Category: Contract

Philips (Hong Kong) Ltd v The Attorney General of Hong Kong: PC 9 Feb 1993

After referring to two Australian cases on penalty clauses in contracts: ‘These statements assist by making it clear that the court should not adopt an approach to provisions as to liquidated damages which could, as indicated earlier, defeat their purpose. Except possibly in the case of situations where one of the parties to the contract is able to dominate the other as to the choice of the terms of a contract, it will normally be insufficient to establish that a provision is objectionably penal to identify situations where the application of the provision could result in a larger sum being recovered by the injured party than his actual loss. Even in such situations so long as the sum payable in the event of non-compliance with the contract is not extravagant, having regard to the range of losses that it could reasonably be anticipated it would have to cover at the time the contract was made, it can still be a genuine pre-estimate of the loss that would be suffered and so a perfectly valid liquidated damage provision.’ but ‘A difficulty can arise where the range of possible loss is broad. Where it should be obvious that, in relation to part of the range, the liquidated damages are totally out of proportion to certain of the losses which may be incurred, the failure to make special provision for those losses may result in the ‘liquidated damages’ not being recoverable.’
The Board considered the nature of penalty clauses. The ‘court should not be astute to descry a ‘penalty clause” and emphasised that it would ‘normally be insufficient . . to identify situations where the application of the provision could result in a larger sum being recovered by the injured party than his actual loss’. However ‘A difficulty can arise where the range of possible loss is broad. Where it should be obvious that, in relation to part of the range, the liquidated damages are totally out of proportion to certain of the losses which may be incurred, the failure to make special provision for those losses may result in the ‘liquidated damages’ not being recoverable. (See the decision of the Court of Appeal on very special facts in Ariston SRL v Charly Records Ltd (1990) The Independent 13 April 1990.) However, the court has to be careful not to set too stringent a standard and bear in mind that what the parties have agreed should normally be upheld. Any other approach will lead to undesirable uncertainty especially in commercial contracts.’
Lord Woolf said: ‘the court has to be careful not to set too stringent a standard and bear in mind that what the parties have agreed should normally be upheld’, not least because ‘[a]ny other approach will lead to undesirable uncertainty especially in commercial contracts’.
Lord Woolf
(1993) 61 BLR 49, [1993] UKPC 3, (1993) 9 Const LJ 202
Bailii
Commonwealth
Citing:
Affirmed – Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
Cited – AMEV-UDC Finance Ltd v Austin 1986
High Court of Australia – Contract – Damages – Penalty – Agreement for hire of chattel – Failure to pay instalments of hire – Termination by owner pursuant to contractual power – Damages – Instalments due but unpaid – Damages for loss of . .
Cited – Esanda Finance Corporation Ltd v Plessnig 1989
(Australia) . .
Cited – Ariston SRL v Charly Records Ltd 13-Apr-1990
Penalty Clauses . .

Cited by:
Cited – Duffen v Fra Bo Spa CA 30-Apr-1998
The plaintiff had been appointed as an exclusive sales agent for the defendant for a minimum period of four years. The defendants terminated it eighteen months early claiming fraudulent misrepresentation.
Held: The clause setting the damages . .
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 – Jeancharm Ltd (T/A Beaver International) v Barnet Football Club Ltd CA 16-Jan-2002
The claimant contracted to supply football shirts to the defendant, but claimed that clauses in the contract with regards to late delivery and payment operated as penalties and so were void at common law.
Held: The sums set out were immodest . .
Cited – Tullett Prebon Group Ltd v El-Hajjali QBD 31-Jul-2008
The defendant signed an employment contract to join the claimants as a senior broker. He changed his mind and decided to stay in his existing job. The new employers sued for breach of contract. The defendant said that the claimants had refused to . .
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, . .
Cited – Wright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd ChD 6-Mar-2018
IVA is a special form of contract
Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.197033

Helby v Matthews: HL 30 May 1895

A piano owner hired it out to Brewster for monthly payments with a provision that the piano would become Brewster’s on payment of the required number of monthly payments. Brewster pledged it and the owner sought its recovery.
Held: The basic principle of ‘nemo dat quod non habet’ (one cannot give what one does not have) applies also to a sale by a hire-purchaser. The hirer was under no obligation to make all the payments and purchase the piano. The hire-purchaser has no title to the goods and no power to convey any title to a third party.
Lord Herschell said: ‘it is said that the substance of the transaction evidenced by the agreement must be looked at, and not its mere words. I quite agree. But the substance must, of course, be ascertained by a consideration of the rights and obligations of the parties, to be derived from a consideration of the whole of the agreement. If Brewster agreed to buy the piano, the parties cannot, by calling it a hiring, or by any mere juggling with words, escape from the consequences of the contract into which they entered. What, then, was the real nature of the transaction? The answer to this question is not, I think, involved in any difficulty. Brewster was to obtain possession of the piano, and to be entitled to its use so long as he paid the plaintiff the stipulated sum of 10s. 6d. a month, and he was bound to make these monthly payments so long as he retained possession of the piano. If he continued to make them at the appointed times for the period of three years, the piano was to become his property, but he might at any time return it, and, upon doing so, would no longer be liable to make any further payment beyond the monthly sum then due . . My Lords, I cannot, with all respect, concur in the view of the Court of Appeal, that upon the true construction of the agreement Brewster had ‘agreed to buy’ the piano. An agreement to buy imports a legal obligation to buy. If there was no such legal obligation, there cannot, in my opinion, properly be said to have been an agreement to buy. Where is any such legal obligation to be found? Brewster might buy or not just as he pleased. He did not agree to make thirty-six or any number of monthly payments. All that he undertook was to make the monthly payment of 10s. 6d. so long as he kept the piano. He had an option no doubt to buy it by continuing the stipulated payments for a sufficient length of time. If he had exercised that option he would have become the purchaser. I cannot see under these circumstances how he can be said either to have bought or agreed to buy the piano. The terms of the contract did not upon its execution bind him to buy, but left him free to do so or not as he pleased, and nothing happened after the contract was made to impose the obligation.’ and ‘when a person has, for valuable consideration, bound himself to sell to another on certain terms, if the other chooses to avail himself of the binding offer, he may, in popular language, be said to have agreed to sell, though an agreement to sell in this sense, which is in truth merely an offer which cannot be withdrawn, certainly does not connote an agreement to buy, and it is only in this sense that there can be said to have been an agreement to sell in the present case.’
Lord Macnaghten said: ‘The customer was under no obligation to fulfill the conditions on which and on which alone the dealer undertook to sell. He was not bound to keep the piano for a single day or a single hour.’
Lord Shand said: ‘An agreement to purchase would infer an obligation to pay a price, the payment of which could be enforced by action, while here it is plain that no action for any balance of the alleged price could be maintained if Brewster thought fit at any time to return the instrument to its owner.’
Lord Herschell, Lord Macnaghten, Lord Watson, Lord Shand
[1895] AC 471, [1895] UKLawRpAC 30
Commonlii
England and Wales
Cited by:
Cited – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.188450

Photo Production Ltd v Securicor Transport Ltd: CA 1978

The Master of the Rolls considered the use of an exemption clause, saying that the Court was to consider first whether the breach was ‘fundamental’. If so, he said, the court itself deprives the party of the benefit of an exemption or limitation clause: ‘Thus we reach, after long years, the principle which lies behind all our striving: the court will not allow a party to rely on an exemption or limitation clause in circumstances in which it would not be fair or reasonable to allow reliance on it: and, in considering whether it is fair and reasonable, the court will consider whether it was in a standard form, whether there was equality of bargaining power, the nature of the breach, and so forth’.
The Court referred to the construction of the contract not in its natural and literal sense but in the wider context of the presumed intention of the parties. Lord Denning said: ‘It seems to me that the two ways can be seen to meet in practice so as to produce a result in principle which may be stated thus: Although the clause in its natural and ordinary meaning would seem to give exemption or limitation if the court can say, ‘The parties as reasonable men cannot have intended that there should be exemption or limitation in the case of such a breach as this’. In so stating the principle there arises in these cases the figure of the fair and reasonable man; an the spokesman of this fair and reasonable man, as Lord Radcliffe once said, is and must be the court itself: see Davis Contractors Ltd v. Earcham Urban District Council.
Thus we reach, after long years, the principle which lies behind all our striving: the court will not allow a party to rely on an exemption or limitation clause in circumstances in which it would not be fair or reasonable to allow reliance on it; and in considering whether it is fair whether it was in a standard form, whether there was equality of bargaining power, the nature of the breach, and do forth.’
Lord Denning MR
[1978] 1 WLR 856, [1978] 3 All ER 146
England and Wales
Cited by:
Appeal from (CA) – 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.
Updated: 14 October 2021; Ref: scu.653284

Apache North Sea Ltd v Ineos FPS Ltd: ComC 30 Jul 2020

Trial of two preliminary issues in a dispute between the parties as to the proper construction of an agreement for the transportation and processing of hydrocarbons. The hydrocarbons in question are those produced from the Claimant’s interests in the Forties Field in the North Sea, and they are to be transported through the Forties Pipeline System owned and operated by the Defendant.
Foxton J
[2020] EWHC 2081 (Comm)
Bailii
England and Wales

