Category: Contract

Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos): CA 4 Jun 1993

The ship was returned by the charterer after the expiry of the time charter. The court was asked as to when the validity of the last order was to be tested.
Held: The legitimacy of the charterer’s final order was to be tested at the date it had been given. Counsel had respectively argued: ‘Furthermore, and central to Mr Rix’s argument, the owners would be compensated in damages in accordance with the normal common law measure of damages under the rule in Hadley v Baxendale for any period of overrun which would normally be based on market rates of hire under the first rule; but also, if the facts warranted, by additional damages (e.g. for the loss of a fixture) under the second rule’ and on the other side: ‘Mr Gross asserts that damages may be an inadequate remedy, since the owners are unlikely to be able to recover compensation for the loss of a subsequent fixture and are likely to be confined to recovering hire at the market rate (i.e. within the first rule in Hadley v Baxendale). But this is essentially a complaint against the well established common law rules on the measure of damages and indeed on the facts of individual cases the owners might well be able to bring themselves within the second rule in Hadley v Baxendale (e.g. if the owners explicitly warned the charterers at the time of the last voyage order then (sic) an overrun might imperil a subsequent fixture). ‘

Judges:

Hirst, Russell and Simon Brown, L.JJ

Citations:

Ind Summary 05-Jul-1993, Times 04-Jun-1993, [1993] 2 Lloyd’s Rep 335

Jurisdiction:

England and Wales

Citing:

Appeal from – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) ChD 1991
The ship was returned late from a charter. The court was asked whether or not the legitimacy of the last voyage fell to be established at the date when the order was given or at the time when the last voyage began.
Held: It was the second: . .

Cited by:

Appeal from – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) HL 28-Oct-1994
In a continuing charter when it was clear that the time of the charter will be exceeded, the contract allows an action for an anticipatory breach. Any new redelivery order was to be obtained after after it first became impossible to meet the charter . .
Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 26 October 2022; Ref: scu.89922

Moran v University College Salford (Practice Guidance – Leave to Appeal): CA 27 Oct 1993

An offer of a student place was capable of acceptance, but a mandatory injunction was refused. The court gave guidance on how to decide if leave was necessary to make an appeal to the Court of Appeal.

Citations:

Independent 26-Nov-1993, Times 27-Oct-1993, Ind Summary 29-Nov-1993

Statutes:

Rules of the Supreme Court 59, Courts and Legal Services Act 1990 7(1)

Jurisdiction:

England and Wales

Contract, Litigation Practice, Education

Updated: 26 October 2022; Ref: scu.83823

Millar and Others v Bassey and Another: CA 26 Aug 1993

It was alleged that Miss Shirley Bassey had breached her contract with a record producer Dreampace (or with her own management company which had in turn contracted with Dreampace), as a result of which Dreampace had been unable to perform a contract with the plaintiffs of which Miss Bassey had known.
Held: The court asked ‘Must the conduct of the defendant, the alleged tortfeasor, be aimed directly at the plaintiff, the contracting party, who suffers damage, in the sense that the defendant intends that the plaintiff’s contract should be broken, or is it sufficient that that conduct should have the natural and probable consequence that the plaintiff’s contract is broken?’ No specific intent is necessary to establish the tort of inducing a breach of contract. The tort is ‘a species of the genus of economic torts whereby the common law protects against the intentional violation of economic interests’.
Peter Gibson LJ: There had to be the deliberate interference with a contract with a view to bringing about its breach rather than interference causing a breach when that interference was merely the incidental consequence of the defendant’s conduct: ‘ . . it is a requirement of the tort that it should be established that the defendant by his conduct intended to break or otherwise interfere with and, with that intention, did break or otherwise interfere with a contract to which the plaintiff was a party.’
Beldam LJ: ”In the passage cited, Woolf LJ was in my opinion emphasising the distinction between an intention to bring about a consequence and the desire to do so and was pointing out that a person can intend a consequence if he knows that it will follow from a course of conduct on which he embarks deliberately. Nor I my view can a consequence properly be regarded as unintended or incidental if the deliberate action is taken knowing that it must inevitably bring about the consequence, desired or not. In truth in such a case the actor intends to bring about both the undesired and the desired consequence and is willing to bring about the one to achieve the other. ‘

