Category: Contract

Decouvreur v Jordan: CA 1987

The essential characteristics of a signature are that it indicates recognition and approval of the contents of a document.
Nourse LJ said: ‘Any writing by the party to be charged by which he identifies himself or by which he can be identified by others and which shows, objectively, an intention to adopt the note or memorandum will suffice.’
Nourse LJ
Times 25-May-1987
Statute of Frauds 1677 4
England and Wales
Cited by:
Cited – Good Challenger Navegante S A v Metalexportimport SA CA 24-Nov-2003
The claimant sought to enforce an arbitration award made in 1983. Time might otherwise have expired, but the claimants relied on a fax which they said was an acknowledgement of the debt, and also upon a finding in a Romanian court which created an . .
Cited – Good Challenger Navegante S A v Metalexportimport S A ComC 10-Jan-2003
. .

Lists of cited by and citing cases may be incomplete.
Updated: 12 September 2021; Ref: scu.188227

Amalgamated Investment and Property Co v Walker (John) and Sons: CA 1975

The defendants sold a commercial property to the plaintiffs knowing that the plaintiffs intended to redevelop it and would need planning permission for it. Unknown to both parties the building had been identified by the Department of the Environment as a possible candidate for ‘listing’ as a protected property. The parties signed a contract for sale but the very next day the building was listed, thus making it much harder for the plaintiffs to get permission to redevelop. The value of the property with no redevelopment potential was Euros 1.5m less then the contract price. The plaintiffs sought to rescind the contract on the ground of common mistake.
Held: Rescission was refused.
Buckley LJ said: ‘for the application of the doctrine of mistake it was necessary to show that the mistake existed at the time of the contract. Here the listing of the property had occurred one day after the contract was entered into’, and commented: ‘there was no mutual mistake as to the circumstances surrounding the contract at the time when the contract was entered into. The only mistake there was one which related to the expectation of the parties. They expected that the building would be subject only to ordinary town planning consent procedures and that expectation has been disappointed. But at the date when the contract was entered into I cannot see that there is any ground for saying that the parties were then subject to some mutual mistake of fact relating to the circumstances surrounding the contract.’
Buckley LJ
[1977] 1 WLR 164, [1976] 3 All ER 509
England and Wales
Cited by:
Cited – John Lewis Properties PLC v Viscount Chelsea ChD 1993
Three Leases of the Peter Jones site to T’s predecessor in 1934 contained covenants by T to redevelop the site in two phases, the second of which related to the MackMurdo and Simon’s Street buildings and was to be completed by December 25 1987. In . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2021; Ref: scu.652984

Draeger Safety UK Ltd v The London Fire Commissioner: TCC 4 Aug 2021

Application by the Defendant, for the lifting of the automatic suspension which arose on issue of a procurement challenge by the Claimant pursuant to regulation 96(1)(a) of the Public Contracts Regulations 2015; and an application by Draeger for an expedited trial.
Mrs Justice O’Farrell
[2021] EWHC 2221 (TCC)
Bailii
England and Wales

Updated: 08 September 2021; Ref: scu.667732

Wallington v Townsend: ChD 1939

The parties exchanged contracts for the sale and purchase of land, but the contract had attached an incorrect plan, including a strip of land now disputed. Neither party had properly attended to what they were signing. The plaintiff buyer maintained her desire to acquire some part of the disputed land. The vendor defendant refused to complete seeking by counterclaim rectification. The wording of the conveyance to the vendor which fell to be construed contained this formula, ‘as the same is more particularly delineated on the plan annexed hereto and thereon coloured pink’.
Held: Rectification was refused, and the deposit was to be returned with some damages.
Morton J stated that the view which he felt compelled to adopt was one which he would not adopt unless the words were so strong that he felt himself judicially incapable of resisting their proper inference, and he thought that those words were too strong: ‘I find myself unable to come to any conclusion other than that, on the true construction of the contract, the disputed strip is included in the land which is sold’.
Where a vendor of land failed to complete for reasons other than a defect in title and the purchaser was unable to prove a loss of profits he was entitled by way of damages, in addition to the return of the deposit, to interest in respect of the loss of use of the deposit and to the costs of approving and executing the contract, investigating title, preparing the conveyance and of searches.
Morton J said: ‘The case is a good illustration of the fact that actions in which the subject-matter is comparatively trifling often give rise to the most difficult questions of fact and of law’.
Morton J
[1939] Ch 588, [1939] 2 All ER 255, (1939) 108 LJ Ch 305, (1939) 160 LT 537, (1939) 55 TLR 531, (1939) 83 Sol Jo 297
England and Wales
Cited by:
Cited – Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd ComC 4-Aug-2010
Lost Expenses as Damages for Contract Breach
The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .
Cited – Hopgood v Brown CA 3-Feb-1955
Two adjoining plots were conveyed to the same purchaser. Buildings were constructed, and the adjusted boundary required an obtuse angle. The plots were sold on separately but with the original straight boundaries. The plans on the conveyances had no . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.421539

Campbell v The Commercial Banking Company of Sydney: PC 1879

The Court held a notice to not be a valid demand because of the overstatement of the debt: ‘where a demand is made for a larger amount than that which is really due, such demand does not do away with the necessity of tendering what is actually due, unless there is at the same time refusal to receive less’
(1879) 40 LT 137
Australia
Cited by:
Cited – Spreadex Ltd v Dr Vijay Ram Battu CA 11-Jul-2005
The appellant traded in financial indices through the respondent spread betting company. The company took two forms of security, an initial payment by way of security, and a sum covering any current trading positions. The trader made losses, and the . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.228417

GE Capital Bank Ltd v Rushton and Another: CA 14 Dec 2005

The bank had entered into a master trading agreement with a trader under which the trader bought motor vehicles as agent for the bank for resale. The vehicles belonged to the bank. The defendant bought all the trader’s vehicles. The defendant now sought to rely upon the 1964 Act to protect his purchase of the vehicles after the bank called in its loan. The defendant did not usually trade in cars but intended to sell them for profit.
Held: It was not necessary for the defendant to be regularly buying and selling vehicles to lose the protection of the 1964 Act. At the time he bought the vehicles Mr. Rushton was a trade purchaser and not a private purchaser within the meaning of the Act. It was a one-off adventure in the nature of trade, carried through with a view to profit.
Sir Anthony Clarke MR, Rix, Moore-Bick LJJ
[2005] EWCA Civ 1556, Times 21-Dec-2005, [2006] 1 WLR 899
Bailii
Hire Purchase Act 1964 27
England and Wales
Citing:
Cited – Litchfield v Dreyfus 1906
The plaintiff carried on business as an antique dealer, giving credit to customers and took bills from them in payment of amounts they owed for purchases, some of which he discounted and renewed from time to time. When he ceased business he sold his . .
Cited – Kirkwood v Gadd HL 1910
Under the 1900 Act, a moneylender was required to carry on his business only in his registered name and at his registered address.
Held: (Lord Atkinson) the words ‘carries on business’ implied a repetition of acts, and ‘Whether one isolated . .
Cited – Kenny v Conroy and Another CA 27-Jan-1999
A court need only first see whether at the time of the loan, the party’s business was that of moneylender. If not, the court then investigates if the person held themselves out as carrying on such a business. Kennedy L.J: ‘. . . a licensed . .
Cited – Newman v Oughton 1911
The plaintiff sought to execute a judgment against goods in the possession of a judgment debtor. The goods were claimed by a firm of pawnbrokers who said that they were included in a bill of sale granted to them. At the trial of the resulting . .
Cited – Marshall v Goulston Discount (Northern) Ltd 1967
. .
Cited – Smith v Anderson CA 16-Jul-1880
Investors subscribed for shares in telegraph companies which they vested in trustees to manage the investment on certain terms. A question arose whether this arrangement contravened section 4 of the 1862 Act which prohibited the formation of an . .
Cited – R and B Customs Brokers Co Ltd v United Dominions Trust Ltd CA 1988
There was an issue whether or not the purchase by the plaintiff of a second-hand car was made ‘in the course of a business’ so as to preclude the plaintiff from relying upon the provisions of the 1977 Act.
Held: Speaking of Lord Keith’s . .
Cited – Davies v Sumner HL 1984
The defendant used his own car almost exclusively in the course of his occupation as a courier. He sold and replaced it with another for similar use. He was charged before justices with the offence of applying, ‘in the course of trade or business’, . .
Cited – Commissioners of Inland Revenue v Marine Steam Turbine Co. Ltd 1920
The respondent taxpayer company, had transferred to a third party its licence to exploit various patents for the manufacture of a marine steam turbine engine in return for the payment of a royalty on every engine sold by the third party and whose . .
Cited – In re Gomersall 1867
Bills with a face value of pounds 1,700 were purchased for pounds 200.
Held: Proof that the goods were purchased at a much lower price than the ordinary trade price is not absolute proof of bad faith but is very strong evidence of fraudulent . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.236377

Bowerman and Another v Association of British Travel Agents Ltd: CA 21 Nov 1995

The claimant was to take part in a school skiing trip. The first operator was a member of the defendant association, and ceased trading through insolvency.
Held: The ABTA notice displayed in the travel agent’s offices created a contract between ABTA and the client. The advert ‘ABTA arranges re-imbursement’ constituted a unilateral offer to contract in this context. The notice would be seen to create legal relations, and satisfied the criterion in Carlill. The promises covered ABTA tour operators against any failure of ABTA travel agents who had taken money from the public and not passed it on to the tour operator.
Times 24-Nov-1995, Independent 23-Nov-1995, [1996] CLC 451
England and Wales
Citing:
Cited – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Carlill_CarbolicCA1893
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘andpound;100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .

Cited by:
Cited – Dresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.78517

Sanderson and Son v Armour and Co, Ltd: HL 8 May 1922

A quantity of American storage eggs of a specified brand were bought, c.i.f., to Glasgow and/or Liverpool to be delivered in three equal instalments, payment to be cash against documents on arrival of the goods. The buyers accepted the documents tendered and paid cash for the first instalment on its arrival. On the arrival of the second instalment they refused to take up the documents and pay the price until they had had an opportunity of examining the eggs. They thereafter brought an action of damages for breach of contract against the sellers, in which they averred that the first instalment was not of the brand specified and was largely unmerchantable, that the sellers had refused to allow them to inspect the second instalment before accepting the documents and paying the price, and that that instalment also was unmerchantable. They further averred that no proper policy of insurance had been tendered. Subsequently the pursuers wrote to the defenders stating that they (the pursuers) rescinded the contract in respect that it had been repudiated by the defenders. The defenders denied repudiation, and in defence to the action pleaded, inter alia, that the dispute fell to be referred to arbitration under a clause in the contract which provided-‘Any dispute on this contract to be settled by arbitration in the usual way.’ Held ( affirming the judgment of the First Division) that the pursuers’ averments did not disclose that the defenders had repudiated the contract as a whole, to the effect that the contract, including the arbitration clause, was at an end, and accordingly that the action fell to be sisted in order that the dispute might be referred to arbitration.
Examination (per Lord Dunedin) of the law of Scotland with regard to clauses of arbitration in contracts and their effects.
‘I should say a single word as to the case of Jureidini. That case has in my view no application, for the simple reason that the clause of reference there was not a reference of all disputes, but only a reference as to the evaluation of loss. In other words, the clause was not a clause of the universal sort . .’ (Lord Dunedin)
Viscount Haldane, Viscount Finlay, Lord Dunedin, Lord Shaw, and Lord Sumner
1922 SC (HL) 117, [1922] UKHL 268, 59 SLR 268
Bailii
Scotland
Citing:
Explained – Jureidini v National British and Irish Millers Insurance Company Limited HL 1915
An insurance company disputed liability of a claim arising out of a fire, alleging fraud and arson. These allegations were not sustained. The insurer then sought to resist liability on the basis that, by litigating, the insured was in breach of an . .

Cited by:
Cited – Super Chem Products Limited v American Life and General Insurance Company Limited and Others PC 12-Jan-2004
PC (Trinidad and Tobago) A fire occurred at premises in which the stock was insured under two policies. Both insurers denied the claims alleging arson, and that it was out of time. The claimant said that the . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.632805

Cala Homes (South) Ltd and others v Alfred McAlpine Homes East Ltd: ChD 6 Jul 1995

The plaintiff alleged that the defendant had copied its house designs after a senior employee involved in creating the designs left and eventually came to work for the defendant. The plaintiff alleged that the copying was flagrant allowing additional damages.
Held: Though some work had been outsourced, the employee remained the author, and his employer retained the copyright as his employer, and therefore infringement had occurred: ‘to have regard merely to who pushed the pen is too narrow a view of authorship. What is protected by copyright in a drawing or a literary work is more than just the skill of making marks on paper or some other medium. It is both the words or lines and the skill and effort involved in creating, selecting or gathering together the detailed concepts, data or emotions which those words or lines have fixed in some tangible form which is protected. It is wrong to think that only the person who carries out the mechanical act of fixation is an author. There may well be skill and expertise in drawing clearly and well but that does not mean that it is only that skill and expertise which is relevant. As Mr Howe has said, where two or more people collaborate in the creation of a work and each contributes a significant part of the skill and labour protected by the copyright, then they are joint authors.’
‘Furthermore it is relevant to bear in mind that there may be considerable skill and expertise involved in attending a public lecture and taking down moderately accurately a speech. Anyone who has attended a trial and has read the daily transcript will marvel at how much clearer the transcript seems to be than what was said in court. This impression is confirmed by comparing the transcript with a tape recording of the proceedings. People frequently speak in half sentences. A good reporter or shorthand writer does more than act as a mere scribe. ‘
Laddie J
[1995] EWHC 7 (Ch), [1995] FSR 818
Bailii
Copyright Designs and Patents Act 1988 97(2)
England and Wales
Citing:
Cited – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Cited – Walter v Lane HL 6-Aug-1900
Reporter of Public Speech Owns Copyright I
A reporter attended a speech by Lord Rosebery. His report of the speech was republished in the Times after another journalist who had not been present published a verbatim copy. He claimed a copyright in the work he produced.
Held: The first . .
Cited – Interlego AG v Tyco Industries Inc PC 5-May-1988
How much new material for new copyright
(Hong Kong) Toy building bricks were manufactured by Lego in accordance with engineering drawings made for that purpose. One issue was whether new drawings made since 1972, altering the original drawings in various minor respects but added new . .
Cited – King Features Syndicate Inc v O and M Kleeman Ltd ChD 1940
The plaintiff alleging copyright infringement, had relied on fifty five drawings of the Popeye character out of the many thousands of such drawings in the cartoon series. The defendant might have copied from any one of those thousands.
Held: . .
Mentioned – Prior v Lansdowne Press Pty Ltd 1977
In relation to rights of co-owners of copyright the Court cannot add ‘substantial’ before the word ‘copy’ for adjudging infringement of a cinematography film. . .
Mentioned – Murray v King 1983
A receiver had been appointed by the Court to effect a sale of the partnership business. The receiver disposed of assets of the partnership. Sheppard Morling and Spender JJ stated that sale of the copyright by the Receiver pursuant to the terms of . .
Cited – Nichols Advanced Vehicle Systems Inc v Rees 1979
The court considered how to decide whether to award additional damages for flagrancy in copyright breach cases.
Held: Such awards should not be limited to where a defendant was aware of copyright law, but should look to the circumstances of . .
Cited – Polivitte Ltd v Commercial Union Assurance Co Plc 1987
An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise . .
Cited – Re J 1990
Federal Court of Australia – An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion – If an expert’s opinion is not . .