Updated: 14 October 2021; Ref: scu.652961

Sport Internationaal Bussum BV v Inter-Footwear Ltd: CA 1984

There had been a contractual licence to use names and trademarks for sports shoes. An earlier action between the parties had been stayed on the terms scheduled to a Tomlin order, which provided for Inter-Footwear to pay andpound;105,000 in three instalments and to have a licence (partly exclusive and partly non-exclusive) to use the names and marks. If any instalment was not paid on the due date, the whole unpaid balance became due at once and the licensor could determine the licence. There was a delay in payment of the second instalment and the licensor terminated the licence.
Held: The court had no jurisdiction to grant relief from forfeiture. Oliver LJ said that taken at its narrowest The Scaptrade case ‘may be said to establish no more than this: that the equitable jurisdiction to relieve against forfeiture does not extend to a time charter not being a charter by demise. There is, however, the more general proposition to be derived from it, that, even where the primary object of the insertion of a forfeiture clause may be said to be to secure the payment of money or the performance of some other obligation, the equitable jurisdiction does not extend to contracts which do not involve the transfer or creation of proprietary or possessory rights.’ There is a need for certainty in commercial contracts and the court doubted whether the licensor’s right to terminate the licence in the event of default could be primarily a security for the payment of money: ‘This is sufficient to dispose of the appeal, but, in fact, there appears to us to be another reason why the equitable jurisdiction to grant relief could not apply to a case such as this. The case is one of contract only and, in so far as there were any rights created or transferred which could be described as ‘proprietary’, they were rights which rested only in contract and to that extent distinguishable from the legal estate created by the grant of a lease or a mortgage. Assuming that relief were capable of being granted, effectively it could be granted only by compelling the plaintiffs to re-grant the permission which had been revoked. An exclusive licence to use a trade mark creates no estate, although it enables the licensee to obtain an injunction if the licensor, in breach of contract, seeks to use the mark in competition with him. Thus, effectively, the licensee applying for relief from forfeiture is in exactly the same position as the charterer in [The Scaptrade].’
Oliver LJ
[1984] 1 WLR 776
England and Wales
Citing:
Cited – Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade) HL 1983
The House considered giving relief from forfeiture where an owner had justifiably withdrawn his vessel in accordance with the terms of the charter.
Held: A withdrawal clause under a time charter, exercised on the ground of the charterer’s . .

Cited by:
Appeal from – Sport International Bussum BV v Inter-Footwear Ltd HL 2-Jan-1984
A contractual licence was granted to use names and trademarks for sports shoes. An earlier action between the parties had been stayed on the terms scheduled to a Tomlin order, which provided for Inter-Footwear to pay a sum in instalments and to have . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.230289

Safeway Ltd v Newton and Another: CA 5 Oct 2017

Briggs JSC said: ‘the Deed exists primarily for the benefit of non-parties, that is the employees upon whom pension rights are conferred whether as members or potential members of the Scheme, and upon members of their families (for example in the event of their death). It is therefore a context which is inherently antipathetic to the recognition, by way of departure from plain language, of some common understanding between the principal employer and the trustee, or common dictionary which they may have employed, or even some widespread practice within the pension industry which might illuminate, or give some strained meaning to, the words used.’
Briggs JSC, Longmore, Floyd LJJ
[2017] EWCA Civ 1482, [2018] Pens LR 2
Bailii
England and Wales
Cited by:
Cited – Barnardo’s v Buckinghamshire and Others SC 7-Nov-2018
The Court considered the interpretation of a clause in a pension scheme trust deed which defines the phrase ‘Retail Prices Index’ and which allows the trustees of the pension scheme to adopt a ‘replacement’ of the officially published Retail Prices . .
See Also – Safeway Ltd v Newton and Others CA 13-Jul-2020
Determining Normal Pension Ages under occupational pension scheme. . .

Lists of cited by and citing cases may be incomplete.
Updated: 13 October 2021; Ref: scu.595817

UGS Finance Ltd v National Mortgage Bank of Greece: CA 1964

Pearson LJ said: ‘As to the question of ‘fundamental breach’, there is a rule of construction that normally an exemption or exclusion clause or similar provision in the contract should be construed as not applying to a situation created by a fundamental breach of contract . . it is a rule of construction based on the presumed intention of the contracting parties. It involves the implication of a term to give to the contract that business efficacy which the parties as reasonable men just have intended it to have. This rule of construction is not new in principle but it has become prominent in recent years in consequence of the tendency to have standard forms of contract containing exceptions clauses drawn in extravagantly wide terms, which would produce absurd results if applied literally.’
Pearson LJ
[1964] 1 Lloyd’s Rep 446
England and Wales
Cited by:
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .

Lists of cited by and citing cases may be incomplete.
Updated: 13 October 2021; Ref: scu.441570

Karsales (Harrow) Ltd v Wallis: CA 12 Jun 1956

The Court considered an exemption clause: ‘Notwithstanding earlier cases which might suggest the contrary, it is now settled that exempting clauses of this kind, no matter how widely they are expressed, only avail the party when he is carrying out his contract in its essential respects. He is not allowed to use them as a cover for misconduct or indifference or to enable him to turn a blind eye to his obligations. They do not avail him when he is guilty of a breach which goes to the root of the contract’
Lord Denning MR
[1956] EWCA Civ 4, [1956] 2 All ER 866, [1956] 1 WLR 936
Bailii
England and Wales
Cited by:
Criticised – 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.
Updated: 13 October 2021; Ref: scu.262834

Halal Meat Sellers Committee Ltd and Another v HMC (UK) Ltd: ComC 10 Aug 2020

Application pursuant to CPR rules 3.4(2)(a), (b) and/or (c), for an order striking out the Claimants’ Part 8 Claim on the grounds that it discloses no reasonable grounds for bring the claim and/or is an abuse of the Court’s process and/or there has been a failure to comply with a rule and practice direction.
Peter MacDonald Eggers QC
[2020] EWHC 2190 (Comm)
Bailii
England and Wales

Updated: 13 October 2021; Ref: scu.653086

Parker v Clark: 1960

A written offer was accepted in writing by a letter that became lost. Although it was recognised that oral evidence of the written acceptance might provide an answer, the case was argued on the basis that the written offer was a sufficient memorandum.
Held: The argument that the statute required a concluded agreement to be existing when the memorandum was signed was rejected. A written offer is capable of being a memorandum providing the language shows an intention to contract as opposed to being a mere statement of expectation.
Devlin J
[1960] 1 All ER 93, [1960] 1 WLR 286
England and Wales
Citing:
Cited – Smith v Neale 1857
The defendant wrote to the plaintiff requesting the assignment of a patent to him to hold as trustee for an institution who would pay him a share of the profits on exploitation of the patent, and if the profits fell below a figure, the patent would . .
Cited – Reuss v Picksley 1866
A written proposal was purportedly accepted orally. The requirements of the 1677 Statute were satisfied where a signed written offer containing the requisite terms was accepted orally by the other party.
Willes J said: ‘The only question is, . .

Cited by:
Cited – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.241709

Dexter Ltd v Vlieland-Boddy: CA 2003

The court discussed the significance of Johnson v Gore Wood.
Clarke LJ said: ‘The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood and Co [2002] 2 AC 1, can be summarised as follows:
i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.
ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C.
iii) The burden of establishing abuse of process is on B or C or as the case may be.
iv) It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.
v) The question in every case is whether, applying a broad merits based approach, A’s conduct is in all the circumstances an abuse of process.
vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C.’
Clarke LJ, Scott Baker LJ
[2003] EWCA Civ 14
Bailii
England and Wales
Citing:
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 by:
Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Cited – Pacific International Sports Clubs Ltd v Soccer Marketing International Ltd and Others ChD 24-Jul-2009
The parties disputed ownership of shares in the football club Dynamo Kiev. Claims were to be made under Ukrainian company law and in equity. The claimant (a company registered in Mauritius) sought to proceed here. The defendants (largely companies . .
Cited – Wahab v Khan and Others; In re Abdus Sattar Sheikh deceased ChD 12-Apr-2011
The claimant had asked the court to revoke the probate granted in his brother’s estate. He appealed now against a strike out of his request. He alleged that the will was a forgery. The executor’s and defendants were not relations of the deceased, . .
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 – Aldi Stores Ltd v WSP Group Plc and others CA 28-Nov-2007
Aldi appealed against an order striking out as an abuse of process its claims against the defendant on a construction dispute. The defendant said the claims should have been brought as part of earlier proceedings.
Held: The appeal succeeded. . .
Cited – Spicer v The Commissioner of Police of The Metropolis QBD 6-Jul-2020
The claimant alleged defamation. He had been acquitted of a criminal offence and said that material published by the defendant continued to imply or assert his guilt of the offence. The defendant argued truth. The claimant now sought a strike out of . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.241332

Trail v Baring: CA 1864

(Orse Traill v Baring) The court considered a misrepresentation by conduct before contract. Turner LJ said: ‘I take it to be quite clear, that if a person makes a representation by which he induces another to take a particular course, and the circumstances are afterwards altered to the knowledge of the party making the representation, but not to the knowledge of the party to whom the representation is made, and are so altered that the alteration of the circumstances may affect the course of conduct which may be pursued by the party to whom the representation is made it is the imperative duty of the party who has made the representation to communicate to the party to whom the representation has been made the alteration of those circumstances and that this Court will not hold the party to whom the representation has been made bound unless such a communication has been made.’
Turner LJ
(1864) 4 De G J and S318, [1864] EngR 106, (1864) 4 Giff 485, (1864) 66 ER 797, [1864] EngR 312 (B), (1864) 4 De G J and S 318
Commonlii, Commonlii
England and Wales
Cited by:
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 – Director of Public Prosecutions v Ray HL 25-Jul-1973
The defendant ordered a meal at a restaurant believing his companion would lend him the money to pay. He later decided to seek to avoid payment and took a opportunity to escape.
Held: The appeal was allowed and the conviction restored. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.194208

