Category: Contract

Towry EJ Ltd v Bennett and Others: QBD 14 Feb 2012

On the claimant taking over the company employing them, the several defendants had left to form their own investment business. The claimant said that they had acted improperly in encouraging clients to move with them, and alleged unlawful means conspiracy and breach of confidence, and cliamed losses of almost andpound;6 million.

Judges:

Cox J

Citations:

[2012] EWHC 224 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Contract, Torts – Other

Updated: 19 November 2022; Ref: scu.451442

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.

Judges:

His Honour Judge Richard Seymour QC

Citations:

[2010] EWHC 2901 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bow’s Emporium v A R Brett and Co Ltd 1927
The court considered a claim for an estate agent’s commission.
Held: The claim failed. Lord Shaw of Dunfermline said: ‘the continuity between the original relation brought about by the agent and the ultimate transaction has not been merely . .

Cited by:

Appeal from – Glentree Estates Ltd v Holbeton Ltd CA 5-Jul-2011
Agent to establish effective cause of a sale
The claimant estate agent appealed against dismissal of its claim for commission on the sale of the defendant’s property.
Held: The appeal failed. Glentree failed to establish that it was either ‘the’ or ‘an’ effective cause of the sale. What . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 November 2022; Ref: scu.430509

Atlas Express Ltd v Kafco (Importers and Distributors) Ltd: 1989

The parties contracted to transport the goods of the defendant. A rate was agreed, but the plaintiff then insisted on minimum quantities. The defendant now said that its agreement to the new term had been obtained by economic duress.
Held: A promise to perform an enforceable obligation under a pre-existing contract between the same parties is incapable of amounting to sufficient consideration. The defendant would have been put out of business by a refusal of the plaintiff to carry its goods, and economic duress was established. Where an agreement is induced by illegitimate pressure, the pressure is not legitimised because the party yielding to the pressure obtains some concession which ameliorates to some extent the impact of the benefit demanded by the other party.

Judges:

Tucker J

Citations:

[1989] 1 QB 833, [1989] 1 All ER 641

Jurisdiction:

England and Wales

Contract

Updated: 19 November 2022; Ref: scu.372852

Salkeld v Vernon: 1758

A party may, at any rate in a compromise agreement supported by valuable consideration, agree to release claims or rights of which he is unaware and of which he could not be aware, even claims which could not on the facts known to the parties have been imagined, if appropriate language is used to make plain that that is his intention, though ‘a release ex vi termini imports a knowledge in the releasor of what he releases, unless upon a particular and solemn composition for peace persons expressly agree to release uncertain demands.’

Judges:

Lord Keeper Henley

Citations:

(1758) 1 Eden 64, [1758] 28 ER 608, [1758] EngR 153, (1758) 1 Eden 64, (1758) 28 ER 608

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Grant v John Grant and Sons Pty Ltd 1-Jun-1954
(High Court of Australia) Contract – Deed of release – Recitals – Limitation – Claims not in contemplation unaffected – Equitable considerations affecting release – General words.
Dixon CJ said: ‘No doubt it is possible a priori that the . .
Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 November 2022; Ref: scu.342300

London and Regional Investments Ltd v TBI Plc and Another: CA 22 Jun 2001

Citations:

[2001] EWCA Civ 1026

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – London and Regional Investments Ltd v TBI Plc and Others CA 22-Mar-2002
TBI was a property investor and developer with several subsidiaries. It agreed to sell some to London and Regional. The agreement provided for the vendor and the purchaser to use reasonable endeavours to agree the terms of a joint venture agreement . .

Cited by:

See Also – London and Regional Investments Ltd v TBI Plc and Others CA 22-Mar-2002
TBI was a property investor and developer with several subsidiaries. It agreed to sell some to London and Regional. The agreement provided for the vendor and the purchaser to use reasonable endeavours to agree the terms of a joint venture agreement . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 18 November 2022; Ref: scu.201158

Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd: HL 26 Nov 1981

Even though a shipowner who had carried cargo on deck was not entitled to rely on the exceptions to liability in his contract, a limitation clause was different and should not be construed by reference to the specially exacting standards applicable to exclusion and indemnity clauses. The words of exclusion must be clear and unambiguous, and should, failing this, be construed strictly against the proponent (contra preferentem) and is seeking to rely on them.
Lord Fraser said: ‘these principles [i.e., those applicable to exclusion and indemnity clauses] are not applicable in their full rigour when considering the effect of clauses merely limiting liability. Such clauses will of course be read contra proferentem and must be clearly expressed , but there is no reason why they should be judged by the specially exacting standards which are applied to exclusion and indemnity clauses. The reason for imposing such standards on these clauses is the inherent improbability that the other party to a contract including such a clause intended to release the proferens from a liability that would otherwise fall upon him. But there is no such high degree of improbability that he would agree to a limitation of the liability of the proferens, especially when . . the potential losses that might be caused by the negligence of the proferens or its servants are so great in proportion to the sums that can reasonably be charged for the services contracted for . .’
Lord Wilberforce said that limitation clauses are not viewed with the same hostility as are exclusion clauses.