Cited by:
Cited – Anglo Group Plc, Winther Brown and Co Ltd v Winter Brown and Co Ltd, BML (Office Computers) Ltd, Anglo Group Plc, BML (Office Computers) Ltd TCC 8-Mar-2000
Contract – Contract for provision of computer services – purchaser contract with finance company – duty of co-operation to be implied in computer contracts – practice – responsibilities of expert witnesses generally – whether computer company liable . .
See Also – Cala Homes (South) Ltd and Others v Alfred Mcalpine Homes East Ltd (No 2) ChD 30-Oct-1995
A plaintiff may claim damages under section 97(2) in addition to claiming an account of profits, as his primary remedy. A person claiming joint rights in the copyright as author must contribute to the ‘production’ of the work and create something . .
Cited – Martin and Another v Kogan and Others IPEC 22-Nov-2017
The parties disputed whether joint authorship of the screenplay for a film, ‘Florence Foster Jenkins’. The claimant now sought a declaration of sole authorship of film screenplay, and the defendant cross-claimed for a declaration of joint . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.241586

Youngs v Gray and Others (Young’s Trustees): SCS 23 Dec 1909

A son wrote a letter to his father in which he acknowledged he had received from him certain sums of money-‘And I further acknowledge that these various sums are all payments to me on account of the share of legitim or bairn’s part of gear which may become due to me by and through your decease, and which share of legitim or bairn’s part of gear is now discharged by me to that extent.’ On his father’s death the son raised an action of declarator that in the event of his electing to claim legitim he was not bound in a question with his father’s trustees to collate or bring into account any sums paid to him, but that said sums only fell to be collated by him in a question with his father’s other children in the event of their electing to claim legitim, and on condition of their also collating such sums as they had received to account of legitim.
Held that pursuer was not entitled to the declarator sought.
Opinion by the Lord President and Lord Kinnear that this was not, properly speaking, a question of ‘collation.’
Opinion by Lord Johnston that the trustees were, as in right of the children who accepted provisions and discharged legitim, entitled to call on the pursuer to collate with them.
By the Lord President-‘When a father bargains with a son he does not bargain that a certain sum which he has given shall be a payment to account of a possible debt that becomes due after the father’s death . . ; he bargains on account of his estate-general and not on account of a particular debt against his estate, namely, the legitim fund.’
Semble, that the bargain is not solely for the benefit of the dead’s part, any more than it is solely for the benefit of the legitim fund, but that where a son with whom such a bargain has been made claims legitim in order to the more equitable distribution of the actual moveable estate, both legitim fund and dead’s part are calculated from a nominally enlarged moveable estate, i.e., from the sum arrived at by adding to the moveable estate the sum so advanced.
Lord Skerrington, Ordinary
[1909] SLR 296
Bailii
Scotland

Updated: 01 September 2021; Ref: scu.611064

Colley v Overseas Exporters: 1921

Sellers brought an action for the price of goods sold on terms fob Liverpool. The buyers made five successive nominations of vessels to take delivery of the cargo but in each case the vessel was eventually unable to take the goods. No effective nomination was made, the goods remained at the dock awaiting shipment, and the sellers brought an action for the price. The argument advanced on behalf of the sellers was that because it was the buyers’ own fault which had prevented the goods being put on board, the buyers were disabled from saying that the price, which would have been payable if and when the goods had actually been put on board, was not now due to the sellers.
Held: The argument was rejected. Judgment was given for the buyers, there being no alternative claim for damages. Having found that s. 49(1) did not apply because property would not pass until the goods were loaded on board under standard fob terms, and that s. 49(2) did not apply because there was no agreement as to payment of the price on a day certain, he held at p. 310 that those findings were fatal to an action on the price because s. 49 was exclusive:
‘The existing condition of the law is put in Benjamin on Sale, 6th ed., p. 946, where it is rightly stated that the old principles ‘are by implication preserved by s. 49 of the code’. And the learned editor adds: ‘Where property has not passed, the seller’s claim must, as a general rule, be damages for non-acceptance.’ An exception to the general rule is to be found in the cases provided for by s. 49, sub-s. 2, of the code. In my opinion (subject to what I say hereafter as to estoppel), no action will lie for the price of goods until the property has passed, save only in the special cases provided for by s. 49, sub-s. 2. This seems plain both on the code and on common law principle. I have searched in vain for authority to the contrary.’
McCardie J
[1921] 3 KB 302, [1921] All ER 596
England and Wales
Cited by:
Cited – PST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2021; Ref: scu.618133

Simpson v Connolly: 1953

There had been an agreement to transfer land in consideration of the extinguishment of a debt. The court was asked whether this was a sale.
Held: It was not. The ordinary meaning of the word ‘sale’ is a transfer of property in return for a consideration in money or money’s worth.
Finnemore J said: ‘It is argued for the plaintiff that a sale means in the case of land, as in the case of goods, an exchange of land (or goods) for money. It is laid down clearly in the books which deal with sale of personal chattels that a sale or a contract of sale is an agreement to exchange goods for money, although it is possible that part of the consideration might be something other than money, as for example, when a person buys a new car for an agreed price, part of which he pays in money and part of which he satisfies by means of surrendering another car. But the general principle of English law in regard to sale is that a sale means the exchanging of property for money. That applies – to a sale of land and to a sale of chattels equally.
The real problem is whether it is still a sale if no money passes but one person says to another, to take this case, if you give me a piece of land, I will excuse you your debt which you owe me.’
Finnemore J
[1953] 1 WLR 911
England and Wales

Updated: 30 August 2021; Ref: scu.519969

Federal Commerce Ltd v Molena Alpha Inc (The Nanfri): HL 1979

The charterers of three ships on time charter had made deductions from time charter hire payments which the shipowners regarded as unjustified. In retaliation the shipowners purported to revoke the authority of the Charterers (to be implied under the time charters) to sign bills of lading on behalf of the masters of the three vessels. Moreover, the shipowners ordered their masters to refuse to issue ‘freight pre-paid’ bills of lading if presented by the charterers.
Held: The orders to the masters deprived the time-charterers of substantially the whole benefit of each of the three time-charters. Therefore, it was either an actual or an anticipatory repudiatory breach of the three charters.
A statement that a party will only perform something different from the contract is as capable of amounting to a renunciation as an express statement that a party will not perform the contract. To amount to a fundamental breach it must go to the root of the contract.
If a party’s conduct is such as to amount to a threatened repudiatory breach, his subjective desire to maintain the contract cannot prevent the other party from drawing the consequences of his actions.
Lord Wilberforce, Lord Fraser of Tullybelton
[1979] AC 757, [1979] 1 All ER 307, [1978] QB 949, [1979] 1 Lloyds Rep 201, [1978] 3 WLR 991
England and Wales
Citing:
Appeal from – Federal Commerce Ltd v Molena Alpha Inc; (The ‘Nanfri’) CA 1978
The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire.
Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to . .

Cited by:
Cited – SK Shipping (S) Pte Ltd v Petroexport Ltd ComC 24-Nov-2009
The parties disputed the termination of a charterparty for anticipatory repudiatory breach.
Held: To the extent that the dispute relied on disputes of fact, the court preferred the evidence of the claimant. The defendant had displayed an . .
Cited – British Broadcasting Corporation v Beckett EAT 1983
The claimant had committed an act of serious negligence, jeopardising the safety of his colleagues. He was removed from his post as a scenic carpenter but offered an alternative post of maintenance carpenter on a trial basis, which was unacceptable . .
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
Cited – Haberdasher’s Monmount School for Girls v Turner EAT 8-Mar-2004
EAT Unfair Dismissal
ET incorrectly applied Sir John Donaldson’s dictum in Bridgen [1987] IRLR 58 (based on Woodar v Wimpey): assertion of wrong interpretation of contract not enough for repudiation, which . .
Cited – Geldof Metaalconstructie Nv v Simon Carves Ltd CA 11-Jun-2010
The parties contracted for the supply and installation of pressure vessels by Geldof (G) for a building constructed by Simon Carves (SC). The contract contained a clause denying the remedy of set-off. G sued for the sale price, and SC now sought an . .
Cited – Future Publishing Ltd v The Edge Interactive Media Inc and Others ChD 13-Jun-2011
The claimant said that the defendant had infriged its rights by the use of its logo on their publications. . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.381491

Pickfords Ltd v Celestica Ltd: CA 19 Nov 2003

The claimant executed works for the defendant and claimed payment. There was a dispute about which documents made up the contract.
Held: The defendant had thought he accepted an offer which had already been withdrawn. The defendant was due to pay the sum shown on the first offer calculated by rate as described rather than the fixed (and much larger) sum in the second fax.
Arden, Dyson LJJ
[2003] EWCA Civ 1741
Bailii
England and Wales

Updated: 29 August 2021; Ref: scu.188481

Millar’s Machinery Co Ltd v David Way and Son: CA 1935

The contract provided that the seller would make good certain defects in workmanship, but the sellers stated: ‘We do not give any other guarantee and we do not accept responsibility for consequential damages.’
Held: The purchaser recovered the deposit paid towards the price of a machine prior to delivery and also a further sum paid for the supply of a replacement machine at short notice. Maugham LJ said: ‘On the question of damages, the word ‘consequential’ had come to mean ‘not direct’, but damages recovered by the Defendants on the Counterclaim arose directly from the Plaintiffs’ breach of contract under section 51(2) of the Sale of Goods Act 1893.’ Roche LJ agreed, saying: ‘the damages recovered by the defendants on the counterclaim are not merely ‘consequential’ but resulted directly and naturally from the plaintiffs’ breach of contract.’
The contract provided for the sellers that ‘We do not give any other guarantee and we do not accept responsibility for consequential damages.’ The machinery was not delivered on time and the purchaser sought recovery of his deposit.
Held: The purchaser recovered his deposit together with a further sum he had paid for the supply of a replacement machine at short notice. The plaintiffs’ right to recover those damages was unaffected by the wording of the contract. Maugham LJ said: ‘On the question of damages, the word ‘consequential’ had come to mean ‘not direct’, but damages recovered by the Defendants on the Counterclaim arose directly from the Plaintiffs’ breach of contract under section 51(2) of the Sale of Goods Act 1893.’
Roche LJ said that the damages recovered by the defendants on the counterclaim are not merely ‘consequential’ but resulted directly and naturally from the plaintiffs’ breach of contract.
Maugham LJ, Roche LJ
(1935) 40 Com Cas 204
Sale of Goods Act 1893 51(2)
England and Wales
Cited by:
Cited – Croudace Construction Limited v Cawoods CA 1978
A clause in a contract provided that: ‘We are not under any circumstances to be liable for any consequential loss or damage caused or arising by reason of late supply or any fault, failure or defect in any material or goods supplied by us or by . .
Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Cited – Croudace Construction Limited v Cawoods CA 1978
A clause in a contract provided that: ‘We are not under any circumstances to be liable for any consequential loss or damage caused or arising by reason of late supply or any fault, failure or defect in any material or goods supplied by us or by . .
Cited – British Sugar Plc v NEI Power Projects Limited and Anr CA 8-Oct-1997
The plaintiffs contracted for the delivery and installation of equipment by the defendant. After delays and defects the claimants sought damages. The defendants said that the contract provided that any liabiity for consequential losses was to be . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.238573

Waddell v Blockey: 1879

The damages for an item bought as a consequence of a misrepresentation or other tort are to be calculated as at the date of sale.
(1879) 4 QBD 678
England and Wales
Cited by:
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – McConnel v Wright CA 24-Jan-1903
In an action by a shareholder in a limited company against a director for damages for misrepresentation in the prospectus, the time at which the damage is ordered to be assessed, is the date of the allotment to the plaintiff; accordingly, where the . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.191172

Federal Commerce Ltd v Molena Alpha Inc; (The “Nanfri”): CA 1978

The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire.
Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to extinguish or reduce an instalment of rent due, any cross claim arising out of the provisions of the lease and the operation of the lease. Equitable set-off is ultimately based on considerations of justice.
Lord Denning MR said: ‘It is now far too late to search through the old books and dig them out. Over 100 years have passed since the Judicature Act 1873. During that time the streams of common law and equity have flown together and combined so as to be indistinguishable the one from the other. We have no longer to ask ourselves what would the courts of common law or courts of equity have done before the Judicature Act? We have to ask ourselves: what should we do now so as to ensure fair dealing between the parties? See United Scientific Holdings Ltd. v. Burnley Borough Council [1978] A.C. 904 per Lord Diplock. This question must be asked in each case as it arises for decision: and then, from case to case, we shall build up a series of precedents to guide those who come after us. But one thing is clear: it is not every cross-claim which can be deducted. It is only cross-claims that arise out of the same transaction or are closely connected with it. And it is only cross-claims which go directly to impeach the plaintiff’s demands, that is, so closely connected with his demands that it would be manifestly unjust to allow him to enforce payment without taking into account the cross-claim. Such was . . Hanak v. Green.’
Goff LJ, Lord Denning MR
[1978] QB 927
Judicature Act 1873
England and Wales
Citing:
Approved – The Teno 1977
The court considered the circumstances necessary to establish a right to a set-off in equity: ‘where the cross-claim not only arises out of the same contract as the claim but is so directly connected with it that it would be manifestly unjust to . .
Approved – Ross T Smyth and Co Ltd v Bailey Son and Co HL 1940
The court looked to what had to be shown for one party to a contract to take the actions of the other as a repudiation.
Lord Wright said that: ‘repudiation of a contract is a serious matter, not to be lightly found or inferred’ and ‘I do not . .

