Category: Contract

Glynn v Margetson and Co: HL 1893

A printed form of bill of lading contained general words of obligation referring to the goods being shipped ‘in and upon the .. Zena, now lying in the port of Malaga, and bound for Liverpool’. Those words were followed by printed words intended ‘to be used in a variety of contracts of affreightment’. Construed literally the words would allow deviation to any port even if far off the voyage from Malaga to Liverpool.
Held: Words which the parties have themselves chosen and written into the contract should have greater effect than printed standard terms.
Lord Herschell LC: ‘Where general words are used in a printed form which are obviously intended to apply, so far as they are applicable, to the circumstances of a particular contract, which particular contract is to be embodied in or introduced into a that printed form, I think you are justified in looking at the main object and intent of the contract and in limiting the general words used, having in view that object and intent.’ A business sense will be given to business documents.
Lord Halsbury, Lord Herschell LC
[1893] AC 351
England and Wales
Cited by:
Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Cited – George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd CA 29-Sep-1982
The buyer bought 30lbs of cabbage seed, but the seed was not correct, and the crop was worthless. The seed cost andpound;192, but the farmer lost andpound;61,000. The seed supplier appealed the award of the larger amount and interest, saying that . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.180644

Generalno Konsulstvo Na Republika Bulgaria (Judicial Cooperation In Civil Matters – Determination of International Jurisdiction of The Courts of A Member State – Judgment): ECJ 3 Jun 2021

Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) No 1215/2012 – Determination of international jurisdiction of the courts of a Member State – Article 5(1) – Employee residing in a Member State – Contract concluded with a consular representation of that Member State in another Member State – Functions of the employee – No exercise of public powers
C-280/20, [2021] EUECJ C-280/20, ECLI:EU:C:2021:443
Bailii
European

Updated: 07 August 2021; Ref: scu.664283

Maple Flock Co v Universal Furniture Products (Wembley) Ltd: CA 1934

The court considered the effect of a breach in a contract for delivery by instalments.
Held: The chief considerations are first, the ratio quantitatively which the breach bears to the contract as a whole, and secondly, the degree of probability or improbability that such a breach will be repeated.
Lord Hewart LCJ said: ‘The language of the Act is substantially based on the language used by Lord Selborne L.C. in Mersey Steel and Iron Co. v Naylor, Benzon and Co. 9 App. Cas. 434, 438, where he said: ‘I am content to take the rule as stated by Lord Coleridge in Freeth v Burr (1874) L.R. 9 C.P.208, which is in substance, as I understand it, that you must look at the actual circumstances of the case in order to see whether one party to the contract is relieved from its future performance by the conduct of the other; you must examine what that conduct is, so as to see whether it amounts to a renunciation, to an absolute refusal to perform the contract, such as would amount to a rescission if he had the power to rescind, and whether the other party may accept it as a reason for not performing his part.’ In Freeth v Burr Lord Coleridge C.J. stated the true question to be: ‘Whether the acts and conduct of the party evince an intention no longer to be bound by the contract’. . . the true test will generally be, not the subjective mental state of the defaulting party, but the objective test of the relation in fact of the default to the whole purpose of the contract.’
Lord Hewart LCJ, Lord Wright and Slesser LJ
[1934] 1 KB 148
Sale of Goods Act 1893
England and Wales
Cited by:
Cited – Phones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2021; Ref: scu.381489

Universal Corporation v Five Ways Properties Ltd: ChD 1978

Purchasers of a property intended to finance the purchase from monies deposited in a bank in Nigeria. Due to a change in exchange control regulations, the money was received some six weeks late, and after a notice to complete had expired and the vendors had rescinded the contract.
Held: The trial judge struck out the purchaser’s writ and statement of claim seeking return of a deposit under s 49(2) of the 1925 Act. It would only be appropriate to make an order under s 49(2) where ‘the vendor’s conduct has been open to criticism in some way . . having some mark of equitable disfavour’.
Walton J
[1978] 3 All ER 1131
Law of Property Act 1925 49(2)
England and Wales
Cited by:
Appal from – Universal Corporation v Five Ways Properties Limited CA 1978
The purchaser had failed to complete, notwithstanding the service of a notice to complete. The purchaser a Nigerian company suffered a delay in obtaining funds due to a change in the exchange control regulations. There was no attempt to exclude . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2021; Ref: scu.653030

Septo Trading Inc v Tintrade Ltd: CA 18 May 2021

The issue in this appeal is whether a quality certificate issued by an independent inspector at the load port was intended to be conclusive evidence of the quality of a consignment of fuel oil supplied under an international sale contract. The email confirmation of the parties’ transaction (‘the Recap’) said that the certificate would be binding on the parties in the absence of fraud or manifest error, but it also provided for the BP 2007 General Terms and Conditions for FOB Sales (‘the BP Terms’) to apply ‘where not in conflict with the above’. Those terms say that the quality certificate will be conclusive and binding ‘for invoicing purposes’, but without prejudice to the buyer’s right to bring a quality claim.
Lord Justice Males
[2021] EWCA Civ 718
Bailii, Judiciary
England and Wales

Updated: 05 August 2021; Ref: scu.662480

Donovan and Another v Grainmarket Asset Management Llp: CA 12 May 2021

Appeal from a judgment holding that the first respondent and first claimant was entitled to his share of the profits of a joint venture agreement with the appellant defendant, notwithstanding that Mr Donovan had not performed all of his duties under the joint venture either wholly or substantially. GAM appeals, contending that Mr Donovan’s right to payment was conditional on performance of his contractual obligations and, moreover, that before any right to payment accrued the agreement had been terminated.
Lord Justice Males
[2021] EWCA Civ 686
Bailii, Judiciary
England and Wales

Updated: 05 August 2021; Ref: scu.662474

Dunlop And Others v Grote And Booker: 23 Aug 1845

The plaintiffs declared on a contract by the defendants to purchase certain iron of the plaintiff alleging a promise by the defendants, ‘that, if the delivery of the said iron should riot be required by the defendants on or before the 30th day of April, 1845, the said iron was to be paid for by the defendants on the day and year last aforesaid’ , and averring that the plaintiffs had always been ready and willing to deliver the said iron in terms of the contract, that the 30th of April was past before the commencement of the suit, but that the defendants had not paid for the iron :-Held, first, that, under the averment of readiness and willingness to deliver the iron, the plaintiffs were not bound to shew that any specific iron had been appropriated by them for that purpose, and, secondly, that the plaintiffs were entitled to recover on the above contract the full price of the iron, and not merely the damages which they had sustained by the defendants’ breach of contract.
[1845] EngR 1196 (B), (1845) 2 Car and K 153
Commonlii
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: 04 August 2021; Ref: scu.304338

Universal Corporation v Five Ways Properties Limited: CA 1978

The purchaser had failed to complete, notwithstanding the service of a notice to complete. The purchaser a Nigerian company suffered a delay in obtaining funds due to a change in the exchange control regulations. There was no attempt to exclude section 49(2) and the purchaser applied under that section for the repayment of the deposit.
Held: Reversing the decision at fist instance, the application for a strike out failed. The court considered the jurisdiction to order the return of a deposit paid under a contract for the sale of land.
Buckley LJ said: ‘a discretion which must, of course, be exercised judicially, and with regard to all relevant considerations, including the very important consideration of the terms of the contract into which the parties have chosen to enter . . . the jurisdiction is one to be exercised where the justice of case requires. In this connection I take the word ‘justice’ to be used in a wide sense, indicating that repayment must be ordered in any circumstances which make this the fairest course between the two parties.’ and ‘I prefer to the judge’s approach to the construction of this subsection the approach of Megarry V-C who has expressed the view that the jurisdiction is one to be exercised where the justice of the case requires: see what he said in Schindler v Pigault. In this connection I take the word ‘justice’ to be used in a wide sense, indicating that repayment must be ordered in any circumstances which makes this the fairest course between the two parties. It is, I think, relevant in the present case that condition 22 of the national conditions does not confer on the vendor an unqualified right to forfeit a deposit. The words in para 3 of the conditions are ‘. . the purchaser’s deposit may be forfeited (unless the court otherwise directs)’. This formula may well have been adopted with the terms of section 49(2) in mind. However that may be, in my view the language makes clear that the vendor does not have an absolute right to retain the deposit paid by a purchaser who is in default under the condition.’
Eveleigh LJ said that the limitation applied by the judge was not ‘plain and obvious’.
The judge dealt with the topic of frustration quite shortly. He said:
‘But quite emphatically the doctrine of frustration cannot be brought into play merely because the purchaser finds, for whatever reason, he has not got the money to complete the contract’
Buckley LJ, Eveleigh LJ
[1979] 1 All ER 552, [1978] 123 SJ 33, [1979] 39 P and CR 687, (1978) 250 EG 447
Law of Property Act 1925 49(2)
England and Wales
Citing:
Applied – Schindler v Pigault 1975
The purchaser of land had not completed and sought return of the deposit paid claiming default by the vendor, or alternatively under section 49(2).
Held: He was entitled to the repayment of the deposit on the first ground. The court went . .
Appal from – Universal Corporation v Five Ways Properties Ltd ChD 1978
Purchasers of a property intended to finance the purchase from monies deposited in a bank in Nigeria. Due to a change in exchange control regulations, the money was received some six weeks late, and after a notice to complete had expired and the . .

Cited by:
Cited – Aribisala v St James Homes (Grosvenor Dock) Ltd ChD 12-Jun-2007
The parties had agreed in a contract for the sale and purchase of land to exclude the application of section 49(2). The buyer had failed to comply with a notice to complete.
Held: The parties cannot contract out of section 49(2). The . .
Cited – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Too restrictive – Tennaro Ltd v Majorarch 2003
The parties entered into three related contracts to grant long leases of three flats in the same block (Nos 37, 32 and 31), and deposits paid. The vendor served notices to complete and when the purchaser did not comply, he rescinded each agreement . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.266200

Dunlop v Higgins: HL 24 Feb 1848

Contracts made by post are complete when and where the letter of acceptance is posted.
Lord Cottenham LC said that the explanation for the contract arising was that there was a usage of trade to accept a postal offer by post. The Post Office was treated as the common agent of both contracting parties. That reason is not satisfactory.
Lord Cottenham LC
(1848) 6 Bell’s App 195, [1848] EngR 303, (1848) 1 HLC 381, (1848) 9 ER 805, (1848) 1 HLC 381
Commonlii
Scotland
Cited by:
Cited – Carmarthen Developments Ltd v Pennington SCS 24-Sep-2008
carmarthen_penningtonSCS2008
Contracts had been entered into for the sale of plots of land, which were conditional on planning permissions being approved by the purchaser. The buyer could waive the conditions to remove the sellers’ rights to resile. The buyer obtained the . .
Cited – Four Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.276450