Judges:

Ralph Gibson and Beldam LJJ

Citations:

Independent 26-Aug-1993, [1994] EMLR 44

Jurisdiction:

England and Wales

Cited by:

Cited – OBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Considered – Latvian Shipping Company and Others v Stocznia Gdanska Sa CA 21-Jun-2002
A payment condition was just that and that a failure to pay entitled the seller to terminate at common law. Rix LJ said: ‘It is established law that, where one party to a contract has repudiated it, the other may validly accept that repudiation by . .
View of Stuart Smith LJ approved – Oren, Tiny Love Limited v Red Box Toy Factory Limited, Red Box Toy (UK) Limited, Index Limited, Martin Yaffe International Limited, Argos Distributors Limited PatC 1-Feb-1999
One plaintiff was the exclusive licensee of a registered design. The defendant sold articles alleged to infringe the design right. The registered owner had a statutory right to sue for infringement. But the question was whether the licensee could . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 26 October 2022; Ref: scu.83721

London and Blenheim Estates v Ladbroke Retail Parks Ltd: CA 1 Jun 1993

The land-owner sold part of his land, granting easements over the retained land, and an agreement that, if further plots were purchased, similar easements would be granted. The agreement stated that the purchaser should have the right to give notice to nominate which land would constitute the dominant land for the purposes of any new easement. The purchaser bought additional land, but the original landowner had already sold on the remainder of his own land. The buyer sought a declaration that all the land had the benefit of the easement.
Held: An easement of parking is recognised in English Law. However, the original clause had not created an interest in land. Land could not be allowed to become burdened to an uncertain extent. Successors in title to the servient tenement could not be bound by such an interest until it became certain, by identification of the dominant land. The clause required a notice to be given, and the right to claim an easement arose only when that notice was given and they were not bound on the purchase itself.
The identification of a purchaser is not crucial to the existence of an estate contract in the sense that a contract in favour of an as yet unidentified purchaser to be nominated by a contracting party is a valid estate contract.
Peter Gibson LJ said: ‘an essential part of the interest to be granted was left uncertain. If one asks why the law should require that there should be a dominant tenement before there can be a grant, or a contract for a grant, of an easement sufficient to create an interest binding successors in title to the servient land, the answer would appear to lie in the policy against encumbering land with burdens of uncertain extent.
A further related answer lies in the reluctance of the law to recognise new forms of burden on property conferring more than contractual rights. A right intended as an easement and attached to a servient tenement before the dominant tenement is identified would in my view be an incident of a novel kind.’

Judges:

Peter Gibson LJ

Citations:

Times 01-Jun-1993, [1993] 4 All ER 157, [1994] 1 WLR 31

Jurisdiction:

England and Wales

Citing:

Cited – Pritchard v Briggs CA 1980
A conveyance of part in 1944 gave a right of pre-emption over retained land. The vendor’s successors the let the retained land to the plaintiff with an option to buy the freehold reversion. The retained land was sold to the defendants in purported . .
Distinguished – Turley v Mackay 1943
. .
Appeal from – London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd ChD 29-Jul-1992
A right to park was claimed as an easement.
Held: The question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree: ‘A small coal shed in a large property is one thing. The exclusive . .

Cited by:

Cited – Sainsbury’s Supermarkets Ltd v Olympia Homes Limited, Hughes etc ChD 17-Jun-2005
The claimant sought rectification of the land register. In a development deal, an option agreement had not been registered, and the land sold on. The land was required to allow the building of a roundabout necessary for the intended store. An . .
Cited – Batchelor v Marlow and Another CA 12-Jul-2001
The applicant claimed parking rights as an easement acquired by prescription. At first instance the rights were recognised as an easement. The rights included parking during daylight hours during weekdays. The land-owner appealed on the ground that . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 26 October 2022; Ref: scu.83154

Islwyn Borough Council and Another v Newport Borough Council: CA 28 Jun 1993

Three local authorities disputed whether a contract had been made between them, and if so its terms, as to the financial support of a leisure centre.
Held: Later legislation need not frustrate agreement between the parties.
Hirts LJ said: ‘the agreement was in my judgment frustrated by supervening illegality . . the parties having covenanted to do something lawful, and section 42(a) having come in and hindered them from doing it, the covenant was repealed, leaving the Joint Committee powerless to fulfil their central function of management of the Leisure Centre.’