Judges:

Lord Fraser, Lord Wilberforce

Citations:

[1983] 1 WLR 964, [1981] UKHL 12, [1983] 1 All ER 101, 1982 SLT 377

Links:

Bailii

Statutes:

Hague Rules

Jurisdiction:

England and Wales

Citing:

Cited – Canada Steamship Lines Ltd v The King PC 21-Jan-1952
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .

Cited by:

Cited – Daewoo Heavy Industries Ltd and Another v Klipriver Shipping Ltd and Another CA 3-Apr-2003
The carrier had loaded the cargo on the ship’s deck, despite a clause requiring it to be stowed in a hold. The charterparty sought to use the breach to remove the carrier’s limit of liability. The older form of Hague rules applied.
Held: It . .
Applied – Bovis Construction (Scotland) Ltd v Whatlings Construction Ltd HL 19-Oct-1995
The managing contractors sought damages from a sub-contractor. The contract was on a printed form and in letters. A letter limited time related damages to pounds 100,000. The main contractors sought a much larger sum.
Held: A clause seeking to . .
Cited – Amiri Flight Authority v BAE Systems Plc CA 17-Oct-2003
The appellant had contracted to purchase maintenance from the defendant of aircraft it had also purchased from them. They sought damages for negligence, saying the defendants had failed to prevent a known risk of corrosion. The defendants argued . .
Cited – 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 – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – 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 pounds 192, but the farmer lost pounds 61,000. The seed supplier appealed the award of the larger amount and interest, saying that their . .
Cited – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport, Scotland

Updated: 18 November 2022; Ref: scu.181088

Eliades, Panix Promotions Ltd, Panix of the US Inc v Lewis: CA 8 Dec 2003

The claimant had obtained an award of damges in the US, and had had orders made for its enforcement here. The appellants contended that the award, containing an element of ‘multiplied damages’ offended the rules which would allow its enforcement here.
Held: Since the original judgment the US court had restated its decision and clarified the elements of one single sum, and one part in respect of treble damages. The proper view of the rule was that it was an exception to the general desire to give effect to foreign judgments. The US had not signed any treaty for the reciprocal enforcement of judgments, and must therefore rely upon the common law. The award should be enforceable save to the extent where enforcement was proscribed. An English court could examine that judgment and enforce that part of it which did not infringe the rule.

Judges:

Lord Justice Potter Lord Justice Jacob Lord Justice Carnwath

Citations:

Times 10-Dec-2003, [2003] EWCA Civ 1758, Gazette 22-Jan-2004, [2004] 1 WLR 692, [2004] 1 All ER 1196

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Torts – Other

Updated: 18 November 2022; Ref: scu.188643

Bim Kemi Ab v Blackburn Chemicals Ltd: CA 13 Feb 2003

Judges:

Waller LJ

Citations:

[2003] EWCA Civ 106

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Bim Kemi Ab v Blackburn Chemicals Ltd ComC 30-Jan-2002
. .
See also – Bim Kemi Ab v Blackburn Chemicals Ltd CA 24-Jun-2003
It had been argued by the claimant in written submissions (although not maintained orally) that an order for payment of pre-judgment interest on costs should never be made. As to an award of interest on costs:- ‘In any event in principle there seems . .
See also – Bim Kemi v Blackburn Chemicals Ltd CA 3-Apr-2001
The question was the degree of connection which must be shown between (1) a claim for unliquidated damages for breach of a contract and (2) a cross-claim for unliquidated damages for breach of a different contract between the same parties, in order . .

Cited by:

Appealed to – Bim Kemi Ab v Blackburn Chemicals Ltd ComC 30-Jan-2002
. .
See also – Bim Kemi Ab v Blackburn Chemicals Ltd CA 24-Jun-2003
It had been argued by the claimant in written submissions (although not maintained orally) that an order for payment of pre-judgment interest on costs should never be made. As to an award of interest on costs:- ‘In any event in principle there seems . .
Cited – Bim Kemi Ab v Blackburn Chemicals Ltd SCCO 24-Jun-2003
. .
See also – Bim Kemi Ab v Blackburn Chemicals Limited ComC 6-Feb-2004
. .
See Also – Blackburn Chemicals Ltd v Bim Kemi Ab CA 10-Nov-2004
The parties entered into exclusive cross marketing agreements. The defendant resisted enforcement of the contract saying it was void under European law, being contrary to Article 81. The parties were alleged to have agreed to make cross purchases. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 November 2022; Ref: scu.179503

Universal Steam Navigation Company Ltd v James McKelvie and Company: HL 1923

If there was inconsistency between a term added to a pre-printed form and general descriptions elsewhere in the text, the former should be regarded as the ‘dominating factor’ and as of ‘preponderant importance’.