Cited by:
Cited – Sonia Burkett, Regina (on the Application of) v London Borough of Hammersmith and Fulham CA 15-Oct-2004
The appellant challenged an order for costs after dismissal of her application for judicial review of the respondent’s planning decision. The claimant had been granted legal aid at about the time of the bringing in of the new legal aid scheme. The . .
Cited – Altonwood Ltd v Crystal Palace FC (2000) Ltd ChD 7-Mar-2005
The landlord claimed arrears of rent and other payments due under the lease of the football ground occupied by the club. A licence had been granted for the accomodation to be shared with Wimbledon Football Club. The rent varied with the gate . .
Cited – Edlington Properties Limited v J H Fenner and Co Limited CA 22-Mar-2006
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in . .
Cited – British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
Appeal from – Federal Commerce Ltd v Molena Alpha Inc (The Nanfri) HL 1979
The charterers of three ships on time charter had made deductions from time charter hire payments which the shipowners regarded as unjustified. In retaliation the shipowners purported to revoke the authority of the Charterers (to be implied under . .
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
Cited – Eller v Grovecrest Investments Ltd CA 1995
The court set out the history of the development of the law relating to the availability of set-off in the case where a landlord has levied or intends to levy distress.
Held: The law had developed, and an equitable right of set off against a . .
Cited – Fuller v Happy Shopper Markets Ltd and Another ChD 6-Mar-2001
A tenant complained to the landlord about his failure to repair. He ceased paying rent, and the landlord eventually distrained for rent by direct action.
Held: The tenant was unable to claim a legal set-off because there was no context of . .
Followed – Geldof Metaalconstructie Nv v Simon Carves Ltd CA 11-Jun-2010
The parties contracted for the supply and installation of pressure vessels by Geldof (G) for a building constructed by Simon Carves (SC). The contract contained a clause denying the remedy of set-off. G sued for the sale price, and SC now sought an . .
Cited – Dole Dried Fruit and Nut Co v Trustin Kerwood Ltd CA 1990
The defendant had an exclusive distributorship agency for the plaintiff in England. Under that agreement, the plaintiff sold its prunes and raisins to the defendant under separate contracts of sale. The plaintiff claimed the price of goods sold . .
Cited – Durkin v DSG Retail Ltd and Another SC 26-Mar-2014
Cancellation of Hire Finance Contract
The claimant had bought a PC with a finance agreement with the respondent. He rejected it a day later, but the respondent refused to cancel the credit agreement. The respondent had threatened to report his non-payment to credit reference companies, . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.185990

United Dominions Trust (Commercial) Ltd v Eagle Aircraft Services Ltd Ltd; United Dominions Trust (Commercial) Ltd v Eagle Aviation Ltd: CA 1968

An aircraft manufacturer was obliged under contract to buy back an aircraft from a hire purchase company on three conditions. (1) when the hire purchase company foreclosed on the purchasers, (2) where the manufacturer had been given notice of the purchasers’ defaults and (3) (implied by the Court of Appeal) where the buyback was called within a reasonable time. It was held that due to non-compliance with (2) and (3) the hire purchase company could not enforce the option.
Held: Lord Denning MR said: ‘In point of legal analysis, the grant of an option in such cases is an irrevocable offer (being supported by consideration so that it cannot be revoked). In order to be turned into a binding contract, the offer must be accepted in exact compliance with its terms. The acceptance must correspond with the offer.’ Diplock LJ: ‘Accordingly, the event giving rise to Eagle’s unilateral obligation to buy the aircraft has not occurred and can never occur. There is no obligation: there can be no breach. The action must fail.’ A unilateral offer capable of acceptance so as to create a binding obligation was referred to as an ‘if’ contract: I will do or refrain from doing x if you will do or refrain from doing y. It can be ‘accepted’ and so become binding by the promisee doing or refraining from doing y. An offer by the defendant was open to acceptance by the claimant only if the acceptance was in exact compliance with the terms of the offer.
Denning MR, Diplock LJJ
[1968] 1 All ER 194, [1968] 1 WLR 74
England and Wales
Citing:
Cited – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Carlill_CarbolicCA1893
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘andpound;100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .

Cited by:
Cited – Haugland Tankers As v RMK Marine Gemi Yapim Sanayii Ve Deniz Tasimaciligi Isletmesi As ComC 9-Mar-2005
An option agreement was granted for the sale of a ship hull. The option was excercised but the defendant claimed the commitment fee required was not paid.
Held: The exercise of an option had to be in the precise terms set out in the contract. . .
Cited – United Scientific Holdings v Burnley Borough Council HL 1978
The House was asked whether a failure by a lessor to keep strictly to the timetable laid down in a rent review clause in a lease necessarily deprived the lessor of the benefit of the rent review.
Held: A stipulation as to time in an option . .
Cited – Carmarthen Developments Ltd v Pennington SCS 24-Sep-2008
carmarthen_penningtonSCS2008
Contracts had been entered into for the sale of plots of land, which were conditional on planning permissions being approved by the purchaser. The buyer could waive the conditions to remove the sellers’ rights to resile. The buyer obtained the . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.183119

Stedman v Swan’s Tours: CA 1951

The plaintiffs sought damages for their disappointing holiday in Jersey. Instead of enjoying the superior rooms with a sea view in a first class hotel expected, the holiday party found that the rooms reserved for them were very inferior and had no sea view. They were unable to obtain accommodation elsewhere, and in the result the whole holiday was completely spoilt.
Held: The damages awarded were increased from 13 pounds 15 shillings to 150 pounds.
Singleton LJ said that: ‘Damages could be recovered for appreciable inconvenience and discomfort caused by a breach of contract. It might be difficult to assess the amount to be awarded, but it was no more difficult than to assess the amount to be given for pain and suffering in a case of personal injury.’
Orse, Stedman v Swans Tours; Stedman v Swan Tours
Singleton LJ
(1951) 95 SJ 727
England and Wales
Cited by:
Cited – Jarvis v Swans Tours Ltd CA 16-Oct-1972
The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .
Cited – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.182072

Assenagon Asset Management Sa v Irish Bank Resolution Corporation Ltd: ChD 27 Jul 2012

The court considered the right of a company member to vote as he wishes. Briggs J said: ‘The basis for the application of that principle in relation to powers conferred on majorities to bind minorities is traditionally described as arising from general principles of law and equity, and by way of implication. ‘
Briggs J
[2012] EWHC 2090 (Ch), [2013] Bus LR 266, [2012] WLR(D) 243
Bailii, WLRD
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.463297

Philippson v Imperial Airways Ltd: HL 1939

Where parties have entered into a domestic contract in which they have chosen to incorporate the terms of the treaty, the court may be called upon to interpret the treaty for the purposes of ascertaining the rights and obligations of the parties under their contract.
[1939] AC 332
England and Wales
Cited by:
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.230251

Lidl UK Gmbh and Another v Davies and others: CA 10 Jul 2008

The claimants had sold land to Lidl. The parties now disputed the interpretation of the development contract.
Held: Permission was given to amend the claim to assert a claim under trusts as between a party to the head contract and a party to the sub-sale contract.
Sir Mark Potter P, Tuckey LJ, Lawrebce Collins LJ
[2008] EWCA Civ 976
Bailii
England and Wales
Cited by:
Cited – Davies and Others v Jones and Another CA 9-Nov-2009
The parties contracted for the sale of land for development. The contract allowed for the costs of environmental remediation, but disputed the true figure set by the eventual builder and retained. The court now heard argument about whether the sum . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.272855

Kleinwort Benson Ltd v Malaysia Mining Corporation: 1988

The bank sought to enforce ‘letters of comfort’ provided by the parent company of the bank’s debtor.
Held: The bank succeeded.
Hirst J
[1988] 1 All ER 714
England and Wales
Cited by:
Appeal from – Kleinwort Benson Ltd v Malaysia Mining Corporation CA 1989
The court at first instance had found enforceable a letter of comfort provided by the parent company of the bank’s client.
Held: The appeal succeeded. Ralph Gibson LJ said: ‘The court would not, merely because the parties had referred to the . .
Cited – Associated British Ports v Ferryways Nv and Another CA 18-Mar-2009
The court considered whether a document was a guarantee requiring the formality of the 1677 Act, or an indemnity.
Held: The appeal failed. The letter agreement was properly a contract of guarantee which foundered on the subsequent variation. . .

Lists of cited by and citing cases may be incomplete.
Updated: 24 August 2021; Ref: scu.322763

Kleinwort Benson Ltd v Malaysia Mining Corporation: CA 1989

The court at first instance had found enforceable a letter of comfort provided by the parent company of the bank’s client.
Held: The appeal succeeded. Ralph Gibson LJ said: ‘The court would not, merely because the parties had referred to the document as a comfort letter, refuse to give effect to the meaning of the words used. But in this case it is clear, in my judgment, that the concept of a comfort letter, to which the parties had resort when the defendants refused to assume joint and several liability or to give a guarantee, was known by both sides at least to extend to or to include a document under which the defendants would give comfort to the plaintiffs by assuming, not a legal liability to ensure repayment of the liabilities of its subsidiary, but a moral responsibility only.’
Ralph Gibson LJ, Nicholls and Fox LJJ
[1989] 1 All ER 785
England and Wales
Citing:
Appeal from – Kleinwort Benson Ltd v Malaysia Mining Corporation 1988
The bank sought to enforce ‘letters of comfort’ provided by the parent company of the bank’s debtor.
Held: The bank succeeded. . .

Cited by:
Cited – Associated British Ports v Ferryways Nv and Another CA 18-Mar-2009
The court considered whether a document was a guarantee requiring the formality of the 1677 Act, or an indemnity.
Held: The appeal failed. The letter agreement was properly a contract of guarantee which foundered on the subsequent variation. . .

Lists of cited by and citing cases may be incomplete.
Updated: 24 August 2021; Ref: scu.322764

Fram-Jee Cowas-Jee v William Thompson And Henry Kebbel: 20 Jun 1845

Goods contracted to be sold and delivered ‘free on board,’ to be paid for by cash or bills, at the option of the purchasers, were delivered on board, and receipts taken from the mate by the lighterman, employed by the sellers, who handed the same over to them. The sellers apprized the purchasers of the delivery, who elected to pay for the goods by a bill, which the sellers having drawn, was duly accepted by the purchasers. The sellers retained the mate’s receipts for the goods, but the master signed the bill of lading in the purchasers’ names, who, while the bill they accepted was running, became insolvent. In such circumstances, held by the Judicial Committee of the Privy Council (reversing the verdict and judgment of the Supreme Court at Bombay), that trover would not lie for the goods, for that on their delivery on board the vessel, they were no longer in transitu, so as to be stopped by the sellers; and that the retention of the receipts by the sellers was immaterial, as after their election to be paid by a bill, the receipts of the mate were not essential to the transaction between the seller and purchaser.
[1845] EngR 1007, (1845) 3 Moo Ind App 422, (1845) 18 ER 560
Commonlii
England and Wales

Updated: 24 August 2021; Ref: scu.304149

Phonogram Ltd v Lane: CA 1982

A collateral contract was entered into with a company which had not then been incorporated under which an advance by Phonogram to support an intended new pop group was repayable by the company if a recording contract was not entered into within one month. The collateral contract was signed ‘for and on behalf of’ the company by Mr. Lane. Both parties knew, at the time of the collateral contract, that the company had not yet been incorporated.
Held: Lane’s appeal failed. The Court expressly rejected the argument that section 9(2) should be construed solely by reference to the Directive.
Lord Denning MR said:
‘Section 9(2) is in accordance with the spirit and intent of the directive. We should go by our own statute and not by the directive . .’ #and ‘This is the first time the section has come before us. It will have much impact on the common law. I am afraid that before 1972 the common law had adopted some fine distinctions. As I understand Kelner v. Baxter (1866) L.R. 2 C.P. 174 it decided that, if a person contracted on behalf of a company which was nonexistent, he himself would be liable on the contract. Just as, if a man signs a contract for and on behalf ‘of his horses,’ he is personally liable. But, since that case was decided, a number of distinctions have been introduced by Hollman v. Pullin (1884) Cab. and Ell. 254; Newborne v. Sensolid (Great Britain) Ltd. [1954] 1 Q.B. 45 and Black v. Smallwood (1965) 117 C.L.R. 52 in the High Court of Australia. Those three cases seem to suggest that there is a distinction to be drawn according to the way in which an agent signs a contract. If he signs it as ‘agent for ‘X’ company’ – or ‘for and on behalf of ‘X’ company’ – and there is no such body as ‘X’ company, then he himself can be sued upon it. On the other hand, if he signs it as ‘X’ company per pro himself the managing director, then the position may be different: because he is not contracting personally as an agent. It is the company which is contracting.
That distinction was disliked by Windeyer J. in Black v. Smallwood. It has been criticised by Professor Treitel in The Law of Contract, 5th ed. (1979), p.559. In my opinion, the distinction has been obliterated by section 9(2) of the European Communities Act 1972. We now have the clear words, ‘Where a contract purports to be made by a company, or by a person as agent for a company, at a time when the company has not been formed…’ That applies whatever formula is adopted. The person who purports to contract for the company is personally liable.’
Oliver LJ said:
‘any such subtle distinctions which might have been raised are rendered now irrelevant by section 9(2) of the European Communities Act 1972 in a case where a contract is either with a company or with the agent of a company. It has been suggested that an agreement to the contrary may still be inferred by the fact that the contract was signed by a person acting as agent so as to exclude the section. That I am bound to say seems to me to be wholly unarguable when the section itself in terms provides ‘Where a contract purports to be made … by a person as agent for a company,’ and to interpret it in the way suggested would defeat the whole purpose of the section.’
Oliver LJ, Lord Denning MR, Shaw LJ
[1982] 1 QB 938, [1982] QB 938
European Communities Act 1972 9(2)
England and Wales
Citing:
Cited – Newborne v Sensolid (Great Britain) Ltd 1954
A written contract purported to sell goods by a company described as Leopold Newborne (London) Ltd. The document was subscribed by the name of the company with Mr Leopold Newborne’s signature under it. At that time it had not yet been incorporated. . .