Inchbald v Western Neilgherry Coffee, Tea and Cinchona Plantation Co Ltd: 1864

The damages for breach of contract for prevention of the fulfilment of a condition will take into account the chance that, irrespective of the breach of contract, the condition would not have been fulfilled anyway.
(1864) 17 CBNS 733
England and Wales
Cited by:
Explained – Thompson v Asda MFI Group Plc 1988
The court considered the implication of a term which would prevent an employer selling a subsidiary so that employees of the subsidiary who had rights under the group share option scheme ceased to be employees for the purpose of that agreement. It . .
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.211398

Lee v Jones: CCP 1864

Jones had guaranteed to Lee payment of any balance due to them by their agent Packer. Jones sought to set aside the guarantee on ground of fraud by Lee. The fraud alleged was the failure of Lee to disclose that Packer had not properly accounted to Lee for sums due in respect of previous transactions. The judge had concluded that the allegation was not enough to justify seeking the verdict of a jury and had entered judgment for Lee. Jones appealed.
Held: The appeal succeeded. The facts relied on were enough to leave the issue of fraudulent concealment to the jury.
Blackburn J said: ‘a surety is in general a friend of the principal debtor, acting at his request, and not at that of the creditor; and, in ordinary cases, it may be assumed that the surety obtains from the principal all the information which he requires: and I think that great practical mischief would ensue if the creditor were by law required to disclose everything material known to him, as in a case of insurance. If it were so, no creditor could rely upon a contract of guarantee, unless he communicated to the proposed sureties everything relating to his dealings with the principal, to an extent which would in the ordinary course of things be so vexatious and annoying to the principal and his friends, the intended sureties, that such a rule of law would practically prohibit the obtaining of contracts of suretyship in matters of business. This is well pointed out by Lord Campbell in his judgment in Hamilton v Watson 12 Clark and Fin. 118. But I think, both on authority and on principle, that, when the creditor describes to the proposed sureties the transaction proposed to be guaranteed (as in general a creditor does), that description amounts to a representation, or at least is evidence of a representation, that there is nothing in the transaction that might not naturally be expected to take place between the parties to a transaction such as that described. And, if a representation to this effect is made to the intended surety by one who knows that there is something not naturally to be expected to take place between the parties to the transaction, and that this is unknown to the person to whom he makes the representation, and that, if it were known to him, he would not enter into the contract of suretyship, I think it is evidence of a fraudulent representation on his part.’
(1864) 17 CBNS 482, [1864] EngR 23, 34 LJCP 131, 141 ER 194
Worldlii
England and Wales
Cited by:
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.219460

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 not interfere to an unacceptable extent with the servient owner’s enjoyment of his land, the judge’s finding of what was in practice a question of fact would not be disturbed.
Peter Gibson, Dyson, Longmore LJJ
[2003] EWCA Civ 1110, Times 27-Aug-2003, [2004] 1 Pand CR 18
Bailii
Law of Property Act 1925 62
England and Wales
Citing:
Cited – Wheeldon v Burrows CA 17-Jun-1879
Quasi-Easements granted on sale of part of Estate
S owned a workshop and an adjoining plot of land. The workshop had three windows looking out over the plot. The property was sold in separate lots at auction. The land was sold with no express reservation of any easements, and then similarly the . .
Cited – Birmingham, Dudley and District Banking Co v Ross CA 1888
Birmingham Corporation secured development of a large area by building agreements which granted leases on completion of the buildings to their builders. One builder, Daniell, erected a building to a height of 48 feet, and assigned his interest under . .
Cited – Wright v Macadam KBD 1949
The court considered the exceptions to the rule that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into the conveyance by virtue of section 62. One exception was if the right was . .
Cited – Hair v Gillman 2000
. .
Cited – Selby District Council v Samuel Smith Old Brewery Ltd CA 15-Jun-2000
The council conveyed land to the brewery, with an option to re-purchase it. On exercising the option, the brewery asserted rights over the land, by way of easement acquired during its ownership. These were rejected by the court. The intention of the . .
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 – Copeland v Greenhalf ChD 1952
If a right claimed by way of an easement would effectively deprive the servient owner of any reasonable user of the area of land over which it is exercisable, than that right is not capable of being an easement. The rights asserted here were both . .
Cited – 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 – London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd ChD 29-Jul-1992
A right to park was claimed as an easement.
Held: The question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree: ‘A small coal shed in a large property is one thing. The exclusive . .
Cited – Batchelor v Marlow and Another ChD 25-May-2000
The applicant claimed parking rights as an easement. If an easement was capable of arising by virtue of a deed of grant, it could also be acquired by prescription. This was such an easement. Use in the absence of planning permission did not vitiate . .

Cited by:
Cited – Campbell and Another v Banks and Others CA 1-Feb-2011
The court considered the creation by section 62 of the 1925 Act automatically of easements when land was divided. The claimants owned land bounded on either side by properties beloinging to the respondents. The properties had once been in common . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.184830

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.
Sir Raymond Evershed MR, Birkett LJ, Romer LJ
[1956] EWCA Civ 6, [1956] 1 All ER 237, [1956] Ch 304
Bailii
England and Wales
Cited by:
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 – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.262842

Pioneer Freight Futures Company Ltd v TMT Asia Ltd: ComC 1 Apr 2011

Gloster J DBE
[2011] EWHC 778 (Comm), [2011] 2 Lloyd’s Rep 96, [2011] 1 CLC 885
Bailii
England and Wales
Citing:
Cited – Lomas (Administrators of Lehman Brothers International (Europe)) v JFB Firth Rixson Inc and Others ChD 21-Dec-2010
Interest swap counterparties withheld payments due to Lehman Brothers International (Europe) in reliance on a provision of an ISDA Master Agreement that a party’s payment obligations were subject to the condition precedent that there was no . .

Cited by:
See Also – Pioneer Freight Futures Company Ltd v TMT Asia Ltd ComC 21-Jul-2011
. .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.431653

Deutsche Bank Ag and others v Asia Pacific Broadband Wireless Communications Inc and Another: CA 13 Oct 2008

The court considered whether an exclusive jurisdiction clause in a contract would apply to control an argument that the agreement itself was invalid.
Laws LJ, Keene LJ, Longore LJ
[2008] EWCA Civ 1091, [2009] 2 All ER (Comm) 129, [2008] 2 Lloyd’s Rep 619, [2008] 2 CLC 520, [2009] ILPr 36
Bailii
England and Wales

Updated: 08 October 2021; Ref: scu.276837

Ex parte Llynvi Coal and Iron Co; In re Hide: 1871

The trustee in bankruptcy disclaimed an agreement for a lease under Section 23. The landlord claimed to prove as creditor under the section.
Held: Where one party has repudiated a contract and the other party has accepted that repudiation as terminating the contract and he then exercises his secondary right to claim damages ‘Surely he is to prove for the damage which could be recovered for the breach of the contract.’ ‘I am satisfied that the injury referred to in the sub-section means the legal wrong that is done him. He is deprived of a certain contract, under which he was to recover a certain sum of money, and he is to prove against the estate for that which he would have had a right to recover or to sue for if he had not been deprived of that right by the bankruptcy.’ and ‘A landlord who has made a contract for andpound;500 a year, to be paid to him for the use of the land, is entitled to claim andpound;500 a year, minus what he can get for the land from another tenant.’
Mellish LJ said: ‘It is quite plain that the object of these sections is that the bankrupt should be absolutely relieved from any liability under any contract he has ever entered into. And the bankrupt being so relieved, it is plainly also the intention of the Legislature that the person deprived of the right of action against the bankrupt, and of the benefit of the contract which he made with the bankrupt, should be turned into a creditor in respect of what the Act describes the injury he has received. That, I think, must mean in respect of what he would have been entitled to recover against the bankrupt if the bankrupt had remained solvent. It would be contrary to every principle that in assessing the damages which could have been recovered against the bankrupt if he had not been made bankrupt, and for which proof is made, you are to take into consideration the fact of the bankrupt being insolvent, so that the amount of the proof is to depend upon the extent of his insolvency.’ and ‘In estimating the amount of damages, you are to take into consideration that the landlord regains possession of the property, and if he can get as much rent for the property afterwards as before, then the damages would be nil:if he gets less, it will be the difference.’
Sir G Mellish LJ, James LJ
(1871) LR 7 Ch App 28, [1871] UKLawRpCh 133
Commonlii
Bankruptcy Act 1869 23
England and Wales
Cited by:
Cited – In Re Park Air Services Plc; Christopher Moran Holdings Ltd v Bairstow and Another HL 4-Feb-1999
The tenant company went into liquidation, the receiver disclaimed the lease, and the landlord claimed compensation under the Act. The question concerned how the compensation was to be calculated.
Held: Where a solvent tenant under an onerous . .
Cited – Park Air Services Plc; Christopher Moran Holdings Limited v Bairstow and Ruddock CA 1-May-1997
If a lease is determined or treated as determined in a winding up or in a bankruptcy, the landlord is entitled to prove in principle for all the rent and other payments which he would have been entitled to recover from the tenant for the residue of . .
Cited – In re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.197009

Computer 2000 Distribution Ltd and others v ICM Computer Solutions Plc: CA 17 Nov 2004

