .
At First Instance – Hoechst Marion Roussel Ltd and others v Kirin-Amgen Inc and others PatC 21-Mar-2002
A claim was made on the one hand for a patent infringement, and on the other it was challenged. The patent related to recombinant erythropoietin.
Held: The claim 19 was invalid (for insufficiency) but that claim 26 was valid and infringed. . .
Cited by:
Cited – Debenhams Retail Plc and Another v Sun Alliance and London Assurance Company Ltd CA 20-Jul-2005
The landlord appealed against a decision that VAT was not to be included when calculating a rent based upon the turnover in the premises, when it had been expressed to include purchase taxes.
Held: The appeal succeeded: ‘it would be wrong to . .
Cited – Synthon Bv v Smithkline Beecham Plc HL 20-Oct-2005
Synthon filed an international application for a patent. Before it was published, SB filed a similar application in the UK patents registry. Synthon had applied for the UK patent granted to SB to be revoked. Jacob J had found that the reader of the . .
Cited – W L Gore and Associates Gmbh v Geox Spa PatC 7-Oct-2008
The claimants sought a declaration of non-infringement of four patents relating to waterproof fabrics for shoes.
Held: The patents could not be set as invalid for obviousness. . .
Cited – Generics (UK) Ltd and others v H Lundbeck A/S HL 25-Feb-2009
Patent properly granted
The House considered the patentability of a chemical product, citalopram made up of two enantiomers, as opposed to the process of its creation, questioning whether it could be new or was insufficient within the 1977 Act.
Held: The appeal . .
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 – Occlutech Gmbh v Aga Medical Corp ChD 31-Jul-2009
The claimants sought a declaration of non-infringement of patents involving medial devices. The patent owner claimed infringement and the claimant also sought revocation of the patent for obviousness.
Held: The device did not infringe the . .
Cited – Pink Floyd Music Ltd and Another v EMI Records Ltd CA 14-Dec-2010
The defendant appealed against an order made on the claimant’s assertion that there were due to it substantial underpayments of royalties over many years. The issues were as to the construction of licensing agreements particularly in the context of . .
Cited – Virgin Atlantic Airways Ltd v Premium Aircraft Interiors UK Ltd CA 22-Oct-2009
. .
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 – Trump International Golf Club Scotland Ltd and Another v The Scottish Ministers (Scotland) SC 16-Dec-2015
The appellant challenged the grant of permission to the erection of wind turbines within sight of its golf course.
Held: The appeal failed. The challenge under section 36 was supported neither by the language or structure of the 1989 Act, and . .
Cited – Eli Lilly v Actavis UK Ltd and Others SC 12-Jul-2017
The issue raised on this appeal and cross-appeal is whether three products manufactured by Actavis would infringe a patent whose proprietor is Lilly, namely European Patent (UK) No 1 313 508, and its corresponding designations in France, Italy and . .
Cited – Regeneron Pharmaceuticals Inc v Kymab Ltd SC 24-Jun-2020
SC Kymab Ltd (‘Kymab’) alleges that the relevant patents are invalid for insufficiency because they did not enable the ordinary skilled person to work the claimed invention across the breadth of the claims. The . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property, Contract
Leading Case
Updated: 01 November 2021; Ref: scu.218712
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific performance. The seller was entitled, after the buyer had failed to comply with the order, to apply to court to put an end to the contract and claim damages for breach. A plaintiff who is refused specific performance or an injunction is left to his damages in contract or tort. The measure of such damages is exactly what it would be at common law.
Lord Wilberforce said: ‘In my opinion, the argument based on irrevocable election, strongly pressed by the appellant’s counsel in the present appeal is unsound. Election, though the subject of much learning and refinement, is in the end a doctrine based on simple considerations of common sense and equity. It is easy to see that a party who has put an end to a contract by accepting the other party’s repudiation cannot afterwards seek specific performance. This is simply because the contract has gone – what is dead is dead. But it is no more difficult to agree that a party who has chosen specific performance, may quite well thereafter, if specific performance fails to be realised say, ‘very well, then the contract should be regarded as terminated’.