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 those rights.
Held: There had been conspiracies with many fabricated documents and meetings, and witnesses failing to tell the truth. Nevertheless the conspiracies were not as widespread as suspected by the claimant. As to the allegations of the effect of the presence of shadow directors: ‘if a person becomes a shadow director as a result of the board being accustomed to act on his instructions or directions, transactions entered into before it can be said that the board is so accustomed are not retrospectively invalidated.’
An unqualified demand for payment of sums due under a voidable contract amounts to an election to affirm the contract. The court made findings on the several claims and counterclaims.
Lewison J
[2005] EWHC 1638 (Ch)
Bailii
England and Wales
Citing:
Cited – Stephens and Another v Cannon and Another CA 14-Mar-2005
The claimants had purchased land from the defendants. The contract was conditional on a development which did not take place. The master had been presented with very different valuations of the property.
Held: The master was not entitled to . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Rhesa Shipping Co SA v Edmonds (The Popi M) HL 16-May-1985
The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was . .
Cited – McPhilemy v Times Newspapers Ltd and Others (2) CA 26-May-1999
The new Civil Procedure Rules did not change the circumstances where the Court of Appeal would interfere with a first instance decision, but would apply the new rules on that decision. Very extensive pleadings in defamation cases should now be . .
Cited – McPhilemy v Times Newspapers Ltd (No 4) CA 3-Jul-2001
The fact that a defendant had not acted unreasonably in pursuing a case after an offer of settlement, was not a reason for not awarding costs to be paid on an indemnity basis. Such an award had no penal element, and did not first require any . .
Cited – Regina v Salisbury 19-May-2004
Directions as to the effect of witness training
(Crown Court at Chester) The judge gave directions as to the effect of witness training: ‘The course was delivered by a member of the Bar I judge to have been well aware of the implications. She took pains to ensure that any witnesses who attended . .
Cited – Loveridge and Loveridge v Healey CA 20-Feb-2004
The landowner sought to recover possession of land occupied under an agreement by a mobile home owner.
Held: It was necessary for the land owner to show that he had complied with the requirements under the Act. It was insufficient for the . .
Cited – Re Forest of Dean Mining Co 1878
Jessel MR said: ‘Again, directors are called trustees. They are no doubt trustees of assets which have come into their hands, or which are under their control, but they are not trustees of a debt due to the company. The company is the creditor, and, . .
Cited – Re Lands Allotment Company CA 1894
A limited company is not a trustee of its funds, but their beneficial owner. However, the fiduciary character of the duties of its directors mean that they are treated as if they were trustees of those funds of the company which are in their hands . .
Cited – Selangor United Rubber Estates Ltd v Cradock (No 3) ChD 1968
The expressions ‘constructive trust’ and ‘constructive trustee’ are ‘nothing more than a formula for equitable relief. It is the actual control of assets belonging beneficially to a company which causes the law to treat directors as analogous to . .
Cited – Re Hydrodam (Corby) Ltd 1994
Millett J described a de facto director as: ‘a person who assumes to act as a director. He is held out as a director by the company, claims and purports to be a director, although never actually or validly appointed as such. To establish that a . .
Cited – Secretary of State for Trade and Industry v Elms 16-Jan-1997
‘At the forefront of the test I think I have to go on to consider by way of further analysis both what Millett J meant by ‘functions properly discharged only by a director’, and Mr Lloyd QC meant by ‘on an equal footing’. As to one it seems to me . .
Cited – Secretary of State for Trade and Industry v Tjolle and Others ChD 9-May-1997
Delay and the probable short period of disqualification are proper reasons for Secretary of State to consider discontinuing proceedings. As to whether a person ‘assumes to act as a director’: ‘It may be difficult to postulate any one decisive test. . .
Cited – Re Canadian Land Reclaiming and Colonizing Co CA 1880
The court was asked whether two individuals who had been appointed and acted as directors while they were ineligible were directors or other officers liable to a summons for misfeasance.
Held: The test was was whether a man who had assumed a . .
Cited – Ultraframe UK Limited v Clayton, Fielding and Others CA 12-Dec-2003
The company was 100% owned by its designer. He purported to retain the design right.
Held: The designer held the rights in trust for the company. An assignment by a shareholder holding all the shares in a company was possible, but not when the . .
Cited – Re: A Company (No. 005009 of 1987), ex parte Copp ChD 1988
MC Bacon Ltd had borrowed money from a bank. The loan was unsecured. The company got into financial difficulty. The bank commissioned a report on the company’s financial affairs; and insisted on the grant of a debenture to secure the company’s . .
Cited – In re M C Bacon Ltd ChD 1990
A liquidator claimed that the costs of an unsuccessful attempt to set a floating charge aside should be paid out of the assets subject to the charge in priority to the claims of the charge holder.
Held: The rule was a complete statement of the . .
Cited – Secretary of State for Trade and Industry v Deverill and another CA 20-Jan-2000
When considering what constituted a shadow director, courts should be reluctant to move away from the words of the Act. The words should be construed carefully because the term was used in several pieces of legislation, including those with penal . .
Cited – Re Unisoft Group Limited (No 3) ChD 1994
When considering applications to strike out parts of pleadings in a s459 application, the courts had to recognise the need to be careful not to allow the parties to trawl through irrelevant grievances. B The statutory definition of ‘shadow director’ . .
Cited – Lord v Sinai Securities Ltd and others ChD 21-Jul-2004
For it to be found that a person had acted as a shadow director within the section, it must be shown that ‘all the directors, or at least a consistent majority of them,’ had been accustomed to act on the directions of the alleged shadow director. . .
Cited – Re PTZFM Ltd 1995
It had been alleged that a lender had become a shadow director of the borrower company. As to the statutory definition of ‘shadow director’: ‘This definition is directed to the case where the nominees are put up but in fact behind them strings are . .
Cited – Hutton v West Cork Rly Co CA 1883
Even though a company’s directors may act in good faith for a purpose which is ostensibly within their powers, the court may intervene in exceptional circumstances: ‘Bona fides cannot be the sole test, otherwise you might have a lunatic conducting . .
Cited – Soar v Ashwell CA 1893
Trustees under a will had entrusted the trust fund to a solicitor for investment. The solicitor exercised all of their administrative and investment powers for them and distributed part of the fund invested to the beneficiaries under the will but . .
Cited – Regentcrest plc v Cohen 2001
The good faith of the directors must be determined subjectively; the question is the director’s state of mind. . .
Cited – Arklow Investments Ltd and Another v Maclean and Others PC 1-Dec-1999
PC (New Zealand) Land was offered for sale. A potential buyer, the appellant was approached by a merchant bank with a proposal for finance. When he sought finance elsewhere, a company associated with the bank . .
Cited – In Re Smith and Fawcett Ltd CA 1942
Directors to act Without Collateral Purpose
The primary duty of a director imposed by the general law is that he should act in what he considers to be the best interests of the company, and not for any collateral purpose. That duty is a subjective one that depends on the directors exercising . .
Cited – Brink’s Ltd v AbuSaleh 1999
Mrs Elcombe accompanied her husband on a number of trips to Switzerland. Mr Elcombe was carrying money which was part of the proceeds of the Brinks-Mat gold bullion robbery. However, Mrs Elcombe did not know that. She thought that the money was the . .
Cited – Yukong Lines Ltd v Rendsburg Investments Corporation and Others (No 2) QBD 23-Sep-1997
Repudiation by charterer: Funds were transferred by a charterer’s ‘alter ego’ to another company controlled by him with intent to defeat owner’s claim – whether ‘alter ego’ acting as undisclosed principal of charterer – whether permissible to pierce . .
Cited – Tintin Exploration Syndicate Ltd v Sandys 1947
The court considered the ability of a de facto director to rely on the 1939 Act as a defence to an action by the company to recover ‘trust property’.
Held: The defence failed. The court considered the circumstances in which fiduciary duties . .
Cited – Mothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
Cited – Howard Smith Limited v Ampol Petroleum Limited PC 14-Feb-1974
(New South Wales) The court considered the use by directors of their fiduciary power of allotment of shares for a different purpose than that for which it was granted, and so as to dilute the voting power of the majority shareholding of issued . .
Cited – In Re Barings Plc, Secretary of State for Trade and Industry v Baker (No 5) ChD 25-Nov-1998
A person disqualified from acting as a company director might exceptionally be given permission to act as non-executive director in named companies where this appeared necessary and the cause of the original disqualification was unrelated.
As . .
Cited – In re Barings plc (No 5) CA 2000
A finding of breach of duty is neither necessary nor of itself sufficient for a finding of unfitness. As the judge (at first instance) observed a person may be unfit even though no breach of duty is proved against him or may remain fit . .
Cited – 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 . .
Cited – In Plus Group Ltd v Pyke CA 6-Feb-2002
P was a director of In Plus. However, he had fallen out with his co-director; and had been effectively excluded from the management of the company. While still a director, he set up his own company which entered into contracts on its own behalf with . .
Cited – Don King Productions Inc v Warren and Others ChD 13-Apr-1998
Where partnership terms required benefit of all contracts to be assigned to the partnership, this included unassignable personal contracts which were to be held in trust for partnership, unless stated otherwise.
Lightman J said: ‘The existence . .
Cited – Multinational Gas and Petrochemical Co Ltd v Multinational Gas and Petrochemical Services Ltd CA 1983
The court considered the way that the duty of a director to his company arose: ‘The directors indeed stand in a fiduciary relationship to the company, as they are appointed to manage the affairs of the company and they owe fiduciary duties to the . .
Cited – Kak Loui Chan v Zacharia 1984
(High Court of Australia) The fundamental rule that obliged fiduciaries to account for personal benefit or gain had two separate themes: ‘The variations between more precise formulations of the principle governing the liability to account are . .
Cited – Secretary of State for Trade and Industry v Griffiths; Conway and Wassell; In Re Westmid Packing Services Ltd CA 16-Dec-1997
Guidance given on what evidence should be admitted to affect the length of disqualification and conditions of Director’s disqualification.
A director’s duty to exercise his powers in the best interests of the company and to recognise the . .
Cited – West Mercia Safetywear Ltd v Dodds CA 1988
If a company continues to trade whilst insolvent but in the expectation that it would return to profitability, it should be regarded as trading not for the benefit of the shareholders, but for the creditors also. If there is a possibility of . .
Cited – Vyse v Foster HL 1874
Where a person already has contractual relations with another, his assumption of a fiduciary role in relation to that other will not necessarily require him to abandon his own contractual interests. . .
Cited – London and Mashonaland Exploration Co Ltd v New Mashonaland Exploration Co Ltd 1891
There is nothing inherently objectionable in the position of a company director (and chairman) who, without breaching any express restrictive agreement or disclosing any confidential information, becomes engaged, whether personally or as a director . .
Mentioned – Bell v Lever Brothers Ltd HL 15-Dec-1931
Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying andpound;30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could . .
Cited – Quarter Master UK Ltd v Pyke 2005
The ‘no conflict rule’ ceased to apply once a director had resigned his office went on to consider the ‘no profit rule.’ Paul Morgan QC: ‘The position is less straightforward in relation to the rules described above as to profiting from the property . .
Cited – CMS Dolphin Ltd v Paul M Simonet and Another ChD 23-May-2001
The claimant asserted that the defendant had, having at one point been a creative director of the claimant, left to set up an alternate competing business, and diverted business from the first company to the new one. There had been disagreements . .
Cited – British Midland Tool Limited v Midland International Tooling ChD 2003
Four former employees had set out to create a business in competition with the claimant. They had agreed to use unlawful means to do so.
Held: A director who decided to set up a competing business and took preparatory steps could rely upon the . .
Cited – Furs Ltd v Tomkies 1936
(High Court of Australia) ‘the inflexible rule that, except under the authority of a provision in the articles of association, no director shall obtain for himself a profit by means of a transaction in which he is concerned on behalf of the company . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – Kelly v Cooper and Another PC 25-Nov-1992
There was a dispute between a client and an estate agent in Bermuda. The client sued the estate agent for damages for breach of duty in failing to disclose material information to him and for putting himself in a position where his duty and his . .
Cited – Regal (Hastings) Ltd v Gulliver HL 20-Feb-1942
Directors Liability for Actions Ouside the Company
Regal negotiated for the purchase of two cinemas in Hastings. There were five directors on the board, including Mr Gulliver, the chairman. Regal incorporated a subsidiary, Hastings Amalgamated Cinemas Ltd, with a share capital of 5,000 pounds. There . .
Cited – Moss Steamship Co v Whinney 1912
The appointment of a receiver: ‘entirely supersedes the company in the conduct of its business, deprives it of all power to enter into contracts in relation to that business, or to sell, pledge or otherwise dispose of the property put into the . .
Cited – Cook v Deeks and Hinds PC 23-Feb-1916
Company Directors not free to prefer Own Interests
Deeks and Hinds were the directors of a construction company. They negotiated a lucrative construction contract with the Canadian Pacific Railway. During the negotiations, they decided to enter into the contract personally, on their own behalves, . .
Cited – Industrial Development Consultants Ltd v Cooley 1972
Mr Cooley was the managing director of the claimant. His duties included procuring business in the field of developing gas depots. The company had unsuccessful negotiations with the Eastern Gas Board for the development of four depots. However, the . .
Cited – Canadian Aero Service Ltd v O’Malley 1973
(Supreme Court Canada) Mr O’Malley and Dr Zarzycki were senior officers of the claimant (‘Canaero’). Having attempted, unsuccessfully, to procure a contract for Canaero to carry out a topographical survey and mapping of part of Guyana, they resigned . .
Cited – Gomba Holdings v Homan 1986
A receiver’s powers of management are really ancillary to the duty to manage the security, the property of the mortgagee, for the benefit of the mortgagee. In the context of the agency of a receiver which is no ordinary agency but primarily a device . .
Cited – Newhart Developments Ltd v Co-operative Commercial Bank Ltd CA 1978
The appointment of administrative receivers of a company with a view to realisation of certain charged assets did not deprive the directors of their duties and power to take other proceedings which did not impinge on the activities of the receivers. . .
Cited – Brown and Another v Bennett and Others CA 1-Dec-1998
Morritt LJ discussed the ‘corporate opportunitycases’: ‘Those are cases in which a beneficial commercial opportunity comes the company’s way and forms knowledge owned or possessed by the directors as agents for the company. Those directors then seek . .
Cited – CMS Dolphin Ltd v Paul M Simonet and Another ChD 23-May-2001
The claimant asserted that the defendant had, having at one point been a creative director of the claimant, left to set up an alternate competing business, and diverted business from the first company to the new one. There had been disagreements . .
Cited – Allen and Hanburys Ltd v Generics (UK) Ltd 1986
A licence: ‘passes no proprietary interest in anything; it only makes an action lawful which would otherwise have been unlawful.’ . .
Cited – Dendron Gmbh and others v Regents of University of California and Another PatC 23-Mar-2004
The claimants sought letters of request to obtain evidence to support applications they wished to make, including onme before the European Patents Office.
Held: The EPO when involved in opposition proceedings was not a domestic court, and . .
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 – Dendron GmbH v The Regents of the University of California 2004
Pumfrey J said: ‘I would reject the suggestion that the right that is conferred by the grant of a licence is anything wider than a consent on behalf of the patentee to the doing of an act which absent that consent would be unlawful.’ . .
Cited – Lindsley v Woodfull CA 2004
Mr Woodfull, while still a partner, incorporated a company which entered into a valuable contract with one of his partnership’s main customers (Colt), for which Mr Woodfull had been negotiating on behalf of the partnership.
Held: He was . .
Cited – Crown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
Cited – CBS United Kingdom Ltd v Charmdale Record Distributors Ltd 1981
The court discussed exclusive licenses of a copyright: ‘First, I would not expect a licensee to be treated as having a property interest in the copyright. Under the general law a licensee is a person who enjoys contractual rights as against the . .
Cited – Sport Internationaal Bussum BV v Inter-Footwear Ltd CA 1984
There had been a contractual licence to use names and trademarks for sports shoes. An earlier action between the parties had been stayed on the terms scheduled to a Tomlin order, which provided for Inter-Footwear to pay andpound;105,000 in three . .
Cited – Swift and Another v Dairywise Farms Limited and others CA 1-Feb-2001
The company lent money to farmers secured against their milk quotas. They had to petition for a winding up, and the liquidators requested authority to continue the milk loan repayment schemes. The milk quotas had been vested in the farmers, and the . .
Cited – Official Receiver As Liquidator of Celtic Extraction Ltd and Bluestone Chemicals Ltd v Environmental Agency CA 14-Jul-1999
A waste management licence is ‘property’ for the purposes of the Act. . .
Cited – Attorney-General of Hong Kong v Nai-Keung PC 1987
Textile export quotas (a permission to export textiles) which were surplus to the exporter’s requirements, which could be bought and sold under the apprpriate Hong Kong legislation, may be ‘property’ for the purposes of the law of theft. . .
Cited – Don King Productions Inc v Warren; Roberts; Centurion Promotions Limited (Formerly Sports Network Limited); Sports Network Usa, Inc; Time Warner Entertainment Company, Lp and Sport International, Inc CA 19-Nov-1998
Contracts between the members of a firm and third parties, and which were subject to the partnership contract, but which were expressed to be personal and incapable of assignment, were still held on trust for the partnership, and renewals made . .
Cited – Commonwealth of Australia v WMC Resources Ltd 1998
A permit to explore for petroleum may be ‘property’ for the purposes of compulsory acquisition. . .
Cited – Crittal Windows Ltd v Stormseal (UPVC) Window Systems Ltd 1991
. .
Cited – Demite Ltd v Protec Health Ltd ChD 1998
A sale by a receiver potentially fell within the scope of section 320. The receivers were the agents of the company and their act was the company’s act. The section expressly excluded from its scoe an arrangement made in the course of a winding up . .
Cited – Northern and Shell Plc v Conde Nast ChD 13-Feb-1995
A trade mark licensee cannot sue other licensees who had been properly authorised to use the Mark. . .
Cited – Northern and Shell Plc v Conde Nast ChD 13-Feb-1995
A trade mark licensee cannot sue other licensees who had been properly authorised to use the Mark. . .
Cited – NW Robbie and Co Ltd v Witney Warehouse CA 1963
A floating charge effects an equitable assignment of the charged asset to the security holder. . .
Mentioned – Guinness plc v Saunders HL 8-Feb-1990
Director – no claim for payment without authority
A committee of the board of Guinness had authorised payment of remuneration to Mr Ward, who was a director. However, the articles of association did not give authority to a committee of the board (as opposed to the full board) to authorise such a . .
Cited – Hely-Hutchinson v Brayhead Ltd 1968
Directors are required to disclose their interests in contracts with the company: ”It is not contended that [the] section in itself affects the contract. The section merely creates a statutory duty of disclosure and imposes a fine for . .
Cited – Buchler and another (as joint liquidators of Leyland DAF Limited) v Talbot and another (as joint administrative receivers of Leyland DAF Limited) and Stichting Ofasec and others HL 4-Mar-2004
The liquidator sought to recover his expenses from assets charged under a floating charge in priority to the chargee.
Held: Barleycorn was decided in error. The liquidators costs incurred in an insolvent winding up were not to be charged . .
Cited – Re Conegrade Ltd 2003
Lloyd J: ‘For my part, however, I do not see why, at any rate where there has been a meeting attended by all those who were entitled to attend and vote at a general meeting and that meeting has considered the matter and has resolved, in terms, that . .
Cited – Duckwari Plc v Offerventure Ltd and Another: In Re Duckwari Plc (no 2) CA 8-May-1998
A company director entering into an unapproved contract with his own company was liable to the company for the loss as at the time that loss was realised, not at the time of the breach. Where directors had entered into contracts with their company . .
Cited – In Re Duomatic Ltd ChD 1969
Payments were made by a company by way of remuneration to directors without complying with the company’s articles of association in that no resolution authorising the directors to receive remuneration had ever been passed in a general meeting of the . .
Cited – In Re Neptune (Vehicle Washing Equipment) Ltd: Neptune (Vehicle Washing Equipment) Ltd v Fitzgerald ChD 2-Mar-1995
A sole company director must still have company meetings before entering into a contract even if only he will be present. When a director’s claim to the validity of a contract or arrangement depends upon his disclosure of it at a meeting, he must . .
Cited – George Barker Transport Ltd v Eynon CA 1974
It was incontrovertible that ‘the appointment of a receiver operates as an equitable assignment (by way of charge) of the property of the company to the debenture holder.’ . .
Cited – Killick v Roberts CA 1991
killick_robertsCA1991
The landlord claimed that the tenancy had expired by effluxion of time. The tenant alleged that the tenancy was a protected tenancy and that, since no written notice had been served on him pursuant to Case 13, he was a statutory tenant entitled to . .
Cited – Movitex v Bulfield ChD 1988
The court considered a company’s articles of association which excused a director taking an interest in a contract with the company. The court treated the general exclusion of the self-dealing rule in the Articles as subject to the duty of the . .
Cited – Croft v Lumley 1858
‘When a lessee commits a breach of covenant on which the lessor has a right of re-entry, he may elect to avoid or not to avoid the lease, and he may do so by deed or by word. If in that notice he says, under circumstances which bind him that he will . .
Cited – Expert Clothing Service and Sales Ltd v Hillgate House Ltd CA 1985
Landlords took possession after a successful, at first instance, forfeiture claim. The tenant succeeded on appeal and then brought a claim for the wrong of breach of the covenant for quiet enjoyment.
Held: The lease had been in existence all . .
Cited – David Blackstone Ltd v Burnetts (West End) Ltd 1973
The doctrine of election is the foundation of waiver of forfeiture. The question whether an unqualified demand for rent falling due after the date of the breach giving rise to the forfeiture amounts to an election to waive the forfeiture was . .
Cited – Segal Securities Limited v Thoseby QBD 1963
To demand rent may waive a right to forfeiture. Sachs J said: ‘When one looks at the authorities, it is, however, clear that a demand can operate as a waiver in the same way as an acceptance.’ Also the landlord’s own behaviour can be taken into . .
Cited – Lee Panavision Ltd v Lee Lighting Ltd CA 1992
The court considered an allegation of a failure to declare an interest to a company board meeting, met by a defence that the undeclared interest was common to and known by each of the directors.
Held: Dillon LJ said: ‘if the judge was entitled . .
Cited – Coleman Taymar Ltd and Others v Oakes and Another ChD 19-Jul-2001
A company director owed a fiduciary duty to his company, but that could not, of itself, prevent him making arrangements to set up in competition once his employment by the company came to an end, save only for acts during the period of his . .
Cited – Re Dominion International Group (No. 2) 1996
Knox J said: ‘On the other hand it has been held that where the directors are all in fact sufficiently aware of the matter that should be formally disclosed, the absence of formal disclosure may not amount to more than a technical non-declaration of . .
Cited – Runciman v Walter Runciman plc 1992
Simon Brown J said: ‘Whatever may have been the strict legal requirements of the position, on the particular facts of this case I am perfectly satisfied that for the plaintiff to have made a specific declaration of interest before agreement of the . .
Cited – El Ajou v Dollar Land Holdings Ltd CA 2-Dec-1993
The court was asked whether, for the purposes of establishing a company’s liability under the knowing receipt head of constructive trust, the knowledge of one of its directors can be treated as having been the knowledge of the company.
Held: . .
Cited – Foskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
Cited – Macpherson and Another v European Strategic Bureau Ltd ChD 1-Mar-1999
There had been no unlawful distribution under a shareholders’ agreement where quasi-partners were given a share of future earnings for contracts initiated by them before retirement in proportion to previous stake in the company. A director ought to . .
Cited – Satnam Investments Ltd v Dunlop Heywood and Co Ltd and Others CA 13-Jan-1999
Satnam’s agents (DH) had passed on confidential information to the claimant’s business rival (Morbaine). Armed with this information Morbaine acquired a development site which Satnam had wanted to buy.
Held: The court rejected an argument that . .
Cited – Keech v Sandford ChD 1726
Trustee’s Renewed Lease also Within Trust
A landlord refused to renew a lease to a trustee for the benefit of a minor. The trustee then took a new lease for his own benefit. The new lease had not formed part of the original trust property; the minor could not have acquired the new lease . .
Cited – Clifford Harris and Co v Solland International Ltd and others ChD 12-Feb-2005
The solicitor claimants had represented the defendants in litigation. The defendant’s owners had given the firm a second charge on their property to secure their costs. The sums recovered were exceeded by the costs. The solicitors sought to exert a . .
Cited – Criterion Properties plc v Stratford UK Properties LLC and others HL 17-Jun-2004
The parties presented their claim before the House, but the House found that it was to be argued differently. The new arguments had not been pursued or prepared before the case came to the House, and it was remitted to the lower courts for the issue . .
Cited – Criterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
Cited – Twinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
Cited – Lister and Co v Stubbs CA 1890
It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other . .
Cited – Attorney General for Hong Kong v Reid and Others PC 24-Nov-1993
Principalhas proprietary interest in Trust assets
Bribes were taken by an employee, a crown prosecutor in Hong Kong, in a fraud on his employer. He then invested the proceeds in the purchase of property in New Zealand. The property had increased in value. The employer sought repayment of the bribes . .
Cited – Royal Brunei Airlines SDN BHD v Tan PC 24-May-1995
(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective . .
Cited – JJ Harrison (Properties) Ltd v Harrison CA 11-Oct-2001
A director had bought land belonging to the company, without disclosing its development potential.
Held: He had acquired the property as a constructive trustee for the company, and was accordingly accountable for it. . .
Cited – Al-Sabah v Ali and Others ChD 3-Feb-1999
The solicitor employers of a solicitor who had acted under powers of attorney in transactions between the attorney and the principal which later proved fraudulent were negligent. The Land Registry was liable for the balance of damage suffered. Mance . .
Cited – Baden v Societe Generale pour Favoriser le Developpement du Commerce et de l’Industrie en France SA (Note) 1993
The court looked to various forms of knowledge which could be attributed to a party when considering a rectification. Knowledge may be proved affirmatively or inferred from circumstances. The various mental states which may be involved are (i) . .
Cited – Heinl and Others v Jyske Bank (Gibraltar) Ltd CA 8-Sep-1999
Where a party had in fact assisted another in a fraudulent act in breach of trust, that party was not to be held liable in equity on the basis that objectively he should have known that the acts assisted were fraudulent, but the test is rather . .
Cited – Re Jarvis 1958
An executrix ran a business which had been left to her and her sister.
Held: She was accountable in principle for profit, though the claim failed for other reasons: ‘What, then, is the proper method of assessing the accountability? Counsel for . .
Cited – Polly Peck International Plc v The Marangos Hotel Company Ltd and Others CA 7-May-1998
Leave had been given for the insolvent plaintiff company to bring proceedings. The defendant now challenged that leave.
Held: A claim that a massively insolvent company had wrongfully occupied Turkish Cypriot property would not allow a claim . .
Cited – Phipps v Boardman HL 3-Nov-1966
A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to . .
Cited – Nelson v Rye and Another ChD 5-Dec-1995
The claimant, a solo musician appointed the defendant to be his manager collecting the fees and royalties due to him and paying his expenses. Rye was to account to him annually for his net income after deducting his own commission. When the . .
Cited – Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
Cited – Consul Development Pty Ltd v DPC Estates Pty Ltd 1975
Gibbs J: ‘The question whether the remedy which the person to whom the duty is owed may obtain against the person who has violated the duty is proprietary or personal may sometimes be one of some difficulty. In some cases the fiduciary has been . .
Cited – Warman International Ltd v Dwyer 1995
(High Court of Australia) A fiduciary diverted a business in breach of his fiduciary duty.
Held: ‘The outcome in cases of this kind will depend upon a number of factors. They include the nature of the property, the relevant powers and . .
Cited – Timber Engineering Co Pty Ltd v Anderson 1980
(New South Wales) The manager and a sales representative of TECO set up separate competing business. Anderson with his wife, began a new company Mallory Trading Pty Ltd which acted as a a fraud on TECO. On learning of each others acts, they joined . .
Cited – Target Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .
Cited – Trustor Ab v Smallbone and Another (No 2) ChD 30-Mar-2001
Directors of one company fraudulently diverted substantial sums to another company owned by one of them. The defrauded company sought return of the funds, from the company and from the second director on the basis that the corporate veil should be . .
Cited – Gencor ACP Ltd v Dalby ChD 2000
The plaintiff made a large number of claims against a former director, Mr Dalby, for misappropriating its funds. These included a claim for an account of a secret profit which Mr Dalby was said to have been procured to be paid by a third party, . .
Cited – Vyse v Foster CA 1872
James LJ: ‘This Court is not a Court of penal jurisdiction. It compels restitution of property unconscientiously withheld; it gives full compensation for any loss or damage through failure of some equitable duty; but it has no power of punishing any . .
Cited – Comax Secure Business Services Ltd v Wilson 21-Jun-2001
Mr Wilson (who appeared in person) was held liable to account for profits received by a company called Nemesis Ltd, which he controlled. The dishonest assistant was himself in a position to receive the profit personally, which he chose not to . .
Cited – Fyffes Group Ltd and Others v Templeman and Others QBD 14-Jun-2000
A person who bribed an agent to award a contract was liable to account for profits secured by the bribery as was the agent he bribed, but unlike for the agent, the extent of his liability was limited to exclude profits which he would have earned in . .
Cited – Re Case of Taff Wells Ltd 1992
The court considered whether the liquidation of a company stopped time running for insolvency purposes: ‘One may conclude that the effect of an order to wind up is to convert the contractual rights of the creditors into proprietary rights under a . .
Cited – Building Product Design Ltd v Sandtoft Roof Tiles Ltd (No. 2) 2004
An action was originally brought alleging infringement from a ‘vent tile’ which would be used in the ridge of a roof. What was pleaded was a clay half-round ridge vent tile; and this tile was the only infringement mentioned in the agreed order. BPD . .
Cited – Pink v Sharwood 1913
The goodwill of a business can be taken to have been abandoned where for example a business is discontinued, with no prospect of restarting, and its assets are broken up and sold. It was not possible for the claimant to obtain an injunction . .
Cited – MCA Records Inc and Another v Charly Records Ltd and others (No 5) CA 5-Oct-2001
The court discussed the personal liability of a director for torts committed by his company: ‘i) a director will not be treated as liable with the company as a joint tortfeasor if he does no more than carry out his constitutional role in the . .
Cited – Modus Vivendi pc v Keen (World Marketing Ltd) 5-Jul-1995
The case concerned the sale of Ronson butane gas cans in China. Ronson’s distributor in China introduced his own product (deceptively similar to Ronson’s product) under the name ‘Purilite’.
Held: ‘Purilite until . . November 1990 promoted . .
Cited – Kark (Norman) Publications Ltd v Odhams Press Ltd 1962
Wilberforce, J described the basis of a passing off action in respect of the name of a newspaper or magazine as being a proprietary right not so much in the name itself but in the goodwill established through the use of the name in connection with . .