The claimant delivered computer equipment against a fraudulent invoice issued in the name of the defendant.
Held: The loss here had to fall on an innocent party. Having delivered the equipment to the site requested, the claimant had done all it was obliged to do, and so was entitled to payment.
Lord Justice Chadwick Lord Justice Latham Lord Justice Judge
[2004] EWCA Civ 1634, Times 29-Dec-2004
Bailii
England and Wales
Citing:
Cited – Galbraith and Grant Ltd v Block KBD 1922
Where under a contract the seller of goods is required to deliver them at the buyer’s premises he fulfils his obligation if he delivers them there to a person who apparently has authority to receive them, taking care to see that no unauthorized . .
Cited – Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd CA 1964
The defendant company allowed one of its directors to act as the Managing Director and to give instructions to the Plaintiff to do work on its behalf.
Held: The fact that he had never been formally appointed as Managing Director was of no . .
Appeal from – Time Group Limited v Computer 2000 Distribution Limited and IBM United Kingdom Limited TCC 4-Feb-2002
Computers had been supplied by the second defendant to the claimant and first defendant at different times for exclusive distribution in the UK. Defects were alleged. The case concerned applications made for dismissal of a case as an abuse of . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.220171

Le Conteur v London and S W Railway Company: QBD 14 Nov 1865

Where there is one entire contract to carry partly by land and partly by sea, the contract is divisible, and as to the land journey the carrier is within the protection of the Carriers Act, 11 Geo. 4 and 1 Wm. 4, c. 68
[1865] EngR 729, (1865) 6 B and S 961, (1865) 122 ER 1448, (1865-1866) LR 1 QB 54, [1865] UKLawRpKQB 17
Commonlii, Commonlii
England and Wales

Updated: 08 October 2021; Ref: scu.653034

Evans v James (Administratrix of the Estate of Thomas Hopkin Deceased): CA 5 Jul 1999

Before the parties called evidence, and having read the papers, the court considered that there was no real defence shown, and invited submissions. Negotiations for the grant of a tenancy had been terminated by the sudden illness of the proposed tenant. His family asserted a contract was concluded.
Held: There was no prospect of upholding the assertion that the solicitor’s actions bound his client landlord. A solicitor does not have apparent or implied authority to make a contract for the disposal or acquisition of an interest in land on behalf of his client.
In this case, and despite the absence of an application for summary judgment the judge had been right to raise the isue, and indeed it should have been raised earlier.
[1999] EWCA Civ 1759
Law of Property (Miscellaneous Provisions) Act 1989
England and Wales
Citing:
Cited – Javad v Aqil CA 15-May-1990
P in possession – tenancy at will Until Completion
A prospective tenant was allowed into possession and then made periodic payments of rent while negotiations proceeded on the terms of a lease to be granted to him. The negotiations broke down.
Held: The tenant’s appeal failed. It was inferred . .
Cited – Attorney General of Hong Kong v Humphreys Estate (Queen’s Gardens) Ltd PC 1987
An agreement in principle was marked ‘subject to contract’. The Government would acquire some flats owned the plaintiff Group of companies in return for the Government granting, inter alia, a lease to the Group of some Crown lands. The Government . .
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Godden v Merthyr Tydfil Housing Association CA 15-Jan-1997
The Plaintiff was a building contractor; the Defendant a housing association engaged in developing suitable sites for residential accommodation for letting to tenants. Before the contract the parties had successfully completed what was been called . .
Cited – D’Silva v Lister House Development Ltd 1970
Even an unlawful sub-tenancy can have protection under Part II of the 1954 Act. The court described as fallacious the submission that section 74(1) does not extend to or answer the question whether the document has ever been delivered, saying: ‘The . .
Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Kok Hoong v Leong Cheong Kweng Mines Ltd PC 1964
A clear public policy underlying a statute (for instance, the need to protect vulnerable persons dealing with moneylenders or landlords) prevents an estoppel arising: ‘To ask whether the law that confronts the estoppel can be seen to represent a . .
Cited – Eccles v Bryant and Pollock CA 1947
The Plaintiff contended that a letter written by the purchaser’s solicitor which effectively set out the terms of the agreement, enclosed the part of the contract signed by the purchaser, and asked in exchange for the counter-part signed by the . .
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 – Lockett v Norman-Wright 1925
As such, a solicitor does not have ostensible authority to conclude a contract for his client: ‘In the present case there was no evidence of any authority being conferred on the solicitors to make such a bargain, and I think that that fact is . .
Cited – Eccles v Bryant and Pollock CA 1947
The Plaintiff contended that a letter written by the purchaser’s solicitor which effectively set out the terms of the agreement, enclosed the part of the contract signed by the purchaser, and asked in exchange for the counter-part signed by the . .
Cited – Hollington Bros v Rhodes ChD 1951
A solicitor does not withoutmore have ostensible authority to conclude a contract for his client. . .
Cited – Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd CA 1964
The defendant company allowed one of its directors to act as the Managing Director and to give instructions to the Plaintiff to do work on its behalf.
Held: The fact that he had never been formally appointed as Managing Director was of no . .
Cited – McPhilemy v Times Newspapers Ltd and Others (2) CA 26-May-1999
The new Civil Procedure Rules did not change the circumstances where the Court of Appeal would interfere with a first instance decision, but would apply the new rules on that decision. Very extensive pleadings in defamation cases should now be . .

Cited by:
Cited – Padwick Properties Ltd v Punj Lloyd Ltd ChD 9-Mar-2016
The tenant had left the property, their solicitors writing informing the landlord that it had vacated the Property and asserting that ‘the security and safety of the Property will revert to your client.’ The keys were returned, and on the insolvency . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.146674

Jennings v Great Northern Railway Company: 4 Nov 1865

A by-law of the defendants, a railway company, was as follows : ‘ No passenger will be allowed to enter any carriage without having first paid his fare and obtained a ticket. Each passenger, on payment of his fare, will be furnished with a ticket, which such passenger is to shew when required, and to deliver up, before leaving the company’s premises, upon demand.’ The plaintiff took tickets for himself, his servants, and horses, by a particular train, on the defendants’ railway. The train was afterwards divided into two. The plaintiff travelled in the first train, taking all the tickets with him. When the second train with the servants and horses was about to start, the plaintiffs servants were required to produce their tickets, and on their being unable to do so, the defendants refused to carry them.
Held: in an action by the plaintiff for not carrying his servants, that as the defendants contracted with the plaintiff, and delivered the tickets to him and not to the servants, the defendants could not, under the by-law, justify their refusal to carry.
[1865] UKLawRpKQB 4, (1865-1866) LR 1 QB 7
Commonlii
England and Wales

Updated: 08 October 2021; Ref: scu.653031

MCC Proceeds Inc (Incorporated Under the Laws of the State of Delaware, USA As Trustee of the Maxwell Macmillan Realization Liquidating Trust) v Lehman Brothers International (Europe): CA 19 Dec 1997

The owner only of an equitable interest in goods may not assert his interest against a bona fide purchaser of the legal title to the goods. International Factors v. Rodriguez was decided per incuriam to the extent that it held that equitable rights conferred a status to sue in conversion, or that the holding was obiter.
Mummery LJ said: ‘There was no valid reason for Macmillan not joining LB as a defendant to the first action, so that all claims in relation to the title to the Berlitz shares could be decided in the same action and bind all interested parties . . it is an abuse of the process of the court to bring [the action] against LB: the substantial issue raised in it (i.e. the title to the Berlitz shares) has already been decided, on both law and fact, in the first action in circumstances which preclude the parties in this action from attempting to litigate that issue again.’
Mummery Hobhouse, Pill LJJ
Times 14-Jan-1998, Gazette 04-Feb-1998, [1997] EWCA Civ 3068, [1998] 4 All ER 675, [1998] 2 BCLC 659
Bailii
England and Wales
Citing:
Per incuriam – International Factors v Rodriguez CA 1978
(Majority) Cheques were made payable to a company which had entered into a factoring agreement with the plaintiffs. The cheques were sent to the company in settlement of debts owed to the company but which had been assigned to the plaintiffs. The . .

Cited by:
Cited – Mazur Media Limited and Another v Mazur Media Gmbh in Others ChD 8-Jul-2004
Proceedings were brought in England. The respondents sought a stay, saying the company was subject to insolvency proceedings in Germany.
Held: Our domestic insolvency law was not applicable to foreign proceedings, and so could not be used to . .
Approved – 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 – 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 – Iran v The Barakat Galleries Ltd QBD 29-Mar-2007
The claimant government sought the return to it of historical artefacts in the possession of the defendants. The defendant said the claimant could not establish title and that if it could the title under which the claim was made was punitive and not . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.143467

Times Travel (UK) Ltd v Pakistan International Airlines Corporation: CA 14 May 2019

This appeal concerns the area of lawful act duress, where a contract results from a threat of a lawful act or omission. Does lawful act duress exist at all and, if so, in what circumstances may it be invoked?
Lord Justice David Richards
[2019] EWCA Civ 828, [2019] WLR(D) 277
Bailii, WlRD
England and Wales
Citing:
Cited – North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd (The Atlantic Baron) 1978
The defendant had contracted to build a ship for the plaintiff. When part built and paid for, the defendants demanded further payments over and above that agreed to finish the contract. The plaintiffs paid without protest, and took delivery, but . .
Appeal from – Times Travel (UK) Ltd Nottingham Travel (UK) Ltd v Pakistan International Airlines Corporation ChD 14-Jun-2017
The claimants alleged undue pressure on them by the defendants to enter into contracts to compromise earlier disputes. . .
See Also – Times Travel UK Ltd and Another v Pakistan International Airline Corporation ChD 17-Jul-2018
The court considered, post judgment, directions for the taking of accounts and an application for a variation of the costs order. . .