Judges:

Glidewell, Hirst, Roch LJJ

Citations:

Times 28-Jun-1993, 158 LG Rev 501, [1993] EWCA Civ 28

Links:

Bailii

Statutes:

Local Government Act 1972 101(1), Education Act (No 2) 1986 42

Jurisdiction:

England and Wales

Citing:

Cited – Baily v De Crespigny QBD 1869
A lessor had covenanted that neither he nor his assigns would build on a piece of land adjoining the demised premises. A railway company, under powers derived from a subsequent private Act, compulsorily acquired the land and erected a station on it. . .
Cited – Brewster v Kitchell 1795
‘Where H covenants not do to an act or thing which was lawful to do, and an Act of Parliament comes after and compels him to do it, the statute repeals the covenant. So if H covenants to do a thing which is lawful, and an Act of Parliament comes in . .
Cited – Llanelly Railway and Dock Company v London and North Western Railway Company CA 1872
James LJ said: ‘I start with this proposition that prima facia every contract is permanent and irrevocable and it lies upon a person who say that it is revocable or determinable to show either something special in the contract itself, or something . .
Cited – In Re Spenborough Urban District Council’s agreement; Spenborough Corporation v Cooke Sons and Company Ltd ChD 1968
A contract regulating the flow of industrial effluents into a public sewer contained no power of termination notwithstanding that the agreement it replaced did.
Held: There is no presumption in law that a joint venture is not terminable.
Cited – Staffordshire Area Health Authority v South Staffordshire Waterworks Company CA 1978
There was no provision in the agreement, made in 1929, to supply water at all times hereafter, between the parties for a variation of the charges payable under the agreement, which had between 1929 and 1978 become derisory, being 1/20 of the current . .
Cited – Metropolitan Water Board v Dick Kerr and Co Ltd HL 26-Nov-1917
In July 1914 the appellants contracted with the respondents, a firm of contractors, for the construction of a reservoir which was to take six years to build. The work was started, but in February 1916 the Minister of Munitions ordered it to cease . .
Lists of cited by and citing cases may be incomplete.

Local Government, Contract

Updated: 26 October 2022; Ref: scu.82435

First Energy (UK) Ltd v Hungarian International Bank Ltd: CA 16 Apr 1993

A manager, though he lacked actual authority to authorise and offer a particular loan facility to the plaintiff, still did so by sending him a letter of offer which was accepted.
Held: Albeit the manager lacked actual authority to make the loan and that no other person in the bank had held him out as having such authority, by reason of his very position he was a person who would ordinarily have authority to communicate the decision of more senior members of the bank who were authorised to make and/or approve such a loan and the plaintiff was accordingly entitled to rely upon the offer he had received. Steyn LJ said that a ‘theme that runs through our law of contract is that the reasonable expectations of honest men must be protected. It is not a rule or a principle of law. It is the objective which has been and still is the principal moulding force of our law of contract. It affords no licence to a Judge to depart from binding precedent. On the other hand, if the prima facie solution to a problem runs counter to the reasonable expectations of honest men, this criterion sometimes requires a rigorous re-examination of the problem to ascertain whether the law does indeed compel demonstrable unfairness’.