Cited by:
See Also – Ultraframe (UK) Ltd v Fielding and others ChD 11-Nov-2005
Ultraframe asked the judge to re-open his ‘in the round’ decision on costs.
Held: The decision questioned was not a draft, but a concluded judgment. The judge said that he had not made such a ‘palpable error’ in his order as to give him . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.229273

Swiss Bank Corporation v Lloyds Bank Ltd: 1979

A subjective test was applied as to whether the court could find an intention to interfere with contractual relations.
[1979] Ch 548
England and Wales
Cited by:
Appeal from – Swiss Bank Corporation v Lloyds Bank Ltd CA 1981
An equitable charge is created when property is expressly or constructively made liable to the discharge of a debt or some other obligation, and the charge confers on the chargee a right of realisation by judicial process such as a sale order. . .
Not Binding – Mainstream Properties Ltd v Young and others CA 13-Jul-2005
The claimant appealed refusal of his claim for inducing a breach of contract against the sixth defendant. It said that an intention to disturb a contract could be inferred.
Held: A mere recklessness as to whether contractual rights were . .
Cited – Gotham v Doodes CA 25-Jul-2006
gotham_doodesCA2008
The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.229819

Criterion Properties Plc v Stratford UK Properties Llc and others: ChD 27 Mar 2002

Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to prevent such a takeover. It was asserted that the agreement constituted dishonest assistance by the defendant in entering into an agreement in excess of the board’s powers.
Held: There was a triable issue that the put option created was in excess of the power of the board. However, the agreement was ‘motivated not by a desire to advance or protect the commercial interests of Criterion but from a desire contingently to cripple those interests so as to deter an unwanted predator. ‘ and so was unenforceable.
The Hon Mr Justice Hart
[2002] EWHC 496 (Ch)
Bailii
Limited Partnership Act 1907
England and Wales
Citing:
Appealed to – Criterion Properties Plc v Stratford UK Properties Llc and others ChD 27-Mar-2002
Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to . .
Cited – Savoy Corp Ltd v Development Underwriting Ltd 1963
(Australia) The court discussed the extent of the director’s powers to arrange the company to prevent a take over: ‘It would seem to me to be unreal in the light of the structure of modern companies and of modern business life to take the view that . .
Cited – Mills v Mills 1938
(High Court of Australia) Where the main purpose of the directors’ resolution (in this case to increase the share base) is to benefit the company it matters not that it incidentally also benefits a director.
Dixon J pointed out the difficulties . .
Cited – Howard Smith Limited v Ampol Petroleum Limited PC 14-Feb-1974
(New South Wales) The court considered the use by directors of their fiduciary power of allotment of shares for a different purpose than that for which it was granted, and so as to dilute the voting power of the majority shareholding of issued . .
Cited – Teck Corporation Ltd v Millar 1972
The court discussed the validity of steps which might be taken by a company director to resist a take-over. Berger J said: ‘So how wide a latitude ought the directors to have? If a group is seeking to obtain control, must the directors ignore them? . .
Cited – Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .
Cited – Rolled Steel Products (Holdings) Ltd v British Steel Corporation and Others CA 1986
The plaintiff company had guaranteed borrowings, using powers within the memorandum of association, but for purposes which were held to be improper, because they were not in the interests of the plaintiff company itself. One issue was whether the . .
Cited – Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .
Cited – Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele ChD 1999
Chief Akindele agreed in 1985 with ICIC Overseas to invest US$10m in the purchase of 250,000 shares of BCCI Holdings, and to hold the shares for two years. If he wanted to sell the shares after the expiry of two years and up to five years from the . .
Cited – In re Montagu’s Settlement Trusts 1987
In the context of knowing receipt, a categorisation of knowledge is used to determine whether a person is bound by notice.
Sir Robert Megarry V-C said: ‘The cold calculus of constructive and imputed notice does not seem to me to be an . .
Cited – Eagle Trust Plc v SBC Securities Ltd; Same v Sbci Bank Corporation Investment Banking Ltd ChD 28-Sep-1994
A financial adviser was not liable in negligence for the allegedly negligent selection of sub-underwriters. On the issue of knowing receipt in a claim for restitution, ‘What the decision in Belmont (No 2) . . shows most clearly is that in a . .

Cited by:
Appeal from – Criterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
Appealed to – Criterion Properties Plc v Stratford UK Properties Llc and others ChD 27-Mar-2002
Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.170060

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 denied that a contract had come into existence within the UK jurisdiction. Application was now made for leave to serve notice of a writ out of the jurisdiction on the grounds that the action was brought to recover damages for breach of a contract made within the jurisdiction or by implication to be governed by English law. The Plaintiffs were an English company. The Defendants were an American corporation.
Held: The resultant contract was made in, and was actionable in, London.
The rule about instantaneous communications between the parties is different from the rule about the post. The contract is only complete when the acceptance is received by the offeror; and the contract is made at the place where the acceptance is received. Lord Denning said: ‘The contract is only complete when the acceptance is received by the offeror’.
An agreement made in one country and amended in another should not be regarded as having been made in the second country.
Denning LJ said: ‘In a matter of this kind however it is very important the countries of the world should have the same rule. I find that most of the European countries have substantially the same rules as that I have stated’.
Denning, Birkett, Parker LJJ
[1955] 2 All ER 394, [1955] 2 QB 327, [1955] EWCA Civ 3, [1955] 3 WLR 48, [1955] 1 Lloyds Rep 511, 99 Sol Jo 384
Bailii
England and Wales
Citing:
Considered – 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 . .
Not Supported – Newcomb and Another v De Roos 5-Nov-1859
. .
Cited – Adams v Lindsell KBD 5-Jun-1818
No Contract by Post until Acceptance Received
The defendant sent his offer of wool for sale to the plaintiff by post. The plaintiff’s acceptance was at first misdirected. Before receiving the reply the defendant had sold the wool elsewhere, but this was only after he would have received the . .

Cited by:
Cited – 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 – Four Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.183109

Chemidus Wavin Ltd v Societe pour La Transformation et L’exploitation des Resines Industrielles SA: CA 1973

Goff LJ
(1973) 3 CMLR 514
England and Wales
Cited by:
Cited – Alec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 August 2021; Ref: scu.652990

Milne v Ritchie and Others: SCS 13 Dec 1882

(Court of Session Inner House Second Division) Agent and Principal – Title of Agent to Sue – -Reduction of Contract by One who is not Himself a Party to it.
Held (rev. judgment of Lord Kinnear) that title to sue for reduction of a contract on the ground that it had been induced by fraud was not limited to the parties thereto, but extended to the agent of one of them who had been found liable, on the ground that he had acted in excess of the authority given him, to relieve his principal of an action at the instance of the other party to the contract, and founded upon it.
Lord Rutherfurd Clark dissented and held that not being a party to the contract the agent had no title to sue for reduction of it.
Lord Young Lord Rutherfurd Clark
[1882] SLR 20 – 249
Bailii
Scotland

Updated: 31 July 2021; Ref: scu.579374

X v Kuoni Travel Ltd: CA 26 Apr 2018

The claimant sought damages after being sexually assaulted by a hotel worker on her holiday in Sri Lanka. She said that the incident was an improper performance of the contract and in breach of the 1992 Regulations. She appealed from rejection of her claim.
Held: The appeal failed (Longmore LJ dissenting). On their proper interpretation, the words ‘holiday arrangements’ in clause 5.10(b) did not include a member of the hotel’s maintenance team, known to be such to the hotel guest, conducting the guest to the hotel’s reception. This was no part of the functions for which the employee was employed. The 1992 Regulations were not designed to facilitate a claim against a tour operator for wrongful conduct by an employee of a supplier where that conduct was ‘not part of the role in which he was employed’ and where the supplier would not have been vicariously liable under either the consumer’s domestic law or the foreign law applicable to the supplier.
Obiter, Kuoni was not liable under either the express terms of clause 5.10(b) or regulation 15 since N was not a ‘supplier’ within the meaning of those provisions. The hotel and not N was the supplier of any services performed by N. The booking conditions referred to ‘our agents or suppliers’, which denoted a need for a direct contractual or promissory relationship between Kuoni and whoever was to be regarded as a supplier. Furthermore, this reading was supported by regulation 15. Nothing in regulation 15 suggested some other meaning of the word ‘supplier’ in clause 5.10(b) or the expression ‘supplier of services’ in regulation 15 itself. The express reservation in regulation 15(1) of ‘any remedy or right of action which [the package holiday operator] may have against [the] suppliers of services’ was consistent with a direct relationship between the operator and the supplier and may be indicative of an assumption that there would be such a relationship. In a situation where one contracting party assumes primary and personal liability for the provision of services by agents or suppliers to a reasonable standard to the other contracting party, the natural meaning of ‘supplier’ is the person who assumes a direct contractual or promissory obligation to provide such services and not an employee of such a person. There were no discernible policy reasons for imposing liability on a tour operator when neither it nor the hotel were ‘at fault’ and the express exclusion of liability under regulation 15(2)(c)(ii) pointed clearly to the contrary. Furthermore, in such circumstances it was not realistic to suppose that the tour operator could protect itself via an indemnity from the employee or the hotel or by way of insurance.
Sir Terence Etherton MR, Longmore, Asplin LJJ
[2018] EWCA Civ 938, [2018] WLR(D) 262, [2018] 1 WLR 3777, [2018] 1 WLR 3777
Bailii, WLRD
Package Travel, Package Holidays and Package Tours Regulations 1992 15
England and Wales
Citing:
Appeal from – X v Kuoni Travel Ltd QBD 30-Nov-2016
The Claimant, Mrs X, sought damages for personal injury and other losses arising out of a sexual assault (including rape), on 17th July 2010 during a 14 day all-inclusive package holiday which the Claimant had purchased from the Defendant, Kuoni . .

Cited by:
Appeal from – X v Kuoni Travel Ltd SC 24-Jul-2019
The claimant had been raped by a member of staff at the hotel in Sri Lanka booked through the respondent travel company. She now appealed from dismissal of the claim. . .
Appeal from – X v Kuoni Travel Ltd SC 30-Jul-2021
. .

Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2021; Ref: scu.614912

X v Kuoni Travel Ltd: SC 30 Jul 2021

Lord Hodge, Lord Lloyd-Jones, Lady Arden, Lord Kitchin
[2021] UKSC 34
Bailii, Bailii Press Summary, Bailii Issues and Summary
England and Wales
Citing:
Appeal from – X v Kuoni Travel Ltd CA 26-Apr-2018
The claimant sought damages after being sexually assaulted by a hotel worker on her holiday in Sri Lanka. She said that the incident was an improper performance of the contract and in breach of the 1992 Regulations. She appealed from rejection of . .

Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2021; Ref: scu.666314

Keighley, Maxsted and Co v Durant: HL 20 May 1901

Lord Lindley said: ‘The explanation of the doctrine that an undisclosed principal can sue and be sued on a contract made in the name of another person with his authority is, that the contract is in truth, although not in form, that of the undisclosed principal himself.’
Lord Shand said; ‘There is a wide difference between an agency existing at the date of the contract which is susceptible of proof . . and an intention locked up in the mind of the contractor, which he may either abandon or act on at his own pleasure, and the ascertainment of which involves an inquiry into the state of his mind at the date of the contract.’
Earl of Halsbury LC, McNaughten L, Lord Shand, Lord Lindley
[1901] UKLawRpAC 21, (1901) AC 240
Commonlii
England and Wales
Cited by:
Cited – Revenue and Customs v Taylor Clark Leisure Plc SC 11-Jul-2018
Several companies within a group paid VAT. Later the basis of charge to output VAT was revised, and a reclaim became due, but the VAT group had been dissolved. Could the appellant, former lead within the group now make the reclaim.
Held: . .

Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2021; Ref: scu.666308

Falcke v Gray: 13 Jun 1859

The parties contracted for the sale and purchase of two Chine Vases. The seller did not complete, and the buyer sought specific performance.
Held: A purchaser of ‘articles of unusual beauty rarity and distinction’ was entitled to obtain them in specie. The Court will enforce specific performance of a contract to purchase chattels, if damages will not be an adequate compensation: ‘a mere compensation in damages is not a sufficient remedy and satisfaction for the loss of the performance of the contract’.
But where the contract, although not actually fraudulent, was one in which the parties were not on an equal footing, the Plaintiff knowing, and the purchaser being ignorant, of the value of the thing sold, and the price appeared to be inadequate, the Court refused relief.
Kindersley V-C
[1859] EngR 710, (1859) 4 Drew 651, (1859) 62 ER 250
Commonlii
England and Wales

Updated: 30 July 2021; Ref: scu.288062

Bow’s Emporium v A R Brett and Co Ltd: 1927

The court considered a claim for an estate agent’s commission.
Held: The claim failed. Lord Shaw of Dunfermline said: ‘the continuity between the original relation brought about by the agent and the ultimate transaction has not been merely dislocated or postponed but broken.’
(1927) 44 TLR 194
England and Wales
Cited by:
Cited – Glentree Estates Ltd v Holbeton Ltd QBD 25-Nov-2010
The claimant estate agency sought payment of fees on the sale of a property. The defendants denied that the claimant had been the effective cause of the sale.
Held: The claim failed. The agents had not been sufficiently causative of the sale. . .
Cited – Glentree Estates Ltd v Holbeton Ltd CA 5-Jul-2011
Agent to establish effective cause of a sale
The claimant estate agent appealed against dismissal of its claim for commission on the sale of the defendant’s property.
Held: The appeal failed. Glentree failed to establish that it was either ‘the’ or ‘an’ effective cause of the sale. What . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.441500

Amoco Australia Pty Ltd v Rocca Bros Engineering Co Pty Ltd: PC 1975

A court looking to see if an unconscionable bargain had been reached could look at whether or not the transaction benefits the mortgagor. The fact that a covenantor had obtained and would continue to enjoy benefits under the relevant agreement which he claimed to be unenforceable was pro tanto a reason for holding that the covenant was not in unreasonable restraint of trade.
Lord Cross
[1975] AC 561
Australia
Citing:
Cited – Amoco Australia Pty Ltd v Rocca Bros Engineering Co Pty Ltd PC 1975
A court looking to see if an unconscionable bargain had been reached could look at whether or not the transaction benefits the mortgagor. The fact that a covenantor had obtained and would continue to enjoy benefits under the relevant agreement which . .