Cited by:
Cited – Braymist Limited and Others v Wise Finance Company Limited CA 20-Feb-2002
The claimant company set out to sell land whilst it was still only in the process of incorporation. Its solicitors had signed as agents, and now sought an order for the purchaser to complete the contract. The respondent had not known of the . .
Cited – Royal Mail Estates Limited v Maple Teesdale Borzou Chaharsough Shirazi ChD 2-Jul-2015
A contract had been made but one of the parties was not yet incorporated. The court was asked whether it was deemed to have been made with the signatory.
Held: For section 36C(1), a ‘contrary agreement’ would be established if the parties, . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 August 2021; Ref: scu.619035

Peregrine Fixed Income Ltd v Robinson Department Store Public Co Ltd: ComC 18 May 2000

The claimant sought the determination of the court as to the interpretation of parts of a currency swap and derivatives agreement. Upon termination of the contract, it provided means to calculate the balances due between the parties, and the valuation to be placed upon certain investments. The claimants asserted that the strict method used in the contract provided a commercially unreasonable result. Alternative methods of calculation had been provided. The choice of method was to be determined according to whether one party was in default. The definition of ‘Loss’ is directed to identifying the loss suffered as a result of the termination of the transaction in question and is not concerned with the steps which taken to fund any payment required pursuant to Section 6(e) of the agreement.
Held: A court should not see behaviour in the absence of any allegation of absence of good faith or as unjustified or involving a breach of contract, unless it is clear that the belief in which he acted was flawed in one of the ways identified in the Wednesbury case. The court could not think that anyone who had taken them into account could have concluded that the use of Market Quotation would produce a commercially reasonable result.
The Honourable Mr Justice Moore-Bick
[2000] EWHC Commercial 99
Bailii
England and Wales
Citing:
Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 August 2021; Ref: scu.163047

China Pacific SA v Food Corpn of India (The Winson): HL 1982

A cargo of wheat was loaded in the US for delivery to Bombay. The ship was stranded on a reef in the South China Sea. Salvors entered into a salvage agreement with the shipowners and cargo owners on Lloyds open form. In performance of that contract the salvors lightened the vessel by offloading part of the cargo into barges and carrying it to Manila as a place of safety. There the salvors arranged for it to be stored under cover, in part on a vessel in the harbour and in part in a bonded warehouse ashore. The salvors sought to recover the costs of such storage from the cargo owners, being the stevedoring and charter costs of arranging storage on the vessel in the harbour, and the warehouse charges they had to pay for the warehousing ashore. The storage was both reasonable and necessary for the preservation of the cargo and to prevent its deterioration. The claim had succeeded before Lloyd J, but overturned at the Court of Appeal.
Held: The decision was re-instated. The case turned on the application of ‘well known and basic principles of the common law of salvage, of bailment and of lien.’ The bailee was left in possession of the goods after the termination of the contract under which the bailment had originally been made, and in the absence of any contrary instructions from the cargo-owner, the warehousing of the goods was necessary for their preservation.
Lord Diplock noted that the case had been argued throughout on the basis that the salvage contract had come to an end at the time the cargo arrived in Manila, whilst leaving open whether that assumption was correct. The salvors were entitled to recover the storage costs from cargo owners because as bailees they: ‘the bailment which up to the conclusion of the salvage services had been a bailment for valuable consideration became a gratuitous bailment; and so long as that relationship of bailor and bailee continued to subsist the salvors, under the ordinary principles of the law of bailment too well known and too well-established to call for any citation of authority, ‘owed a duty of care to the cargo owner to take such measures to preserve the salved wheat from deterioration by exposure to the elements as a man of ordinary prudence would take for the preservation of his own property . . and if he fulfils that duty he has, in my view, a correlative right to charge the owner of the goods with the expenses reasonably incurred in doing so.’
and ‘It is, of course, true that in English law a mere stranger cannot compel an owner of goods to pay for a benefit bestowed upon him against his will; but this latter principle does not apply where there is a pre-existing legal relationship between the owner of the goods and the bestower of the benefit, such as that of bailor and bailee, which imposes upon the bestower of the benefit a legal duty of care in respect of the preservation of the goods that is owed by him to their owner.’
Lord Simon of Glaisdale, concurring, thought that to confine agency of necessity to cases where the issue was the bailee’s authority to bind the bailor to contracts with third parties was ‘justified by the fact that the law of bailment will often resolve any issue between alleged principal and agent of necessity, as it has done here.’
Diplock, Keith, Roskill and Brandon LL
[1982] AC 939
England and Wales
Cited by:
Cited – Petroleo Brasileiro Sa v Ene Kos 1 Ltd (‘The MT Kos’) SC 2-May-2012
The MT Kos had been chartered by the appellants. The respondents failed to make payments, and notice was given to withdraw the vessel. The contract said that such a notice was without prejudice to any claim. At the time, the vessel was laden. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.462940

Bowlay Logging Limited v Domtar Limited: 1978

(Canada) The parties contracted for the claimant to cut timber and the defendant to haul it. The plaintiff said that the defendant breached the contract by supplying insufficient trucks to haul the timber away, and claimed as damages his wasted expenditure.
Held: Only nominal damages could be awarded. A plaintiff was not entitled to damages on a basis which would leave him better off than he would have been in had the contract been performed. The plaintiff would have made a loss on the contract as a whole. Noting that the issue had not been raised in either Cullinane Anglia Television said: ‘The law of contract compensates a plaintiff for damages resulting from the defendant’s breach; it does not compensate a plaintiff for damages resulting from his making a bad bargain. Where it can be seen that the plaintiff would have incurred a loss on the contract as a whole, the expenses he has incurred are losses flowing from entering into the contract, not losses flowing from the Defendant’s breach. In these circumstances, the true consequence of the defendant’s breach is that the plaintiff is released from his obligation to complete the contract- or, in other words, he is saved from incurring further losses.
If the law of contract were to move from compensating for the consequences of breach to compensating for the consequences of entering into contracts, the law would run contrary to the normal expectations of the world of commerce. The burden of risk would be shifted from the plaintiff to the defendant. The defendant would become the insurer of the plaintiff’s enterprise.’
Berger J
[1978] 4 WWR 105
Canada
Citing:
Cited – L Albert and Son v Armstrong Rubber Co 1949
(United States Court of Appeals, Second Circuit) A purchaser of machines designed to recondition rubber sought damages for breach of contract, namely, the cost of the foundation on which the machines were placed. However, the purchaser did not prove . .
Cited – Anglia Television v Oliver Reed CA 1971
The television company had agreed with the actor defendant for him to appear in a production. He breached the contract. The company sought both loss of profits and for the expense incurred. The issue before the Court of Appeal was whether such . .
Cited – Cullinane v British ‘Rema’ Manufacturing Co Ltd CA 1954
The court considered the possibility of a claim in breach of contract for damages for both capital loss and loss of profit.
Lord Evershed MR said: ‘It seems to me, as a matter of principle, that the full claim of damages in the form in which . .

Cited by:
Cited – Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd ComC 4-Aug-2010
Lost Expenses as Damages for Contract Breach
The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .
Followed – C and P Haulage v Middleton CA 27-Jun-1983
The parties entered into an agreement allowing the defendant to occupy the plaintiff’s land. They had disputed whether it was a licence or a lease. The occupier had expended sums on improving the premises, but had then been summarily ejected. He now . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.421537

Charles Rickards Ltd v Oppenheim: CA 1950

A buyer of a Rolls-Royce motor chassis agreed for a body to be built upon it by a fixed date. The body was not completed by that date, but after pressing for delivery, he gave a notice that unless delivery of the car with a completed body was effected within four weeks he would cancel the contract. The car was not delivered within the period of four weeks. However, thereafter the plaintiffs sought to deliver the car and, when delivery was not accepted, they sued for the sum due to them under the contract.
Held: The defendant was entitled to cancel the contract. The plaintiff argued ‘that no notice making time of the essence could be given in regard to contracts for work and labour. The judge thought that it was a contract for the sale of goods. It was unnecessary to determine whether it was a contract for the sale of goods or a contract for work and labour, because the defendant was entitled to give a notice bringing the matter to a head. It would be most unreasonable if the defendant, having been lenient and waived the initial expressed time, should, by so doing, have prevented himself from ever thereafter insisting on reasonably quick delivery. He was entitled to give a reasonable notice making time of the essence of the matter. Adequate protection to the suppliers is given by the requirement that the notice should be reasonable.’
Lord Denning: ‘If the defendant, as he did, led the plaintiff to believe that he would not insist on the stipulation as to time and that if they carried out the work, he would accept it, and they did it, he could not afterwards set up the stipulation as to time against them. Whether it be called waiver or forbearance on his part or an agreed variation or substituted performance does not matter. It is a kind of estoppel. By his conduct he evinced an intention to affect their legal relations. He made in effect a promise not to insist upon his strict legal rights. That promise was intended to be acted upon and was in fact acted upon. He cannot afterwards go back on it.
The reasonableness of the notice must be judged at the time at which it is given.
‘However, the giving of such notice does not entitle the buyer retrospectively to rely upon the seller’s breach of contract in the period of the waiver or estoppel, since that is the breach which is waived or he is estopped from relying upon. To hold otherwise would retrospectively cancel the effect of equity’s protection, which is unconscionable. The requirement that the buyer give notice fixing a reasonable time for delivery, thereby once again making time of the essence of the contract, has the practical effect that the time on which he is entitled to rely starts to run from the date on which notice is given, not from the date of the original and waived breach.’
Denning LJ
[1950] 1 KB 616, [1950] 1 All ER 420
England and Wales
Cited by:
Cited – Robert Gary Hirst, Helen May Hirst v George Vousden, Glennys Vousden PC 25-May-2004
PC (New Zealand) The parties agreed orally for a lease, the landlord handing the prospective tenant a copy of a standard form lease used for the previous tenancy. The tenants appealed a finding that that document . .
Cited – Astea (UK) Ltd v Time Group Ltd TCC 9-Apr-2003
The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
Cited – Shawton Engineering Ltd v Dgp International Ltd (T/A Design Group Partnership) and Another CA 18-Nov-2005
There had been a very substantial construction project, in which certain facets of design were sub-contracted and sub-contracted again to the parties. There were substantial delays and a sub-contractor purported to terminate the contract for failing . .
Cited – Ernest John Fifield and Another v W and R Jack Limited PC 29-Jun-2000
PC (New Zealand) The tenants sought an extension of time to take their rent review to arbitration. The Landlords appealed a grant of leave.
Held: The grant of leave was discretionary where the court found . .
Cited – Virulite Llc v Virulite Distribution Ltd and Another QBD 26-Feb-2014
. .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.199552

Reading Festival Ltd v West Yorkshire Police Authority: CA 3 May 2006

The organisers of a music festival in Leeds appealed a decision that they were liable to pay in full a bill from the police for additional services in policing the festival.
Held: The organisers appeal succeeded. Whilst it was a matter for the police how they felt that the festival needed to be policed, the organiser was not to be put in an all or nothing position. Though the section did not speak of a contract, some agreement from the organiser would normally be required before he could be made liable. There was insufficent evidence of a request from the organisers for the services provided.
Scott Baker LJ said that section 25: ‘is an enabling section. That is, it enables the police to do that which the common law already said they could do. For my part, I do not think section 15 (1) added anything to or altered the common law position except possibly to clarify that the police authority has the last word on the scale of charges.’
The Hon Mr Justice Neuberger The Honourable Mr Justice Jacob Lord Justice Scott Baker
Times 15-May-2006, [2006] EWCA Civ 524, [2006] 1 WLR 2005
Bailii
Police Act 1996 25
England and Wales
Citing:
Cited – Harris v Sheffield United Football Club Ltd CA 1987
The court was asked whether services provided by the police at Sheffield United Football Club for the club’s home fixtures were ‘special police services’ so that, if they were provided at the club’s request, the police could charge for them. Up . .
Cited – Glasbrook Brothers Limited v Glamorgan County Council HL 1925
A colliery manager asked for police protection for his colliery during a strike. He wanted police officers to be billeted on the premises. The senior police officer for the area was willing to provide protection by a mobile force, but he refused to . .

Cited by:
Cited – Greater Manchester Police v Wigan Athletic AFC Ltd ChD 21-Dec-2007
The claimant sought payment under section 25 from the defendant football club for the costs of policing football matches. The defendant said that the sums were not due since the events had been over-policed, and had not been agreed or requested.
Cited – Greater Manchester Police v Wigan Athletic AFC Ltd CA 19-Dec-2008
The parties disputed the amounts payable by a football club to the police for the attendance of police officers at matches. The defendant appealed against a finding that it had requested the services for which charges had been made under section 25 . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.241444

Hyundai Heavy Industries Co Ltd v Papadopoulos: HL 1980

A shipbuilding contract provided that the second instalment of the contract price should be payable on a day certain. It gave the builders the right to rescind the contract in the event of non-payment. The buyers failed to pay the second instalment, and the builders rescinded. Two questions arose for decision, namely, whether the effect of the rescission was to deprive the builders of their right to claim the second instalment, and whether, if not, the second instalment could be recovered by the buyers on the ground of total failure of consideration.
Held: The defendant’s liability as guarantor continued despite the termination of the contract to build the ships. The instalment of the price in question remained due notwithstanding the termination of the contract: ‘save in the case of sales of land and goods and where there has been a total failure of consideration . . cancellation or rescission of a contract in consequence of a repudiation did not affect accrued rights to the payment of instalments of the contract price unless the contract provided that it was to do so.’
Lord Fraser of Tullybelton: ‘Much of the plausibility of the argument on behalf of the guarantor seemed to me to be derived from the assumption that the contract price was simply a purchase price. That is not so, and once that misconception has been removed I think it is clear that the shipbuilding contract has little similarity with a contract of sale and much more similarity, so far as the present issues are concerned, with contracts in which the party entitled to be paid had either performed work or provided services for which payment is due by the date of cancellation. In contracts of the latter class, which of course includes building and construction contracts, accrued rights to payment are not (in the absence of express provisions) destroyed by cancellation of the contract.’
Lord Edmund-Davies, Lord Fraser of Tullybelton
[1980] 1 WLR 1129, [1980] 2 All ER 29, [1980] 2 Lloyds Rep 1
England and Wales
Citing:
Approved – McDonald v Dennys Lascelles Ltd 1-Mar-1933
(High Court of Australia) ‘When a party to a simple contract, upon breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded as from the beginning. . .
Cited – McDonald v Dennys Lascelles Ltd 1-Mar-1933
(High Court of Australia) ‘When a party to a simple contract, upon breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded as from the beginning. . .