Judges:

Steyn LJ

Citations:

Independent 16-Apr-1993, [1993] 2 Lloyds Rep 194

Jurisdiction:

England and Wales

Cited by:

Cited – Sun Life Assurance Company of Canada (A Company Established Pursuant To the Laws of Canada) v CX Reinsurance Company Limited (Formerly CNA Reinsurance Company Ltd) CA 6-Mar-2003
The claimant appealed a refusal to order that a dispute between insurer and re-insurer be referred to arbitration. One party sought to avoid liability under the policy, alleging misrepresentation. Discussions had been undertaking settling a revised . .
Cited – Jordan Grand Prix Limited v Vodafone Group Plc ComC 4-Aug-2003
The claimant asserted that the defendant had agreed in the course of a telephone conversation, to provide sponsorship, and sought to enforce that agreement. There were considerable conflicts of evidence.
Held: Evidence given on behalf of the . .
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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 26 October 2022; Ref: scu.80555

E E Caledonia Ltd v Orbit Valve Plc: CA 30 May 1994

A clause providing for an indemnity against any claim arising from the manner of performance was not to be construed to cover negligence. ‘The printed conditions in the agreement in this case were plainly drafted by a lawyer. Why was an express reference to negligence not inserted? Similar questions have been posed on a number of occasions. Why do draftsmen not take note of the impact of a clear and consistent line of judicial decisions? For my part I have no doubt that the draftsman on the Underground to whom such a question was addressed would say ‘one does not want to frighten off one or other of the parties.’ Omissions of express reference to negligence tend to be deliberate.’

Judges:

Steyn LJ

Citations:

Times 30-May-1994, [1994] 1 WLR 1515

Jurisdiction:

England and Wales

Citing:

Appeal from – E E Caledonia Ltd v Orbit Valve Plc QBD 1994
A clause which gave an indemnity against any claim arising from the manner of performance of the contract by one party was not to be construed to exempt negligence: ‘The principle is that in the absence of clear words the parties to a contract are . .

Cited by:

Appealed to – E E Caledonia Ltd v Orbit Valve Plc QBD 1994
A clause which gave an indemnity against any claim arising from the manner of performance of the contract by one party was not to be construed to exempt negligence: ‘The principle is that in the absence of clear words the parties to a contract are . .
Cited – Stent Foundations Ltd v M J Gleeson Group Plc TCC 9-Aug-2000
The defendant company sought to rely upon an exemption clause.
Held: Applying standard rules for contract interpretation, the exemption clause was to be construed against the one proposing it. At best the clause was ambiguous, and the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 26 October 2022; Ref: scu.80197

Barclays Bank Plc v Fairclough Building Ltd: CA 11 May 1994

Contributory negligence is no defence to a claim which was made out strictly in contract only.

Citations:

Gazette 29-Jun-1994, Times 11-May-1994, [1994] EWCA Civ 3, [1995] QB 214, [1995] 1 All ER 289, [1994] 3 WLR 1057

Links:

Bailii

Statutes:

Law Reform (Contributory Negligence) Act 1945 1(1), 4

Jurisdiction:

England and Wales

Citing:

See also – Barclays Bank Plc v Fairclough Building Ltd (No 2) CA 15-Feb-1995
Contractors taking on building work should be assumed to have taken account of the possible presence of asbestos when quoting for the work. . .

Cited by:

See also – Barclays Bank Plc v Fairclough Building Ltd (No 2) CA 15-Feb-1995
Contractors taking on building work should be assumed to have taken account of the possible presence of asbestos when quoting for the work. . .
Lists of cited by and citing cases may be incomplete.

Contract, Negligence

Updated: 26 October 2022; Ref: scu.78202

Global Asset Capital, Inc and Another v Aabar Block Sarl and Others: CA 1 Feb 2017

Appeal against refusal of summary judgment. The court set out the applicable principles concerning strike out and summary judgment: ‘(1) The court must consider whether the case of the respondent to the application has a realistic as opposed to fanciful prospect of success – in this context, a realistic claim is one that carries some degree of conviction and is more than ‘merely arguable’.
(2) The court must not conduct a ‘mini-trial’ and should avoid being drawn into an attempt to resolve conflicts of fact which are normally resolved by the trial process.
(3) If the application gives rise to a short point of law or construction then, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should ‘grasp the nettle and decide it’.’