Citations:

[1923] AC 492

Jurisdiction:

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 . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 November 2022; Ref: scu.180642

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 in contravention of the Act, the damages were to be assessed at the date necessary to make sure that shareholders were properly compensated. The transactions to which section 320 applies are not limited to arrangements purporting to have contractual effect, and included understandings having no contractual effect. Nourse LJ said that the application of section 727 should not be restricted unless it is necessary to do so.

Judges:

Nourse, Pill, Thorpe LJJ

Citations:

Gazette 20-May-1998, Times 18-May-1998, Gazette 03-Jun-1998, [1998] EWCA Civ 803, [1999] Ch 253, [1998] 2 BCLC 315

Statutes:

Companies Act 1985 320 322(3) 727

Jurisdiction:

England and Wales

Citing:

Appeal from – In Re Duckwari Plc ChD 23-Jul-1996
The company had purchased property, but it suffered a fall in value.
Held: The fall was irrecoverable despite the fact that it had been purchased from a director, because it had been made at full value. . .
See also – Duckwari Plc v Offerventure Ltd and Brian Stanley Cooper; In Re Duckwari Plc (No 2) CA 19-Nov-1998
The company made a claim to recover the borrowing costs incurred to buy property in breach of s320 (no shareholder approval). The acquisition of the property had been unprofitable, and the company was held to be entitled to recover from the . .

Cited by:

Appealed to – In Re Duckwari Plc ChD 23-Jul-1996
The company had purchased property, but it suffered a fall in value.
Held: The fall was irrecoverable despite the fact that it had been purchased from a director, because it had been made at full value. . .
Cited – Murray v Leisureplay Plc QBD 5-Aug-2004
The claimant sought payment of three years’ salary after termination of his service contract. He said that an agreement had been made by the company to purchase a ‘financial institution’, which would trigger the additional payments. The defendants . .
See also – Duckwari Plc v Offerventure Ltd and Brian Stanley Cooper; In Re Duckwari Plc (No 2) CA 19-Nov-1998
The company made a claim to recover the borrowing costs incurred to buy property in breach of s320 (no shareholder approval). The acquisition of the property had been unprofitable, and the company was held to be entitled to recover from the . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 18 November 2022; Ref: scu.144281

Anson (Trading As Party Planners) v Trump: CA 7 Apr 1998

The defendant had asked the claimant to organise a substantial party. The account was more than anticipated, and the defendant refused to pay the full amount claimed. She sought leave to appeal judgment in default. The defendant had filed a defence by fax out of time, but on the same day but only a few minutes before the claimant had entered judgment in default.
Held: The older cases should no longer be applied. It was not appropriate to say that service should be deemed to be the actual time of the fax plus a reasonable time. The rules made no such provision. The judge had erred in finding that there was no arguable defence. Leave given to defend for a limited amount.

Citations:

[1998] EWCA Civ 656, (1998) 3 All ER 331, [1998] 1 WLR 1404

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Gill v Woodfin 1884
. .
Cited – Gibbings v Strong CA 1884
Earl of Selborne LC: ‘When no defence has been put in, then, by Order XXIX, rule 10 of the Rules of 1875, the plaintiff may set down the action or motion for judgment, ‘and such judgment shall be given as upon the statement of claim the Court shall . .

Cited by:

Cited – Osborne v Leighton CA 30-Apr-1999
The defendant being late in filing a defence to the claim for defamation, the claimant entered judgment in default. The defendant sought to have that set aside, and now sought her (substantial) costs.
Held: The entry of judgment had been at . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 18 November 2022; Ref: scu.144134

Olympic Airlines Sa v ACG Acquisition XX Llc: CA 17 Apr 2013

The parties disputed their mutual obligations under aircraft leasing agreements. The insolvent airline said that in signing to accept the condition of the aircraft on delivery, it had not created an estoppel against itself when the aircraft later proved faulty.
Held: The appeal failed, though the result was upheld on different grounds. Aircraft necessarily or accepted and delivered without the full condition being known: ‘the parties know that neither can be absolutely certain of an aircraft’s condition at the point at which the lessee is called upon to accept delivery and the on-going risk. That commercial parties should in such a situation strive to achieve finality in relation to the allocation of risk and responsibility is a commonplace.’ Given the extensive access allowed before acceptance to survey the aircraft, the parties must have intended the condition certificate to be final.

Judges:

Rix, Tomlinson, Kitchin LJJ

Citations:

[2013] EWCA Civ 369

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Westdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .
Appeal from – ACG Acquisition Xx Llc v Olympic Airlines ComC 30-Apr-2012
The parties had contracted for the delivery and lease of a passenger airplane. It was delivered with defects, and the airline went into liquidation. The court was asked whether a claim for damages for defective delivery survives execution by the . .
See Also – Olympic Airlines Sa v ACG Acquisition XX Llc CA 17-Dec-2012
The airline had been placed in liquidation in Greece. The liquidator now appealed against orders for payment of debts and costs to the respondent . .
See Also – ACG Acquisition Xx Llc v Olympic Airlines Sa ComC 21-Apr-2010
The claimant had granted a lease of an aircraft to the defendants, undertaking in the agreement that the aircrat would be airworthy. It now claimed payment under the agreement, the defendant saying it had not been airworthy and had to be withdrawn . .