Cited by:
Cited – Amoco Australia Pty Ltd v Rocca Bros Engineering Co Pty Ltd PC 1975
A court looking to see if an unconscionable bargain had been reached could look at whether or not the transaction benefits the mortgagor. The fact that a covenantor had obtained and would continue to enjoy benefits under the relevant agreement which . .
Cited – Alec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.219908

Goldcorp Exchange Ltd and others v Liggett and others: PC 25 May 1994

(New Zealand) The non allocated claimants purchased gold bullion from a company for future delivery on a non allocated basis. The company stored and insured the metal, but the claimants had a right to call for delivery of their part within 7-days. The company became insolvent and, a bank holding a debenture appointed receivers. R brought claims of a proprietary nature. The receivers applied to the High Court of New Zealand for directions on the disposal of the bullion. The judge rejected the claims of the non allocated claimants. The Court of Appeal in New Zealand allowed their appeal on different grounds.
Held: The receivers’ appeal succeeded. An equitable title could not pass under a simple contract for the sale of unascertained goods merely by virtue of the sale, since the buyer could not acquire title until it was known to what exact goods the proposed title related. The non allocated claimants were not entitled to assert any proprietary rights over the remaining stocks of bullion arising out of a fiduciary relationship since any such relationship was no different from the contractual relationship between the parties.
‘The essence of a fiduciary relationship is that it creates obligations of a different character from those deriving from the contract itself’.
Lord Mustill
[1994] 2 All ER 806, [1994] UKPC 3, [1994] UKPC 18, [1995] 1 AC 74, [1994] 2 BCLC 578, [1994] 3 WLR 199, (1994) 138 (LB) 127, (1994) Tr LR 434
Bailii, Bailii
England and Wales
Cited by:
Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
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: 30 July 2021; Ref: scu.245740

Henry Kendall and Sons v William Lillico and Sons Ltd: HL 8 May 1968

The plaintiff had purchased quantities of turkey feed from the defendant. It contained a poisonous element, spores of a fungus aspergillus flavus, which killed its flock. The House was asked as to the effect of section 14 of the 1893 Act on the contract.
Lord Pearce observed that the court’s task is to decide what each party to an alleged contract ‘would reasonably conclude from the utterances, writings or conduct of the other’, elaborating: ‘The question, therefore, is not what [the respondent] SAPPA themselves thought or knew about the matter but what they should be taken as representing to Grimsdale about it or leading Grimsdale to believe’
Lord Morris of Borth-y-Gest observed: ‘There is no magic in the word ‘particular.’ A communicated purpose, if stated with reasonably sufficient precision, will be a particular purpose. It will be the given purpose. Sometimes the purpose of a purchase will be so obvious that only one purpose could reasonably be in mutual contemplation. An only purpose or an ordinary purpose may therefore be a particular purpose … Sometimes a particular purpose will be made known expressly: sometimes it will be made known by implication.’
Lord Reid, Lord Morris of Borth-y-Gest, Lord Guest, Lord Pearce, Lord Wilberforce
[1968] UKHL 3, [1969] 2 AC 31
Bailii
Sale of Goods Act 1893 14
England and Wales
Citing:
Appeal from – Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association CA 1966
Feedstuff was sold by some merchants to a farmer. It was found to be defective. The farmer sued the merchants. The merchants brought in as third party the persons from whom they had purchased the feeding-stuff; they in their turn brought in their . .

Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.248572

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 damages extended to expenditure incurred before, as well as after, the contract was made.
Held: They did so long as it was reasonably within the contemplation of the parties that they were likely to be wasted if the contract were broken.
Lord Denning MR discussed the choice facing a party seeking damages for breach of contract (an employee not giving appropriate notice): ‘It seems to me that a plaintiff in such a case as this has an election: he can either claim for loss of profits: or for his wasted expenditure but he must elect between them. He cannot claim both. If he has not suffered any loss of profit – or cannot prove what his profit would have been – he can claim in the alternative the expenditure which has been thrown away that is, wasted by reason of the breach.’
Lord Denning MR
[1972] 1 QB 60, [1971] 3 All ER 690
England and Wales
Citing:
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 . .
Approved – Lloyd v Stanbury 1971
A purchaser who had been let into possession before completion and had spent money on improvements to the property was not entitled to claim for such expenses because they would not usually have been within the contemplation of the parties. As to . .

Cited 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 . .
Cited – Parker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
Cited – Tullett Prebon Group Ltd v El-Hajjali QBD 31-Jul-2008
The defendant signed an employment contract to join the claimants as a senior broker. He changed his mind and decided to stay in his existing job. The new employers sued for breach of contract. The defendant said that the claimants had refused to . .
Cited – Bowlay Logging Limited v Domtar Limited 1978
(Canada) The parties contracted for the claimant to cut timber and the defendant to haul it. The plaintiff said that the defendant breached the contract by supplying insufficient trucks to haul the timber away, and claimed as damages his wasted . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.269657

Shagang Shipping Company Ltd v HNA Group Company Ltd: SC 5 Aug 2020

Allegations had been made that a contract had been procured by bribery. The other party said that the admissions of bribery had been extracted by torture and were inadmissible. The CA had decided that the unproven possibility that it was obtained by torture was to be ignored.
Held: The appeal succeeded and the judgment in favour of Shagang restored. The CA had mistakenly interfered with what were factual conclusions of the trial judge.
Lord Hodge, Deputy President, Lord Briggs, Lord Hamblen, Lord Leggatt, Lord Burrows
[2020] UKSC 34
Bailii, Bailii Summary
England and Wales
Citing:
At First Instance – Shagang Shipping Company Ltd v HNA Group Company Ltd ComC 16-May-2016
It was said that a contract had been procured only by bribery. The defendant said that the so called confessions had been obtained by torture, and were inadmissible. No one with first-hand knowledge of the alleged bribery or torture gave evidence . .
Appeal from – Shagang Shipping Company Ltd v HNA Group Company Ltd CA 23-Jul-2018
Appeal from finding that a contract award had not been obtained by bribery. The defendant said that the confessions of bribery had been extracted by torture and appealed a finding that the contract was enforceable.
Held: The appeal succeeded. . .
Cited – Rex v John Tippet 1823
Confession of a prisoner evidence against him, without positive proof aliunde of the offence having been committed. . .
Cited – Rex v Sykes 1913
. .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Mentioned – Datec Electronics Holdings Ltd and others v United Parcels Services Ltd HL 16-May-2007
The defendants had taken on the delivery of a quantity of the claimant’s computers. The equipment reached one depot, but then was lost or stolen. The parties disputed whether the Convention rules applied. UPS said that the claimant had agreed that . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Simetra Global Assets Ltd and Another v Ikon Finance Ltd and Others CA 9-Aug-2019
The claimant alleged that the various defendants had been involved in dishonest assistance in the running of an investment ponzi scheme leading to substantial losses.
Held: The Court considered the considerations for an appellate court asked . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.652987

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 description of the Act in Davies v Sumner: ‘Lord Keith emphasised the need for some degree of regularity, and he found pointers to this in the primary purpose and long title of the Trade Descriptions Act 1968. I find pointers to a similar need for regularity under the Act of 1977, where matters merely incidental to the carrying on of a business are concerned, both in the words which I would emphasise, ‘in the course of’ in the phrase ‘in the course of a business’ and in the concept, or legislative purpose, which must underlie the dichotomy under the Act of 1977 between those who deal as consumers and those who deal otherwise than as consumers.
This reasoning leads to the conclusion that, in the Act of 1977 also, the words ‘in the course of business’, are not used in what Lord Keith called ‘the broadest sense’. I also find helpful the phrase used by Lord Parker C.J. and quoted by Lord Keith, ‘an integral part of the business carried on.’ The reconciliation between that phrase and the need for some degree of regularity is, as I see it, as follows: there are some transactions which are clearly integral parts of the businesses concerned, and these should be held to have been carried out in the course of those businesses; this would cover, apart from much else, the instance of a one-off adventure in the nature of trade, where the transaction itself would constitute a trade or business. There are other transactions, however, such as the purchase of a car in the present case, which are at highest only incidental to the carrying on of the relevant business; here a degree of regularity is required before it can be said that they are an integral part of the business carried on, and so entered into in the course of that business.’
Neill L.J noted that expression similar to ‘in the course of a business’, were used in statutes such as the Sale of Goods Act 1979, the Trade Descriptions Act 1968 and the Supply of Goods and Services Act 1982. He noted that section 1(1) of the Trade Descriptions Act creates a criminal offence, but nonetheless thought that it would be unsatisfactory if, when dealing with broadly similar legislation, the courts were not to adopt a consistent construction of the same or similar phrases. For that reason he thought that the court should follow the guidance given in Davies v Sumner when construing section 12(1) of the Unfair Contract Terms Act.
Dillon LJ, Neill LJ
[1988] 1 WLR 321, [1987] EWCA Civ 3, [1988] 1 All ER 847
Bailii
Unfair Contract Terms Act 1977 12(1), Sale of Goods Act 1979
England and Wales
Citing:
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 – Lord Advocate v Lord Lovat 1880
Lord O’Hagan considered the nature of possession as regards land: ‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in . .
Cited – Henry Kendall and Sons v William Lillico and Sons Ltd HL 8-May-1968
The plaintiff had purchased quantities of turkey feed from the defendant. It contained a poisonous element, spores of a fungus aspergillus flavus, which killed its flock. The House was asked as to the effect of section 14 of the 1893 Act on the . .
Cited – DHN Food Distributors Ltd v Tower Hamlets London Borough Council CA 1976
The business was owned by DHN and the land upon which the business was operated was owned by a wholly owned subsidiary, Bronze. The Council acquired land owned by Bronze on which DHN operated its cash and carry warehouse. The Council submitted that . .

Cited by:
Cited – Stevenson and Another v Rogers CA 8-Dec-1998
The defendant, who carried on the business of a fisherman, sold his vessel Jelle to the plaintiff with a view to having a new boat built to his requirements. In the event he bought a replacement vessel which he continued to use for his business. The . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.187299

Alec Lobb (Garages) Ltd v Total Oil Ltd: CA 1985

The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather than a mere disparity of bargaining power. Unequal bargaining power or objectively unreasonable terms provide no basis for equitable interference in the absence of unconscientious or extortionate abuse of power where exceptionally, and as a matter of common fairness, ‘it was not right that the strong should be allowed to push the weak to the wall’.
Dillon LJ, Waller LJ, Dunn LJ
[1985] 1 WLR 173, [1984] EWCA Civ 2, [1985] 1 All ER 303
Bailii
England and Wales
Citing:
Appeal from – Alec Lobb (Garages) Ltd v Total Oil Ltd QBD 1983
To establish that a contract was unconscionable, a party had to have made an unconscientious use of its superior position or superior bargaining power to the detriment of someone suffering from some special disability or disadvantage. This weakness . .
Cited – Gilford Motor Co Ltd v Horne CA 1933
The defendant was the plaintiff’s former managing director. He was bound by a restrictive covenant after he left them. To avoid the covenant, he formed a company and sought to transact his business through it. At first instance, Farwell J had found . .
Cited – Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
Cited – DHN Food Distributors Ltd v Tower Hamlets London Borough Council CA 1976
The business was owned by DHN and the land upon which the business was operated was owned by a wholly owned subsidiary, Bronze. The Council acquired land owned by Bronze on which DHN operated its cash and carry warehouse. The Council submitted that . .
Cited – Amoco Australia Pty Ltd v Rocca Bros Engineering Co Pty Ltd PC 1975
A court looking to see if an unconscionable bargain had been reached could look at whether or not the transaction benefits the mortgagor. The fact that a covenantor had obtained and would continue to enjoy benefits under the relevant agreement which . .
Cited – Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company HL 1894
Exceptions to Freedom to Trade
The purchaser of the goodwill of a business sought to enforce a covenant in restraint of trade given by the seller.
Held: At common law a restraint of trade is prima facie contrary to public policy and void, unless it can be shown that the . .
Cited – The Vancouver Malt and Sake Brewing Company Limited v The Vancouver Breweries Limited PC 2-Feb-1934
(British Columbia) Lord Macmillan stated: ‘The law does not condemn every covenant which is in restraint of trade, for it recognizes that in certain cases it may be legitimate, and indeed beneficial, that a person should limit his future commercial . .
Cited – The Vancouver Malt and Sake Brewing Company Limited v The Vancouver Breweries Limited PC 2-Feb-1934
(British Columbia) Lord Macmillan stated: ‘The law does not condemn every covenant which is in restraint of trade, for it recognizes that in certain cases it may be legitimate, and indeed beneficial, that a person should limit his future commercial . .
Cited – Bennett v Bennett CA 1952
The wife sued for arrears of maintenance payments payable under a deed in consideration for which the wife covenanted not to proceed with the prayers in the petition for maintenance, to consent to their being dismissed, and not to present any . .
Cited – Chemidus Wavin Ltd v Societe pour La Transformation et L’exploitation des Resines Industrielles SA CA 1973
. .
Cited – Goodinson v Goodinson 1954
W covenanted that for so long as the weekly payments of maintenance for herself and the child were punctually made, she would not commence or prosecute any matrimonial proceedings against the husband. The husband fell in arrears and she claimed the . .

Cited by:
Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Cited – Boustany v Piggott PC 1995
In discussing what was said to be unconscionable contract, the Board accepted that ‘It is not sufficient to attract the jurisdiction of equity to prove that a bargain is hard, unreasonable or foolish; it must be proved to be unconscionable, in the . .
Cited – Yorkshire Bank Plc v Tinsley CA 25-Jun-2004
The defendant’s husband had charged the matrimonial home on several occasions to the claimant. It was found that the first charges were affected by undue influence and could not be enforced. The defendant argued that the last charge which replaced . .
Cited – Strydom v Vendside Ltd QBD 18-Aug-2009
The claimant sought recovery of a sum paid to the defendant as a commission by his union during his claim for personal injuries at work, relying on a term he sought to have implied into his contract, that the costs position should not be . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.186675

Alec Lobb (Garages) Ltd v Total Oil Ltd: QBD 1983

To establish that a contract was unconscionable, a party had to have made an unconscientious use of its superior position or superior bargaining power to the detriment of someone suffering from some special disability or disadvantage. This weakness had to be exploited in some morally culpable manner, leading to an oppressive transaction. There must be some impropriety, both in the conduct of the stronger party and in the terms of the transaction itself, but ‘the former may often be inferred from the latter in the absence of an innocent explanation’.
Peter Millett QC J said: ‘It is probably not possible to reconcile all the authorities, some of which are of great antiquity, on this head of equitable relief, which came into greater prominence with the repeal of the usury laws in the 19th century. But if the cases are examined, it will be seen that three elements have almost invariably been present before the court has interfered. First, one party has been at a serious disadvantage to the other, whether through poverty, or ignorance, or lack of advice, or otherwise, so that circumstances existed of which unfair advantage could be taken: see, for example, Blomley v Ryan (1954) 99 CLR 362, where, to the knowledge of one party, the other was by reason of his intoxication in no condition to negotiate intelligently; secondly, this weakness of the one party has been exploited by the other in some morally culpable manner: see, for example, Clark v Malpas (1862) 4 De G.F. and J. 401, where a poor and illiterate man was induced to enter into a transaction of an unusual nature, without proper independent advice, and in great haste; and thirdly, the resulting transaction has been, not merely hard or improvident, but overreaching and oppressive. Where there has been a sale at an undervalue, the undervalue has almost always been substantial, so that it calls for an explanation, and is in itself indicative of the presence of some fraud, undue influence, or other such feature. In short, there must, in my judgment, be some impropriety, both in the conduct of the stronger party and in the terms of the transaction itself (though the former may often be inferred from the latter in the absence of an innocent explanation) which in the traditional phrase ‘shocks the conscience of the court,’ and makes it against equity and good conscience of the stronger party to retain the benefit of a transaction he has unfairly obtained.’
Peter Millett QC J
[1983] 1 All ER 944, [1983] 1 WLR 87
England and Wales
Citing:
Cited – Clark v Malpas 25-Apr-1862
The court found a contract to be an unconscionable bargain where a poor and illiterate man was induced to enter into a transaction of an unusual nature, without proper independent advice, and in great haste; and the resulting transaction has been, . .
Cited – Blomley v Ryan 28-Mar-1956
(High Court of Australia) Equity – Contract for sale and purchase of grazing property – Suit for specific performance brought by purchaser – Vendor aged and affected by long bout of rum drinking – Claim to set aside contract – Unconscionable bargain . .