Judges:

Lord Justice Hamblen, Lord Justice McFarlane

Citations:

[2017] EWCA Civ 37, [2017] WLR(D) 63, [2017] 4 WLR 163

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal from – Global Asset Capital, Inc and Another v Aabar Block Sarl and Another ComC 18-Feb-2016
. .
Cited – Easyair Ltd (T/A Openair) v Opal Telecom Ltd ChD 2-Mar-2009
Principles Applicable on Summary Judgment Request
The court considered an application for summary judgment.
Held: Lewison J set out the principles: ‘the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as . .

Cited by:

Cited – Scott v LGBT Foundation Ltd QBD 3-Mar-2020
Disclosure of risk of self harm made no claim
The claimant complained that the respondent support group had disclosed to his doctor that fact that they had assessed him as being at significant risk of suicide or other substantial self-harm, and that it was at that time unable to provide Mr . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 26 October 2022; Ref: scu.573794

Spreadex Ltd v Cochrane: ComC 18 May 2012

The spread betting bookmaker claimed summary judgment in respect of a consumer, Mr Cochrane, who had made certain initial personal trades with significant profitability. In his absence, without his knowledge and authorisation, his account was tinkered with by a child who, by playing on the computer, effected through it a number of ‘trades’ which caused tens of thousands of pounds worth of loss on the account. The Claimants sued on a clause that deemed the Defendant to have authorised all trading under his account number.
Held: Summary judgment was refused. The Claimant’s analysis was wrong: the terms did not form part of any contract, but even if they did, the clause in question fell foul of the consumer protection provisions proscribing reliance upon unfair terms, and: ‘A further, and compounding, factor to be taken into account is the manner in which the clause was incorporated into any contract (if there was one). As I described earlier, the potential customer was told that four documents, including the Customer Agreement, could be viewed elsewhere on-line by clicking ‘View’. Many, one might suspect most, would have passed up on that invitation and proceeded directly to click on ‘Agree’, even though it was suggested that they should do so only when they had read and understood the documents. Even if, exceptionally, the Defendant in fact chose to look at the documents, he would have been faced in the Customer Agreement alone with 49 pages containing the same number of closely printed and complex paragraphs. It would have come close to a miracle if he had read the second sentence of Cl 10(3), let alone appreciated its purport or implications, and it would have been quite irrational for the Claimant to assume that he had. (In most cases, the limited time spent on the on-line application would in any event probably preclude any serious perusal of the documents). This was an entirely inadequate way to seek to make the customer liable for any potential trades which he did not authorise, and is a further factor rendering the second sentence of Cl 10(3) an unfair term.’

Judges:

David Donaldson QC (sitting as a Deputy High Court Judge)

Citations:

[2012] EWHC 1290 (Comm)

Links:

Bailii

Statutes:

Unfair Contract Terms Act 1977

Jurisdiction:

England and Wales

Cited by:

Cited – Green v Petfre (Gibraltar) Ltd (T/A Betfred) QBD 7-Apr-2021
Onerous Contract Terms Unclear – Not Incorporated
The claimant said that he had won a substantial sum on the online gaming platform operated by the defendants, but that they had refused to pay up. The defendants said that there had been a glitch in the game. The court faced a request for summary . .
Lists of cited by and citing cases may be incomplete.

Contract, Consumer

Updated: 26 October 2022; Ref: scu.459904

Spreadex Ltd v Sekhon: ChD 23 May 2008

The claimant spread betting company sought payment of sums due for bets from the defendant who said they owed him money under the 2000 Act.
Held: Morgan J observed as to the interpretation of the contract: ‘Accordingly, in my judgment, the minimum content of a communication which is required for that communication to qualify as a margin call is that Spreadex asks the client to pay money, whether a sum is specified or not, and the words used in the relevant context reasonably convey to a reasonable recipient the fact that Spreadex is asking for margin call, as that phrase is understood in the Agreement.’

Judges:

Morgan J

Citations:

[2008] EWHC 1136 (Ch), [2009] 1 BCLC 102

Links:

Bailii

Statutes:

Financial Services and Markets Act 2000 150

Jurisdiction:

England and Wales

Citing:

Cited – Spreadex Ltd v Dr Vijay Ram Battu CA 11-Jul-2005
The appellant traded in financial indices through the respondent spread betting company. The company took two forms of security, an initial payment by way of security, and a sum covering any current trading positions. The trader made losses, and the . .