Cited by:

See Also – Olympic Airlines Sa v ACG Acquisition Xx Llc CA 17-Jun-2014
. .
Lists of cited by and citing cases may be incomplete.

Contract, Transport, Insolvency

Updated: 17 November 2022; Ref: scu.472636

R G Grain Trade Llp (UK) v Feed Factors International Ltd: ComC 20 Jul 2011

Appeal against award.
The claimant sellers appealed against an arbitration award asking ‘(1) Whether on a true construction of the contract, the certificates of quality and condition issued by the superintendent chosen by the Sellers were final and binding; and
(2) Whether the Buyers were entitled to reject the documents and the goods despite the terms of clause 5 of GAFTA No. 119.’

Judges:

Hamblen J

Citations:

[2011] EWHC 1889 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Arbitration, Contract

Updated: 14 November 2022; Ref: scu.442003

SK Shipping (S) Pte Ltd v Petroexport Ltd: ComC 24 Nov 2009

The parties disputed the termination of a charterparty for anticipatory repudiatory breach.
Held: To the extent that the dispute relied on disputes of fact, the court preferred the evidence of the claimant. The defendant had displayed an intention to repudiate the contract. The claimant was entitled to accept that renunciation as a repudiatory breach and terminate the charterparty.

Judges:

Flaux J

Citations:

[2009] EWHC 2974 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 – Forslind v Bechely-Crundall HL 1922
A ‘shilly-shallying attitude in regard to the contract’ (Lord Dunedin) may discharge a party to a contract otherwise in breach. Procrastination may be so gross and protracted as to amount to repudiation.
Lord Shaw of Dunfermline said: ‘If, in . .
Cited – Heyman v Darwins Limited HL 1942
An arbitration clause will survive a repudiatory breach: ‘I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of . .
Cited – Chilean Nitrate Sales Corporation v Pansuiza Compania de Navegacion SA and Marine Transportation Co Ltd (‘The Hermosa’) CA 1982
Donaldson LJ summarised the law as regards renunciation of a contract, saying: ‘The learned Judge formulated the test to be applied as being ‘whether MTC and the owners acted in such a way as to lead a reasonable person to conclude that they did not . .
Cited – Universal Cargo Carriers Corporation v Citati 1957
The shipowners had cancelled a voyage charter-party because no cargo had been provided. The court asked what delay could lead to a claim for a repudiatory breach of a contract. Devlin J said: ‘This case gives rise to a difficult question. How long . .
Cited – Carswell v Collard HL 1893
Lord Herschell discussed the test for whether a contract had been renounced, and said: ‘Of course the question was not what actually influenced [the innocent party], but what effect the conduct of the [other party] would be reasonably calculated to . .
Cited – Federal Commerce Ltd v Molena Alpha Inc (The Nanfri) HL 1979
The charterers of three ships on time charter had made deductions from time charter hire payments which the shipowners regarded as unjustified. In retaliation the shipowners purported to revoke the authority of the Charterers (to be implied under . .
Cited – British and Beningtons Ltd v North Western Cachar Tea Co Ltd HL 1923
The House looked at the effect of rescission of a contract: ‘It was, however, argued before your Lordships that . . the old contracts were discharged because a varied contract is not the old contract, and as you cannot have a new and varied contract . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 14 November 2022; Ref: scu.381300

Filobake Ltd v Rondo Ltd and Another: CA 9 Jul 2004

Citations:

[2004] EWCA Civ 944

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Filobake Ltd v Rondo Ltd and Another TCC 21-Apr-2004
. .

Cited by:

Appealed to – Filobake Ltd v Rondo Ltd and Another TCC 21-Apr-2004
. .
Leave – Filobake Ltd v Rondo Ltd and Another CA 11-May-2005
Unsuitability of baking equipment installation. A claimant in a breach of contract claim has a choice whether to claim loss of profits or wasted expenditure. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 14 November 2022; Ref: scu.199339

Phaestos Ltd and Another v HO: QBD 22 Nov 2012

The claimants were related to a hedge fund, and the two defendants were highly qualified computer experts who, over many years, helped construct and then operate the computer systems which substantially help to run successful hedge funds. After they were summarily dismissed just before Christmas in 2008, proceedings were commenced and essentially the claimants’ very substantial claim against these defendants was that the defendants had acted in breach of their respective contracts in failing to construct, maintain or operate the computer systems in an appropriate and careful way. In addition to that, it was said by the claimants that the defendants had misused a substantial amount of confidential information which they had and, it was said, had retained after the termination of their employment.
The defendants denied all those allegations but also counterclaimed for bonuses which were said to be due and not paid and/or alternatively for profit shares which were said to have been agreed. The claims on both sides ran to eight-figure sums.