Cited by:
Cited – Astea (UK) Ltd v Time Group Ltd TCC 9-Apr-2003
The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
Cited – Stocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.223523

Re Anglo-Russian Merchant Traders and John Batt and Company (London): 1917

The parties had agreed to export certain goods. The seller failed to deliver, and the only reason given for breaking the contract was the impossibility or illegality of performance attached to it by the Jute (Export) Order 1917. The only reason given by the defendant was the first paragraph of that Order, which dealt only with sale.
Held: Even assuming paragraph 2 to apply, it was not an absolute prohibition, but only a prohibition in the event of failure to get a permit. The defendants never asked the plaintiff to get a permit to deliver, which was something quite different from a permit to manufacture. Lord Reading CJ observed that there was no reason why the law should imply an absolute obligation to do that which the law forbids. It was so said because the Court had construed the contract to mean only that the sellers there were to make their best efforts to obtain the requisite permits.
Viscount Reading CJ
[1917] 2 KB 679
England and Wales
Cited by:
Cited – John Lewis Properties PLC v Viscount Chelsea ChD 1993
Three Leases of the Peter Jones site to T’s predecessor in 1934 contained covenants by T to redevelop the site in two phases, the second of which related to the MackMurdo and Simon’s Street buildings and was to be completed by December 25 1987. In . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.652986

Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos): HL 28 Oct 1994

In a continuing charter when it was clear that the time of the charter will be exceeded, the contract allows an action for an anticipatory breach. Any new redelivery order was to be obtained after after it first became impossible to meet the charter terms. Time was of the essence. The correct date for assessment of the legitimacy of the order was the date on which the vessel completed discharged and was ready to proceed on her last voyage, by which time, on the facts it had become apparent that she could not complete that voyage and be redelivered in accordance with the charterparty. The order previously given then became invalid and the charterers’ persistence in requiring it to be obeyed was repudiatory.
Lord Mustill said: ‘Questions of this kind are better decided by looking at what the contract says than by speculating on the practical outcome of preferring one solution to another. Naturally, no judge will favour an interpretation which produces an obviously absurd result unless the words used drive him to it, since it is unlikely that this is what the parties intended. Where there is no obvious absurdity and simply assertions by either side that its own interpretation yields a more sensible result, there is room for error.’
. . And ‘Finally, some of the legal consequences of late redelivery have been worked out. There remain a number of unanswered questions, with some of which your Lordships are now concerned.’
and ‘At first sight, this apparently anomalous result is a good reason for questioning whether the claim for repudiation was soundly based. On closer examination, however, the anomaly consists, not so much in the size of the damages, but in the fact that damages were awarded at all. Imagine that the without prejudice agreement had not been made, and that the owners, having treated the charter as wrongfully repudiated, had accepted a substitute fixture with Navios. If one then asked what loss had the repudiation caused the owners to suffer, the answer would be – None. On the contrary, the charterers’ wrongful act would have enabled the owners to make a profit. Even if they had not accepted the substitute employment they might very well have suffered no loss, since they would have been in the favourable position of having their ship free in the right place at the right time to take a spot fixture on a rising market. In neither event would the owners ordinarily recover any damages for the wrongful repudiation.’
Lord Mustill
Independent 15-Nov-1994, Times 28-Oct-1994, [1994] 1 WLR 1465, [1995] 1 Lloyd’s Rep 1
England and Wales
Citing:
At First Instance – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) ChD 1991
The ship was returned late from a charter. The court was asked whether or not the legitimacy of the last voyage fell to be established at the date when the order was given or at the time when the last voyage began.
Held: It was the second: . .
Appeal from – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) CA 4-Jun-1993
The ship was returned by the charterer after the expiry of the time charter. The court was asked as to when the validity of the last order was to be tested.
Held: The legitimacy of the charterer’s final order was to be tested at the date it . .

Cited by:
Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Cited – Digital Integration Limited v Software 2000 CA 16-Jan-1997
The parties had entered into a contract for the distribution of software by the plaintiff. The contract was terminated by the plaintiff and the defendant argued that this was in breach of the agreement, and that a sub-clause which apparently gave . .
Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Cited – Century 2000 Enterprises Ltd and Another v SFI Group Plc CA 11-Dec-2001
The claimants appealed against rejection of their claim that an agreement entitled them to take a 35 years lease of the defendants. The contract had depended on complex conditions as to planning consents.
Held: The appeal failed: ‘Ultimately, . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.89921

Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL v Federation royale belge des societes de basket-ball ASBL (FRBSB): ECJ 13 Apr 2000

Europa The need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legal context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. Those requirements are of particular importance in certain areas, such as that of competition, where the factual and legal situations are often complex. The information provided in decisions making references must not only enable the Court to reply usefully but also give the governments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 20 of the Statute of the Court of Justice. It is the Court’s duty to ensure that that opportunity is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the decisions making references are notified to the interested parties. Having regard to the objectives of the Community, sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty (now, after amendment, Article 2 EC). That is the case with the activities of professional basketball players, where they work as paid employees or provide services for remuneration and those activities are effective and genuine activities and not such as to be regarded as purely marginal and ancillary. The Treaty provisions concerning freedom of movement for persons do not preclude rules or practices in the field of sport excluding foreign players from certain matches for reasons which are not of an economic nature, which relate to the particular nature and context of such matches and are thus of sporting interest only, as in the case of matches between national teams from different countries. That restriction on the scope of those provisions must, however, remain limited to its proper objective, and may not be relied on to exclude all sporting activity from the scope of the Treaty. The Community provisions on freedom of movement for persons and freedom to provide services not only apply to the action of public authorities but extend also to rules of any other nature aimed at regulating gainful employment and the provision of services in a collective manner. The abolition as between Member States of obstacles to freedom of movement for persons and freedom to provide services would be compromised if the abolition of State barriers could be neutralised by obstacles resulting from the exercise of their legal autonomy by associations or organisations not governed by public law. A professional basketball player who is a national of a Member State must be regarded as a worker within the meaning of Article 48 of the Treaty (now, after amendment, Article 39 EC) where, having entered into a contract of employment with a club in another Member State with a view to exercising gainful employment in that State, he thereby accepts an offer of employment actually made, within the meaning of Article 48(3)(a) of the Treaty. Article 48 of the EC Treaty (now, after amendment, Article 39 EC) precludes the application of rules laid down in a Member State by sporting associations which prohibit a basketball club from fielding players from other Member States in matches in the national championship, where they have been transferred after a specified date, if that date is earlier than the date which applies to transfers of players from certain non-member countries, unless objective reasons concerning only sport as such or relating to differences between the position of players from a federation in the European zone and that of players from a federation not in that zone justify such different treatment.
C-176/96, [2000] ECR I-2681, [2000] EUECJ C-176/96
Bailii
European
Cited by:
Cited – Adidas-Salomon Ag v Drape and others ChD 7-Jun-2006
The claimants had sponsored tennis players to wear their logo. The respondents organised tennis tournaments whose intended rules would prevent the display of the claimant’s logos. The claimants said that the restriction interfered with their rights . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 August 2021; Ref: scu.161873

Kena Kena Properties Limited v The Attorney General: PC 27 Nov 2001

(New Zealand) The claimants asserted that they had entered into contracts for the supply of nursing home facilities, and in return received payments from the government towards the costs. The contract provided for the increase of payments annually. The Act provided that under contracts certain values were to be adjusted automatically. The rates were not raised, but not as provided under the Act, and the claimants sought payment. The government agency asserted that no contract existed but rather the payments were made as grants, and were not affected by the Act.
Held: There was no requirement that a grant must be paid direct to the person intended to be benefited, the claim was in effect a claim of the same money again. The Act looked at it from the viewpoint of the government as payer. In their view it was in the nature of a grant or subsidy, and was not caught by the Act.
Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Millett, Lord Scott of Foscote
No 44 of 2000, [2001] UKPC 51, [2002] 1 AC 362,, [2002] 2 WLR 313, [2002] STC 581
PC, PC, Bailii
Goods and Services Tax Act 1985 78(2) (New Zealand)
England and Wales

Updated: 21 August 2021; Ref: scu.166939

Dawson v Dawson: 22 Feb 1837

Testator devised a house to trustees, upon trust to permit his son, at any time within three months after his death, to become the purchaser thereof, at the price of 4000 pounds; and to sell and convey the same to his son, his heirs, and co. But should his son not complete such purchase within the three months, then the trustees were, within 12 months from the testators death, to sell the house by auction. The son, within two months from his father’s death, declared to the trustees his intention to purchase the house at the sum mentioned, but they did not deliver the title deeds to their solicitor, or instruct him to prepare the conveyance until the last day of the three months ; and the son did not pay any part of the purchase money, nor was any conveyance executed to him within the three months. Held, that he could not enforce his option.
[1837] EngR 530, (1837) 8 Sim 346, (1837) 59 ER 137 (B), [1837] EngR 531, (1837) Donn Eq 212, (1837) 47 ER 327
Commonlii, Commonlii
England and Wales

Updated: 20 August 2021; Ref: scu.313647

Gardiner v Agnew: 1771

Two co-obligants in a bond and who who had paid the debt sought damages against the creditor who had refused an assignation. They alleged a breach of a duty grant the assignation sought.
Held: the court found for the creditor. The majority thought the demand for an assignation ‘rested only upon equitable considerations’. The minority thought a creditor was obliged to grant an assignation de jure.
1771 M 3385
Scotland

Updated: 20 August 2021; Ref: scu.244791

Ruxley Electronics and Construction Ltd v Forsyth: CA 7 Jan 1994

In 1986, the defendant, wanted a swimming pool adjoining his house. He contracted with the plaintiffs. The contract price for the pool, with certain extras, was 17,797.40 pounds including VAT. The depth of the pool was to be 6 ft 6 in at the deep end. Later Mr Forsyth wanted the depth increased to 7ft 6in. He had a conversation with Mr Hall, who owned or controlled the plaintiff company. Mr Hall agreed to increase the depth without extra charge, but built it to the original specification.
Held: The damages payable for the incorrect building of a swimming pool may be the cost of rebuilding it according to correct specification.
Dillon LJ, dissented, saying: ‘If the evidence had been that the value of the pool as constructed was less than the value of a pool with a depth of 7 ft 6 in as contracted for, but that the loss of value was substantially less than the andpound;21,560 cost of reinstatement, then, given the finding that the pool as constructed is still deep enough to be perfectly safe to dive into, the obvious course would have been to award Mr Forsyth the loss of value. The basis of that would have been reasonableness. He has no absolute right to be awarded the cost of reinstatement. I see no reason, therefore, why if there has been no loss in value, he should automatically become entitled to the cost of reinstatement, however high. That would be a wholly unreasonable conclusion in law. Accordingly, I agree with the judge’s approach and would dismiss this appeal.’
Staughton LJ held that Mr Forsyth was entitled to the cost of reinstatement, however expensive, since there was no other way of giving him what he had contracted for. While reasonableness lies at the heart of the rule that a plaintiff must mitigate his damage, it plays no part at all where there is no cheaper remedy available for the defendant’s breach of contract: ‘What money will place him ‘in the same situation . . as if the contract had been performed?’ The answer, on the facts of this case, is the cost of replacing the pool. Otherwise, a builder of swimming pools need never perform his contract. He can always argue that 5 ft in depth is enough for diving, even if the purchaser has stipulated for 6, 7 or 8 ft, and pay no damages. In my judgment the key lies in the proposition of Oliver J that reasonableness is a matter of mitigation. It is unreasonable of a plaintiff to claim an expensive remedy if there is some cheaper alternative which would make good his loss. Thus he cannot claim the cost of reinstatement if the difference in value would make good his loss by enabling him to purchase the building or chattel that he requires elsewhere. But if there is no alternative course which will provide what he requires, or none which will cost less, he is entitled to the cost of repair or reinstatement even if that is very expensive . . Since there is no other alternative which will provide that which he has contracted for, he is entitled to incur that expense and charge it to the defendant.’
It was irrelevant that Mr Forsyth did not intend to rebuild the pool. What a plaintiff does with his damages is no concern to the defendant.
Mann LJ accepted that there may be cases where it would be unreasonable to award the cost of rectifying a failed project. But this was not such a case, because the bargain was for what Mann LJ called ‘a personal preference’. Although the value of the pool was the same, as found by the judge, Mr Forsyth was entitled to have his personal preference satisfied. The only way that could be done was by rebuilding the pool. Since the majority of the court awarded the full cost of reinstatement, they set aside the judge’s award of andpound;2,500 general damages for loss of amenity.
Mann LJ, Dillon LJ, Staughton LJ
Gazette 16-Feb-1994, Times 07-Jan-1994, [1994] 3 All ER 801, [1994] 1 WLR 650
England and Wales
Cited by:
Appeal from – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Channel Island Ferries Ltd v Cenargo Navigation Ltd (The Rozel) QBD 5-Apr-1994
Arbitrator to award all costs even if award much less than original claim.
Phillips J said: ‘It is always necessary to exercise the greatest care before applying the reasoning in one case to a different factual situation, and this is . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.88940

Sunnassee v Ardill: PC 21 May 2001

(Mauritius) The appeal concerned an option to purchase land. The parties differed as to the identity of the land covered, and as to the service of the notice exercising the option. Certain factual elements had not been resolved in the lower courts, and while reasserting their reluctance to investigate matters of fact, the court agreed to look at some factual issues. After many years the claimant was unable to produce evidence of the service of a particular notice, only a copy of the letter sent. An apparent mistake by the parties in referring to a plan which did not accord with the expectations of either of them would not vitiate the contractual option. Each party thought the plan referred to was in a certain form.
[2001] UKPC 25, Appeal No 50 of 1999
Bailii, PC, PC
England and Wales

Updated: 18 August 2021; Ref: scu.163292

Oliver v The Governor and Company of the Bank of England: CA 1902

Sterling LJ said: ‘It has often been held in actions for misrepresentation that where a misrepresentation is proved and is shown to have been relied upon, that is enough, although the person who enters into the transaction on the faith of the misrepresentation may have also had other inducements to enter into the transaction. There is an instance of that in the case of Edgington v Fitzmaurice.’
Sterling LJ
[1902] 1 Ch 610
England and Wales
Citing:
Cited – Edgington v Fitzmaurice CA 7-Mar-1885
False Prospectus – Issuers liable in Deceit
The directors of a company issued a prospectus, falsely stating that the proceeds were to be used to complete alterations to the buildings of the company, to purchase horses and vans and to develop the trade of the company. In fact it was to pay off . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2021; Ref: scu.268094