Cited by:

Cited – IG Index Plc v Leung-Cheun and Others QBD 17-Aug-2011
The claimants sought payment from the defendants under spread bets placed by them. The defendants counterclaimed saying that they had suffered greater losses after the claimants had failed as required to close out open bets.
Held: The claim . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 25 October 2022; Ref: scu.270216

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 this case, the defendant knew of the unlawful activity, and had no arguable defence, and summary judgment should have been given.

Judges:

Lord Justice Brooke Lord Justice Carnwath

Citations:

[2002] EWCA Civ 1783, [2003] 1 WLR 218

Links:

Bailii

Statutes:

Limited Partnership Act 1907

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Cayne and Another v Global Natural Resources Plc ChD 12-Aug-1982
The court gave this example of the legitimate use of the directors’ powers to defeat a take-over: ‘If Company A and Company B are in business competition, and Company A acquires a large holding of shares in Company B with the object of running . .
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 – 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 – 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 – 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 – 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 – 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 – 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 – Manchester Trust v Furness CA 1895
Lindley LJ said: ‘In dealing with estates in land title is everything, and it can be leisurely investigated; in commercial transactions possession is everything, and there is no time to investigate title; and if we were to extend the doctrine of . .
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 – 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 – Churchill v Walton CA 1967
In a criminal conspiracy to evade fuel duties, the fact that the defendant had first obtained counsel’s opinion was no defence. . .
See Also – Criterion Properties Plc v Stratford UK Properties Llc and others CA 18-Dec-2002
. .
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 by:

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 . .
See Also – Criterion Properties Plc v Stratford UK Properties Llc and others CA 18-Dec-2002
. .
Appeal from – 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 – 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: 25 October 2022; Ref: scu.188993

WWF – World Wide Fund for Nature (Formerly World Wildlife Fund); World Wildlife Fund Inc v World Wrestling Federation Entertainment Inc: CA 27 Feb 2002

The claimant sought enforcement of a contract restricting the use by the appellant defendant of the initials ‘WWF’ in their trading. The agreement had been reached in settlement of an action for breach of the claimant’s trade mark rights. The claimant was particularly concerned as to the injurious association with the respondent, and its use of the mark on the Internet.
Held: The scratch logo used by the federation was a clear breach. They had not seriously sought to argue that they were not in breach of the agreement. The protection of the intellectual property rights of one business inevitably implies some restriction on the rights of others with potentially conflicting interests. There was no undue interference in the freedom of the defendant to trade. The breaches were clear, and the agreement was to be upheld. Appeal against summary judgement dismissed.

Judges:

Lord Phillips M.R., Lord Justice Judge, Lord Justice Carnwath

Citations:

Times 12-Mar-2002, Gazette 11-Apr-2002, [2002] EWCA Civ 196

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Appeal from – WWF -World Wide Fund for Nature (Formerly World Wildlife Fund), World Wildlife Fund Inc v World Wrestling Federation Entertainment Inc ChD 1-Oct-2001
The Fund sought summary relief against the use of the sign ‘WWF’ by the defendants, in breach of a contract. The defendants urged that the contract operated in restraint of trade. There had been long running and widespread trade mark disputes, . .

Cited by:

See Also – World Wide Fund for Nature (Formerly World Wildlife Fund), World Wildlife Fund Incorporated v World Wrestling Federation Entertainment Incorporated – Intervener Jakks Pacific Llc CA 27-Mar-2003
. .
See Also – WWF-World Wide Fund for Nature and Another v World Wrestling Federation Entertainment Inc ChD 16-Feb-2006
. .
See Also – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract, Commercial