Judges:

Akenhead J

Citations:

[2012] EWHC 4063 (QB)

Links:

Bailii

Contract

Updated: 14 November 2022; Ref: scu.472252

Hooper and Another v Oates: CA 20 Feb 2013

The parties had agreed for the purchase of land, but the buyer, Mr Oates, failed to complete. A notice to complete was served, and on non-compliance, the repudiation was accepted. It proved difficult to resell, and they suffered substantial losses. The court was now asked whether the damages were to be measured by reference to the value at the date of the breach, or to some later date, when in this case, the vendor’s subsewuent losses would be included.
Held: The judge had been right to reject the suggestion that the breach date was decisive.

Judges:

Lloyd, Leveson, Toulson LJJ

Citations:

[2013] EWCA Civ 91, [2013] 3 All ER 211, [2013] 1 P andCR DG22, [2013] 1 EGLR 93, [2014] 2 WLR 743, [2013] 9 EG 93, [2013] WLR(D) 72, [2013] 16 EG 108, [2014] Ch 287

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Laird v Pim and Another 18-Jan-1841
Where a party has been let into possession of lands under a contract of purchase, but does not complete the purchase, and refuses to pay the purchase-money, and no conveyance is executed, the vendors cannot recover from him the whole amount of the . .
Cited – Laird v Birkenhead Railway Co 22-Nov-1859
The plaintiff applied to the defendant railway company for permission to construct and use a private branch line connecting with the railway company’s main line. Agreement was reached for the plaintiff to do so ‘on reasonable terms, which were to be . .
Cited – Johnson v Agnew HL 1979
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Damages

Updated: 14 November 2022; Ref: scu.472108

Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd (T/A Medirest): CA 15 Mar 2013

Appeal against a judgment holding that both parties to a substantial commercial contract were entitled to terminate by reason of the conduct of the other party. The contract was for the provision of services to two hospitals. The main issues were (a) the effect of an express obligation to ‘co-operate . . in good faith’ and (b) whether there was an implied term that the employer would not act in an arbitrary, irrational or capricious manner in assessing the contractor’s performance.

Judges:

Jackson, Lewison, Beatson LJJ

Citations:

[2013] EWCA Civ 200

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 14 November 2022; Ref: scu.471875

Sunrock Aircraft Corporation Ltd v Scandinavian Airlines System Denmark-Norway-Sweden: CA 24 Aug 2007

The parties disputed the effect of terms in sale and leaseback contracts for passenger aircraft as to the duty to repair on redelivery.

Judges:

Ward LJ, Thomas LJ, Wall LJ

Citations:

[2007] EWCA Civ 882, [2007] 2 Lloyd’s Rep 612

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 14 November 2022; Ref: scu.259135

Primus Telecommunications Plc v MCI Worldcom International Inc: CA 23 Jul 2004

Citations:

[2004] EWCA Civ 957

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – MCI Worldcom International Inc v Primus Telecommunications Inc ComC 25-Sep-2003
The claimant sought judgment, and the defendant leave to amend its defence. The question was whether the proposed defence had any reasonable prospect of success.
Held: The misrepresentation alleged was made by the claimant’s in-house . .

Cited by:

Appealed to – MCI Worldcom International Inc v Primus Telecommunications Inc ComC 25-Sep-2003
The claimant sought judgment, and the defendant leave to amend its defence. The question was whether the proposed defence had any reasonable prospect of success.
Held: The misrepresentation alleged was made by the claimant’s in-house . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 14 November 2022; Ref: scu.199345

Rudra v Abbey National Plc and Stickley and Kent (Risk Management Unit) Limited: CA 26 Feb 1998

The parties disputed whether a contract had been entered into for the sale of land, and whether new evidence could be entered on an appeal against a strike out. The estate agents had signed a contract as agents for the mortgagee in possession, but the mortgagee said that they has acted outside their agency. Eventually the mortgagee had the claim against it struck out under Order 14A.
Held: Section 2 has introduced a new regime. Old authorities on Section 40 of the Law of Property Act 1925, and indeed Section 4 of the Statute of Frauds 1677, are not necessarily of much, if any, assistance in its interpretation. An application to strike out proceedings as an abuse of process is an even more summary procedure involving less consideration of the merits, although inevitably involving some consideration of the merits, than summary judgment given under Order 14 or Order 86. The claimant was not to be allowed to adduce further evidence given his delay, and his application to amend was struck out.