Aberdeen Railway Co v Blaikie Brothers: HL 1854

The plaintiff needed a large quantity of iron chairs (rail sockets) and contracted for their supply over an 18-month period with Blaikie Bros a partnership. Thomas Blaikie was the managing partner of Blaikie Bros and a director and the chairman of the Aberdeen Railway Company. The contract was partly performed but, having taken delivery of about two-thirds of the iron chairs, the Aberdeen Railway Company refused to accept any more. The defendant sought to enforce the contract or for damages for breach.
Held: The railway company’s defence succeeded on the grounds that Mr Blaikie’s self-dealing rendered the contract voidable at its suit.
The equitable rule as to the accountability of directors is not limited to cases in which there is a maturing business opportunity but extends to cases in which the director either has or can have a personal interest conflicting, or which possibly may conflict, with the interests of whose whom he is bound to protect. ‘This, therefore, brings us to the general question, whether a Director of a Railway Company is or is not precluded from dealing on behalf of the Company with himself, or with a firm in which he is a partner. The Directors are a body to whom is delegated the duty of managing the general affairs of the Company. A corporate body can only act by agents, and it is of course the duty of those agents so to act as best to promote the interests of the corporation whose affairs they are conducting. Such agents have duties to discharge of a fiduciary nature towards their principal. And it is a rule of universal application, that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect. So strictly is this principle adhered to, that no question is allowed to be raised as to the fairness or unfairness of a contract so entered into.’
and ‘Mr Blaikie was not only a Director, but (if that was necessary) the Chairman of the Directors. In that character it was his bounden duty to make the best bargains he could for the benefit of the Company. While he filled that character, namely, on the 6th of February, 1846, he entered into a contract on behalf of the Company with his own firm, for the purchase of a large quantity of iron chairs at a certain stipulated price. His duty to the Company imposed on him the obligation of obtaining these chairs at the lowest possible price. His personal interest would lead him in an entirely opposite direction, would induce him to fix the price as high as possible. This is the very evil against which the rule in question is directed, and I here see nothing whatever to prevent its application. I observe that Lord Fullerton seemed to doubt whether the rule would apply where the party whose act or contract is called in question is only one of a body of Directors, not a sole trustee or manager. But, with all deference, this appears to me to make no difference. It was Mr Blaikie’s duty to give his co-Directors, and through them to the Company, the full benefit of all the knowledge and skill which he could bring to bear on the subject. He was bound to assist them in getting the articles contracted for at the cheapest possible rate. As far as related to the advice he should give them, he put his interest in conflict with his duty, and whether he was the sole Director or only one of many, can make no difference in principle. The same observation applies to the fact that he was not the sole person contracting with the Company; he was one of the firm of Blaikie Brothers, with whom the contract was made, and so interested in driving as hard a bargain with the Company as he could induce them to make.’
Lord Cranworth LC
(1854) 1 Macq 461, (1854) 17 D (HL) 20
Scotland
Cited by:
Cited – Ness Training Limited v Triage Central Ltd and c ScHC 27-Aug-2001
The complainant sought a contract to deliver services to the New Deal system in Scotland as part of a joint venture. They incorporated in England, but were then told they needed to be a Scottish company. A new company was established in Scotland, . .
Cited – Bhullar and others v Bhullar and Another CA 31-Mar-2003
The claimants were 50% shareholders in a property investment company and sought relief alleging prejudicial conduct of the company’s affairs. After a falling out, two directors purchased property adjacent to a company property but in their own . .
Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
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 – Towers v Premier Waste Management Ltd CA 28-Jul-2011
The defendant appealed against a finding that as a director of the claimant company he had accepted personal benefits from a customer without disclosing this to the company.
Held: The appeal failed. . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2021; Ref: scu.180412

Zockoll Group Limited v Mercury Communications Limited: CA 8 Jul 1997

Philips LJ
[1998] FSR 354, [1997] EWCA Civ 2053
England and Wales
Citing:
Approved – Nottingham Building Society v Eurodynamics Systems plc 1993
The court laid down tests for the granting of mandatory interim injunctions. The court should consider whether there was a high degree of confidence that the applicant would succeed in establishing his right at trial. The higher that confidence, the . .

Cited by:
See Also – Zockoll Group Ltd v Mercury Communications Limited CA 27-Aug-1997
The plaintiffs appealed against refusal of an interlocutory injunction restraining the Defendants, ‘Mercury’ from withdrawing from Zockoll the use of a particular telephone number, 0500 354448. Immediately upon that Order being made, Mercury . .
Cited – Chambers v British Olympic Association QBD 18-Jul-2008
The claimant, a former Olypmic sprinter had now competed a ban after being found to have taken banned drugs. He had returned to the sprort but now challenged the policy of the respondent not to allow for consideration of the Olympic team, athletes . .
Cited – Bains and Others v Moore and Others QBD 15-Feb-2017
The claimant anti-asbestos campaigners complained that the defendant investigators had infringed their various rights of privacy. They now sought discovery to support the claim.
Held: the contents of the witness statements do show that it is . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2021; Ref: scu.142450

Zockoll Group Ltd v Mercury Communications Limited: CA 27 Aug 1997

The plaintiffs appealed against refusal of an interlocutory injunction restraining the Defendants, ‘Mercury’ from withdrawing from Zockoll the use of a particular telephone number, 0500 354448. Immediately upon that Order being made, Mercury withdrew that number from Zockoll and assigned it to another of their customers. Z now invited the Court to grant a mandatory injunction to withdraw that number and re-assign it to the Plaintiffs.
Simon Brown, Philips LJJ
[1998] 1 FSR 354, [1997] EWCA Civ 2317
Bailii
Unfair Contract Terms Act 1977 3, Telecommunications Act 1984
England and Wales
Citing:
See Also – Zockoll Group Limited v Mercury Communications Limited CA 8-Jul-1997
. .
Approved – Nottingham Building Society v Eurodynamics Systems plc 1993
The court laid down tests for the granting of mandatory interim injunctions. The court should consider whether there was a high degree of confidence that the applicant would succeed in establishing his right at trial. The higher that confidence, the . .
Cited – Shepherd Homes Ltd v Sandham ChD 1970
In the context of an interlocutory application for an enforcing a mandatory injunction, Megarry J said: ‘on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2021; Ref: scu.142715

Marubeni Hong Kong and South China Ltd v Mongolian Government: ComC 12 Mar 2004

The court dismissed a claim for money owed by the Mongolian government based upon a letter of guarantee issued by the ministry of finance.
Held: The English court would not seek to adjudicate upon the cabinet meetings of friendly powers.
Cresswell J
[2004] EWHC 472 (Comm), Times 14-May-2004, [2004] 2 Lloyd’s Rep 198
Bailii
England and Wales
Cited by:
Appeal from – Marubeni Hong Kong and South China Ltd v Ministry of Finance of Mongolia CA 13-Apr-2005
A letter was written by the Mongolian Ministry of Finance guaranteeing payment for textile plant and machinery to be supplied to a Mongolian company. A letter from the justice minister confirmed the authority of the finance minister to sign the . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 August 2021; Ref: scu.194721

Farnworth Finance Facilities Ltd v Attryde: 1970

Mr A bought a motor-cycle on hire-purchase. Mr Attryed had ridden this bicycle for 4,000 miles. Even after he got it back from the makers he had used for five or six weeks and had ridden 3,000 miles on it. He had complained from the beginning of the defects and sent the machine back for them to be remedied. He did not elect to accept it unless they were remedied. But the defects were never satisfactorily remedied. When the rear chain broke, it was the last straw. It showed that the machine could not be relied upon. This knowledge was not brought home to him until this last final incident. The
Held: Affirmation is a matter of election. A man only affirms a contract when he knows of the defects and by his conduct he likes to go on with contract despite them.
If after a breach, the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation.
[1970] 1 WLR 1053
England and Wales
Cited by:
Cited – W E Cox Toner (International) Ltd v Crook EAT 1981
In a case of constructive dismissal, the ordinary contractual rule applies; the wronged party may give the other party an opportunity to remedy the breach. In doing so he does not waive the breach and thereby affirm the contract.
Cited – Buckland v Bournemouth University Higher Education Corporation CA 24-Feb-2010
The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. The EAT had allowed . .
Cited – Buckland v Bournemouth University Higher Education Corporation CA 24-Feb-2010
The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. The EAT had allowed . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2021; Ref: scu.401805

Harrison v Fane: 1840

The defendant child purported to hire horses, saddles and harness from the plaintiff. On a plea of infancy, the plaintiff pleaded that these were necessaries.
Held: Though this would be a mater for the jury, it appeared that the defendant was an Oxford student, but the plaintiff brought forward no evidence that the items were necessaries, beyond averring that the defendant kept a horse, and from time to time went hunting with his wealthy father, the judge had told the jury that in his view the plaintiff was not able to recover.
Held: On the defendant’s appeal the jury’s verdict was set aside as perverse.
[1840] EngR 103, (1840) 1 Man and G 550, (1840) 133 ER 450
Commonlii
England and Wales
Citing:
Cited – Peters v Fleming 1840
The plaintiff sought a declaration as to goods sold. The defendant pleaded his infancy. The plaintiff pleaded that the goods were necessaries appropriate to the state and condition of the defendant.
Held: The term ‘necessaries’ included those . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2021; Ref: scu.309529

Peters v Fleming: 1840

The plaintiff sought a declaration as to goods sold. The defendant pleaded his infancy. The plaintiff pleaded that the goods were necessaries appropriate to the state and condition of the defendant.
Held: The term ‘necessaries’ included those things which were useful and suitable for the party, and were not restricted to things requisite for bare subsistence.
Whether the articles in question such as might be required for a person of the defendant’s age and station was a matter for the jury. Items which are merely ornamental will not in any case be necessaries.
[1840] EngR 170, (1840) 6 M and W 42, (1840) 151 ER 314
Commonlii
England and Wales
Cited by:
Cited – Harrison v Fane 1840
The defendant child purported to hire horses, saddles and harness from the plaintiff. On a plea of infancy, the plaintiff pleaded that these were necessaries.
Held: Though this would be a mater for the jury, it appeared that the defendant was . .
Cited – Gingell v Bean 12-May-1840
Although the general practice may be for one party to the suit to draw up a rule obtained in the progress of a cause, if the other party wishes to act upon it, he should draw it up within the time to which it relates; for if not drawn up within such . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2021; Ref: scu.309596

Herbert Clayton and Jack Waller Ltd v Oliver: HL 1930

When awarding damages for breach of contract courts should take care to confine the damages to their proper ambit: making good financial loss. When considering an award of damages to an actor who should have been billed to appear at the London Hippodrome, the court regarded loss of publicity rather than loss of reputation as the preferable expression.
Lord Buckmaster said: ‘In the present case the old and well established rule applies without qualification, the damages are those that may reasonably be supposed to have been in the contemplation of the parties at the time when the contract was made, as the probable result of its breach, and if any special circumstances were unknown to one of the parties, the damages associated with and flowing from such breach cannot be included. Here both parties knew that as flowing from the contract the plaintiff would be billed and advertised as appearing at the Hippodrome, and in the theatrical profession this is a valuable right.’
Lord Buckmaster
[1930] AC 209
England and Wales
Citing:
Applied – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .

Cited by:
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2021; Ref: scu.182104

Jet2Com Ltd v SC Compania Nationala De Transporturi Aeriene Romane Tarom Sa: ComC 15 Mar 2012

The parties had contracted for the defendant to maintain certain of the claimant’s aircraft. Each now asserted breach by the other.
Held: Neither the terms of the contract nor its character made time of the essence for the payments to be made by the claimant, and the defendant was not able to terminate the contract for late payment. The defendant’s actions therefore amounted to a repudiation, which was eventually accepted by the claimant, even if the reasons given by the claimant at the time were incorrect.
Mackie QC J
[2012] EWHC 622 (Comm)
Bailii
England and Wales
Citing:
Cited – Oceanic Freighters Corporation v MV Libyaville Reederei und Schiffahrts GmbH (The Libyaville) QBD 1975
In charterparty disputes guidance may sometimes be found in landlord and tenant law. Using such a principle in this case, Mocatta J held that the acceptance of a smaller sum than the hire due, albeit under strong protest, precluded the shipowner . .
Cited – Afovos Shipping Co SA v R Pagnan and Fratelli ChD 1980
Lloyd J regarded the fact that the breach of contract complained of involved the fault of the applicant as being a telling factor against the grant of relief. Wilful breaches will only exceptionally be relieved against. . .
Cited – Latvian Shipping Company and Others v Stocznia Gdanska Sa CA 21-Jun-2002
A payment condition was just that and that a failure to pay entitled the seller to terminate at common law. Rix LJ said: ‘It is established law that, where one party to a contract has repudiated it, the other may validly accept that repudiation by . .
Cited – Johnstone v Milling CA 1886
The court considered the acceptance of the repudiation of a contract.
Held: Lord Esher MR said: ‘When one party assumes to renounce the contract, that is, by anticipation refuses to perform it, he thereby, so far as he is concerned, declares . .
Cited – Maredelanto Compania Naviera SA v BergbauHandel GmbH (The Mihalis Angelos) CA 1-Jul-1970
mihalisCA1970
The parties had agreed a charterparty. The ship was to sail to Haiphong to load a cargo for delivery in Europe. The charterer had a right to cancel if the vessel was not ready on a certain date, but a few days earlier they repudiated the charter. . .
Cited – Force India Formula One Team Ltd v Etihad Airways PJSC and Another CA 6-Oct-2010
The claimant complained of the failure to honour its sponsorship agreement of its Formula 1 racing team. The court at first instance had found the breaches to have been waived.
Held: Rix LJ discussed the consequences of a breach, saying: ‘this . .
Cited – Durham Tees Valley Airport Ltd v BMIbaby Ltd and Another CA 5-May-2010
Whilst it is correct that damages for breach of contract are assessed on the basis that the party in breach would have performed the contract in the manner least onerous to it, the court will make its counterfactual assessment on the basis that the . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.452309

Towergate Financial (Group) Ltd and Others v Hopkinson and Others: ComC 24 Apr 2020

Trial of a preliminary issue on a point of construction. The issue relates to the meaning of indemnity provisions contained in a share sale agreement, the resort to these provisions having been caused by complaints of historic mis-selling of financial products.
Cockerill J
[2020] EWHC 984 (Comm)
Bailii
England and Wales

Updated: 12 August 2021; Ref: scu.651158

Courtney and Fairbairn Limited v Tolaini Brothers (Hotels) Ltd: CA 1975

There was an agreement between a site developer and building contractors who introduced a financier to provide money for the development project. The question arose whether the developer had entered into a binding and enforceable contract to employ the contractors to carry out the development work at a price to be agreed.
Held: Since there had been no agreement upon such a fundamental matter as the price in a building contract or the method by which it was to be calculated there was no contract.
[1975] 1 All ER 716, [1975] 1 WLR 297
England and Wales
Cited by:
Cited – Walford v Miles HL 1992
Agreement to Negotiate is Unworkable as a Contract
The buyers and sellers of a company agreed orally for the sellers to deal with the buyers exclusively and to terminate any negotiations between them and any other competing buyer. The sellers later decided not to proceed with their negotiations with . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.653061