It is quite consistent with a decision provisionally to keep alive, to say, ‘Well this is no use – let us now end the contract’s life’. A vendor who seeks (and gets) specific performance is merely electing for a course which may or may not lead to implementation of the contract – what he elects for is not eternal and unconditional affirmation, but a continuance of the contract under the control of the court which control involves the power, in certain events, to terminate it.’ and
‘In cases where a breach of a contract for sale has occurred, and the innocent party reasonably continues to try to have the contract completed, it would to me appear more logical and just rather than tie him to the date of the original breach, to assess damages as at the date when (otherwise than by his default) the contract is lost.’
In the law of contract, the date of breach rule ‘is not an absolute rule: if to follow it would give rise to injustice, the court has power to fix such other date as may be appropriate in the circumstances.’
Lord Wilberforce
[1980] AC 367, [1979] 2 WLR 487, [1979] 1 All ER 883
England and Wales
Citing:
Cited – Ogle v Vane 1868
. .
Cited – Radford v De Froberville 2-Jan-1977
A contract was made for the sale of a plot of land adjoining a house belonging to the plaintiff (the vendor) but occupied by his tenants, under which the defendant (the purchaser) undertook to build a house on the plot and also to erect a wall to a . .
Cited by:
Cited – William Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Cited – Surrey County Council and Mole District Council v Bredero Homes Ltd ChD 1992
Land was agreed to be sold for development in accordance with an existing planning permission. Instead a later permission was obtained, and more houses were built. The plaintiff had not sought to restrain or prevent the breach, but now sought . .
Cited – Oliver Ashworth (Holdings) Limited v Ballard (Kent) Limited CA 18-Mar-1999
In order for the landlord to claim double rent where a tenant held over unlawfully after the tenancy was determined, the landlord must not do anything to indicate that the lease might be continuing, for example by denying the validity of break . .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
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 – Collins Stewart Ltd and Another v The Financial Times Ltd QBD 20-Oct-2004
The claimants sought damages for defamation. The claimed that the article had caused very substantial losses (andpound;230 million) to them by affecting their market capitalisation value. The defendant sought to strike out that part of the claim. . .
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 – Domb and Another v Isoz CA 29-Nov-1979
In a chain of conveyancing transactions, a solicitor sent his contract and deposit to his vendor’s solicitor, asking him to hold it to his order pending exchange. On the next day, that vendor’s solicitors agreed to an exchange of contracts over the . .
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 – Alcoa Minerals of Jamaica Inc v Herbert Broderick PC 20-Mar-2000
(Jamaica) Damage had been caused to the claimant’s property, but, because of his lack of funds, he was dependent upon the receipt of the damages to carry out the works of repair necessary. By the time the matter came to trial, inflation meant that . .
Cited – Personal Representatives of Tang Man Sit v Capacious Investments Ltd PC 18-Dec-1995
The claimant, Capacious Investments Ltd, brought proceedings against Tang’s estate for damages for the loss of use and occupation, and also an account of profits and damages for loss and damage incurred, for example by encumbering the property with . .
Mentioned – Ramzan v Brookwide Ltd CA 19-Aug-2011
The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . .
Cited – Hooper and Another v Oates CA 20-Feb-2013
The parties had agreed for the purchase of land, but the buyer, Mr Oates, failed to complete. A notice to complete was served, and on non-compliance, the repudiation was accepted. It proved difficult to resell, and they suffered substantial losses. . .
Cited – Downs and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .
Cited – Downs and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .
Lists of cited by and citing cases may be incomplete.
Equity, Contract
Leading Case
Updated: 01 November 2021; Ref: scu.185672
This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement. The issue was whether the CFA terminated automatically by reason of frustration when she subsequently lost capacity, so that it did not govern the continued conduct of the proceedings by a receiver/deputy appointed by the Court of Protection to act on her behalf. Phillips Jhad held in a clear and cogent judgment that the CFA was not frustrated.