Citations:

[1998] EWCA Civ 361

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2, Law of Property Act 1925 40

Jurisdiction:

England and Wales

Citing:

Cited – Firstpost Homes Ltd v Johnson and Others CA 14-Aug-1995
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the . .
Cited – McCausland and Another v Duncan Lawrie Ltd and Another CA 18-Jun-1996
The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. . .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Langdale v Danby HL 1982
Summary judgment had been given under Order 86. A solicitor had acted gratuitously and in good faith for the other party in the sale of a cottage, subject to an option to repurchase the cottage at the same price after 21 years. He obtained summary . .
Cited – Williams v Attridge Solicitors (a Firm) CA 8-Jul-1997
The solicitor-defendants were seeking to prove a negative and to show at the very outset of the proceedings that the claim should be struck out without the need for any further inquiry. The court considered the admission of new evidence on an appeal . .
leave to Appeal – Rudra v National and Provincial Building Society; Stickley and Kent (Risk Management Unit) Ltd CA 22-Aug-1997
Before the auction, the estate agents had signed a contract to sell the house to the claimant. The Society, as mortgagees, said that the agents did not have authority to bind it, and that the contract did not sufficiently identify the property so as . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 14 November 2022; Ref: scu.143839

Soleimany v Soleimany: CA 4 Mar 1998

The parties were Iranian Jews, father and son. The son arranged to export carpets from Iran in contravention of Iranian law. The father and son fell into dispute about their contracts and arranged for the issues to be resolved by the Beth Din according to Beth Din rules which incorporated Jewish Law. The son applied to record the award as a judgment under the 1950 Act. The son resisted enforcement, saying the contract was illegal and should not be enforced. Under the laws of the Beth Din, a contract to perform an illegal contract was enforceable, but under English law it would not be.
Held: An English court is not to enforce a valid arbitration award where it was based upon a contract which was illegal under English Law. The court was dealing with judgment which found as a fact that it was the common intention to commit an illegal act, but still enforces the contract. If the award were a judgment of a foreign court, the English court would not enforce it. Did the fact that it was an arbitration make a difference? ‘An English court would not recognise an agreement between highwaymen to arbitrate their differences any more than it would recognise the original agreement to split the proceeds.’ The reference itself was valid, and the Beth Din had jurisdiction, but: ‘The court is . . . concerned to preserve the integrity of its process, and to see that it is not abused. The parties cannot override that concern by private agreement. They cannot by procuring an arbitration conceal that they, or rather one of them, is seeking to enforce an illegal contract. Public policy will not allow it.’ and ‘In our view, an enforcement judge, if there is prima facie evidence from one side that the award is based on an illegal contract, should enquire further to some extent. . . The judge has to decide whether it is proper to give full faith and credit to the arbitrator’s award. Only if he decides at the preliminary stage that he should not take that course does he need to embark on a more elaborate enquiry into the issue of illegality.’

Judges:

Lord Justice Morritt, Lord Justice Waller, Sir Christopher Staughton

Citations:

Times 04-Mar-1998, [1998] EWCA Civ 285, [1999] QB 785, [1998] 3 WLR 811, [1999] 3 All ER 847, [1998] CLC 779

Links:

Bailii

Statutes:

Arbitration Act 1950 50

Jurisdiction:

England and Wales

Citing:

Cited – St John Shipping Corporation v Joseph Rank Limited 1956
The defendants held a bill of lading for part of the cargo carried on the plaintiffs’ vessel from Mobile, Alabama, to Birkenhead. The vessel was over laden and the plaintiffs were guilty of an offence under the 1932 Act. The defendants relied on the . .
Cited – Royal Boskalis Westminster NV and others v Mountain and others CA 28-Feb-1997
Effect of illegality on a contract.
Held: Reversed . .
Cited – Archbolds (Freightage) Ltd v S Spanglett Ltd (Randall, third party) CA 1961
The court considered the effect of illegality on a contract. Devlin LJ said: ‘The effect of illegality on a contract may be threefold. If at the time of making the contract there is an intent to perform it in an unlawful way, the contract, although . .
Cited – Foster v Driscoll, Lindsay v Attfield, Lindsay v Driscoll 1929
During the American prohibition, a group in England and Scotland planned to ship 7,500 cases of whisky to North America, and hoped to make extraordinary profits. But they fell out and resorted to litigation between themselves.
Held: Sankey LJ . .
Cited – Regazzoni v Sethia HL 1957
The House considered a mutual intention of both parties to perform a contract, which was not illegal on its face, but in a manner which was contrary to the law of the place where it was to be performed.
Held: Lord Reid said: ‘To my mind, the . .
Cited – Taylor v Barnet CA 1953
‘an arbitrator has no jurisdiction or authority to award damages on an illegal contract’ . .
Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – Soinco S A C I and Another v Novokuznetsk Aluminium Plant and others CA 16-Dec-1997
The contract provided for arbitration under the International Arbitration Rules of the Zurich Chamber of Commerce. The arbitrators considered an assertion of illegality by NKAP, and rejected it with reasons. Thereafter a decision of a Russian court, . .
Cited – Vervaeke v Smith HL 1983
A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was . .
Cited – Joe Lee Ltd v Lord Dalmeny 1927
Bets were disputed, and particularly the status of a clause in the bookmaker’s book of rules which provided: ‘Should unfortunately any dispute arise we stipulate that the matter be referred within 30 days to the editor of any paper in which we . .
Cited – Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Ltd CA 7-Apr-1993
An action was brought by re-insurers for a declaration that reinsurance policies were void for illegality, and that the plaintiffs were not liable under them. The illegality alleged was that the defendants were not registered or approved to carry on . .
Cited – London Export Corporation v Jubilee Coffee Roasting Co Ltd 1958
The court considered any discretion not to enforce a valid arbitration award: ‘When the arbitration agreement has been construed and no breach of the agreed procedure found there may nevertheless arise a second and quite separate question: that is, . .
Cited – Israel Discount Bank of New York v Hadjipateras CA 1983
An application was made to enforce a judgment in England. The respondent alleged that he had signed a guarantee under the undue influence of his father.
Held: The Court reversed the decision of the first instance judge. The substance of the . .
Cited – James Laing Son and Co Ltd v Eastcheap Dried Fruit Company 1962
McNair J said: ‘An English court exercises control over the enforcement of the arbitral award as part of the lex fori, whatever the proper law of the arbitration agreement or the place where the arbitration is conducted. If a claimant wishes to . .
Cited – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
Cited – Westacre Investments Inc v Jugoimport-SDPR Holding Co Ltd ComC 19-Dec-1997
There was a consultancy agreement, under which it was said to be contemplated or intended (or both) that the plaintiffs would bribe Kuwaiti officials in order to obtain contracts for the purchase of military equipment. The contract was governed by . .
Cited – Binder v Alachouzos CA 1972
A contract recited that the parties had been advised by solicitors and counsel that the Moneylenders Acts did not apply to transactions which were the subject of legal proceedings between them, and went on to provide for a compromise.
Held: . .
Cited – Birtley and District Co-operative v Wendy Nook and District Industrial Co-operative Society 1960
Two co-operative societies disputed the areas they were to cover, and went to arbitration. The dispute was followed by an award.
Held: ‘There is nothing on the face of the award to indicate that it is an unreasonable restraint of trade, . .
Cited – Prodexport State Company for Foreign Trade v E D and F Man Ltd 1973
An arbitrator has jurisdiction to hear a case where the contract has been affected by supervening rather than ab initio illegality. . .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 14 November 2022; Ref: scu.89392