Cited by:
See Also – Times Travel UK Ltd and Another v Pakistan Internation Airlines Corporation ChD 11-Aug-2020
. .
Appeal from – Pakistan International Airline Corporation v Times Travel (UK) Ltd SC 18-Aug-2021
Whether, and if so in what circumstances, a party can set aside a contract on the ground that it was entered into as a result of the other party threatening to do a lawful act. . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 October 2021; Ref: scu.637331

Times Travel (UK) Ltd Nottingham Travel (UK) Ltd v Pakistan International Airlines Corporation: ChD 14 Jun 2017

The claimants alleged undue pressure on them by the defendants to enter into contracts to compromise earlier disputes.
Warren J
[2017] EWHC 1367 (Ch)
Bailii
England and Wales
Cited by:
Judgment – Times Travel UK Ltd and Another v Pakistan International Airline Corporation ChD 17-Jul-2018
The court considered, post judgment, directions for the taking of accounts and an application for a variation of the costs order. . .
Appeal from – Times Travel (UK) Ltd v Pakistan International Airlines Corporation CA 14-May-2019
This appeal concerns the area of lawful act duress, where a contract results from a threat of a lawful act or omission. Does lawful act duress exist at all and, if so, in what circumstances may it be invoked? . .
See Also – Times Travel UK Ltd and Another v Pakistan Internation Airlines Corporation ChD 11-Aug-2020
. .
At First Instance – Pakistan International Airline Corporation v Times Travel (UK) Ltd SC 18-Aug-2021
Whether, and if so in what circumstances, a party can set aside a contract on the ground that it was entered into as a result of the other party threatening to do a lawful act. . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 October 2021; Ref: scu.588218

Sutton v Mishcon de Reya (a Firm) and Another: ChD 19 Dec 2003

Two men entering into a relationship of ‘master and slave’ signed a document entitled a ‘statement of trust’ intended to regulate the property arrangements as between themselves. They later signed a cohabitation agreement. They were advised that it was unenforceable, and were advised to seek independent advice. Property was conveyed into one name. They later claimed the defendant was negligent in referring to the statement of trust which was likely to be void as contrary to public policy.
Held: The court should distinguish between a property contract between two people whose sexual relationship brought them to live together, and a property relationship springing from the sexual relationship. A contract between consenting adults would not be avoided under public policy unless it was meretritious or for prostitution. The statement of trust was an attempt to express the sexual relationship in a property contract. Neither law firm was negligent. Even had the statement of trust been void, it would have had to have been referred to.
Hart J
Times 28-Jan-2004
England and Wales

Updated: 01 October 2021; Ref: scu.193408

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 not entitled to recover them by way of restitution if for any reason no contract resulted. It was held that by the deliberate use of the words ‘subject to contract’ in their usual sense, each party had accepted that if no contract was concluded any resultant loss should lie where it fell.
Held: The costs of the failed negotiations were not recoverable. The phrase ‘subject to contract’ is so widely used that parties must be assumed to know its effect without having it explained.
Rattee J
Gazette 25-Jan-1995, [1995] 1 WLR 212, [1995] Ch 212
England and Wales
Cited by:
Cited – Gonthier and Another v Orange Contract Scaffolding Ltd CA 25-Jun-2003
The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation 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 – MSM Consulting Ltd v United Republic of Tanzania QBD 30-Jan-2009
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.85943

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.
Lord Kingarth And Lord Nimmo Smith And Lord Osborne
[2007] ScotCS CSIH – 12
Bailii
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
. .

Cited by:
Appeal from – Simmers v Innes HL 16-Apr-2008
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. . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.252792

Archer v Brown: 1984

The defendant sold shares in his company to the plaintiff. He had however already sold them elsewhere. The plaintiff sought both rescission and damages. The defendant argued that he could not be entitled to both.
Held: The misrepresentation had been fraudulent and both rescission and damages might be available. In this case the loss, the cost of borrowing flowed directly from the fraud perpetrated by the defendant. Aggravated but not exemplary damages might also be awarded. Peter Pain J said: ‘But what seems to put the claim under this head out of court is the fact that exemplary damages are meant to punish and the defendant has been punished. Even if he wins his appeal he will have spent a considerable time in gaol. It is not surprising that there is no authority as to whether this provides a defence, since there is no direct authority as to whether exemplary damages can be given in deceit. I rest my decision on the basic principle that a man should not be punished twice for the same offence. Since he has undoubtedly been punished, I should not enrich the plaintiff by punishing the defendant again.’
Peter Pain J
[1985] QB 401, [1984] 2 All ER 267
Prevention of Fraud (Investments) Act 1958
England and Wales
Citing:
Applied – 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 . .
Applied – Esso Petroleum Company Ltd v Mardon CA 6-Feb-1976
Statements had been made by employees of Esso in the course of pre-contractual negotiations with Mr Mardon, the prospective tenant of a petrol station. The statements related to the potential throughput of the station. Mr Mardon was persuaded by the . .

Cited by:
Cited – Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 September 2021; Ref: scu.276908

Dargamo Holdings Ltd and Another v Avonwick Holdings Ltd and Others: CA 28 Jul 2021

proper scope and application of the principle of unjust enrichment in circumstances of alleged total failure of consideration (or basis). It raises a fundamental question as to when a claim in unjust enrichment can succeed in the context of the parties’ contractual allocation of risk under a valid and subsisting contract.
Lady Justice Carr
[2021] EWCA Civ 1149
Bailii
England and Wales

Updated: 30 September 2021; Ref: scu.666320

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 had been a pre-existing boundary dispute with a neighbour which was not disclosed in the course of the preliminary enquiries before contract.
Held: The vendor was not entitled in equity to rely on this condition. The National Conditions of sale do not exclude liability for fraud.
As to the 1967 Act: ‘I do not regard condition 17 as satisfying that requirement in the circumstances of this case. Another way of putting it is that Mrs Boyle has not shown that it does satisfy that requirement.’
The court also refused relief for specific performance in view of the claimant’s innocent misrepresentation, even if that mistake was unilateral and not induced by the claimant’s misrepresentation: ‘It seems to me that the equitable barrier to specific performance extends not merely to matters of title where the vendor has failed to disclose defects known to him in his own title, but also to misrepresentation where the vendor has, albeit innocently, misdescribed the property or made some other misrepresentation about the property, when the true facts were within his own knowledge. A trifling misrepresentation where the truth would have had no effect on the purchaser and the purchaser would have nonetheless entered into the contract, rests in a different category because there the contract has not been induced by the misrepresentation, but here, as I find, the purchaser would reasonably have refused to contract unless the boundary dispute, if disclosed to him, had first been resolved. Therefore, it seems to me that on equitable principles and consistently with the authorities I have mentioned, and consistently also with the fairly recent decision of Walton J in Faruqi v English Real Estates Ltd [1979] 1 WLR 963, the vendor, Mrs Boyle, is not entitled in equity to rely on condition 17 in the circumstances of this case.’
Dillon J
[1982] 1 WLR 495, [1982] 1 All ER 634
Misrepresentation Act 1967 3
England and Wales
Cited by:
Cited – Cleaver and Others v Schyde Investments Ltd CA 29-Jul-2011
The parties had contracted for the sale of land. The purchaser secured the rescinding of the contract for innocent misrepresentation. A notice of a relevant planning application had not been passed on by the seller’s solicitors. The seller appealed . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.443307

Alexiou and Another v Campbell: PC 26 Feb 2007

(the Bahamas)
Lord Bingham of Cornhill, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2007] UKPC 11
Bailii
England and Wales
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.
Updated: 29 September 2021; Ref: scu.249543

Thorby v Goldberg: 29 Jul 1964

(High Court of Australia) If, when a contract is negotiated on behalf of a company, the directors bona fide think it in the interests of the company as a whole that the transaction should be entered into and carried into effect they may bind themselves by the contract to do whatever is necessary to effectuate it.
Contract – Whether concluded bargain – Agreement by directors as to the future exercise of fiduciary powers – Illegality – Pleading – Non assumpsit – Illegality.
Kitto J said that an agreement, even between private parties, is not void for uncertainty ‘because it leaves one party or group of parties a latitude of choice as to the manner in which agreed stipulations shall be carried into effect, nor does it for that reason fall short of being a concluded contract’
McTiernan(1), Kitto(2), Menzies(3), Windeyer(4) and Owen(5) JJ.
(1964) 112 CLR 597, [1964] HCA 41
Austlii
Australia
Cited by:
Cited – Fulham Football Club Ltd v Cabra Estates plc CA 1994
Fulham, as lessees of Craven Cottage, agreed with CABRA, a developer, who had applied for planning permission to redevelop the ground, shortly before a public inquiry which had been set up to consider the planning application; and also a proposal by . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.241637

Royal Bank of Scotland Plc v Highland Financial Partners Lp and Others: CA 14 Jul 2010

The court was asked to construe provisions of a collateralised debt obligation agreement.
Ward, Thomas, Richards LJJ
[2010] EWCA Civ 809
Bailii
England and Wales
Citing:
Appeal from – Royal Bank of Scotland Plc v Highland Financial Partners Lp and Another Comc 10-Feb-2010
. .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.420750