Cited by:
Appeal from – Alec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .
Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Cited – Portman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .
Cited – Boustany v Piggott PC 1995
In discussing what was said to be unconscionable contract, the Board accepted that ‘It is not sufficient to attract the jurisdiction of equity to prove that a bargain is hard, unreasonable or foolish; it must be proved to be unconscionable, in the . .
Cited – Strydom v Vendside Ltd QBD 18-Aug-2009
The claimant sought recovery of a sum paid to the defendant as a commission by his union during his claim for personal injuries at work, relying on a term he sought to have implied into his contract, that the costs position should not be . .
Cited – Ramzan v Brookwide Ltd ChD 8-Oct-2010
The claimant owned a flying freehold room butting into the defendant’s property. Whilst the claimant’s property was unoccupied, the defendant broke through into the room, blocked off the door to the claimant’s property, and included the room in the . .
Cited – Jones v Morgan CA 28-Jun-2001
The claimant appealed against an order refusing him enforcement an agreement for the purchase of a one half share in a property. The judge had found the agreement to be unconscionable.
Held: The appeal was dismissed. The judge had wrongly . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.186674

Shagang Shipping Company Ltd v HNA Group Company Ltd: ComC 16 May 2016

It was said that a contract had been procured only by bribery. The defendant said that the so called confessions had been obtained by torture, and were inadmissible. No one with first-hand knowledge of the alleged bribery or torture gave evidence and the documentation available at the trial was substantially incomplete. It was agreed that, unless HNA succeeded in its defence that the charterparty was procured by bribery, Shagang was entitled to judgment on its claim under the guarantee.
Held: Torture could not be ruled out as a reason for the confessions and in any case the allegations of bribery had not been proved. The contract was enforceable and awarded damages to the claimant.
Knowles CBE J
[2016] EWHC 1103 (Comm)
Bailii
England and Wales
Cited by:
Appeal from – Shagang Shipping Company Ltd v HNA Group Company Ltd CA 23-Jul-2018
Appeal from finding that a contract award had not been obtained by bribery. The defendant said that the confessions of bribery had been extracted by torture and appealed a finding that the contract was enforceable.
Held: The appeal succeeded. . .
At First Instance – Shagang Shipping Company Ltd v HNA Group Company Ltd SC 5-Aug-2020
Allegations had been made that a contract had been procured by bribery. The other party said that the admissions of bribery had been extracted by torture and were inadmissible. The CA had decided that the unproven possibility that it was obtained by . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.564510

Mardorf Peach and Co Ltd v Attica Sea Carriers Corporation of Liberia (The Laconia): 1977

A right of withdrawal had been granted to a shipowner under a time charterparty if the charterer failed to make a punctual monthly payment of hire.
Held: If the monthly hire had not been punctually paid, the right of withdrawal remained even after the hire had been paid. The right to withdraw only ceased to exist, if it had been in some way waived, though the shipowner must exercise his right to withdraw the ship ‘within a reasonable time after default. Here, although the bank was an agent of the alleged waiving party, it did not have sufficient authority to waive a right of the principal.
The delay necessary in order to amount to a waiver will depend upon the terms of the contract in question and all the circumstances of the case.
If the person said to have waived the breach lacked the actual or ostensible authority to waive the right or rights concerned there will be no waiver.
Lord Wilberforce said that: ‘Although the word ‘waiver’, like ‘estoppel’, covers a variety of situations different in their legal nature, and tends to be indiscriminately used by the courts as a means of relieving parties from bargains or the consequences of bargains which are thought to be harsh or deserving of relief, in the present context what is relied on is clear enough. The charterers had failed to make a punctual payment but it was open to the owners to accept a late payment as if it were punctual, with the consequence that they could not thereafter rely on the default as entitling them to withdraw. All that is needed to establish waiver, in this sense, of the committed breach of contract, is evidence, clear and unequivocal, that such acceptance has taken place.’
Lord Wilberforce
[1977] AC 850, [1977] 1 Lloyds Rep 315
England and Wales
Cited by:
Distinguished – McGahon v Crest Nicholson Regeneration Ltd CA 21-Jul-2010
The claimants contracted to purchase an apartment ‘off-plan’. The contract was conditional on the grant of a head lease. Notice to complete was served by the developers did not disclose that the head lease had not been granted until after the date . .
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: 28 July 2021; Ref: scu.421000

Rock Advertising Ltd v MWB Business Exchange Centres Ltd: SC 16 May 2018

The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a legitimate purpose. Though there is no common law rule against an oral variation, contract law should not normally frustrate the uses of businessmen.
‘the law should and does give effect to a contractual provision requiring specified formalities to be observed for a variation.’
‘What the parties to such a clause have agreed is not that oral variations are forbidden, but that they will be invalid. The mere fact of agreeing to an oral variation is not therefore a contravention of the clause. It is simply the situation to which the clause applies. It is not difficult to record a variation in writing, except perhaps in cases where the variation is so complex that no sensible businessman would do anything else. The natural inference from the parties’ failure to observe the formal requirements of a No Oral Modification clause is not that they intended to dispense with it but that they overlooked it. If, on the other hand, they had it in mind, then they were courting invalidity with their eyes open.’
Lady Hale, President, Lord Wilson, Lord Sumption, Lord Lloyd-Jones, Lord Briggs
[2018] UKSC 24, [2018] WLR(D) 301, UKSC 2016/0152
Bailii, WLRD, Bailii Summary
England and Wales
Citing:
Appeal from – MWB Business Exchange Centres Ltd v Rock Advertising Ltd CA 21-Jun-2016
The parties had contracted to provide and occupy office space, but later purported to agree an oral variation of the written payment schedule. The supplier then sought to enforce the written agreement saying that the contract contained a clause to . .
Cited – Liebe v Molloy 29-Oct-1906
A building contract and a specification provided that no extras should be allowed or paid for unless ordered in writing by both architect and employer. When the building had been completed disputes arose upon claims made by the builder for extras. . .
Cited – Shelanu Inc v Print Three Franchising Corp 20-May-2003
(Court of Appeal for Ontario) . .
Cited – Beatty v Guggenheim Exploration Co 1919
Cardozo J said: ‘Those who make a contract, may unmake it. The clause which forbids a change, may be changed like any other. The prohibition of oral waiver, may itself be waived. ‘Every such agreement is ended by the new one which contradicts it’ . .
Cited – Re Commonwealth of Australia v Crothall Hospital Services (Aust) Limited (Formerly) Crothall and Co (Nsw) Pty Ltd 17-Aug-1981
(Federal Court of Australia) . .
Cited – Colautti Construction Ltd v City of Ottawa 22-May-1984
(Ontario Court of Appeal) The plaintiff contracted to install a new sewer line for the defendant city. The line marked for excavation was too close to a water-main and, after some work had been done, had to be relocated causing additional cost. The . .
Cited – United Bank Ltd v Asif CA 11-Feb-2000
Sedley LJ refused leave to appeal from a summary judgment on the ground that it was ‘incontestably right’ that in the face of a No Oral Modification clause ‘no oral variation of the written terms could have any legal effect.’ . .
Cited – World Online Telecom Ltd v I-Way Ltd CA 8-Mar-2002
A contract provided against it variation save in writing and signed. A claim was made relying upon an oral variation.
Held: It was a sufficient reason for refusing summary judgment that ‘the law on the topic is not settled.’ . .
Cited – Energy Venture Partners Ltd v Malabu Oil and Gas Ltd ComC 17-Jul-2013
Gloster LJ declined to decide the point but ‘incline[d] to the view’ that clauses not permitting variation of a contract without the variation being in writing were ineffective. . .
Cited – Globe Motors, Inc and Others v TRW Lucas Varity Electric Steering Ltd and Another CA 20-Apr-2016
Globe, component manufacturers had a contract to supply TRW. The contract was exclusive. It contained a clause disallowing any amendment.
Held: (Obiter) Beatson LJ thought such clauses unenforceable. . .
Cited – Evans and Son (Portsmouth) Ltd v Andrea Merzario Ltd CA 1976
The defendants had carried previously goods aboard ship for the plaintiffs. This time, they were asked for and gave an oral re-assurance to the plaintiffs that the goods would be carried below deck. This did not happen and the goods were swept . .
Doubted – Brikom Investments v Carr 1979
A reversioner can grant rights in respect of covenants in the lease which bind reversioners by way of a collateral contract. When a person makes a representation intending that another should act on it: ‘It is no answer for the maker to say: ‘You . .
Cited – Inntrepreneur Pub Co v East Crown Ltd 2000
The ‘entire agreement’ clause contained in a lease not only had the effect of rendering evidence of an alleged collateral warranty inadmissible, but also deprived the warranty of all legal effect. It did not collapse the lease in on itself. Lightman . .
Cited – Business Environment Bow Lane Ltd v Deanwater Estates Ltd CA 27-Jun-2007
Enforcement of repairing obligations in lease after assignments, and the use of collateral contracts. Sir Andrew Morritt C said: ‘The law relating to collateral contracts is well-established but in connection with sales or leases of land needs to be . .
Cited – Ryanair Ltd v SR Technics Ireland Ltd QBD 20-Dec-2007
. .
Cited – North Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
Cited – McGrath v Shah ChD 22-Oct-1987
John Chadwick QC said of a clause restricting a contract variation not in writing: ‘One can see why such a provision is included in a contract for the sale and purchase of land. All material terms of a contract for the sale of land must be evidenced . .
Cited – Deepak Fertilisers and Petrochemicals Corporation v ICI Chemicals and Polymers Ltd and Another ComC 30-Sep-1997
Trial of preliminary issue – Negligent Misrepresentation – Breach of Collateral Warranties – Breach of duty of care – Breach of contract (Davy Mckee only). . .
Cited – Deepak Fertilisers and Petrochemical Corporation v Davy McKee (London) Ltd; ICI Chemicals and Polymers Ltd CA 12-Nov-1998
Deepak’s plant was built with know-how derived from ICI via one of ICI’s licensees, Davy. The contract between Davy and Deepak contained (it was assumed) a promise by Deepak to indemnify ICI. The plant was severely damaged by an explosion and Deepak . .
Cited – Matchbet Ltd v Openbet Retail Ltd ChD 11-Oct-2013
Claim for damages for alleged breaches of a software licensing and development agreement – variation of contract in breach of entire agreement clause . .
Cited – ZCCM Investments Holdings Plc v Konkola Copper Mines Plc ComC 14-Dec-2017
. .
Cited – Triple Point Technology, Inc v PTT Public Company Ltd TCC 23-Aug-2017
. .
Cited – Adibe v National Westminster Bank Plc ChD 16-Mar-2017
. .
Cited – Mileform Ltd v Interserve Security Ltd QBD 5-Nov-2013
This case concerns the terms and formation of a contract for the provision of warehousing, packaging, distribution and storage services. The critical question for the Court’s determination is whether the agreement reached between the parties, on or . .
For Examination later – Foakes v Beer HL 16-May-1884
Mrs Beer had obtained judgment against Dr Foakes for andpound;2,090 19s. He asked for time to pay and they agreed with him, acknowledging the debt, and paying part immediately and undertaking to pay the balance over a period of time. In . .
Cited – Williams v Roffey Brothers and Nicholls (Contractors) Ltd CA 23-Nov-1989
The defendant subcontracted some of its work under a building contract to the plaintiff at a price which left him in financial difficulty and there was a risk that the work would not be completed by the plaintiff. The defendant agreed to make . .
Cited – Moran Yacht and Ship Inc v Pisarev and Another CA 11-Feb-2016
. .
Cited – In Re Selectmove Ltd CA 21-Dec-1993
Promisse to Pay Tax due is not Consideration
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
Cited – Moran Yacht and Ship Inc v Pisarev and Another Re 4You ComC 10-Apr-2014
Claim by brokers for commission on the sale of a superyacht. . .
Cited – Actionstrength Limited v International Glass Engineering In Gl En SpA and others HL 3-Apr-2003
Actionstrength agreed with Inglen to provide construction staff to build a factory for St-Gobain. Inglen failed to pay. Actionstrength claimed against for the amount due. Inglen went into liquidation. The claim was now against St-Gobain. The claim . .
Cited – Tevanon v Norman Brett (Builders) Ltd 1972
Brightman J said: ‘parties could get rid of the qualification of ‘subject to contract’ only if they both expressly agreed that it should be expunged or if such an agreement was to be necessarily implied . . ‘ [W]hen parties started their . .
Cited – Sherbrooke v Dipple 1980
Parties to a conveyancing context can get rid of the qualification ‘subject to contract’ only if either they both expressly agree that it should be expunged or if such an agreement can be necessarily implied. . .
Cited – Cohen v Nessdale Ltd CA 1982
Once negotiations are begun ‘subject to contract’, that label governs all subsequent communications between the parties unless the label is expunged by express agreement or by necessary implication. . .

Cited by:
Cited – Pimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 July 2021; Ref: scu.615572

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 from withdrawing the vessel for short payment.
Mocatta J said: ‘the courts should do their best, consistently with legal principles, to give effect to this clause, which . . shows a praiseworthy effort to reduce the technicalities, inappropriate to a commercial relationship, which so often arise in connection with the right to withdraw a ship under a time charter.’
Mocatta J
[1975] 1 Lloyds Rep 537
England and Wales
Cited by:
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.459945

CVG Siderurgicia del Orinoco SA v London Steamship Owners’ Mutual Insurance Association Limited ‘The Vainqueur Jose’: 1979

The plaintiff sought to claim under the rules of the P and I club of which it was a member. After defining the risks in respect of which members were to be indemnified, the rules made the following proviso in Rule 8(k): ‘A member shall at the discretion of the Committee, be liable to have a deduction made from any claim where the Committee shall be of opinion that the Member has not taken such steps to protect his interests as he would have done if the ship had not been entered in this class. This deduction shall be of such an amount as the Committee in its discretion shall decide.’
Held: Whenever a discretion is afforded to a party by contract it is an implied term that it must not be exercised unreasonably. The common law principles applicable to the exercise of a contractual discretion include fairness, reasonableness, bona fides and absence of misdirection in law.
Mocatta J said: ‘Where, as here, the success or failure of a claim depends upon the exercise of a discretion by a lay body, it would be a mistake to expect the same expert, professional and almost microscopic investigation of the problems, both factual and legal, that is demanded of a suit in a Court of law’.
and ‘To the exercise of such discretion the common law principles must apply and these undoubtedly include fairness, reasonableness, bona fides and absence of misdirection in law’
‘The next point of law arising is whether a deduction of 100 per cent or any other lesser figure that cannot be shown at least approximately to amount to the quantum of claim that would or might have been avoided had the member acted as a prudent uninsured owner can be deducted. Would such ill-founded deduction be invalid as being a penalty? I confess it came as a surprise to me to hear [counsel] argue that the penalty doctrine had any place in English law other than in connection with the question whether a clause in a contract providing for payment by the party in breach of an agreed sum was a genuine pre-estimate of pecuniary loss or was included as a term in terrorem and, therefore, unenforceable as a penalty. The authority upon which [counsel] relied was Gilbert Ash . . Having given this recent authority careful consideration, I am unable to take the view that it has any application here or to insurance law generally. Here the Committee is given a complete discretion under r. 8(k) . . and while they must comply with the general principles applicable to the exercise of such discretions previously discussed, in my opinion they cannot be faulted on the basis of the law against penalties if they decide . . to make a deduction of 100 per cent under r. 8(k) . . One may further ask how is the penalty argument to be reconciled with the rules in insurance law about warranties . . which must be complied with whether material or not, or about non-disclosure of material facts . . where the insurers may avoid the contract although the fact not disclosed, and quite innocently, has no causal relation to the loss in respect of which indemnity is sought? Apart from insurance law, there are innumerable cases in the books where a defendant, because, for example, of a sudden fall in the market price of a commodity or of freight or hire rates, rescinds the contract on the basis of the breach of a condition precedent, thereby causing heavy loss to the other party, who is left without a remedy, whereas the breach of the condition precedent has of itself caused no loss or damage to the party relying upon it.’
Mocatta J
[1979] 1 Lloyds Rep 557
England and Wales
Citing:
Applied – 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 . .

Cited by:
Cited – First National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
Cited – Braganza v BP Shipping Ltd SC 18-Mar-2015
The claimant’s husband had been lost from the defendant’s ship at sea. The defendant had contracted to pay compensation unless the loss was by suicide. They so determined. The court was now asked whether that was a permissible conclusion in the . .
Cited – Braganza v BP Shipping Ltd and Others CA 22-Mar-2013
The claimant widow sued in negligence after the disappearance overboard of her husband from the respondent’s ship. The court had found insufficient evidence to establish the cause of death, either as to negligence as suggested by the claimant, or as . .
Cited – Socimer International Bank Ltd v Standard Bank London Ltd CA 22-Feb-2008
Rix LJ considered the restraints operating a party to a contract in exercising any discretion gien under it, preferring the use of the term ‘irrationality’ to ‘unreasonableness’: ‘It is plain from these authorities that a decision-maker’s discretion . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.198398

Sunport Shipping Limited, Prometheus Maritime Corporation, Celestial Maritime Corporation, Surzur Overseas Limited v Tryg-Baltica International (UK) Ltd (Formerly Know As Colonia Baltica Insurance Ltd) and others: CA 24 Jan 2003

(The ‘Kleovoulos of Rhodes’) A large quantity of cocaine was discovered by divers behind a grille in a sea chest at the vessel’s discharge port, Aliveri – having been placed there by unknown third persons at the load port in Colombia, South America. The crew were ultimately acquitted of any involvement, but the vessel’s detainment lasted so long that she could be and was declared a constructive total loss under clause 3. The insurance policy incorporated standard provisions which excluded cover for ‘loss damage arising from detainment by reason of infringement of any customs or trading regulations.’ The ship was detained and the insurers refused payment.
Held: The term ‘customs regulations’, in a marine insurance law, had to be construed widely enough to include rules allowing the detention of a ship for contravention of controlled drugs and other prohibited goods laws.
Clarke LJ described the Hooley Hill Rubber principle as: ‘essentially a principle of construction. Thus the court is trying to ascertain the intention of the parties in using the expression deployed in the contract. Where a contract has been professionally drawn, as in the case of the Institute Clauses, the draftsman is certain to have in mind decisions of the courts on earlier editions of the clause. Such decisions are part of the context or background circumstances against which the particular contract falls to be construed. If the draftsman chooses to adopt the same words as previously construed by the courts, it seems to me to be likely that, other things being equal, he intends that the words should continue to have the same meaning.’
Mr Justice Scott Baker, Lord Justice Clarke, Lord Justice Peter Gibson
Times 03-Feb-2003, [2003] EWCA Civ 12, Gazette 20-Mar-2003, [2003] 1 All ER (Comm) 586, [2003] 1 LLR 138, [2003] Lloyds Rep IR 349
Bailii
England and Wales
Citing:
Appeal from – Sunport Shipping Limited, Prometheus Maritime Corporation, Celestial Maritime Corporation, Surzur Overseas Limited v Tryg-Baltica International (UK) Limited, C N R Atkin ComC 27-Feb-2002
A claim was made under a marine insurance policy. The policy incorporated the Institute War and Strikes Clauses, Hulls-Time of 1/10/83, and included a clause ‘loss damage . . arising from . . Detainment . . by reason of infringement of any customs . .
Cited – Panamanian Oriental Steamship Corporation v Wright (The Anita) CA 1971
The burden is on Underwriters to bring themselves within an exclusion clause they seek to rely on.
Lord Denning distinguished between what might be described as justified or ‘connected’ political interference on the one hand and unjustified or . .
Cited – Re Hooley Hill Rubber and Royal Insurance Co CA 1920
When interprting a contract, it is assumed that the draftsman works with a view to certainty of sense and standardisation of terms. Bankes LJ said: ‘Courts should be chary in interfering with the interpretation given to a well-known document and . .