St Albans City and District Council v ICL: CA 26 Jul 1996

Appeal from finding of liability for breach of contract for supply of computer systems to be used in their collection of community charge by providing faulty software which significantly overstated the relevant population of their area and thus caused them to suffer a loss of revenue.

Judges:

Nourse LJ

Citations:

[1996] EWCA Civ 1296, [1996] 4 All ER 481, 15 Tr L 444, [1997] FSR 251, 95 LGR 592

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 14 November 2022; Ref: scu.662192

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.

Judges:

Popplewell J

Citations:

[2013] EWHC 345 (Comm), [2013] Bus LR D79, [2013] 1 CLC 405, [2013] 2 All ER (Comm) 162, [2013] 1 Lloyd’s Rep 648

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Bunge Sa v Nidera Bv SC 1-Jul-2015
The court considered the effect of the default clause in a standard form of contract which is widely used in the grain trade. On 10 June 2010 the respondents, Nidera BV, whom I shall call ‘the buyers’, entered into a contract with the appellants, . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Contract

Updated: 14 November 2022; Ref: scu.471225

Dear and Another v Jackson: CA 22 Feb 2013

The parties disputed the effect of agreements between them, and the management of companies in which they were involved.

Judges:

Laws, Lewison, McCombie LJJ

Citations:

[2013] EWCA Civ 89, [2014] 1 BCLC 186

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 14 November 2022; Ref: scu.471162

Wills v Strategic Procurement (UK) Ltd: SCS 13 Feb 2013

The court considered: ‘The effect of error on the validity of a contract is one of the most uncertain areas in our private law. This is the result of a tension between two fundamental principles. Firstly, a contract is constituted by the agreement of the parties to it. It is based on mutual consent. Secondly, however, one party is entitled to hold the other to what he has said, even if he did not mean it. ‘When all the external indicia of agreement are present the fact of agreement will, as a general rule, be assumed’.’

Judges:

Lord Malcolm

Citations:

[2013] ScotCS CSPH – 26

Links:

Bailii

Scotland, Contract

Updated: 14 November 2022; Ref: scu.470961

Situ Ventures Ltd v Bonham-Carter and Another: CA 7 Feb 2013

The parties had contracted for the sale of a business with a requirement that the vendors remain as directors. They now disputed whether they could be removed as such.
Held: The purchasers’ appeal succeeded. The clause was not well drafted, but properly construed, it allowed a request to remove themselves.

Judges:

Mummery, Aikens, Lewison LJJ

Citations:

[2013] EWCA Civ 47

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Bonham-Carter and Others v Situ Ventures Ltd ChD 19-Dec-2012
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 14 November 2022; Ref: scu.470832

Ludgate Insurance Company Limited v Citibank NA: CA 26 Jan 1998

Brooke LJ said that the circumstances in which the court will interfere with the exercise by a party to a contract of a contractual discretion given to it by another party are extremely limited. The courts will not intervene where the discretion is exercised honestly and in good faith for the purpose for which it was conferred and provided that it was true exercise of the discretion in the sense that it was not capricious or arbitrary or so outrageous in its defiance of reason that it can properly be categorised as perverse.