Held: The court now gave its reasons for dismissing the appeal. ‘ . . whatever the general position, the parties must have contemplated in the particular circumstances of this case that the claimant might suffer from a further period of incapacity in which she would be unable to give instructions personally but they could be given by a litigation friend or a receiver/deputy or on her behalf. I accept Mr Spearman’s submissions on that point . . The fact that supervening incapacity prevented the claimant from giving instructions personally did not render the contract of retainer impossible of performance; it simply gave rise to a short period of delay pending appointment of a receiver/deputy who could continue the conduct of the proceedings on the claimant’s behalf and give instructions to the solicitors for that purpose.’
Richards, McCombe, Sharp LJJ
[2015] EWCA Civ 18
Bailii
England and Wales
Citing:
Appeal from – Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust QBD 5-Feb-2014
The court was asked whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor’s retainer. The Costs judge had held that, as a matter of law, . .
Cited – Lauritzen A/A v Wijsmuller BV;( ‘The Super Servant Two’) CA 12-Oct-1989
Bingham LJ discussed the nature of frustration of contract: ‘The essence of frustration is that it is caused by some unforeseen supervening event over which the parties to the contract have no control and for which they are therefore not . .
Cited – 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 – Drew v Nunn CA 1879
The supervening mental incapacity of a principal has the effect of terminating the actual authority of his agent: ‘The actual authority of an agent whether conferred by deed or not and whether expressed to be irrevocable or not, is determined by the . .
Cited – Imperial Loan Co v Stone CA 1892
Contract without Capacity – Voidable not Void
A person of unsound mind was sued on a promissory note. He had signed it as surety. The jury found that he was insane when he signed the note but there was no finding as to the creditor’s knowledge of such insanity. The judge entered a verdict . .
Cited – Yonge v Toynbee CA 1910
Solicitors conducted a whole series of interlocutory applications in the course of an action in ignorance of the fact that their client had been certified as being of unsound mind.
Held: When the action was ultimately aborted, they were held . .
Cited – The Fore Street Warehouse Company Ltd v Durrant and Co 1883
A writ had been served on the lunatic defendant’s business manager. The Court Rules provided: ‘When a lunatic or person of unsound mind not so found by inquisition is a defendant to the action, service on the committee of the lunatic, or on the . .
Cited – Donsland Limited v Nicholas Van Hoogstraton CA 2002
Once a transaction in respect of which the solicitor was retained is completed, the retainer comes to an end, and with it the fiduciary relationship between client and solicitor. . .
Cited – Findley v Motor Insurers’ Bureau and Another SCCO 13-Jan-2009
‘I find, therefore, that as from [the date the Claimant lost mental capacity] the Claimant was no longer able to give instructions, and the contract was at that point frustrated.’ . .
Cited – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Contract, Health
Updated: 01 November 2021; Ref: scu.541911
The plaintiff sought specific performance of what he said was a contract for the sale of land.
Held: The appeal succeeded. In a case where a contract is alleged to have been made by an exchange of correspondence between the parties, in which the successive communications other than the first are in reply to one another, the normal analysis of a contract as being constituted by offer and acceptance falls to be applied. It may not be necessary where a contract is alleged to have come into existence through performance. ‘My Lords, there may be certain types of contract, though I think they are exceptional, which do not fit easily into the normal analysis of a contract as being constituted by offer and acceptance; but a contract alleged to have been made by an exchange of correspondence between the parties in which the successive communications other than the first are in reply to one another is not one of these. I can see no reason in the instant case for departing from the conventional approach of looking at the handful of documents relied upon as constituting the contract sued upon and seeing whether upon their true construction there is to be found in them a contractual offer by the corporation to sell the house to Mr. Gibson and an acceptance of that offer by Mr. Gibson.’
Lord Diplock, Lord Edmund-Davies, Lord Fraser of Tullybelton, Lord Russell of Killowen, Lord Keith of Kinkel
[1979] 1 WLR 294, [1979] UKHL 6, [1979] 1 All ER 972
Bailii
Law of Property Act 1925 40
England and Wales
Citing:
Cited – Storer v Manchester City Council CA 1974
Whether a contract has been made
A newly elected city Council refused to proceed with the sale of a dwelling and premises to a sitting tenant, the plaintiff. The sale had been arranged by the previous Council. The plaintiff had signed the form sent to him by the council, and only . .