Cited by:
Cited – Bedfordshire Police Authority v Constable and others ComC 20-Jun-2008
The authority insured its primary liability for compensation under the 1886 Act through the claimants and the excess of liability through re-insurers. The parties sought clarification from the court of the respective liabilities of the insurance . .
Cited – Bedfordshire Police Authority v Constable CA 12-Feb-2009
The police had responded to a riot at Yarlswood detention centre. They had insurance to cover their liability under the 1886 Act, but the re-insurers said that the insurance did not cover the event, saying that the liability was for statutory . .
Cited – Navigators Insurance Company Ltd and Others v Atlasnavios-Navegacao Lda SC 22-May-2018
The vessel had been taken by the authorities in Venezuela after drugs were found to have been attached to its hull by third parties. Six months later it was declared a constructive total loss. The ship owners now sought recovery of its value from . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.178796

Handelsbanken v Dandridge and others: CA 30 Apr 2002

The Aliza Glacial

Construction of two standard clauses in the Institute War and Strikes Clauses Hulls-Time, 1983 edition. Potter LJ treated the vessel’s loss, following the owners’ refusal to meet an outrageous ransom demand by a terrorist organisation, as outside the scope of a loss by ‘any financial cause’ in clause 4.1.7.
Lord Justice Potter
[2002] EWCA Civ 577, [2002] 2 Lloyd’s Rep 421, [2002] 2 All ER (Comm) 39
Bailii
England and Wales
Cited by:
Cited – Navigators Insurance Company Ltd and Others v Atlasnavios-Navegacao Lda SC 22-May-2018
The vessel had been taken by the authorities in Venezuela after drugs were found to have been attached to its hull by third parties. Six months later it was declared a constructive total loss. The ship owners now sought recovery of its value from . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.171232

British Movietone News Limited v London and District Cinemas Limited: HL 26 Jul 1951

Film distributors contracted to supply newsreels at a cinematic theatre. The contract was for a minimum of 26 weeks, and after on termination by the distributors on four weeks notice thereafter, but by the cinema on four weeks after the first month. After the 1943 Order, the contract was varied, providing that during the continuance of the Order, a special condition applied to the original agreement: ‘The principal agreement shall remain in full force and effect until such time as the said order is cancelled and thereafter for any unexposed term of the original agreement. Despite the order not being cancelled, the exhibitor gave 4 weeks notice to terminate the agreement. The Act under which the Order had been repealed, but the Order was continued in order to manage supplies of raw film.
Held: The wording could not be construed to imply a restriction whilst only the Order was supported by the Act. There was no effective change of circumstances to support a suggestion of frustration of the contract, and the notice was ineffective.
Viscount Simon said: ‘It is of the utmost importance that the action of a court, when it decides that in view of a supervening situation the rights and obligations under a contract have automatically ceased, should not be misunderstood. The suggestion that an ‘uncontemplated turn of events’ is enough to enable a court to substitute its notion of what is ‘just and reasonable’ for the contract as it stands, even though there is no ‘frustrating event,’ appears to be likely to lead to some misunderstanding. The parties to an executory contract are often faced, in the course of carrying it out, with a turn of events which they did not at all anticipate – a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an unexpected obstacle to execution, or the like. Yet this does not in itself affect the bargain they have made. If, on the other hand, a consideration of the terms of the contract, in the light of the circumstances existing when it was made, shows that they never agreed to be bound in a fundamentally different situation which has now unexpectedly emerged, the contract ceases to bind at that point – not because the court in its discretion thinks it just and reasonable to qualify the terms of the contract, but because on its true construction it does not apply in that situation.’
Viscount Simon said: ‘The parties to an executory contract are often faced, in the course of carrying it out, with a turn of events which they did not at all anticipate – a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an unexpected obstacle to execution, or the like. Yet this does not in itself affect the bargain they have made.’
Viscount Simon, Simonds, Morton of Henryton, Tucker LL
[1952] AC 166, [1951] 2 All ER 617, [1951] 2 TLR 571, 95 Sol Jo 499
Cinematograph Film (Control) Order 1943, Emergency Powers (Defence) Act 1939
England and Wales
Citing:
Adopted – Nelson Line (Liverpool) Ltd v James Nelson and Sons Ltd HL 1908
Where there is in a contract an absolute promise with an exception engrafted upon it, the exception is to be construed strictly, and extends only so far as it is expressed with clearness and certainty. The parties to an agreement may contract . .
Cited – Shirlaw v Southern Foundries (1926) Ltd CA 1939
The court warned against the over-ready application of any principle to justify the implication of terms into a contract. McKinnon LJ set out his ‘officious bystander’ test: ‘If I may quote from an essay which I wrote some years ago, I then said: . .
Cited – Joseph Constantine SS Line Ltd v Imperial Smelting Corp Ltd 1942
Before a court, he who asserts something must must prove it: ‘Ei qui affirmat non ei qui negat incumbit probatio’
Lord Wight discussed the question of whether there had been ‘a vital change of the law . . Operating on the circumstances.’ . .

Cited by:
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 – Classic Maritime Inc v Lion Diversified Holdings and Another ComC 21-May-2009
. .
Cited – Armitage v Staveley Industries Plc CA 1-Jul-2005
. .
Cited – Armitage v Staveley Industries Plc ChD 18-Oct-2004
Pensions entitlement . .
Cited – Davis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.402547

Law v Law: 1905

A person with a right to rescind a contract may be held to have affirmed the contract even if there are some material facts which he did not know at the time of the affirmation. However: ‘ . . there is a duty resting upon the purchaser who knows, and is aware that he knows, more about the partnership accounts than the vendor, to put the vendor on possession of all material facts with reference to the partnership assets, and not to conceal what he alone knows; and that, unless such information has been furnished, the sale is voidable and may be set aside.’
Cozens-Hardy LJ
[1905] 1 Ch 140
England and Wales
Cited by:
Cited – Simms v Conlon and Another CA 20-Dec-2006
Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.248043

Cundy v Lindsay: HL 1878

Cundy was asked to pay the linen manufacturers Lindsay and Co for 250 dozen cambric handkerchiefs which he had acquired from a crook who had acquired them from Lindsay by pretending to be the respectable business firm of Blenkiron.
Held: A dealer who was induced by a rogue acting through the post, A, to believe that he is dealing with B, with whom he is willing to deal, makes no contract at all and unless it was a sale in market overt, he can recover the goods he has parted with from an innocent purchaser. Lord Cairns said: ‘how is it possible to imagine that in that state of things any contract could have arisen between the Respondents and Blenkarn, the dishonest man? Of him they knew nothing, and of him they never thought. With him they never intended to deal. Their minds never, even for an instant of time, rested upon him, and as between him and them there was no consensus of mind which could lead to any arrangement or any contract whatever.’
Lord Hatherly said: ‘from beginning to end the Respondents believed they were dealing with Blenkiron and Co., they made out their invoices to Blenkiron and Co., they supposed they sold to Blenkiron and Co., they never sold in any way to Alfred Blenkarn; and therefore Alfred Blenkarn cannot, by so obtaining the goods, have by possibility made a good title to a purchaser, as against the owners of the goods, who had never in any shape or way parted with the property nor with anything more than the possession of it.’
Lord Penzance said: ‘In the present case Alfred Blenkarn pretended that he was, and acted as if he was, Blenkiron and Co. with whom alone the vendors meant to deal. No contract was ever intended with him, and the contract which was intended failed for want of another party to it.’
Lord Cairns LC, Lord Hatherley and Lord Penzance
(1878) 3 App Cas 459
England and Wales
Citing:
Followed – Hardman v Booth CEC 1863
Gandell carried on business in two capacities: as clerk to Gandell and Co, of which his father was sole proprietor. He had no authority to contract. He was in partnership with Todd, as Gandell and Todd. He purported to conclude a contract to . .

Cited by:
Applied – Norman Hudson v Shogun Finance Ltd CA 28-Jun-2001
A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
Held: The dealer had not taken all the steps he might have done to check the identity of the . .
Overruled – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Cited – Lake v Simmons HL 1927
A jeweller claimed on a policy of insurance. One Ellison had induced him, in face-to-face dealings, to part with possession of two necklaces by pretending she was the wife of a local gentleman called Van der Borgh, with whom she was living, and that . .
Cited – King’s Norton Metal Co Ltd v Edridge Merrett and Co Ltd CA 1879
A crook ordered some brass rivet wire from a metal manufacturer. On his stationery he represented falsely that he was in business in a big way, running a large factory and having several depots and agencies. The manufacturer supplied the goods but . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.188408

Actionstrength Limited v International Glass Engineering In Gl En SpA and others: HL 3 Apr 2003

Actionstrength agreed with Inglen to provide construction staff to build a factory for St-Gobain. Inglen failed to pay. Actionstrength claimed against for the amount due. Inglen went into liquidation. The claim was now against St-Gobain. The claim was based on an alleged oral guarantee. When the defendant pleaded the Statute of Frauds, the claimant alleged an estoppel, saying the defendant had urged it to continue to supply workers.
Held: Some recognisable structural framework must be established before recourse could be had to the underlying idea of unconscionable conduct. It needed to be shown that Actionstrength assumed that St-Gobain would honour the guarantee; that that assumption was induced or encouraged by St-Gobain; and that Actionstrength relied on that assumption. They had not established all these elements. These factors could not all be found in the pleadings. The only assurance given to Actionstrength was the promise itself. In order to be estopped from invoking the statute there must be something more, such as some additional encouragement, inducement or assurance. In addition to the promise there must be some influence exerted by St-Gobain on Actionstrength to lead it to assume that the promise would be honoured. However there was no suggestion made that St-Gobain said or did anything to lead Actionstrength to assume that St-Gobain would not stand on its rights.
The purpose of the Statute was, said Lord Hoffmann: ‘precisely to avoid the need to decide which side was telling the truth about whether or not an oral promise had been made and exactly what had been promised.’ and ‘It is quite true . . that the system of civil procedure in 1677 was not very well adapted to discovering the truth. For one thing, the parties to the action were not competent witnesses. But the question of whether the Act should be preserved in its application to guarantees was considered in 1953 by the Law Reform Committee (First Report, Statute of Frauds and Section 4 of the Sale of Goods Act 1893 (Cmd 8809)) and the recommendation of a very strong committee was to keep it.’
Lord Bingham said that section 4 was enacted ‘to address a mischief facilitated, it seems, by the procedural deficiencies of the day . . the calling of perjured evidence to prove spurious agreements said to have been made orally. The solution applied to the five classes of contract specified in section 4 was to require, as a condition of enforceability, some written memorandum or note of the agreement signed by the party to be charged under the agreement or his authorised agent’
Lord Bingham of Cornhill, Lord Woolf, Lord Hoffmann, Lord Clyde, Lord Walker of Gestingthorpe
[2003] UKHL 17, Times 04-Apr-2003, [2003] 2 AC 541, [2003] 2 WLR 1060, [2003] 1 CLC 1003, [2003] 2 All ER (Comm) 331, [2003] 2 All ER 615, [2003] BLR 207, 88 Con LR 208
House of Lords, Bailii
Statute of Frauds 1677 4
England and Wales
Citing:
Appeal from – Actionstrength Limited v International Glass Engineering, In Gl En SPA, Saint-Gobain Glass UK Limited CA 10-Oct-2001
The claimant sought payment for works undertaken. They had been given a promise that in return for not withdrawing their workforce from the site, the second defendants would redirect payments due to the first defendant to the claimant. When it came . .
Cited – Steadman v Steadman HL 1976
A mere payment of a sum of money might amount to an act of part performance, as might the act of a purchaser instructing solicitors to prepare and submit a draft conveyance or transfer, so as to leave asituation capable of enforcement in equity. . .
Cited – Maddison v Alderson HL 1883
The requirement of the doctrine of part performance is that the acts of part performance relied upon must be ‘referable’ to the contract sued on. The principle underlying the doctrine of part performance was expressed by Lord Selborne: ‘In a suit . .
Cited – Shah v Shah CA 10-Apr-2001
The court was asked as to the enforceability of a document under the terms of which the defendants were to make a payment of pounds 1.5 million to the claimant. The document was described as a deed and provided for each defendant to sign in the . .
Cited – Kok Hoong v Leong Cheong Kweng Mines Ltd PC 1964
A clear public policy underlying a statute (for instance, the need to protect vulnerable persons dealing with moneylenders or landlords) prevents an estoppel arising: ‘To ask whether the law that confronts the estoppel can be seen to represent a . .
Cited – Bank of Scotland v Wright ChD 1991
A director of two companies (one a subsidiary of the other) had given the bank a written guarantee of the liability of the holding company (only); but under an ‘interavailable’ facility backed by cross-guarantees (by the companies) the holding . .
Cited – Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD 1981
The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .

Cited by:
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 . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another CA 9-Mar-2012
The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2021; Ref: scu.180415

Harcus Sinclair Llp and Another v Your Lawyers Ltd: SC 23 Jul 2021

(1) Does the court have inherent jurisdiction to supervise the conduct of an authorised body through which a solicitor practises?
(2) Can the court’s inherent supervisory jurisdiction in respect of a solicitor be engaged if a solicitor gives an undertaking on behalf of an authorised body through which he or she practises and fails to ensure that the undertaking is performed?
(3) If an undertaking given by a solicitor or authorised body restrains its trade, is its construction, validity and enforcement under the court’s inherent jurisdiction to be determined in accordance with contractual principles?
(4) Where an undertaking given by a solicitor is alleged to be contrary to public policy under the doctrine of restraint of trade, is the fact that it is a solicitor’s undertaking relevant to the question whether is enforcement in contract is contrary to public policy?
(5) Is the undertaking given by Mr Parker on behalf of HHSLLP unenforceable on the ground of public policy under the doctrine of restraint of trade?
Lord Lloyd-Jones, Lord Briggs, Lady Arden, Lord Hamblen, Lord Burrows
[2021] UKSC 32
Bailii, Bailii Press Summary, Bailii Issues and Facts
England and Wales

Updated: 23 July 2021; Ref: scu.666155

Didymi Corporation v Atlantic Lines and Navigation Co Inc ‘The Didymi’: CA 1988

A contract contained a clause covering the rate of hire of a 5 year time charter: ’30(1) The … speed and fuel consumption of the vessel as stipulated in this charter-party are representations by the owners. Should the actual performance of the vessel taken on an average basis throughout the duration of this charter-party show any failure to satisfy one or more of such representations, the hire shall be equitably decreased by an amount to be mutually agreed between owners and charterers …’ The Court asked whether this provided sufficient certainty to give rise to a binding obligation, a substantive obligation of the parties, rather than a procedural question of how the substantive right might be determined. It was argued that the clause was not enforceable, because it was an agreement to agree.
Held: The substantive obligation was sufficiently spelt out by the reference to ‘equitably’ and that the provision for mutual agreement was no more than procedural mechanics.
Bingham LJ
[1988] 2 Lloyds Rep 108
England and Wales
Citing:
Applied – Sudbrook Trading Estate Ltd v Eggleton HL 1982
The grantors of an option, which contained a machinery for fixing the price, had refused to appoint a valuer and that made it impossible for the contractual machinery for the valuation of the option price to work. The House of Lords held that the . .

Cited by:
Cited – Davies Middleton and Davies Ltd v Toyo Engineering Corporation CA 29-Aug-1997
Parties to a dispute agreed a way of resolving issues before arbitration. One party then sought to say that the agreement was void for uncertainty, being an agreement to agree.
Held: The agreement merely set a mechansim for resolving the . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2021; Ref: scu.188392

Bank of India v Trans Continental Commodity Merchants: 1982

If a transaction is on its face, that is to say merely by looking at its terms and without additional evidence, manifestly illegal, the Court will refuse to enforce it, whether or not either party alleges illegality. If a transaction is not on its face manifestly illegal but there is before the Court persuasive and comprehensive evidence of illegality, the court may refuse to enforce it even if illegality has not been pleaded or alleged. The principle behind the court’s intervention of its own notion in such a case is to ensure that its process is not being abused by inviting it to enforce sub silentio a contract whose enforcement is contrary to public policy.
Bingham J
[1982] 1 LR 427
England and Wales

Updated: 22 July 2021; Ref: scu.553659

Sheffield District Railway co v Great Central Railway Co: 1911

(Rail and Canal Commissioners) The Sheffield District Railway agreed (in a contract appended to a special Act of Parliament, with the Lancashire, Derbyshire and East Coast Railway for the operation of a short line with two stations by means of which traffic gained access to Sheffield. The Derbyshire was originally a competitor of the Great Central Railway which had many more stations and arranged for goods to be carted to and from its own stations rather than being left to use the stations of its competitors. The Derbyshire subsequently amalgamated with the Great Central Railway which took over the operation of the Sheffield on terms including an obligation to ‘use their best endeavours to develop the through and local traffic on and over the Railways’ of Sheffield. After the amalgamation, the Great Central continued to act as it had before, with the result that goods which could have been taken to or from one of the Sheffield’s stations were instead taken to or from one of the Great Central’s stations. The Sheffield complained that the Great Central was in breach of the obligation to use its best endeavours to develop its traffic.
Held: The defendant had taken on a quasi fiduciary position towards the plaintiff, which was akin to that of a bailiff or agent, and were obliged to treat the plaintiff no owrse than they would themselves.
The words imposed on the Great Central an obligation to leave no stone unturned, within the bounds of reason, to develop the Sheffield’s traffic. The object of the endeavours was not too uncertain to be capable of enforcement. An obligation to use ‘best endeavours’ does not require the person who undertakes it to go beyond the bounds of reason, he or she is required to do all that can reasonably be done in the circumstances to achieve the contractual object (but no more).
Lawrence J
(1911) 27 TLR 451, (1911) Ty and Can Tr Cas 299
England and Wales
Cited by:
Cited – Midland Land Reclamation Ltd, Leicestershire County Council v Warren Energy Ltd TCC 20-Jan-1997
Claim of set-off . .
Cited – Days Medical Aids Ltd v Pihsiang Machinery Manufacturing Co Ltd and others CA 13-Jul-2004
. .
Cited – Trustees Ltd v Papakyriacou and Another CA 27-Oct-2009
The parties disputed the excessive use of a right of way by the defendant’s tenants. The claimant appealed against rejection of its claim of trespass. . .
Cited – EDI Central Ltd v National Car Parks Ltd SCS 20-Jan-2012
. .
Cited – Jet2Com Ltd v Blackpool Airport Ltd CA 2-Apr-2012
. .

Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2021; Ref: scu.545179

Morgan v Ashcroft: CA 1937

A gift may be recovered where it was made under the mistaken belief that the donee is someone else. The mistake must be as to a fact which, if true, would create a liability to pay .
Scott LJ said of the Kerrison case that ‘it was definitely decided by Hamilton J. and by the House of Lords that the plaintiff was entitled to recover a payment made to the defendants for the purpose of meeting an anticipated liability although he then knew that no actual liability had yet attached to him.’ The mistake of fact, in the words of Scott LJ ‘must be in some aspect or another fundamental to the transaction’
Scott LJ, Lord Greene MR
[1938] 1 KB 49, [1937] 3 All ER 92
England and Wales
Citing:
Cited – Kerrison v Glyn, Mills, Currie and Co HL 1912
The plaintiff arranged with his bankers for them to honour cheques of one Patterson and when they advised the plaintiff of the amount of the cheques so honoured, the plaintiff would pay Kessler and Co. The plaintiff paid andpound;500 to the . .