Churchward v Rina: QBD 24 Nov 1865

By articles of agreement between the Lords Commissioners of the Admiralty, on behalf of the crown, and C., in consideration of the payments therein stipulated, C. covenanted that he would during the continuance of the contract convey to the satisfaction of the commissioners the mails which should from time to time by the commissioners or the Postmaster-General be required to be conveyed between Dover and Calais, and Dover and Ostend, by means of a sufficient number (not less than six) of vessels of certain tonnage, and properly officered, manned, and equipped. That one or more of such vessels should be at all times ready to convey the Bombay, India, and other distant mails, or for other special service for the government between Dover and Calais, without any charge beyond the subsidy thereinafter mentioned, and also for the like special service between Dover and Ostend, for which the commissioners were to pay 58 pounds. each voyage. In addition, it was to be lawful for the commissioners to require the contractor to provide vessels to convey distinguished persons not exceeding twelve voyages from port to port in any one year free of all charge beyond the said subsidy; but if more than twelve in a year, the voyages in excess to be paid for at the rate of 23 pounds. each. That one of such vessels should leave Dover and Calais respectively every week-day, and one leave Dover and Ostend respectively every alternate week-day. Penalties were then provided for the observance of the contract by the contractor. The commissioners in consideration of the premises, and of the contractor at all times strictly performing the covenants and agreements on his part, agreed, on behalf of the crown, that they would pay him by bills at seven days a sum out of moneys to be provided by parliament, after the rate of 18,000 pounds per annum, by quarterly payments; the first payment to be three months from the commencement of the service. The contract was to commence from the date and continue for eleven years. The contractor was to be at liberty to employ the vessels in other services, subject to the penalties provided, if he was unable also to perform the services contracted for.
Held: that there was in the above agreement only a covenant by the Commissioners, on behalf of the crown, that, in consideration of the contractor performing his part of the contract, by having vessels always ready for the service, the crown would pay him if parliament provided the funds; and that there was no implied covenant on the part of the commissioners to employ the contractor ; and that a petition of right, founded on the agreement, and alleging that the commissioners had refused to employ the contractor to carry the mails, and did not nor would permit him to perform the agreement, and prevented him from carrying the mails, and claiming damages, could not he maintained. On the argument of cross demurrers, the late practice in the Court of Queen’s Bench will at present be adhered to; and the plaintiff, and not the party first demurring, has a right to begin.
(1865-1866) LR 1 QB 173, [1865] UKLawRpKQB 27
Commonlii
England and Wales

Updated: 27 September 2021; Ref: scu.653039

Blue v Ashley (Judgment): ComC 26 Jul 2017

The parties disputed the existence of an oral agreement by a businessman to pay a sum of millions of pounds in certain circumstances to a business acquaintance with whom he was then drinking in a public house.
Held: The claim failed: ‘no reasonable person present in the Horse and Groom on 24 January 2013 would have thought that the offer to pay Mr Blue pounds 15 million was serious and was intended to create a contract, and no one who was actually present in the Horse and Groom that evening – including Mr Blue – did in fact think so at the time. They all thought it was a joke. The fact that Mr Blue has since convinced himself that the offer was a serious one, and that a legally binding agreement was made, shows only that the human capacity for wishful thinking knows few bounds.’
Legatt J
[2017] EWHC 1928 (Comm)
Bailii
England and Wales
Citing:
See Also – Blue v Ashley ComC 26-Jun-2017
A newspaper sought disclosure of witness statements and other papers lodged at the court in the course of proceedings but not yet used in court.
Held: The application was refused.
Leggatt J said: ‘When a witness statement forms part of . .
Cited – Gestmin SGPS Sa v Credit Suisse (UK) Ltd and Another ComC 15-Nov-2013
The claimant sought damages alleging negligence by the defendants in advice given on an investment in an initial public offering of shares.
Leggatt J considered the reliability of the memories of witnesses: ‘An obvious difficulty which affects . .

Cited by:
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.
Updated: 27 September 2021; Ref: scu.593143

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 Dunedin said: ‘The criterion is in the question whether what is intended to be effected by the second contract is rescission or variation.’
Lord Parmoor said that the determining factor on which the appeal depended was the intention of the parties at the time when the second agreement was made.
Whether a variation amends the principal agreement or discharges and replaces it depends on the intention of the parties. To establish a discharge and replacement, ‘there should have been made manifest the intention in any event of a complete extinction of the first and formal contract, and not merely the desire of an alteration, however sweeping, in terms which are still subsisting’
Lord Dunedin, Lord Parmoor, Viscount Haldane
[1918] AC 1
England and Wales
Citing:
Approved – Williams v Moss Empires Ltd ChD 1915
The court considered what was necessary to achieve a variation of a contract. Shearman J: ‘The principle . . is that where there is alleged to have been a variation of a written contract by a new parol contract, which incorporates some of the terms . .

Cited by:
Applied – McCausland and Another v Duncan Lawrie Ltd and Another CA 18-Jun-1996
The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. . .
Cited – 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 . .
Adopted – British and Beningtons Ltd v North Western Cachar Tea Co Ltd HL 1923
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 . .
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 – Plevin v Paragon Personal Finance Ltd SC 29-Mar-2017
The court had ordered the respondent to pay the claimant’s costs. These were high because the solicitors had acted under a conditional fee agreement, and disproportionate to the funds at issue. The respondents challenged assignments of the original . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.219435

Plevin v Paragon Personal Finance Ltd: SC 29 Mar 2017

The court had ordered the respondent to pay the claimant’s costs. These were high because the solicitors had acted under a conditional fee agreement, and disproportionate to the funds at issue. The respondents challenged assignments of the original CFA.
Held: The appeal failed. Unless the effect of the deeds was to discharge the original CFA and replace it with new agreements made at the dates of the deeds, the success fee may properly be included in the costs order. Whether a variation amends the principal agreement or discharges and replaces it depends on the intention of the parties. The deeds of variation were not a sham. An amendment of the existing CFA is a natural way of dealing with further proceedings in the same action. They therefore take effect according to their terms.
‘proceedings’ is not a defined term in the legislation, nor is it a term of art under the general law. Its meaning must depend on its statutory context and on the underlying purpose of the provision in which it appears, so far as that can be discerned.
If there had been ATE cover in respect of liability for the costs of the trial, the insured is entitled after the commencement date to take out further ATE cover for appeals and to include them in his assessable costs under the 1999 costs regime.
Lady Hale, Deputy President, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge
[2017] UKSC 23, [2017] 1 WLR 1249, [2018] 1 All ER 292, [2017] WLR(D) 223, [2017] 2 Costs LO 247, UKSC 2014/0037
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary video, SC 2017 Feeb 08 am Video
Access to Justice Act 1999 27 58 58A, Legal Aid, Sentencing and Punishment of Offenders Act 2012, Courts and Legal Services Act 1990
England and Wales
Citing:
Main judgment – Plevin v Paragon Personal Finance Ltd SC 12-Nov-2014
PPI Sale – No Recovery from Remote Parties
The claimant sought repayment of payment protection insurance premiums paid by her under a policy with Norwich Union. The immediate broker arranging the loan was now insolvent, and she sought repayment from the second and other level intermediaties. . .
Cited – Masson, Templier and Co v De Fries CA 26-Feb-1910
Upon interpleader proceedings in the county court with regard to the title to goods taken in execution the claimant succeeded. The county court judge gave the judgment creditors leave to appeal to the Divisional Court upon condition that, if . .
Cited – 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 – Wright v Bennett 1948
. .
Cited – BPE Solicitors and Another v Gabriel SC 17-Jun-2015
Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued . .
Cited – Hawksford Trustees Jersey Ltd v Stella Global Uk Ltd and Another CA 19-Jul-2012
For the purpose of section 29 of the Access to Justice Act 1999, the costs incurred in respect of an ATE premium were recoverable only in the proceedings to which the policy related, ie as part of the costs of the trial if the policy related only to . .
Cited – Goldstein v Conley CA 4-May-2001
‘ proceedings at first instance and in this court are ordinarily treated as separate proceedings and in my judgment they support the conclusion that the costs of and incidental to one are not ordinarily treated as the costs of and incidental to the . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.581274

Newcomb and Another v De Roos: 5 Nov 1859

Hill J
[1859] EngR 946, (1859) 2 El and El 271, (1859) 121 ER 103
Commonlii
England and Wales
Cited by:
Not Supported – Entores Ltd v Miles Far East Corporation CA 1955
The plaintiff traded from London, and telexed an offer to purchase cathodes to a company in Holland, who signified their acceptance by return, again by telex. Entores later wanted to sue the defendant, the parent company of the Dutch party. It was . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 September 2021; Ref: scu.288298

Argus Media Ltd v Halim: QBD 7 Feb 2019

Challenge to validity of post employment restraint clause.
Freedman J
[2019] EWHC 215 (QB)
Bailii
England and Wales
Citing:
Cited – Shaw v Applegate CA 1977
There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 September 2021; Ref: scu.633234

Kinoo Sons Limited v Bibi Sarah Hossen Abdool and The Conservator of Mortgage: PC 11 Jun 2002

(Mauritius) – Plots of land had been inherited, and were now in the joint ownership of 20 people. Some sought a sale. A sale was ordered, and the resulting award challenged. The contract provided for a right of substitution for the purchasers of the objectors to the sale, but is was suggested that this was merely a referral to a statutory right which would not apply in this case.
Held: A right of substitution is no different from a right of pre-emption, and could be contractual in nature. The right of substitution formed part and parcel of the conditions of sale, notwithstanding that the basis of that right might be wrongly stated.
Appeal No 55 of 2001, [2002] UKPC 30
PC, Bailii, PC
Commonwealth