Cited – Hyde v Wrench ChD 8-Dec-1840
The defendant offered to sell his land to the plaintiff for andpound;1000. The plaintiff counter-offered andpound;950, which was rejected. The plaintiff then said that he accepted the original offer.
Held: Lord Langdale MR said: ‘there exists . .
Cited – Stevenson v McLean 1880
. .
Cited – Clarke v Earl Dunraven 1897
A court may be able to hold that there is a contract even though it is difficult or impossible to analyse the transaction in terms of offer and acceptance. ‘You should look at the correspondence as a whole and at the conduct of the parties and see . .
Appeal from – Gibson v Manchester City Council CA 1978
The parties disputed which terms of a contract applied.
Held: Lord Denning MR rejected the conventional approach of looking to see whether upon the true construction of the documents relied upon there can be discerned an offer and acceptance: . .
Cited by:
Cited – Barbara Fontana (Administratrix of the Estate of Alan Neil Gosley Deceased) v Skandia Life Assurance Ltd and Molesworths (a Firm) CA 14-Dec-2000
The deceased took out pension and life policies. After failure to make payments they were suspended. The savings element was re-instated, but the deceased did not return the statement as to his health. At first instance the court held the insurance . .
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Cited – Tekdata Interconnections Ltd v Amphenol Ltd CA 19-Nov-2009
The court considered which of two sets of contractual terms applied. The parties had dealt with each other over a long period. Under standard offer and acceptance the seller’s terms would apply. The buyer appealed, saying the court should look to . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 01 November 2021; Ref: scu.184173
The defendant was charged with selling controlled pharmaceutical products other than under the supervision of a pharmacist. The shop operated on a self-service basis. The Society appealed.
Held: The acquittal was confirmed. Somervell LJ said: ‘Whether the view contended for by the plaintiffs is a right view depends on what are the legal implications of this layout – the invitation to the customer, is a contract to be regarded as being completed when the article is put into the receptacle, or is this to be regarded as a more organized way of doing what is already done in many types of shops – and a bookseller is perhaps the best example – namely, enabling customers to have free access to what is in the shop, to look at the different articles, and then, ultimately, having got the ones which they wish to buy, to come up to the assistant stating ‘I want this’? . . In the case of an ordinary shop, although goods are displayed and it is intended that customers should go and choose what they want, the contract is not completed until, the customer having indicated the articles which he needs, the shopkeeper . . accepts that offer. Then the contract is completed. I can see no reason at all, that being clearly the normal position, for drawing any different implication as a result of this layout.’
Somervell LJ, Birkett LJ, Romer LJ
[1953] 1 QB 401, [1953] 1 All ER 482, [1953] EWCA Civ 6
Bailii
Pharmacy and Poisons Act 1933 18(1)(a)(iii)
England and Wales
Citing:
Appeal from – Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd QBD 16-Jul-1952
The Society was responsible for ensuring that sales of controlled pharmaceuticals only took place under the supervision of a pharmacist. The defendants had adopted supermarket style arrangements where the purchaser selected the goods and took them . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 01 November 2021; Ref: scu.199444
The appellant challenged an order made in favour of his wife in proceedings to enforce a contract between them. He alleged that there had been no contract, and bias in the judge. The appellant had not attended to allow cross examination because as a member of the Saudi Royal family he claimed to have been instructed not to attend.
Held: The judge’s approach was unsatisfactory in failing to identify the questions needing to be answered if he were to decide whether an agreement of the kind alleged by Mrs. Harb had been made. In addition, he failed to carry out a proper evaluation of all the evidence in order to test its strengths and weaknesses. Those failures were sufficient to allow the appeal.
Lord Dyson MR emphasised the fact specific nature of such questions, and identified two stages in the decision: ‘First, the opinion of the notional informed and fair-minded observer is not to be confused with the opinion of the litigant. The ‘real possibility’ test is an objective test. It ensures that there is a measure of detachment in the assessment of whether there is a real possibility of bias . . secondly, the informed and fair-minded observer is to be treated as knowing all the relevant circumstances and it is for the court to make an assessment of thes
Obiter, the court considered the allegations abut the judge. He had earlier recused himself after a public dispute about the conduct of proceedings before him. He had in turn been publicly criticised by senior members of the set of counsel who now represented the appellant. The judge had responded by email to the criticism, and had distanced himself from them. The terms of that email were now severely criticised, but as a ground of appeal it must fail, the essence of the decision under appeal having been formed before the critical article.