Cited by:
Cited – Regina v Gilks CACD 27-Jun-1972
The appellant had placed a bet at a betting shop on a certain horse. A horse with a similar name won, but by mistake the shop paid out on the bet. The appellant knew of the mistake, but refused to return the winnings. He now appealed against his . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2021; Ref: scu.539757

Cartus Corporation Cartus Ltd v Siddell and Another: QBD 16 Jul 2014

The court discharged an interim injunction granted within a defamation claim in turn within a dispute as to the return of two shipping containers and allegations of inflated invoices.
Nicol J
[2014] EWHC 2266 (QB)
Bailii
England and Wales
Cited by:
See Also – Cartus Corporation and Another v Sidell and Another QBD 24-Jul-2014
Reasons for non-continuance of without notice injunction. . .
See Also – Cartus Corporation v Atlantic Mobility Ltd QBD 22-Aug-2014
The parties had disputed the return of two shipping containers. . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2021; Ref: scu.535133

Neslen and Others v Evans: QBD 8 Jul 2021

The Claimants brought Part 8 claims against the Defendant, as a representative of the Labour Party, seeking declarations that in carrying out investigations into allegations of, or related to, anti-Semitism against the Claimants, the Party’s conduct has been unfair and in breach of contract.
The Honourable Mr Justice Butcher
[2021] EWHC 1909 (QB)
Bailii
England and Wales

Updated: 22 July 2021; Ref: scu.666047

ZCCM Investments Holdings Plc v Konkola Copper Mines Plc: ComC 14 Dec 2017

Lionel Persey QC
[2017] EWHC 3288 (Comm)
Bailii
England and Wales
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.601480

Adibe v National Westminster Bank Plc: ChD 16 Mar 2017

[2017] EWHC 1655 (Ch)
Bailii
England and Wales
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.631436

Mileform Ltd v Interserve Security Ltd: QBD 5 Nov 2013

This case concerns the terms and formation of a contract for the provision of warehousing, packaging, distribution and storage services. The critical question for the Court’s determination is whether the agreement reached between the parties, on or about 15 January 2010, alleged by the claimant to be contained in a partly written and partly oral agreement of that date, contained an exclusivity term, pursuant to which the defendant appointed the claimant to supply the agreed services on an exclusive basis for two years.
Gloster J
[2013] EWHC 3386 (QB)
Bailii
England and Wales
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.517386

Moran Yacht and Ship Inc v Pisarev and Another: CA 11 Feb 2016

[2016] EWCA Civ 317, [2017] 1 All ER (Comm) 62, [2016] 1 Lloyds Rep 625
Bailii
England and Wales
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.616602

Globe Motors, Inc and Others v TRW Lucas Varity Electric Steering Ltd: ComC 11 Nov 2014

Trial of claims by the Claimants for breach of contract and negligent misstatement against the Defendants arising from an exclusive supply agreement
Mackie QC HHJ
[2014] EWHC 3718 (Comm)
Bailii
England and Wales
Citing:
See Also – Globe Motors Inc and Others v TRW Lucasvarity Electric Steering Ltd QBD 8-Nov-2012
The defendants sought to have struck out parts of the claimants’ Particulars of Claim. . .

Cited by:
See Also – Globe Motors Inc and Others v TRW Lucas Varity Electric Steering Ltd and Another ComC 23-Mar-2015
Calculation of quantum . .
Appeal from – Globe Motors, Inc and Others v TRW Lucas Varity Electric Steering Ltd and Another CA 20-Apr-2016
Globe, component manufacturers had a contract to supply TRW. The contract was exclusive. It contained a clause disallowing any amendment.
Held: (Obiter) Beatson LJ thought such clauses unenforceable. . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.538841

MWB Business Exchange Centres Ltd v Rock Advertising Ltd: CA 21 Jun 2016

The parties had contracted to provide and occupy office space, but later purported to agree an oral variation of the written payment schedule. The supplier then sought to enforce the written agreement saying that the contract contained a clause to the effect that it could not be varied unless in writing and signed. It was also argued that an extension of time for payment was without consideration.
Held: The appeal was allowed. The variation was supported by consideration, but the oral agreement to revise the schedule of payments also amounted to an agreement to dispense with the clause. MWB were bound by the variation and were not entitled to claim the arrears at the time when they did.
Arden, Kitchin, McCombe LJJ
[2016] EWCA Civ 553, [2016] WLR(D) 330, [2017] QB 604, [2016] L and TR 27, [2016] 2 Lloyd’s Rep 391, [2016] 3 WLR 1519
Bailii, WLRD
England and Wales
Cited by:
Appeal from – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.566024

First Tower Trustees Ltd and Another v CDS (Superstores International) Ltd: ChD 20 Feb 2017

Tenancy granted, but asbestos found before occupation taken up.
Michael Brindle QC sitting as a deputy High Court judge
[2017] EWHC 891 (Ch), [2017] EWHC B6 (Ch), [2017] 4 WLR 73, [2017] WLR(D) 133
Bailii, Bailii, WLRD
Misrepresentation Act 1967 3
England and Wales

Updated: 20 July 2021; Ref: scu.583676

Triple Point Technology, Inc v PTT Public Company Ltd: TCC 23 Aug 2017

Jefford J
[2017] EWHC 2178 (TCC)
Bailii
England and Wales
Cited by:
See Also – Triple Point Technology, Inc v PTT Public Company Ltd TCC 7-Jun-2018
Application by Triple Point for an injunction restraining execution of a judgment that PTT attempted to enforce in the State of Connecticut in the United States in May 2018. A stay of execution had, prior to that date, already been ordered by the . .
See Also – Triple Point Technology, Inc v PTT Public Company Ltd CA 5-Mar-2019
Appeal by the supplier of a software system against a judgment of the Technology and Construction Court, dismissing its claim for payment and ordering it to pay substantial damages on the counterclaim. The main issue of principle which arises is how . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.604163

Moran Yacht and Ship Inc v Pisarev and Another Re 4You: ComC 10 Apr 2014

Claim by brokers for commission on the sale of a superyacht.
Males J
[2014] EWHC 1098 (Comm), [2014] 2 Lloyds Rep 88
Bailii
England and Wales
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.523666

Deepak Fertilisers and Petrochemicals Corporation v ICI Chemicals and Polymers Ltd and Another: ComC 30 Sep 1997

Trial of preliminary issue – Negligent Misrepresentation – Breach of Collateral Warranties – Breach of duty of care – Breach of contract (Davy Mckee only).
Rix J
[1998] 2 Lloyds Rep 139
England and Wales
Citing:
See Also – Deepak Fertilisers v ICI Chemicals CA 1991
P’s methanol plant had been constructed with the use of know-how and services supplied by D. Following completion the plant exploded. The plaintiff sued D for negligence and breach of contract. The plaintiff had undertaken to indemnify D against . .

Cited by:
See Also – Deepak Fertilisers v ICI Chemicals CA 1991
P’s methanol plant had been constructed with the use of know-how and services supplied by D. Following completion the plant exploded. The plaintiff sued D for negligence and breach of contract. The plaintiff had undertaken to indemnify D against . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .
Appeala from – Deepak Fertilisers and Petrochemical Corporation v Davy McKee (London) Ltd; ICI Chemicals and Polymers Ltd CA 12-Nov-1998
Deepak’s plant was built with know-how derived from ICI via one of ICI’s licensees, Davy. The contract between Davy and Deepak contained (it was assumed) a promise by Deepak to indemnify ICI. The plant was severely damaged by an explosion and Deepak . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.220799

Globe Motors, Inc and Others v TRW Lucas Varity Electric Steering Ltd and Another: CA 20 Apr 2016

Globe, component manufacturers had a contract to supply TRW. The contract was exclusive. It contained a clause disallowing any amendment.
Held: (Obiter) Beatson LJ thought such clauses unenforceable.
Moore-Bick VP CA, Beatson, Underhill LJJ
[2016] EWCA Civ 396
Bailii
England and Wales
Citing:
See Also – Globe Motors Inc and Others v TRW Lucasvarity Electric Steering Ltd QBD 8-Nov-2012
The defendants sought to have struck out parts of the claimants’ Particulars of Claim. . .
Appeal from – Globe Motors, Inc and Others v TRW Lucas Varity Electric Steering Ltd ComC 11-Nov-2014
Trial of claims by the Claimants for breach of contract and negligent misstatement against the Defendants arising from an exclusive supply agreement . .
See Also – Globe Motors Inc and Others v TRW Lucas Varity Electric Steering Ltd and Another ComC 23-Mar-2015
Calculation of quantum . .

Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.562451

General Produce Co v United Bank Ltd: 1979

Lloyd J considered a term in a guarantee agreement as follows ‘if and whenever the company makes default in payment of any such principal money [to] pay the amount thereof on demand provided that the liability hereunder of the guarantor shall be as a primary obligor and not merely as a surety.’ Referring to Heald v Connor, he said: ‘I agree with Fisher J that it is common to find a provision such as is found here in par. 5 in guarantees, and I certainly do not hold that it automatically converts every guarantee into an indemnity. But equally its operation is not confined to the consequences of giving time or other indulgence to the principal debtor, and I very much doubt if Mr. Justice Fisher intended so to confine it. In the present case it is combined with a provision for the continuance of the bank’s rights despite the release of the principal debtor’s liability by operation of law. The release of the principal debtor normally discharges the guarantor as does a binding agreement to give time. The words in par. 5 seem to me equally apt to enable the guarantor’s liability to continue as if he were the principal debtor in either case. That does not necessarily mean that he is to be regarded as the principal debtor for all purposes from the inception of the guarantee but only that the creditor is entitled to treat him as the principal debtor in certain events.’
[1979] 2 Lloyd’s Rep 255
England and Wales
Citing:
Cited – Heald v O’Connor 1971
A surety for a company’s obligations under a debenture promised: ‘if and whenever the company makes default in payment of any such principal money [to] pay the amount thereof on demand provided that the liability hereunder of the guarantor shall be . .

Cited by:
Cited – Van Der Merwe and Another v IIG Capital Llc ChD 13-Nov-2007
The parties had entered into a debt factoring agreement, under which repayment was sought of some $30m, and the claimants were said to have guaranteed the loan by the factor to their company. The court was asked whether the guarantors had the same . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.261296

Evans and Son (Portsmouth) Ltd v Andrea Merzario Ltd: CA 1976

The defendants had carried previously goods aboard ship for the plaintiffs. This time, they were asked for and gave an oral re-assurance to the plaintiffs that the goods would be carried below deck. This did not happen and the goods were swept overboard.
Held: The collateral promise overrode the printed conditions. The carrier could not rely on his usual exceptions (including a limitation of liability to andpound;50 per ton) The oral undertaking that the goods would be carried under deck amounted to a collateral contract.
Lord Denning said: ‘The judge held there was no contractual promise that these containers should be carried under deck. He thought that, in order to be binding, the initial conversation ought to be contemporaneous; and that here it was too remote in point of time from the actual transport. Furthermore, that, viewed objectively, it should not be considered binding. The judge quoted largely from the well known case of Heilbut Symons and Co. v. Buckleton [1913] AC 30, in which it was held that a person is not liable for damages in innocent misrepresentation; and that the courts should be slow to hold that there was a collateral contract. I must say that much of what was said in that case is entirely out of date . . But even in respect of promises as to the future, we have a different approach nowadays to collateral contracts. When a person gives a promise or an assurance to another, intending that he should act on it by entering into a contract, and he does act on it by entering into the contract, we hold that it is binding.’ and ‘it seems to me plain that Mr Spano gave an oral promise or assurance that the goods in this new container traffic would be carried under deck. He made the promise in order to induce Mr Leonard to agree to the goods being carried in containers. On the faith of it, Mr Leonard accepted the quotations and gave orders for transport. In those circumstances the promise was binding. There was a breach of that promise and the forwarding agents are liable – unless they can rely on the printed conditions.’
Roskill LJ said: ‘The real question, as I venture to think, is not whether one calls this an assurance or a guarantee, but whether that which was said amounted to an enforceable contractual promise by the defendants to the plaintiffs that any goods thereafter entrusted by the plaintiffs to the defendants for carriage from Milan to the United Kingdom via Rotterdam and thence by sea to England would be shipped under deck.’
Lord Denning MR, Roskill and Geoffrey Lane LJJ
[1976] 1 WLR 1078, [1976] 2 All ER 930
England and Wales
Citing:
Cited – Heilbut Symons and Co v Buckleton HL 11-Nov-1912
In an action of damages for fraudulent misrepresentation and breach of warranty, the plaintiff founded on a conversation between himself and the defendants’ representative. In this conversation the plaintiff said-‘I understand that you are bringing . .
Cited – Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd CA 3-Mar-1965
When a person gives a promise or an assurance to another, intending that he should act on it by entering into a contract, and he does act on it by entering into the contract, it is binding.
Lord Denning MR said of a collateral warranty: . .

Cited by:
Cited – Frans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .
Cited – Brikom Investments v Carr 1979
A reversioner can grant rights in respect of covenants in the lease which bind reversioners by way of a collateral contract. When a person makes a representation intending that another should act on it: ‘It is no answer for the maker to say: ‘You . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.181085

Matchbet Ltd v Openbet Retail Ltd: ChD 11 Oct 2013

Claim for damages for alleged breaches of a software licensing and development agreement – variation of contract in breach of entire agreement clause
Henderson J
[2013] EWHC 3067 (Ch)
Bailii
England and Wales
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.516448

Deepak Fertilisers and Petrochemical Corporation v Davy McKee (London) Ltd; ICI Chemicals and Polymers Ltd: CA 12 Nov 1998

Deepak’s plant was built with know-how derived from ICI via one of ICI’s licensees, Davy. The contract between Davy and Deepak contained (it was assumed) a promise by Deepak to indemnify ICI. The plant was severely damaged by an explosion and Deepak sued. ICI was one of the defendants. Davy claimed to be entitled to a stay of the proceedings against ICI in so far as the claims were covered by the indemnity. One of the many questions argued on appeal was the question when a promise by A (Deepak) to B (Davy) that A will indemnify and hold harmless C (ICI) will be enforced at the suit of B for the ultimate benefit of C. Deepak submitted that there were two cumulative requirements for such a promise to be so enforced: (a) The promise involves, expressly or impliedly, a promise by A not to sue C, and (b) B has a substantial interest of his own in the enforcement of the promise.
Held: An agreement to indemnify contained an implied promise not to sue. On the second part of the submission they held: ‘From these cases (the facts of which do not matter) we think the following propositions emerge.
1. Equitable fraud (something which is unconscionably unfair) is the basis upon which the Courts will restrain or stay the proceedings on the application of a stranger to those proceedings. The power to do so is discretionary.
2. Something more than a promise not to sue is required. The applicant must show that he has some interest of his own to protect. This has been expressed in various ways viz.: ‘Some other good reason’, ‘the real possibility of prejudice’ and ‘some legal or equitable right to protect such as an obligation to indemnify the defendant’.
3. Whether the applicant has shown that he has such an interest depends upon the facts of each case. Where for example there is an issue as to whether the applicant will be required to indemnify the defendant if the proceedings continue the Court must consider the likelihood of a claim for indemnity being made and its merits if it is said to be obviously unsustainable, but no prolonged investigation of the issues or potential issues is called for.’
[1999] 1 Lloyds Rep 387, [1998] EWCA Civ 1752, [1998] EWCA Civ 1753, [1999] BLR 41, (1999) 1 TCLR 200, 62 Con LR 86, [1999] 1 All ER (Comm) 69
Bailii
England and Wales
Citing:
Appeala from – Deepak Fertilisers and Petrochemicals Corporation v ICI Chemicals and Polymers Ltd and Another ComC 30-Sep-1997
Trial of preliminary issue – Negligent Misrepresentation – Breach of Collateral Warranties – Breach of duty of care – Breach of contract (Davy Mckee only). . .

Cited by:
Cited – Barrett v Universal-Island Records Ltd and others ChD 15-May-2006
The claimant was entitled to share in the copyright royalties of Bob Marley and the Wailers, and claimed payment from the defendants. The defendants said that the matters had already been settled and that the claim was an abuse of process, and also . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.145231

Ryanair Ltd v SR Technics Ireland Ltd: QBD 20 Dec 2007

Gray J
[2007] EWHC 3089 (QB)
Bailii
England and Wales
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.402612

Energy Venture Partners Ltd v Malabu Oil and Gas Ltd: ComC 17 Jul 2013

Gloster LJ declined to decide the point but ‘incline[d] to the view’ that clauses not permitting variation of a contract without the variation being in writing were ineffective.
Gloster LJ
[2013] EWHC 2118 (Comm)
Bailii
England and Wales
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.513726

Cohen v Nessdale Ltd: CA 1982

Once negotiations are begun ‘subject to contract’, that label governs all subsequent communications between the parties unless the label is expunged by express agreement or by necessary implication.
[1982] 2 All ER 97
England and Wales
Citing:
Cited – Sherbrooke v Dipple 1980
Parties to a conveyancing context can get rid of the qualification ‘subject to contract’ only if either they both expressly agree that it should be expunged or if such an agreement can be necessarily implied. . .
Cited – Tevanon v Norman Brett (Builders) Ltd 1972
Brightman J said: ‘parties could get rid of the qualification of ‘subject to contract’ only if they both expressly agreed that it should be expunged or if such an agreement was to be necessarily implied . . ‘ [W]hen parties started their . .

Cited by:
Cited – Confetti Records (A Firm), Fundamental Records, Andrew Alcee v Warner Music UK Ltd (Trading As East West Records) ChD 23-May-2003
An agreement was made for the assignment of the copyright in a music track, but it remained ‘subject to contract’. The assignor later sought to resile from the assignment.
Held: It is standard practice in the music licensing business for a . .
Cited – Gonthier and Another v Orange Contract Scaffolding Ltd CA 25-Jun-2003
The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
Cited – City Connect Management Ltd v Telia International Carrier UK and Another TCC 30-Jul-2004
The parties sought the expenses incurred in negotiating a development contract which failed before the documents were signed. . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.183738

Sherbrooke v Dipple: 1980

Parties to a conveyancing context can get rid of the qualification ‘subject to contract’ only if either they both expressly agree that it should be expunged or if such an agreement can be necessarily implied.
(1980) 41 P and CR 173
England and Wales
Citing:
Cited – Tevanon v Norman Brett (Builders) Ltd 1972
Brightman J said: ‘parties could get rid of the qualification of ‘subject to contract’ only if they both expressly agreed that it should be expunged or if such an agreement was to be necessarily implied . . ‘ [W]hen parties started their . .