Morris-Garner and Another v One Step (Support) Ltd: SC 18 Apr 2018

The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to perform?
Held: The appeal was allowed. In such situations, an imagined negotiation to assess the loss was allowed. The loss to be compensated equated to the economic value of the right breached, if treated as an asset. The negotiation imagined to assess such ‘negotiating damages’ was a way of getting to the value and was not incompatible with the compensatory purpose of awarding contractual damages. The underlying question was as to the circumstances where that value did measure the claimant’s loss.
The court concluded that: ‘(1) Damages assessed by reference to the value of the use wrongfully made of property (sometimes termed ‘user damages’) are readily awarded at common law for the invasion of rights to tangible moveable or immoveable property (by detinue, conversion or trespass). The rationale of such awards is that the person who makes wrongful use of property, where its use is commercially valuable, prevents the owner from exercising a valuable right to control its use, and should therefore compensate him for the loss of the value of the exercise of that right. He takes something for nothing, for which the owner was entitled to require payment.
(2) Damages are also available on a similar basis for patent infringement and breaches of other intellectual property rights.
(3) Damages can be awarded under Lord Cairns’ Act in substitution for specific performance or an injunction, where the court had jurisdiction to entertain an application for such relief at the time when the proceedings were commenced. Such damages are a monetary substitute for what is lost by the withholding of such relief.
(4) One possible method of quantifying damages under this head is on the basis of the economic value of the right which the court has declined to enforce, and which it has consequently rendered worthless. Such a valuation can be arrived at by reference to the amount which the claimant might reasonably have demanded as a quid pro quo for the relaxation of the obligation in question. The rationale is that, since the withholding of specific relief has the same practical effect as requiring the claimant to permit the infringement of his rights, his loss can be measured by reference to the economic value of such permission.
(5) That is not, however, the only approach to assessing damages under Lord Cairns’ Act. It is for the court to judge what method of quantification, in the circumstances of the case before it, will give a fair equivalent for what is lost by the refusal of the injunction.
(6) Common law damages for breach of contract are intended to compensate the claimant for loss or damage resulting from the non-performance of the obligation in question. They are therefore normally based on the difference between the effect of performance and non-performance upon the claimant’s situation.
(7) Where damages are sought at common law for breach of contract, it is for the claimant to establish that a loss has been incurred, in the sense that he is in a less favourable situation, either economically or in some other respect, than he would have been in if the contract had been performed.
(8) Where the breach of a contractual obligation has caused the claimant to suffer economic loss, that loss should be measured or estimated as accurately and reliably as the nature of the case permits. The law is tolerant of imprecision where the loss is incapable of precise measurement, and there are also a variety of legal principles which can assist the claimant in cases where there is a paucity of evidence.
(9) Where the claimant’s interest in the performance of a contract is purely economic, and he cannot establish that any economic loss has resulted from its breach, the normal inference is that he has not suffered any loss. In that event, he cannot be awarded more than nominal damages.
(10) Negotiating damages can be awarded for breach of contract where the loss suffered by the claimant is appropriately measured by reference to the economic value of the right which has been breached, considered as an asset. That may be the position where the breach of contract results in the loss of a valuable asset created or protected by the right which was infringed. The rationale is that the claimant has in substance been deprived of a valuable asset, and his loss can therefore be measured by determining the economic value of the right in question, considered as an asset. The defendant has taken something for nothing, for which the claimant was entitled to require payment.
(11) Common law damages for breach of contract cannot be awarded merely for the purpose of depriving the defendant of profits made as a result of the breach, other than in exceptional circumstances, following Attorney General v Blake.
(12) Common law damages for breach of contract are not a matter of discretion. They are claimed as of right, and they are awarded or refused on the basis of legal principle’
Lady Hale, President, Lord Wilson, Lord Sumption, Lord Reed, Lord Carnwath
[2018] UKSC 20, [2018] IRLR 661, [2018] 2 All ER (Comm) 769, [2018] 3 All ER 659, [2018] 1 Lloyds Rep 495, [2018] 2 WLR 135, UKSC 2016/0086, [2018] WLR(D) 260
Bailii, Bailii Summary, SC, SC Summary, SC Video Summary, SC 2017 Oct 11 amVideo, SC 2017 Oct 11 pm Video, SC 2017 Ot 12 am Video, WLRD, WLRD
Chancery Amendment Act 1858 2, Senior Courts Act 1981 50
England and Wales
Citing:
At QBD – One Step (Support) Ltd v Morris-Garner and Another QBD 7-Jul-2014
The defendant had sold her interest in the claimant company, undertaking not to compete. The claimant now sought damages alleging a breach.
Held: The defendants had acted in breach of contract by breaching the non-compete covenants (although . .
Appeal from (CA) – Morris-Garner and Another v One Step (Support) Ltd CA 22-Mar-2016
Alleged breach of non-solicitation covenants in the sale of a business providing ‘supported living’ services for children leaving care and vulnerable adults.
Held: The defendant’s appeal was dismissed.
The test was whether an award of . .
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
Cited – Liverpool and Lancashire Properties Limited and Another v Lunn Poly Ltd and Another CA 15-Mar-2006
Where a tenant successfully obtained relief from forfeiture, and compensatory damages were payable under the 1858 Act in lieu of an injunction, and had assigned the lease for a profit the court could exceptionally use its equitable jurisdiction to . .
Cited – Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd and Others PC 26-Nov-2009
(From the Court of Appeal of Jersey) Lord Walker reviewed the principles in awarding damages under Lord Cairns Act, setting out five general principles established by the authorities. They included: ‘1. Damages (often termed ‘user damage’) are . .
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Cited – Experience Hendrix LLC v PPX Enterprises Inc and Another CA 20-Mar-2003
The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form . .
Cited – Strand Electric and Engineering Co Ltd v Berisford Entertainments Ltd 1952
The court assessed the amount of damages for the wrongful refusal to deliver up portable switchboards which the owner would not have used anyway (detinue). The measure was a sum equivalent to the price or hire that a reasonable person would pay for . .
Cited – Whitwham v Westminster Brymbo Coal and Coke Co CA 24-Jun-1896
Common law damages for the misuse of property involved an award of a sum equivalent to the price or hire that a reasonable person would pay for such use, even if the owner would not himself actually have been using the property. This case involved . .
Cited – Watson Laidlaw and Co v Pott Cassels and Williamson HL 26-Jun-1911
A patent was obtained for ‘improvements in centrifugal machines.’ It dealt with a means of supporting while preventing the oscillation of the spindle to which the basket rotated is attached, and the means employed was, in typical form, a hollow . .
Cited – The Owners of the Steamship Mediana v The Owners, Master and Crew of the Lightship Comet HL 1900
A lightship was damaged by negligence. The plaintiff harbour board kept a ship ready for emergencies, and consequently the damaged ship was replaced with the spare while she was being repaired. The question was whether the claimant could recover . .
Cited – Meters Limited v Metropolitan Gas Meters Limited ChD 1910
The plaintiffs had claimed and proved infringement of patents relating to improvements in gas meters. The Master had assessed damages in the inquiry in relation to the plaintiffs’ loss of profits in relation to entire meters. The defendants now . .
Cited – Stoke-on-Trent City Council v W and J Wass Ltd CA 1988
The council had operated open markets on its land under statutory authority. In breach of the statute, the defendant operated a market on a different day, but within the excluded area. This was a nuisance actionable on proof of damage. The council . .
Cited – Meters Limited v Metropolitan Gas Meters Limited CA 1911
The defendant having been found to have infringed the defendants patents, now appealed against the method of calculation of damages.
Held: The appeal failed. Fletcher Moulton LJ emphasised the discretion given to a judge, and said: ‘But I am . .
Cited – Robinson v Harman 18-Jan-1848
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Bunge Sa v Nidera Bv SC 1-Jul-2015
The court considered the effect of the default clause in a standard form of contract which is widely used in the grain trade. On 10 June 2010 the respondents, Nidera BV, whom I shall call ‘the buyers’, entered into a contract with the appellants, . .
Cited – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Cited – Parabola Investments Ltd and Others v Browallia Cal Ltd and Others CA 5-May-2010
The second defendant appealed against the level of damages awarded against him after he was found guilty of a fraud on the claimant, saying that the loss of profits element was unproven.
Held: The appeal failed. Where a claimant’s investment . .
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Surrey County Council and Mole District Council v Bredero Homes Ltd ChD 1992
Land was agreed to be sold for development in accordance with an existing planning permission. Instead a later permission was obtained, and more houses were built. The plaintiff had not sought to restrain or prevent the breach, but now sought . .
Cited – Leeds Industrial Co-operative Society Ltd v Slack HL 1924
The plaintiff complained of a threatened interference with ancient lights.
Held: Damages may be awarded in lieu of an injunction even where the injunction sought is a quia timet injunction, but that power imports a further power to give an . .
Cited – Battishill v Reed and Another 28-May-1856
Action for disturbance of certain alleged rights of the plaintiff.. . .
Cited – Marathon Asset Management Llp and Another v Seddon and Others ComC 22-Feb-2017
. .
Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Cited – CF Partners (UK) Llp v Barclays Bank Plc and Another ChD 24-Sep-2014
CFP sought compensation for the alleged breach of an exclusivity agreement, and the misuse of confidential information, in the context of the pursuit and acquisition by the first defendant, Barclays Bank PLC of the second defendant, a body . .
Cited – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
Cited – Vercoe and Others v Rutland Fund Management Ltd and Others ChD 5-Mar-2010
Claim in respect of a management buy-in transaction in relation to a company which carried on business as a pawnbroker. . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Cited by:
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.608734

BP Exploration Co (Libya) Ltd v Hunt: 1976

The fact that the contract was governed by English law was the predominating factor to be borne in mind when deciding jurisdiction.
The court should be careful before describing as non-disclosure as material not included in an affidavit in support of a claim for jurisdiction. A failure to refer to arguments on the merits which the defendant may raise in answer to the claim should not generally be characterised as a failure to make a full disclosure unless they were of such weight that the omission might mislead the court in exercising its jurisdiction and its discretion whether or not to grant leave. Kerr J said: ‘the court should not consider the supporting affidavit as though it were marking an examination paper, deciding one way or the other merely on the basis of the extent to which the affidavit could have been improved. The primary question should be whether in all the circumstances the effect of the affidavit is to mislead the court in any material respect concerning its jurisdiction and the discretion under the rule.’
and ‘I think that the correct analysis is that the contract was made in London and amended in Dallas; not that it was made partly in London and partly in Dallas, or elsewhere. The 1967 amendment could not stand alone; it merely amended certain provisions of the 1960 agreement. The position would, of course, have been different if the 1967 amendment had operated as a discharge of the 1960 agreement and substituted a fresh agreement. The foregoing analysis is also in accord with what Denning LJ appears to have thought in Entores Ltd v Miles Far East Corporation [1955] 2 QB 327, 334, where he preferred the view that an agreement made in one country and amended in another should be regarded as not having been made in the latter country.’
Kerr J
[1976] 3 All ER 879, [1976] 1 WLR 788
RSC Order 11 rule 1(d)(iii)
England and Wales
Citing:
Cited – Entores Ltd v Miles Far East Corporation CA 1955
The plaintiff traded from London, and telexed an offer to purchase cathodes to a company in Holland, who signified their acceptance by return, again by telex. Entores later wanted to sue the defendant, the parent company of the Dutch party. It was . .

Cited by:
Cited – Sawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
Cited – Stocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
Applied – Konamaneni v Rolls Royce Industrial Power (India) Limited ChD 20-Dec-2001
The claimants founded their action on the assertion that the defendants had been corrupt in obtaining contracts in India. The defendants argued that the English courts had no jurisdiction. The claimants held various small shareholdings in a company . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
See Also – BP Exploration Co (Libya) Ltd v Hunt (No 2) 1979
The contract between the parties relating to an oil concession in Libya had been frustrated by the nationalisation of the field.
Held: The court considered the setting of damages where the plaintiff had delayed in notifying the defendant of . .
See Also – BP Exploration Co (Libya) Ltd v Hunt (No. 2) 1982
The court considered the application of interest to damages: ‘the basic principle . . that interest will be awarded from the date of loss’ and ‘the mere fact that it is impossible for the defendant to quantify the sum due until judgment has been . .
Cited – Novus Aviation Ltd v Onur Air Tasimacilik As CA 27-Feb-2009
The defendant appealed against a refusal to set aside the grant of leave to serve outside the jurisdiction granted to the claimant. Neither party conducted and business in England, and the contract was made in Switzerland, but was expressed to be . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.237263