Dyson MR L, Moore-Bick, McFarlan LJJ
[2016] EWCA Civ 556
Judiciary, Bailii
England and Wales
Citing:
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited by:
Cited – London Borough of Southwark, Regina (on The Application of) v London Fire and Emergency Planning Authority and Another Admn 15-Jul-2016
There had been a substantial and lethal fire. The Borough challenged a decision by the defedant to retain to itself the prosecution of possible offenders, saying that the defendant might possibly be itself subject to criticism.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Contract, Legal Professions, News, Natural Justice
Updated: 01 November 2021; Ref: scu.565676
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 on to purchase the properrties at the price stated because they would be unable to sell without making substantial losses.
Held: The minimum prices scheduled were not a condition precedent to the carrying out by Barratt of the building works themselves. There was no express term to that effect anywhere in the agreement, and none was identified during the course of argument. Neither can the other terms of the agreement be read so as to give rise to such a condition. The possibility that prices would drop was within the anticipation of the parties, and not having made provision for it, they undertook the associated risk, and nor was there any identifiable supervening event.
However the request for summary judgment was refused because of the lack of clarity in the possibility that the claimant had accepted the defendant’s repudiatory conduct.
Coulson J
[2010] EWHC 323 (TCC), [2010] BLR 235
Bailii
England and Wales
Citing:
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 – 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 – International Finance Corporation v Utexafrica SPRL ComC 9-May-2001
The defendant applied to have set aside judgement entered against him in default of acknowledgment of service.
Held: The authorities make it plain that, in order to satisfy the test for resisting a summary claim for for wrongful repudiation . .
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 – Nelson Line (Liverpool) Ltd v James Nelson and Sons Ltd HL 1908
Where there is in a contract an absolute promise with an exception engrafted upon it, the exception is to be construed strictly, and extends only so far as it is expressed with clearness and certainty. The parties to an agreement may contract . .
Cited – British Movietone News Limited v London and District Cinemas Limited HL 26-Jul-1951
Film distributors contracted to supply newsreels at a cinematic theatre. The contract was for a minimum of 26 weeks, and after on termination by the distributors on four weeks notice thereafter, but by the cinema on four weeks after the first month. . .
Cited – Smallman v Smallman CA 1972
An order was sought under the 1882 Act to decide the shares in which the family home was to be held. An overall agreement had been negotiated in correspondence between solicitors that W should have a half share in the proceeds of sale of the . .
Cited – 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 – Krell v Henry CA 1903
Mr Henry contracted to rent a flat located on Pall Mall from the plaintiff, Paul Krell for the daytime and on the days of the forthcoming cornation procession.. He was told that he would have an excellent view of, but this was not written down. He . .
Cited – 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 – CTI Group Inc v Transclear Sa CA 22-Jul-2008
The court rejected a claim for frustration. Numerous authorities showed that the fact that a supplier chose not to make goods available for shipment, thus rendering performance by the seller impossible, was not of itself sufficient to frustrate a . .
Cited – 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 – Edwinton Commercial Corporation and Another v Tsavliris Russ (Worldwide Salvage and Towage) Ltd (the Sea Angel) CA 12-Jun-2007
The court considered whether a delay of some three or so months towards the end of a short (20 day) time charter, caused by reason of the unlawful detention of the vessel by port authorities, in a salvage context, has frustrated that charter. . .
Cited – McAlpine Humberoak Limited v McDermott International Inc 1992
The fact that the parties have foreseen the event but not made any provision for it in their contract will usually, but not necessarily, prevent the doctrine of frustration from applying when the event occurs. . .
Cited – Lauritzen A/A v Wijsmuller BV;( ‘The Super Servant Two’) CA 12-Oct-1989
Bingham LJ discussed the nature of frustration of contract: ‘The essence of frustration is that it is caused by some unforeseen supervening event over which the parties to the contract have no control and for which they are therefore not . .