Judges:

Brooke LJ

Citations:

[1998] EWCA Civ 66, [1998] Lloyds Reports IR 221

Jurisdiction:

England and Wales

Cited by:

Cited – Unique Pub Properties Ltd v Broard Green Tavern Ltd and Another ChD 26-Jul-2012
The claimant freeholder sought to install in the tenant’s pub, equipment to monitor sales. It claimed a right for this in the lease. The tenant refused access, saying that the proposed system was inaccurate. The claimant now sought summary relief. . .
Cited – Hayes v Willoughby SC 20-Mar-2013
The claimant and appellant had been employer and employee who had fallen out, with a settlement in 2005. The appellant then began an unpleasant and obsessive personal vendetta against Mr Hayes, complaining to public bodies with allegations of tax . .
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 . .
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 – British Telecommunications Plc v Telefonica O2 UK Ltd SC 9-Jul-2014
The parties disputed the termination charges which BT was entitled to charge to mobile network operators for putting calls from the latter’s networks through to BT fixed lines with associated 08 numbers. BT had introduced new tariff charges.
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 13 November 2022; Ref: scu.143544

E Alton and Company Limited v Orchard (Development) Holdings Limited: CA 27 Jan 1998

The court asked whether an option to purchase a development site had been determined by failure of a condition, described as a condition precedent; and so was no longer exercisable by the defendant, as grantee.
Held: The agreement required the optioner to have paid the fees required for the appropriate planning application on time. The fees, though now paid had not been paid in time, the condition was broken, and the option had expired.

Judges:

Lord Woolf MR, Aldous LJ, Chadwick LJ

Citations:

[1998] EWCA Civ 77

Jurisdiction:

England and Wales

Citing:

Cited – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 13 November 2022; Ref: scu.143555

Global Container Lines Limited v State Black Sea Shipping Company; Amber Seatrade SA and Clifton Navigation SA: CA 16 Dec 1997

Citations:

[1997] EWCA Civ 3007, [1999] 1 Lloyds Rep. 127

Jurisdiction:

England and Wales

Citing:

Appeal from – Global Container Lines ltd v State Black Sea Shipping and Ors ComC 11-Sep-1997
Agreement for exclusive selling rights over vessel – authority of president of parent company to enter into ratification- whether terms (relating to period etc) sufficiently certain to be enforceable. Repudiation – interlocutory instruction . .
See Also – Global Container Lines Limited v Bonyan Shipping Company CA 9-Nov-1998
. .

Cited by:

See Also – Global Container Lines Ltd v Bonyad Shipping QBD 14-Jul-1998
Where companies had amalgamated and one had been a party to litigation, it was possible for the court to order the retrospective substitution of the new company even though the original party had disappeared in law. . .
See Also – Global Container Lines Limited v Bonyan Shipping Company CA 9-Nov-1998
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 13 November 2022; Ref: scu.143406

Total Gas Marketing Limited v Arco British Limited; Atlantic Richfield Oil and Gas (St James) Limited and Talisman North Sea Limited: CA 16 Dec 1997

The court was asked whether a condition to which a contract for the sale and purchase of North Sea gas was expressed to be subject, but for whose fulfilment no time was fixed, had necessarily to be fulfilled before the date fixed for the first delivery of the gas. The condition was that the seller should become party to an ‘allocation agreement’, being an agreement with third parties without which it was impracticable for the gas to be delivered.

Citations:

[1997] EWCA Civ 3016

Jurisdiction:

England and Wales

Contract

Updated: 13 November 2022; Ref: scu.143415

Hughes, Feuell v Sargant, Nockolds (a Firm); Devonald-Locke and Campbell-Gray: CA 15 Dec 1997

Renewed application for leave to appeal against order striking out claim against first defendant. The defendant had sold a new house to the plaintiff, but the planning permission did not match the building regulations approval, leaving an extension unlawful.
Held: The contract could be read to imply a warranty by the defendant seller in this point.

Citations:

[1997] EWCA Civ 2990

Jurisdiction:

England and Wales

Contract

Updated: 13 November 2022; Ref: scu.143389

Jones and Another v Welsh Rugby Football Union; Same v Pugh (For and On Behalf of Welsh RFU): CA 19 Dec 1997

Disciplinary proceedings against a sportsman which had been set aside for him having received an unfair hearing, may be re-instated once the defects in the procedure were remedied.

Citations:

Times 06-Jan-1998, [1997] EWCA Civ 3066

Jurisdiction:

England and Wales

Citing:

At EAT – Jones and Another v Welsh Rugby Football Union QBD 6-Mar-1997
A professional sportsman should be allowed to have representation on a suspension hearing, which might affect his ability to earn his living. However Ebsworth J doubted the correctness of the intrusion of courts into such matters, saying that:’There . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Contract

Updated: 13 November 2022; Ref: scu.82592