Updated: 22 September 2021; Ref: scu.172280

Booker v Palmer: CA 1942

The owner of a cottage agreed to allow a friend to install an evacuee in the cottage rent free for the duration of the war.
Held: There was no intention on the part of the owner to enter into legal relationships with the evacuee. Lord Greene MR said: ‘To suggest there is an intention there to create a relationship of landlord and tenant appears to me to be quite impossible. There is one golden rule which is of very general application, namely, that the law does not impute intention to enter into legal relationships where the circumstances and the conduct of the parties negative any intention of the kind. It seems to me that this is a clear example of the application of that rule.’
Lord Greene MR
[1942] 2 All ER 674
England and Wales
Cited by:
Cited – Koeller and Another v Coleg Elidyr (Camphill Communities Wales) Ltd CA 12-Jul-2005
The applicants occupied a house as licensees. An order for possession was made against them. The company was a charitable company set up to provide accomodation in communities for handicapped adults. The workers in the communities were not formally . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.228476

Berkley v Poulett and others: CA 29 Oct 1976

Lord Poulett sold the Hinton St George Estate to X, and X sub-sold the house and grounds to Y. Both transactions were subsequently completed. Y brought action against the executors of Lord Poulett, and the main question which subsequently arose was whether certain objets d’art were fixtures or chattels.
Held: None of them was a fixture, but also by a majority (Goff LJ dissenting) that, even though Lord Poulett had notice of the sub-contract between X and Y, Lord Poulett was not under a duty to Y to take reasonable care of the house because Lord Poulett did not hold the house as trustee for the sub-purchaser Y.
The court was asked whether some pictures, prints, a statue, and a sundial, each affixed to the land, had become fixtures or had remained chattels. If fixtures, they passed on the conveyance of the land; if chattels they did not.
Held: The modern answer to the question whether objects which were originally chattels have become fixtures, that is to say part of the freehold, depends upon the application of two tests: (1) the method and degree of annexation; (2) the object and purpose of the annexation. Here, the paintings had been hung for their better enjoyment, and were not fixtures. Neither the statue nor the sundial were physically attached to the realty, and remained chattels.
Lord Justice Scarman said: ‘If there is no physical annexation there is no fixture. Quicquid plantatur solo solo cedit. Nevertheless an object, resting on the ground by its own weight alone, can be a fixture, if it be so heavy that there is no need to tie it into a foundation, and if it were put in place to improve the realty. Prima facie, however, an object resting on the ground by its own weight alone is not a fixture. Conversely, an object affixed to realty but capable of being removed without much difficulty may yet be a fixture. Today so great are the technical skills of affixing and removing objects to land or buildings that the second test is more likely than the first to be decisive. Perhaps the enduring significance of the first test is a reminder that there must be some degree of physical annexation before a chattel can be treated as part of the realty. ‘
Stamp LJ said that the vendor ‘is said to be a trustee because of the duties which he has, and the duties do not arise because he is a trustee but because he has agreed to sell the land to the purchaser and the purchaser on tendering the price is entitled to have the contract specifically performed according to its terms. Nor does the relationship in the meantime have all the incidents of the relationship of trustee and cestui que trust.’
Stamp LJ, Scarman LJ, Goff LJ
[1976] EWCA Civ 1, [1977] 1 EGLR 86, (1977) 241 EG 911
Bailii
England and Wales
Citing:
Cited – Re Whaley 1908
Items affixed to a room may become fixtures if the purpose of its affixing be that ‘of creating a beautiful room as a whole.’ . .
Cited – Lord Chesterfield’s Settled Estates 1911
Grinling Gibbons carvings, which had been affixed to a suit of rooms 200 years earlier, were held to be fixtures. . .

Cited by:
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.245273

Haselgrove v John House: QBD 10 Nov 1865

A deed of composition under section 192 of the Bankruptcy Act, 1861, (24 and 25 Viet. c. 134), between a debtor, sureties, and his creditors, contained a clause that the parties of the third part did release all actions, . . . contracts, . . . whatsoever, which the parties of the third part now have, or which they at any time hereafter may have against, J. H., by reason, or on account of any debt or debts, . . . contracts . . . from the beginning of the world to the day of the date of the deed. Held, that the release was not unreasonable, inasmuch as it must be taken to be restrained by the whole scope and object of the deed, and confined to causes of action which could be proved by a creditor in bankruptcy.
[1865] EngR 723, (1865) 6 B and S 975, (1865) 122 ER 1453, (1865-1866) LR 1 QB 101, [1865] UKLawRpKQB 10
Commonlii, Commonlii
Bankruptcy Act 1861 192
England and Wales

Updated: 20 September 2021; Ref: scu.281635

Bolton v Madden: QBD 25 Nov 1873

The Court of Queen’s Bench on appeal from the Lord Mayor’s Court held that they could ‘find no legal principle to justify us in holding that the subscriber to a charity may not give his votes as he pleases’. Blackburn J said that ‘The general rule is that an executory agreement, by which the plaintiff agrees to do something on the terms that the defendant agrees to do something else, may be enforced if what the plaintiff has agreed to do is either for the benefit of the defendant or to the trouble or prejudice of the plaintiff.’
The traditional requirement for consideration is that the person benefiting from the promise, the promisee, must either provide a benefit to the promisor in return for the promise, or suffer a detriment requested by the promisor.
Blackburn J
(1873) LR 9 QB 55
Commonlii
England and Wales
Cited by:
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2021; Ref: scu.652997

Quadrant Visual Communications Ltd and Another v Hutchison Telephone (UK) Ltd: CA 22 Jan 1992

Specific performance of a contract was refused despite a contractual exclusion of the rules of equity. A contract was not able to exclude the right of a court to consider the actions of a party when considering the grant of specific performance.
Gazette 22-Jan-1992
England and Wales

Updated: 17 September 2021; Ref: scu.85090

Huddersfield Banking Co Ltd v Henry Lister and Son Ltd: CA 1895

A consent order, which had been completed and acted upon, but without affecting interests of third parties, was set aside by the Court upon the ground of common mistake of fact.
Kay LJ said: ‘A compromise takes place when there is a question of doubt and the parties agree not to try it out, but to settle it between themselves by a give-and-take arrangement. I quite agree that if this was a case of that kind it would be extremely difficult to interfere with the order.’
Lindley LJ said: ‘nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud, but upon any grounds which invalidate the agreement it expresses in a more formal way than usual.’
Vaughan Williams J said: ‘I agree that if the arrangement come to was a compromise of doubtful rights and a give-and-take arrangement, parties to it could not afterwards have the compromise set aside because upon obtaining fuller information they thought they had made a bad bargain. But, having regard to the evidence, I am of opinion that this arrangement was not a compromise or give-and-take arrangement of the sort I have referred to.’ Nevertheless a compromise agreement was a contract and it does not cease to be so when it is enshrined in a consent order, which is a ‘mere creature’ of the contract.
Lindley LJ, Vaughan Williams J, Kay LJ
[1895] 2 Ch 273
England and Wales
Cited by:
Cited – Gerrard Ltd v Read and Another ChD 21-Dec-2001
The applicant was party to a consent order, but appealed part of it which he now asserted was unlawful.
Held: It is settled law that a consent order could be varied where the whole order was vitiated because some or all of it was unlawful. . .
Cited – Margaret Brennan v Bolt Burdon, London Borough of Islington, Leigh Day and Co QBD 30-Oct-2003
The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was . .
Cited – Brennan v Bolt Burdon and Others, London Borough of Islington, Leigh Day and Co CA 29-Jul-2004
The claimant sought damages for injury alleged to have been suffered as tenant of a house after being subjected to carbon monoxide poisoning, and also from her former solicitors for their delay in her claim. The effective question was whether the . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2021; Ref: scu.183441

Secretary of State for Education v CCP Graduate School Ltd: QBD 2 Sep 2021

Claim by the Secretary of State for Education to recover pounds 196,862.50 of tuition fees paid to the Defendant, in respect of 93 students enrolled on courses for a Diploma in the Life Long Learning Sector starting in the Academic Year 2013/14. The tuition fees were paid to CCP by the Student Loans Company (SLC’) but ultimately funded by the Department for Education
Mrs Justice Ma
[2021] EWHC 2432 (QB)
Bailii
England and Wales

Updated: 15 September 2021; Ref: scu.667796

The Vancouver Malt and Sake Brewing Company Limited v The Vancouver Breweries Limited: PC 2 Feb 1934

(British Columbia) Lord Macmillan stated: ‘The law does not condemn every covenant which is in restraint of trade, for it recognizes that in certain cases it may be legitimate, and indeed beneficial, that a person should limit his future commercial activities, as, for example, where he would be unable to obtain a good price on the sale of his business unless he came under an obligation not to compete with the purchaser. But when a covenant in restraint of trade is called in question the burden of justifying it is laid on the party seeking to uphold it. The tests of justification have been authoritatively defined . . : ‘A contract which is in restraint of trade cannot be enforced unless (a) it is reasonable as between the parties; (b) it is consistent with the interests of the public”.
Lord Macmillan
[1934] UKPC 9, [1934] AC 181
Bailii
Canada
Cited by:
Cited – Alec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .
Cited – Alec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.470021