BP Exploration Co (Libya) Ltd v Hunt (No 2): 1979

The contract between the parties relating to an oil concession in Libya had been frustrated by the nationalisation of the field.
Held: The court considered the setting of damages where the plaintiff had delayed in notifying the defendant of the claim. Interest is awarded not as a punishment but to compensate a claimant for having been deprived of the money which was due to him, though: ‘The basic principle, is, however, that interest will be awarded from the date of loss.’
are (a) receipt by the defendant of a benefit (b) at the plaintiff’s expense, (c) in such circumstances that would be unjust to allow the defendant to retain the benefit.’
In a claim for unjust enrichment, the formulation of the requirements of the cause of action are: (a) receipt by the defendant of a benefit (b) at the plaintiff’s expense, (c) in such circumstances that would be unjust to allow the defendant to retain the benefit.
Rober Goff J discussed the calculation of damages under the 1943 Act: ‘A crucial question, on which the Act is surprisingly silent, is this: what bearing do the terms of the contract, under which the plaintiff has acted, have on the assessment of the just sum? First, the terms on which the work was done may serve to indicate the full scope of the work done, and so be relevant to the sum awarded in respect of such work. For example, if I do work under a contract under which I am to receive a substantial prize if successful, and nothing if I fail, and the contract is frustrated before the work is complete but not before a substantial benefit has been obtained by the defendant, the element of risk taken by the plaintiff may be held to have the effect of enhancing the amount of any sum to be awarded. Secondly, the contract consideration is always relevant as providing some evidence of what will be a reasonable sum to be awarded in respect of the plaintiff’s work. Thus if a prospector, employed for a fee, discovers a gold-mine before the contract under which he is employed is frustrated (for example, by illegality or by his illness or disablement) at a time when his work was incomplete, the court may think it just to make an award in the nature of a reasonable fee for what he has done (though of course the benefit obtained by the defendant will be far greater), and a rateable part of the contract fee may provide useful evidence of the level of sum to be awarded. If, however, the contract had provided that he was to receive a stake in the concession, then the just sum might be enhanced on the basis that, in all the circumstances, a reasonable sum should take account of such a factor: cf Way v Latilla [1937] 3 All ER 759. Thirdly, however, the contract consideration, or a rateable part of it, may provide a limit to the sum to be awarded. To take a fairly extreme example, a poor householder or a small businessman may obtain a contract for building work to be done to his premises at considerably less than the market price, on the basis that he cannot afford to pay more. In such a case, the court may consider it just to limit the award to a rateable part of the contract price, on the ground that it was the understanding of the parties that in no circumstances (including the circumstances of the contract being frustrated) should the plaintiff recover more than the contract price or a rateable part of it. Such a limit may properly be said to arise by virtue of the operation of s 2(3) of the Act. But it must not be forgotten that, unlike money, services can never be restored, nor usually can goods, since they are likely to have been either consumed or disposed of, or to have depreciated in value; and since, ex hypothesi, the defendant will only have been prepared to contract for the goods or services on the basis that he paid no more than the contract consideration, it may be unjust to compel him, by an award under the Act, to pay more than that consideration, or a rateable part of it, in respect of the services or goods he has received. It is unnecessary for me to decide whether this will always be so; but it is likely that in most cases this will impose an important limit on the sum to be awarded: indeed it may well be the most relevant limit to an award under s 1(3) of the Act. ‘
. . And, as to the award of statutory interest under the 1838 Act: ‘Another matter which is generally ignored is the financial situation of the plaintiff; it should generally make no difference even if, for example, it could be shown that a plaintiff in a personal injury action was a person who would simply have paid the damages, if received earlier, into his current account at the bank which was permanently in credit.’
Robert Goff J
[1979] 1 WLR 783
Law Reform (Frustrated Contracts) Act 1943, Judgments Act 1838
England and Wales
Citing:
See Also – BP Exploration Co (Libya) Ltd v Hunt 1976
The fact that the contract was governed by English law was the predominating factor to be borne in mind when deciding jurisdiction.
The court should be careful before describing as non-disclosure as material not included in an affidavit in . .
Cited – General Tire v Firestone Tyre and Rubber Company Limited HL 1975
The object of damages is to compensate for loss or injury. The general rule for ‘economic’ torts is that the measure is that sum of money which will put the injured party in the same position as he would have been in if he had not sustained the . .

Cited by:
Cited – Stocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
Cited – Sycamore Bidco Ltd v Breslin and Another ChD 14-Feb-2013
The court considered whether it was correct to award interest on the sum of damages for the period before as well as after judgment, and if so, from what date and at what rate of interest.. . .
Cited – Jones and Others v Secretary of State for Energy and Climate Change and Another QBD 3-May-2013
The claimants sought an order for pre-judgment interest on the disbursements incurred in this group litigation. The clients were liable for payment of the disbursements under the conditional fee agreements, and in this case these amounted to over . .
Cited – Sabic UK Petrochemicals Ltd v Punj Lloyd Ltd TCC 10-Oct-2013
Dispute as to the approach applicable on calculation of statutory interest on judgment.
Held: Interest was awarded at the normal commercial rate. The correct question was how the Claimant ‘could have put itself in possession of the funds that . .
Cited – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .
Cited – Gamerco Sa v ICM Fair Warning (Agency) Ltd and Another QBD 31-Mar-1995
The plaintiff Spanish concert promoter, and the defendant rock group, Guns ‘n’ Roses, agreed to provide a concert at the stadium of Atetico Madrid, but shortly before it was due to take place, the stadium was deemed unfit, and its licence withdrawn. . .
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.238540

Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd: HL 15 Jun 1942

A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war.
Held: Lord Wright restated in the English language the maxim ‘nemo debet locupletari aliena jactura of the civil law: ‘It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution.’
Viscount Salmon said: ‘when one is considering the law of failure of consideration and of the quasi-contractual right to recover money on that ground, it is, generally speaking, not the promise which is referred to as the consideration, but the performance of the promise. If this were not so, there could never be any recovery of money, for failure of consideration, by the payer of the money in return for a promise of future performance, yet there are endless examples which show that money can be recovered, as for a complete failure of consideration, in cases where the promise was given but could not be fulfilled.’ and ‘In English law, an enforceable contract may be formed by an exchange of a promise for a promise, or by the exchange of a promise for an act . . . but when one is considering the law of failure of consideration and of the quasi-contractual right to recover money on that ground, it is, generally speaking, not the promise which is referred to as the consideration, but the performance of the promise.’
Viscount Simon LC said that: ‘In English law an enforceable contract may be formed by the exchange of a promise for a promise or by the exchange of a promise for an act . . but when one is considering the law of failure of consideration and the quasi-contractual right to recover money on that ground, it is, generally speaking, not the promise that is referred to as the consideration but the performance of the promise.’
Lord Wright, Viscount Simon
[1942] UKHL 4, [1943] AC 32
Bailii
England and Wales
Citing:
Overruled – Chandler v Webster 1904
When a contract is frustrated, ‘the loss lies where it falls.’ . .

Cited by:
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Cited – Rowe, Regina (on the Application of) v Vale of White Horse District Council Admn 7-Mar-2003
The local council sought to claim payment for sewerage services enjoyed by a householder.
Held: Where a supplier has supplied services to another and there is no contractual relationship in existence, the law may afford to the supplier . .
Cited – Goss and others v Laurence George Chilcott As Liquidator of Central Acceptance Limited (In Liquidation) PC 23-May-1996
(New Zealand) Mr and Mrs Goss, had been granted a loan by the claimant finance company under a mortgage instrument that had been avoided by the claimant because it had been fraudulently altered by Mr Haddon, an employee of the claimant, without the . .
Cited – Sharma and Another v Simposh Ltd CA 23-Nov-2011
The parties created an oral (and therefore void) contract for a development, the claimants paid a deposit, expressed to be non-refundable, and the defendant builders completed the building work. The buyers backed out. The developer now appealed . .
Cited – Barnes (As Former Court Appointed Receiver) v The Eastenders Group and Another SC 8-May-2014
Costs of Wrongly Appointed Receiver
‘The contest in this case is about who should bear the costs and expenses of a receiver appointed under an order which ought not to have been made. The appellant, who is a former partner in a well known firm of accountants, was appointed to act as . .
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.236543

Walker v Constable: 20 Jun 1798

[1798] EngR 165, (1798) 1 Bos and Pul 306, (1798) 126 ER 919
Commonlii
England and Wales
Cited by:
See Also – Walker v Constable 1803
. .
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.348915

Gibson v Manchester City Council: CA 1978

The parties disputed which terms of a contract applied.
Held: Lord Denning MR rejected the conventional approach of looking to see whether upon the true construction of the documents relied upon there can be discerned an offer and acceptance: ‘I do not like detailed analysis on such a point. To my mind it is a mistake to think that all contracts can be analysed into the form of offer and acceptance. I know in some of the textbooks it has been the custom to do so: but, as I understand the law, there is no need to look for a strict offer and acceptance. You should look at the correspondence as a whole and at the conduct of the parties and see therefrom whether the parties have come to an agreement on everything that was material. If by their correspondence and their conduct you can see an agreement on all material terms – which was intended thenceforward to be binding – then there is a binding contract in law even though all the formalities have not been gone through.’
Lord Denning MR, Ormrod LJ, Geoffrey Lane LJ
[1978] 1 WLR 520, [1978] 2 All ER 583
England and Wales
Citing:
Applied – Storer v Manchester City Council CA 1974
Whether a contract has been made
A newly elected city Council refused to proceed with the sale of a dwelling and premises to a sitting tenant, the plaintiff. The sale had been arranged by the previous Council. The plaintiff had signed the form sent to him by the council, and only . .

Cited by:
Appeal from – Gibson v Manchester City Council HL 8-Mar-1979
The plaintiff sought specific performance of what he said was a contract for the sale of land.
Held: The appeal succeeded. In a case where a contract is alleged to have been made by an exchange of correspondence between the parties, in which . .
Cited – Tekdata Interconnections Ltd v Amphenol Ltd CA 19-Nov-2009
The court considered which of two sets of contractual terms applied. The parties had dealt with each other over a long period. Under standard offer and acceptance the seller’s terms would apply. The buyer appealed, saying the court should look to . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.380338

Evans v Hoare: 1892

A defendant sought to deny liability under a document relying on the 1677 Statute. the relevant document had been drawn up by a duly authorised agent of the Defendants. The document was a letter from the Plaintiff and the words ‘Messrs Hoare, Marr and Co, 26,29 Budge Row, London EC’ appeared after the Plaintiff’s address at the head of the letter. The question was whether these words constituted a signature of ‘some person . . thereunto lawfully authorised’ by the Defendants. The plaintiff argued that the the appearance of the Defendant’s name in the letter tendered to the Plaintiff for signature on behalf of the Defendant was sufficiently signed on behalf of the Defendant because the Defendant’s name had been ‘written . . with the defendant’s authority, with the intention of designating the party to be charged, and for the purpose of making a contract which should be binding on the Plaintiff’.
Held: The effect of the words in the statute is that ‘there must be a memorandum of a contract, not merely a memorandum of a proposal’ and ‘I am of opinion that the principle to be derived from the decisions is this. In the first place, there must be a memorandum of a contract, not merely a memorandum of a proposal; and secondly, there must be in the memorandum, somewhere or other, the name of the party to be charged, signed by him or by his authorized agent. Whether the name occurs in the body of the memorandum, or at the beginning, or at the end, if it is intended for a signature there is a memorandum of the agreement within the meaning of the statute.’ .
Cave J
[1892] 1 QB 593
Statute of Frauds 1677 4
England and Wales
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, . .
Cited – Elpis Maritime Company Limited v Marti Chartering Company Limited (The Maria D) HL 1991
Brokers (Marti) were to guarantee a charter on the Gencon form, which contained, as one of the additional typed clauses a provision (Clause 24) in the following terms: ‘Demurrage guaranteed and payable directly by charterers to owners. However Marti . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .
Applied – Leeman v Stocks 1951
The plaintiff’s was the highest bid for premises at an auction. The auctioneer used a borrowed form for sale by private treaty, though some clauses were inappropriate. A solicitor present edited the document and put in the date for completion. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.241706

Weiner v Harris: CA 18 Nov 1909

The plaintiff, a manufacturing jeweller, was accustomed to send articles of jewellery to F, a retail jeweller, for sale on the terms of a letter written by F to the plaintiff, in which F, after acknowledging that he had had from the plaintiff ‘on sale or return’ the goods entered up to date in a book in the possession of the plaintiff, and that he was liable to account to the plaintiff for such goods, continued: ‘The goods referred to in that book mentioned are your property, and to remain so until sold or paid for, they being only left with me for the purpose of sale or return, and not be kept as my own stock. The goods I receive from you are to be entered at cost price, and my remuneration for selling them is agreed at one half the profit ‘.
Held: That upon the construction of the letter as a whole F. was employed as agent for sale ; that he was a mercantile agent within the Factors Act, 1889, and as such had implied authority to pledge the goods entrusted to him; consequently that the plaintiff could not recover goods pledged by F with the defendant without express authority from the plaintiff.
Cozens-Hardy MR said: ‘It is quite plain that by the mere use of a well known legal phrase you cannot constitute a transaction that which you attempt to describe by that phrase. Perhaps the commonest instance of all, which has come before the courts in many phrases is this: two partners enter into a transaction and say ‘it is hereby declared that there is no partnership between us’. The court pays no regard to that. The Court looks at the transaction and says ‘is this, in point of law, really a partnership?’ It is not in the least conclusive that the parties have used a term or language intended to indicate the transaction is not that which in law it is.’
Cozens-Hardy MR, Fletcher Moulton LJ
[1910] 1 KB 285, [1908-10] All ER 405, [1909] UKLawRpKQB 189
Commonlii
Factors Act 1889 1 2
England and Wales
Cited by:
Cited – Thames Cruises Limited v George Wheeler Launches Limited, Kingwood Launches Limited ChD 16-Dec-2003
The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.195994

Scally v Southern Health and Social Services Board: HL 1991

The plaintiffs were junior doctors employed by the respondents. Their terms had been collectively negotiated, and incorporated the Regulations. During the period of their employment different regulations had given and then taken way their right to purchase additional superannuation contributions. They had not been told of the rights and had failed to exercise them. They claimed damages for breach of contract and of statutory duty.
Held: The term was valuable and not negotiated with the plaintiffs. The defendants had a duty to bring the new rights to their attention. ‘If a duty of the kind in question is not inherent in the contractual relationship, I do not see how it could possibly be derived from the tort of negligence.’ The claims were not time barred because the obligation to inform had been continuing.
Lord Bridge
[1991] 4 All ER 563, [1992] 1 AC 294, [1991] IRLR 525
Contracts of Employment and Redundancy Payments Act (Northern Ireland) 1965 4(1) 5, Health Services (Superannuation) Regulations (Northern Ireland) 1962 (1962 (NI) 237), Health Services (Superannuation) (Amendment) (Number 3) Regulations (Northern Ireland) 1974 (1974 (NI) 327)
England and Wales
Cited by:
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – Commissioner of Police of the Metropolis v Lennon CA 20-Feb-2004
The claimant police officer considered being transferred to Northern Ireland. He asked and was incorrectly told that his housing allowance would not be affected by taking time off work.
Held: The break between employments had affected his . .
Cited – Crossley v Faithfull and Gould Holdings Ltd CA 16-Mar-2004
The employee claimant was to retire. On his employer’s negligent advice he resigned and opted for discretionary benefits.
Held: The employer owed no general duty of care to an employee’s financial interests. Nor could a term requiring such a . .
Cited – Bermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
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 . .
Cited – Andrews v Kings College NHS Foundation Trust and Another EAT 12-Mar-2014
EAT Practice and Procedure : Appellate Jurisdiction or Reasons or Burns-Barke – The Claimant worked as a part-time nurse from 1982 to 2010. She claimed that she was entitled to pension rights or compensation for . .
Cited – James-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.182108

Everet v Williams: 1725

The Highwaymens Case – When the court was invited to take an account between two highwaymen, it not only dismissed the claim as ‘scandalous and impertinent’ but ordered the arrest of the plaintiff’s solicitor and fined him.
(1893) 9 LQR 197
England and Wales
Cited by:
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 August 2021; Ref: scu.553655