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 – Pioneer Shipping Ltd v BTP Tioxide Ltd (‘The Nema’) HL 1982
There is no fetter on the judicial discretion to refuse leave under Section 1(3)(b) to appeal against an arbitration award.
Frustration of a contract is ‘not likely to be invoked to relieve contracting parties of the normal consequences of . .
Cited – Suisse Atlantique Societe d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale HL 1966
No magic in the words “fundamental breach”
There is no rule of law which prevents parties to a contract agreeing to limit their respective liabilities. It is a question of the construction of the particular clause as to whether it applies to a fundamental breach or not. The court doubted the . .
Cited – Federal Commerce Ltd v Molena Alpha Inc; (The ‘Nanfri’) CA 1978
The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire.
Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to . .
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 . .
Cited – State Trading Corporation of India Ltd v M Golodetz Ltd CA 1989
Kerr LJ said: ‘What is commonly referred to as an acceptance of a repudiation must be communicated to the party in breach or at least overtly evinced. . An unequivocal act which is inconsistent with the subsistence of the contract may be sufficient, . .
Cited – Federal Commerce Ltd v Molena Alpha Inc (The Nanfri) HL 1979
The charterers of three ships on time charter had made deductions from time charter hire payments which the shipowners regarded as unjustified. In retaliation the shipowners purported to revoke the authority of the Charterers (to be implied under . .
Lists of cited by and citing cases may be incomplete.
Contract, Land
Updated: 01 November 2021; Ref: scu.402487
One company had acquired tyres from the appellant at a discount, but subject to conditions as to their resale. The respondents contracted for their repurchase, making similar promises, but it sold them below the minimum price agreed. The appellant sought to enforce their obligation.
Held: Viscount Haldane LC said: ‘in the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it. Our law knows nothing of a jus quaesitum tertio arising by way of contract. Such a right may be conferred by way of property, as, for example, under a trust, but it cannot be conferred on a stranger to a contract as a right to enforce the contract in personam.’ The appellants were a stranger to the contract obligations it sought to enforce.
Viscount Haldane LC, Lord Dunedin, Lord Atkinson, Lord Sumner, Lord Parmoor
[1915] UKHL 1, [1915] AC 847
Bailii
England and Wales
Citing:
Cited – Humble v Hunter 1848
. .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 01 November 2021; Ref: scu.265979
The sellers had sold to the buyers a piece of land to use in the latter’s business as coach proprietors, and also contracted with them to supply all the petrol required for that business ‘at a price to be agreed by the parties in writing and from time to time’. There was an arbitration clause.
Held: A term was to be implied that in default of agreement the price of the petrol was to be a reasonable price: if that could not be agreed, it could be settled by arbitration. An agreement which leaves a material term outstanding to be agreed may be not enforceable.
Maugham LJ said: ‘It is indisputable that unless all the material terms of the contract are agreed there is no binding obligation. An agreement to agree in the future is not a contract; nor is there a contract if a material term is neither settled nor implied by law and the document contains no machinery for ascertaining it.’ One contention of the Defendants was that the agreement was an unreasonable and unnecessary restraint of the Defendants’ trade and was contrary to public policy and illegal. Scrutton LJ held that there was no ‘undue’ restraint of trade.
Maugham LJ, Scrutton LJ
[1934] 2 KB 1
England and Wales
Cited by:
Cited – Oldham and others v Georgina Kyrris and Another CA 4-Nov-2003
The claimant sought to bring a claim against the administrators of a partnership alleging a duty of care to creditors.
Held: Such an administrator owed no greater duty to creditors than would a director. That duty was no different whether the . .
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
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 – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Cited – Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
Cited – MRI Trading Ag v Erdenet Mining Corporation Llc CA 8-Mar-2013
The Commercial Court had found the result of an arbitration award ‘obviously wrong’, and ineed bizarre.
Held: The appeal failed. The award was flawed, in failing to take account of the trading context between the parties: ‘The overall . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 01 November 2021; Ref: scu.190146