Grant v Australian Knitting Mills: PC 21 Oct 1935

(Australia) The Board considered how a duty of care may be established: ‘All that is necessary as a step to establish a tort of actionable negligence is define the precise relationship from which the duty to take care is deduced. It is, however, essential in English law that the duty should be established; the mere fact that a man is injured by another’s act gives in itself no cause of action. If the act is deliberate, the party injured will have no claim in law even though the injury was intentional so long as the other party is merely exercising a legal right; if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists.’ and ‘the appellant is not required to lay his finger on the exact person in all the chain who was responsible, or specify what he did wrong. Negligence is found as a matter of inference from the existence of the defect taken in connection with all the known circumstances’
Lord Wright said: ‘Mr. Greene further contended on behalf of the manufacturers that if the decision in Donoghue’s case [1932] AC 562, 591, were extended even a hair’s-breadth, no line could be drawn, and a manufacturer’s liability would be extended indefinitely. He put as an illustration the case of a foundry which had cast a rudder to be fitted on a liner: he assumed that it was fitted and the steamer sailed the seas for some years: but the rudder had a latent defect due to faulty and negligent casting, and one day it broke, with the result that the vessel was wrecked, with great loss of life and damage to property. He argued that if Donoghue’s case were extended beyond its precise facts, the maker of the rudder would be held liable for damages of an indefinite amount, after an indefinite time, and to claimants indeterminate until the event. But it is clear that such a state of things would involve many considerations far removed from the simple facts of this case. So many contingencies must have intervened between the lack of care on the part of the makers and the casualty that it may be that the law would apply, as it does in proper cases, not always according to strict logic, the rule that cause and effect must not be too remote: in any case the element of directness would obviously be lacking. Lord Atkin deals with that sort of question in Donoghue’s case where he refers to Earl v. Lubbock [1905] 1 K.B. 253, 259: he quotes the commonsense opinion of Mathew L.J.: ‘It is impossible to accept such a wide proposition, and, indeed, it is difficult to see how, if it were the law, trade could be carried on.’
In their Lordships’ opinion it is enough for them to decide this case on its actual facts.’
Lord Wright also said: ‘a thing is sold by description, though it is specific, so long as it is sold not merely as the specific thing, but as a thing corresponding to a description ‘
Lord Wright
[1935] All ER Rep 209, [1936] AC 85, 105 LJPC 6, 154 LT 185, [1935] UKPC 2, [1935] UKPC 62
Bailii, Bailii
Australia
Cited by:
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Watson v Fram Reinforced Concrete Co (Scotland) Ltd HL 1960
A workman had been injured through the breaking of a defective part in the machine with which he was working. He brought an action of damages against his employers, and later convened as second defenders the manufacturers of the machine, who had . .
Cited – Marc Rich and Co Ag and Others v Bishop Rock Marine Co Ltd and Others HL 6-Jul-1995
A surveyor acting on behalf of the classification society had recommended that after repairs specified by him had been carried out a vessel, the Nicholas H, should be allowed to proceed. It was lost at sea.
Held: The marine classification . .
Cited – Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd CA 15-Dec-1989
The defendant auctioneer sold a painting to the plaintiff which turned out to be a forgery. The plaintiff appealed against a finding that it had not relied upon the attribution, saying that there had been a breach of the requirement that the paintig . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.216360

Dowling and Rutter and Others v Abacus Frozen Foods Ltd: OHCS 26 Apr 2000

In the case of a lawfully constructed contract which was fulfilled by unlawful means, the contract itself can still be enforceable. In each case it is for the court to assess the nature and quality of the illegality involved.
Lord Wheatley
Times 26-Apr-2000, [2000] ScotCS 69
Bailii
Scotland
Cited by:
Appeal from – Messrs Dowling and Rutter &C v Abacus Frozen Foods Limited SCS 12-Dec-2000
. .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.80107

Clark v Ardington Electrical Services; Dennard v Plant; Sen v Steelform Engineering Company Ltd; Lagden v O’Connor: CC 3 Aug 2001

The several claimants had hired motor vehicles following accidents, being re-assured that the costs would be recovered from defendant insurers. The agreements would not comply with the requirements of the Consumer Credit Act. They each envisaged short periods of hire, but with repayment rather later. The insurers argued that the term was that defined by the expected repayment period, and that they therefore were consumer credit agreements, and, since they lacked the appropriate form, they were void, and unenforceable. As unenforceable agreements, they were not obliged to pay out the drivers who had entered into the agreements. The claimants asserted that the terms were the terms of the hire itself, and that accordingly they were not subject to the Consumer Credit provisions, and were therefore valid, and the insurers could be called on to pay them.
Held: The agreements were for the actual hire period, rather than the credit term, and therefore they were valid.
Judge Charles Harris QC
[2002] Lloyds Rep IR 138
England and Wales
Cited by:
Appeal from – Lagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
Appeal from – Clark v Tull (T/A Ardington Electrical Services) CA 1-May-2002
. .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.166179

Tullis Russell and Co Ltd v Eadie Industries Ltd: SCS 31 Aug 2001

The pursuers and defenders disagreed over which of their respective terms and conditions controlled the sale of equipment, under which the pursuers sought damages for faults in the goods. Both quotation, and order purported to include the respective company’s terms and conditions. The parties differed as to which documents constituted the offer and which the acceptance. In this case, the defenders quotations were invitations to treat rather than offers capable of acceptance, and accordingly the pursuers terms applied.
Lord MacFadyen
[2001] ScotHC 97, [2001] ScotCS 215
Bailii, Bailii
Contracts (Applicable Law) Act 1990
Scotland
Citing:
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.166512

Debenhams Retail Plc v Customs and Excise: VDT 3 Jun 2003

VDT CONSIDERATION – Value of supply – Retailer – Payment by credit or debit card – Appellant invites sales of goods and services at shelf price to customer – In-store notices and till slips state that customers may pay by card if 2.5% of price paid is payable to Appellant’s subsidiary for card-handling services – Customer’s card debt acquired by third party banks – Whether separate supply of exempt card-handling services by subsidiary to customer – Whether customer agrees with subsidiary for supply of services to customer – No – Whether value of Appellant’s standard rated supply of goods or services reduced by 2.5% – No – Appeal dismissed
SUPPLY – Exemption – Card-processing services – Appellant retailer invites sales of goods or services at shelf price to customers – Customers agree that 2.5% of price paid is payable to Appellant’s subsidiary company for card-handling services – Customer’s card debts to Appellant are acquired by third party banks – Whether, given that customer and subsidiary are in contractual relationship, subsidiary makes supply of card-handling services to customer – No
TAX AVOIDANCE – Reduction of consideration for standard-rated supply – Sales of goods by Appellant – Appellant’s wholly-owned subsidiary’s contracts with card-paying customers provide that 2.5% of price paid will go to subsidiary for card-handling services – Subsidiary appoints Appellant as agent for all card-processing purposes – Customers’ card debts acquired by third party banks – Scheme’s purpose to secure that 2.5% paid to subsidiary is consideration for an exempt supply with result that 97.5% only of shelf price is consideration for Appellant’s standard-rated supply – Whether purported supplies of card-handling services by subsidiary to be disregarded on Halifax principles as being neither economic activities nor supplies for VAT purposes – Yes – Whether conditions for abuse of rights doctrine (Emsland-Starke) satisfied – Yes
[2003] UKVAT V18169
Bailii
England and Wales
Cited by:
Cited – Aitken v Standard Life Assurance Ltd SCS 3-Dec-2008
The pursuer averred that the defendant, his pension provider, had wrongfully reduced its final bonus by ten per cent without notifying him. He sought to imply a term into the contract to provide such an effect, saying that the contract promised an . .

Lists of cited by and citing cases may be incomplete.
Updated: 13 September 2021; Ref: scu.247573

Lloyd v Guibert and Others: QBD 27 Nov 1865

Where the contract of affreightment does not provide otherwise, as between the parties to the contract, in respect of sea damage and its incidents, the law of the country to which the ship belongs must be taken to be the law to which they have submitted themselves. The plaintiff, a British subject, chartered a French ship belonging to French owners, at a Danish West India port, for a voyage from St. Marc, in Hayti, to Havre, London, or Liverpool, at charterer’s option. The charter-party was entered into by the master in pursuance of his general authority as master. The plaintiff shipped a cargo at St. Marc for Liverpool, with which the vessel sailed. On her voyage she sustained sea damage and put into Fayal, a Portuguese port, for repair. There the master properly borrowed money on bottomry of ship, freight, and cargo, and repaired the ship, and she completed her voyage to Liverpool. The bondholder proceeded in the Court of Admiralty against the ship, freight, and cargo. The ship and freight were insufficient to satisfy the bond; and the deficiency with costs fell on the plaintiff as owner of the cargo, for which he sought indemnity against the defendants, the French shipowners. The defendants gave up the ship and – freight to the shipper, so as that, by the alleged law of France, the abandonment absolved them from all further liability on the contract of the master.
Held: that the parties must be taken to have submitted themselves, when making the charter-party, to the French law as the law of the ship, and therefore that, assuming the law of France to be as alleged, the plaintiff’s claim was absolutely barred.
[1865] EngR 750, (1865) 6 B and S 100, (1865) 122 ER 1134, [1865] UKLawRpKQB 30, (1865-1866) LR 1 QB 115
Commonlii, Commonlii
England and Wales

Updated: 12 September 2021; Ref: scu.281662