Cited by:
Cited – Cohen v Nessdale Ltd CA 1982
Once negotiations are begun ‘subject to contract’, that label governs all subsequent communications between the parties unless the label is expunged by express agreement or by necessary implication. . .
Cited – Gonthier and Another v Orange Contract Scaffolding Ltd CA 25-Jun-2003
The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.188284

Business Environment Bow Lane Ltd v Deanwater Estates Ltd: CA 27 Jun 2007

Enforcement of repairing obligations in lease after assignments, and the use of collateral contracts. Sir Andrew Morritt C said: ‘The law relating to collateral contracts is well-established but in connection with sales or leases of land needs to be applied with caution if not the suspicion to which Lord Moulton referred in Heilbut Symons v Buckleton [1913] AC 30 , 47. Thus, if the promise said to be binding as a collateral contract is in truth one of the terms for the sale or other disposition of land it will be unenforceable unless it is contained in the written contract required by s.2 Law of Property (Miscellaneous Provisions) Act 1989 . It must also be recognised that such a promise may be binding on successors in title of both parties without the need for notice or registration as a Land Charge or in the Land Registry, cf Brikom Investments v Carr [1979] 1 QB 467 . In that case Lord Denning considered (p.484) that conveyancers could look after themselves. But he gave no indication of how they could protect their clients from variations to the terms of a document forming part of their title to land of which they did not and could not know.
Counsel for the Lessor did not rely on s.2 Law of Property (Miscellaneous Provisions) Act 1989 but he did emphasise the need for certainty in conveyancing transactions generally. I agree with him. I would go further. In a normal conveyancing transaction in a commercial context with both parties represented by experienced solicitors the usual course of dealing is to ensure that all agreed terms are put into the contract and conveyance, transfer or lease. Accordingly those who assert a collateral contract in relation to a term not so contained must show that it was intended to have contractual effect separate from the normal conveyancing documents. Otherwise it will be invalidated by s.2 Law of Property (Miscellaneous Provisions) Act 1989 even if evidence as to its existence is admitted.’
Sir Andrew Morritt C
[2007] EWCA Civ 622, (2007) 32 EG 90, [2007] L and TR 26, [2007] 2 EGLR 51
Bailii
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Cited by:
See Also – Business Environment Bow Lane Ltd v Deanwater Estates Ltd TCC 31-Jul-2008
The court considered liability under a repairing covenant at the termination of a lease. . .
See Also – Business Environment Bow Lane Ltd v Deanwater Estates Ltd ChD 31-Jul-2009
The court was asked ‘Where a claimant has picked up one or more costs orders in its favour on the way to a trial, but fails very badly at the trial (for example due to exaggeration), can the costs judge assess those costs at nil on the footing that . .
Cited – North Eastern Properties Ltd v Coleman and Another ChD 20-Aug-2009
The parties agreed for the developer to build and the defendants to purchase several apartments. The properties were not completed after a notice to complete and the purchasers purported to rescind the contract. The claimant completed the flats and . .
Cited – North Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.253741

World Online Telecom Ltd v I-Way Ltd: CA 8 Mar 2002

A contract provided against it variation save in writing and signed. A claim was made relying upon an oral variation.
Held: It was a sufficient reason for refusing summary judgment that ‘the law on the topic is not settled.’
Sedley LJ
[2002] EWCA Civ 413
Bailii
England and Wales
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.217003

United Bank Ltd v Asif: CA 11 Feb 2000

Sedley LJ refused leave to appeal from a summary judgment on the ground that it was ‘incontestably right’ that in the face of a No Oral Modification clause ‘no oral variation of the written terms could have any legal effect.’
Sedley LJ
Unreported, 11 Feb 2000
England and Wales
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.666017

Tevanon v Norman Brett (Builders) Ltd: 1972

Brightman J said: ‘parties could get rid of the qualification of ‘subject to contract’ only if they both expressly agreed that it should be expunged or if such an agreement was to be necessarily implied . . ‘ [W]hen parties started their negotiations under the umbrella of the ‘subject to contract’ formula, or some similar expression of intention, it was really hopeless for one side or the other to say that a contract came into existence because the parties became of one mind notwithstanding that no formal contracts had been exchanged. Where formal contracts were exchanged, it was true that the parties were inevitably of one mind at the moment before the exchange was made. But they were only of one mind on the footing that all the terms and conditions of the sale and purchase had been settled between them, and even then the original intention still remained intact that there should be no formal contract in existence until the written contracts had been exchanged.’
Brightman J
(1972) 223 EG 1945
England and Wales
Cited by:
Cited – Sherbrooke v Dipple 1980
Parties to a conveyancing context can get rid of the qualification ‘subject to contract’ only if either they both expressly agree that it should be expunged or if such an agreement can be necessarily implied. . .
Cited – Cohen v Nessdale Ltd CA 1982
Once negotiations are begun ‘subject to contract’, that label governs all subsequent communications between the parties unless the label is expunged by express agreement or by necessary implication. . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.666019

Shelanu Inc v Print Three Franchising Corp: 20 May 2003

(Court of Appeal for Ontario)
Weiler, Austin and Laskin JJA
2003 CanLII 52151, 64 OR (3d) 533, 226 DLR (4th) 577, 172 OAC 78
Canlii
Canada
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.666015

Beatty v Guggenheim Exploration Co: 1919

Cardozo J said: ‘Those who make a contract, may unmake it. The clause which forbids a change, may be changed like any other. The prohibition of oral waiver, may itself be waived. ‘Every such agreement is ended by the new one which contradicts it’ (Westchester F Ins Co v Earle 33 Mich 143, 153). What is excluded by one act, is restored by another. You may put it out by the door; it is back through the window. Whenever two men contract, no limitation self-imposed can destroy their power to contract again …’
Cardozo J
(1919) 225 NY 380
United States
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.666012

Re Commonwealth of Australia v Crothall Hospital Services (Aust) Limited (Formerly) Crothall and Co (Nsw) Pty Ltd: 17 Aug 1981

(Federal Court of Australia)
Blackburn, Deane and Ellicott JJ
[1981] FCA 117, (1981) 54 FLR 439
Austlii
Australia
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.666014

Liebe v Molloy: 29 Oct 1906

A building contract and a specification provided that no extras should be allowed or paid for unless ordered in writing by both architect and employer. When the building had been completed disputes arose upon claims made by the builder for extras. Those disputes were referred to arbitrators, and, they having disagreed, to an umpire. The umpire found that no orders in writing endorsed by the owner were given in respect of the item claimed for as extras, but that the employer had such knowledge of those extras as might be fairly inferred from the fact that he was constantly on the works, and taking an active interest therein. He stated a Special Case for the opinion of the Court under the ‘ Arbitration Act 1895 ‘ (Western Australia), setting forth the findings of fact above mentioned.
Held: that the umpire was the proper person to determine whether from the facts found by him an implied contract by the employer to pay for the extras was to be inferred, such an inference being one of fact, and that as he had not drawn the inference necessary to determine the question of liability, the case should be remitted to him, with directions showing the nature of the matter to be decided.
[1906] ArgusLawRp 158, (1907) 13 Argus LR 106
Austlii
Australia
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.666013

McGrath v Shah: ChD 22 Oct 1987

John Chadwick QC said of a clause restricting a contract variation not in writing: ‘One can see why such a provision is included in a contract for the sale and purchase of land. All material terms of a contract for the sale of land must be evidenced by some memorandum in writing signed by the party to be charged – see section 40 of the Law of Property Act 1925. Accordingly it is highly undesirable to have any scope for argument whether the written terms of a contract for sale of land do, in fact, constitute the entire contract.’
Section 3 has no application to an entire agreement clause provision defining where the contractual terms between the parties are to be found
John Chadwick QC
(1989) 57 P and CR 452, Times 22-Oct-1987
Law of Property Act 1925 40
England and Wales
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.666018

Colautti Construction Ltd v City of Ottawa: 22 May 1984

(Ontario Court of Appeal) The plaintiff contracted to install a new sewer line for the defendant city. The line marked for excavation was too close to a water-main and, after some work had been done, had to be relocated causing additional cost. The plaintiff claimed that the error arose through the defendant’s fault in marking the line for excavation, and that the city’s project officer had undertaken to pay the additional costs. At trial the judge made no findings of fact in respect of the way in which the error was caused or on the alleged undertaking, but he dismissed the plaintiff ‘s claim. The contract provided that all changes were to be authorized in writing, but several other changes had been made orally and paid for.
On appeal to the Ontario Court of Appeal, held, allowing the appeal and ordering a new trial, the strict requirement of writing had been varied by the conduct of the parties. Consequently, findings of fact were essential to determine the contractual, or restitutionary, rights of the plaintiff. As the critical findings had not been made a new trial was necessary.
Canlii
Canada
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.666016

Sumukan Ltd v The Commonwealth Secretariat: CA 21 Mar 2007

The appellants sought to challenge a finding that they had by their contract with the defendants excluded the right to appeal to a court on a point of law. The defendants replied that the appeal court had no jurisdiction to hear such an appeal.
Held: The Court of Appeal did have jurisdiction. The argument that it did not was in practice circular, and ‘although there might be a temptation (in the interest of speed and saving expense) to construe any part of the language of the 1996 Act in a way that renders all decisions under the various sections where permission of the court is required as final, if the first instance court so rules, there is a distinction between those cases where the court is assisting or overseeing the arbitration process and the cases where the question is whether the jurisdiction of the court has been excluded. ‘
Waller LJ, Clarke MR, Sedley LJ
[2007] EWCA Civ 243, Times 13-Apr-2007, [2007] 2 All ER (Comm) 23, [2007] 3 All ER 342, [2007] 2 Lloyd’s Rep 87, [2007] Bus LR 1075, [2007] 1 CLC 282, [2007] ArbLR 56
Bailii
Arbitration Act 1979
England and Wales
Citing:
Cited – Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited CA 25-May-2000
Where a party appealed against an arbitration to the County or High Court, the court which gave judgment was the sole body able to give permission to enter an appeal under the Act. An appellate court did not have jurisdiction to give leave to . .
Appeal from – Sumukan Ltd v Commonwealth Secretariat ComC 14-Feb-2007
The claimant had created a web-site for the defendant. The claimant sought to appeal an arbitration award. . .
Cited – Athletic Union of Constantinople v National Basketball Association and Others CA 28-May-2002
A party had been refused leave to appeal against an arbitration under the Act by the judge, but later obtained leave to appeal.
Held: Such leave could only be granted by the trial judge, and the Court of Appeal could set aside the leave . .
Cited – ASM Shipping Ltd of India v TTMI Ltd of England CA 16-Oct-2006
The court at first instance had dismissed the ship-owner’s application to set aside the arbitration award, and then refused leave to appeal. The court of appeal had to consider whether it had jurisdiction itself to hear an application for leave.
Cited – Cetelem Sa v Roust Holdings Ltd CA 24-May-2005
The parties were engaged in arbitration proceedings. The claimant had sought and obtained an interim mandatory order intended to prevent the defendant dissipating its assets in anticipation of an adverse ruling. The defendant sought leave to appeal. . .
Cited – Arab African v Olieprodukten 1983
By section 3(1) of the 1979 Act, the High Court was precluded from granting permission to appeal on a point of law from an award ‘if the parties to the reference in question have entered into an agreement in writing (in this section referred to as . .
Cited – Circle Freight International Ltd v Medeast Gulf Imports Ltd CA 1988
The court considered the effect of a driver’s behaviour on the ability to claim under his insurance policy, on the basis that his behaviour would constitute ‘wilful misconduct’. Taylor LJ: ‘Mr Malins has sought to argue that although Huggins (the . .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – Czarnikow v Roth Schmidt and Co 1922
It is aganst public policy to allow the parties to seek to oust the jurisdiction of the court. An agreement to submit disputes to arbitration does not, apart from statute, take from a party the power to invoke the jurisdiction of the courts to . .
Cited – Stretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.250453

Brimnes, the Tenax Steamship Co v Brimnes, Owners of: CA 23 May 1974

The ship’s owners sent a telex to the charterers at 5.45 pm on 2 April 1970 withdrawing the vessel for late payment of the hire charge. The charterers’ normal business hours ended at 6.00 pm. The telex was not seen until the morning of 3 April, although it had arrived in the charterers’ office at 5.45 pm on 2 April.
Held: The charterer’s appeal failed. It was deemed received before close of business on the 2nd. A contract may be terminated by one party without the other party being actually aware of the communication of the termination. The contract is terminated at the time when notice of the termination would ‘in the normal course of business’ have come to the other party’s attention on its arrival.
Megaw LJ said: ‘if a notice arrives at the address of the person to be notified, at such a time and by such a means of communication that it would in the normal course of business come to the attention of that person on its arrival, that person cannot rely on some failure of himself or his servants to act in a normal businesslike manner in respect of taking cognisance of the communication so as to postpone the effective time of the notice until some later time when it in fact came to his attention.’
Cairns LJ observed: ‘In my opinion, the general rule is that notice must reach the mind of the charterer or of some responsible person on his behalf. There must clearly be exceptions to this rule: for example, if the charterer or his agent deliberately keeps out of the way, or refrains from opening a letter with a view to avoiding the receipt of notice. How much further than this do exceptions go? I feel little doubt that if an office were closed all day on an ordinary working day, though without any thought of a notice of withdrawal arriving, such a notice delivered by post on that day must be regarded as then received.’
Edmund Davies LJ, Megaw LJ, Cairns LJ
[1974] EWCA Civ 15, [1975] QB 929, [1974] 3 All ER 88
Bailii
England and Wales
Citing:
Appeal From – Brimnes, The Tenax Steamship Co v Brimnes, Owners of 1973
. .

Cited by:
Distinguished – Gisda Cyf v Barratt CA 2-Jul-2009
The employer wrote to the employee on 29 November 2006 informing her of her dismissal, the letter arrived on the 30th, and she read it on the 4th of December. The employer appealed against a finding that the effective date of dismissal was the date . .
Cited – Gisda Cyf v Barratt SC 13-Oct-2010
The parties disputed the effective date of termination of the claimant’s employment. Was it the date on which the letter notifying her was sent, or was it on the day she received it. She had been dimissed without notice, and the date was the date on . .
Cited – Newcastle Upon Tyne Hospitals NHS Foundation Trust v Haywood SC 25-Apr-2018
Notice of dismissal begins when received by worker
The court was asked: ‘If an employee is dismissed on written notice posted to his home address, when does the notice period begin to run? Is it when the letter would have been delivered in the ordinary course of post? Or when it was in fact . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.262728

Brimnes, The Tenax Steamship Co v Brimnes, Owners of: 1973

Brandon J
[1973] 1 WLR 386
England and Wales
Cited by:
Appeal From – Brimnes, the Tenax Steamship Co v Brimnes, Owners of CA 23-May-1974
The ship’s owners sent a telex to the charterers at 5.45 pm on 2 April 1970 withdrawing the vessel for late payment of the hire charge. The charterers’ normal business hours ended at 6.00 pm. The telex was not seen until the morning of 3 April, . .
Mentioned – Gisda Cyf v Barratt CA 2-Jul-2009
The employer wrote to the employee on 29 November 2006 informing her of her dismissal, the letter arrived on the 30th, and she read it on the 4th of December. The employer appealed against a finding that the effective date of dismissal was the date . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.372327

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, Bunge SA (‘the sellers’), to buy 25,000 metric tonnes (+/- 10% in buyer’s option) of Russian milling wheat crop 2010, FOB Novorossiysk. The shipment period was August 2010, but there were provisions for narrowing that period by notice. In the event it was narrowed to 23-30 August 2010. The contract incorporated GAFTA Form 49 (as in effect from 1 January 2006), which is the standard form of FOB sale contract of the Grain and Feed Trade Association, for goods delivered from central or Eastern Europe in bulk or bags.
Held: The compensatory principle established in The Golden Victory is not limited to instalment contracts, and the GAFTA Appeal Board was in error in thinking that it was.
Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Toulson
[2015] UKSC 43, [2015] WLR(D) 283, [2015] 3 All ER 1082, [2015] BUS LR 987, UKSC 2014/0019
Bailii, Bailii Summary, SC, SC Summary, WLRD
Sale of Goods Act 1979 51
England and Wales
Citing:
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 – Golden Strait Corporation v Nippon Yusen Kubishika Kaisha; ‘the Golden Victory’ CA 18-Oct-2005
Measurement of damages for repudiatory breach.
The parties had entered into a charter which was intended to last seven years. The charterers broke the charterparty. A war later occurred which would have cut the contract short in any event.
At First Instance – Bunge Sa v Nidera Bv ComC 29-Jan-2013
The Court was asked: ‘2.1 Is the application of the GAFTA prohibition clause limited to a case where it can be seen after the event that performance of the contract has in fact been prevented by the prohibition in question?
2.2. Does the GAFTA . .
Appeal from – Bunge Sa v Nidera Bv CA 12-Dec-2013
The court heard an appeal from an order upholding an award made by the Board of Appeal of the Grain and Feed Trade Association concerning the effect of the Prohibition clause in the GAFTA standard form of contract for delivery on f.o.b. terms of . .
Cited – Howie v Anderson 1848
The court considered the approach of the Scots courts to anticipatory breach of contract, or renunciation. . .
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 – Hochster v De La Tour QBD 25-Jun-1853
The plaintiff said that the defendant had given him a contract to travel with him and to act as the defendant’s courier, but then changed his mind. The plaintiff obtained another engagement to start before the proposed term. The defendant said there . .
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 – Garnac Grain Co Inc v HMF Faure and Fairclough PC 1967
The Board was asked what was necessary to establish the raltionship of principal and agent.
Held: In the essence of agency is the element of consent.
Where there is an available market for the goods, the market price is determined as at . .
Cited – Jamal v Moolla Dawood, Sons and Co PC 3-Nov-1915
The plaintiff claimed damages from the buyer for his failure to accept shares contracted to be taken on a particular date. Two months after that date the sellers began to re-sell the shares on a rising market.
Held: Damages for breach of . .
Cited – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .
Cited – Modern Engineering (Bristol) Ltd v Gilbert Ash (Northern) Ltd HL 1974
The court considered how to construe a clause in a contract which excluded a remedy provided by law. Lord Diplock said: ‘It is, of course, open to parties to a contract . . to exclude by express agreement a remedy for its breach which would . .
Cited – Tai Hing Cotton Mill Limited v Kamsing Knitting Factory (A Firm) PC 27-Jul-1977
(Hong Kong) The buyer brought an action for damages for breach of a contract for the sale of goods. The measure of damages was the difference between the contract price and the market value of the goods at the relevant date. The evidence called at . .
Cited – Koch Marine Inc v D’Amica Societa Di Navigazione ARL (The Elena d’Amico) QBD 1980
The ship owners wrongfully repudiated a charterparty in March 1973, 14 months after its inception. The charterers did not hire a substitute but claimed damages for the loss of profits they would have made between January and April 1974, during which . .
Cited – Bem Dis A Turk Ticaret S/A Tr v International Agri Co Ltd; ‘SELDA’ ComC 31-Oct-1997
The seller had repudiated a CandF contract containing a GAFTA default clause, which did not include any provision allowing the recovery of expenses occasioned by the breach. The buyers made no claim for damages based on the difference between the . .
Cited – Novasen Sa v Alimenta Sa ComC 27-Feb-2013
Arbitration appeal raising issues concerning the construction and application of the FOSFA Prohibition and Default Clauses, and the relevance of subsequent events to the assessment of damages in accordance with common law principles. . .

Cited by:
Cited – 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 . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.549904