Updated: 25 October 2022; Ref: scu.167702

Great Peace Shipping Ltd v Tsavliris (International) Ltd: CA 14 Oct 2002

The parties contracted for the hire of a ship. They were each under a mistaken impression as to its position, and a penalty became payable. The hirer claimed that the equitable doctrine of mutual mistake should forgive him liability.
Held: Over the years there had been a conflict caused by Lord Denning’s creation of an equitable doctrine of common mistake. That could no longer be allowed to continue, and no such doctrine could apply, and rescission was not available. There was no clear way of distinguishing mistakes which were fundamental to the contract. The fact that a bargain produced a worse position for one party was insufficient to found a rescission unless the mistake is such that it makes the contract adventure impossible. Two of the elements which must be present if common mistake is to avoid a contract are the non-existence of the state of affairs must render contractual performance impossible; and the state of affairs must be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contractual adventure is to be possible.
Lord Phillips MR set out five condition which must be present if a contract was to be avoided as a mistake: ‘(i) there must be a common assumption as to the existence of a state of affairs; (ii) there must be no warranty by either party that that state of affairs exists; (iii) the non-existence of the state of affairs must not be attributable to the fault of either party; (iv) the non-existence of the state of affairs must render performance of the contract impossible; (v) the state of affairs may be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contractual adventure is to be possible.’

Judges:

Lord Phillips MR, May, Laws LLJ

Citations:

Times 17-Oct-2002, Gazette 07-Nov-2002, [2002] EWCA Civ 1407, [2003] QB 679, [2002] 2 Lloyd’s Rep 653, [2002] 4 All ER 689, [2002] 3 WLR 1617

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Overruled – Solle v Butcher CA 1949
Fundamental Mistake Needed to Allow Rescission
The court set out the circumstances in which the equitable remedy of rescission of a contract is available for mutual mistake. The mistake has to be as to some fundamental element of the contract. What is ‘fundamental’ is a wider category of event . .
Confirmed – Bell v Lever Brothers Ltd HL 15-Dec-1931
Contract – Mutual Mistake Test
Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying pounds 30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could have . .
Appeal from – Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd QBD 9-Nov-2001
The court examined the subject of mistake as a vitiating factor in the law of contract. . .

Cited by:

Cited – EIC Services Ltd European Internet Capital Ltd v Phipps, Paul, Barber CA 30-Jul-2004
Whether issue of additional shares had been properly authorised . .
Cited – Islington v Uckac and Another CA 30-Mar-2006
The council’s tenant had unlawfully secured assignment of a secure tenancy to the defendant. The council sought possession.
Held: A secure tenancy granted by an authority pursuant to a misrepresentation by the tenant is nonetheless valid. The . .
Cited – Graves v Graves and others CA 3-Jul-2007
The parties had divorced and settled financial provision, but the former wife and her children came to need a house and one of the claimant’s properties became vacant, and she was allowed to occupy it as a tenant, with the majority of the rent being . .
Cited – Butters and Others v BBC Worldwide Ltd and Others ChD 20-Aug-2009
In the insolvency of Woolworths plc, a subsidiary sought to have valued its shareholding in a company in which the defendants were co-shareholders. It was argued that an earlier agreement between them had not be fully superceded by a subsequent one. . .
Cited – Heath v Kelly and Another ChD 24-Jul-2009
The defendant and the deceased had purchased a house as joint tenants in equity. The claimant sought to enforce an agreement for the sale of the defendant’s half share. Payment having been made. The defendant argued that the agreement was uncertain . .
Cited – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court and Another CA 25-Oct-2011
The claimant newspaper sought to appeal against a refusal by the respondent to disclose papers filed in a case before it. The court considered whether it had jurisdiction to hear an appeal.
Held: Under the 1981 Act no appeal would lie if the . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Cited – Green v Petfre (Gibraltar) Ltd (T/A Betfred) QBD 7-Apr-2021
Onerous Contract Terms Unclear – Not Incorporated
The claimant said that he had won a substantial sum on the online gaming platform operated by the defendants, but that they had refused to pay up. The defendants said that there had been a glitch in the game. The court faced a request for summary . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity, Litigation Practice

Updated: 25 October 2022; Ref: scu.177726

PJ Van der Zijden Wildhandel NV v Tucker: 1975

The party seeking to be discharged from a contractual performance, and relying on the terms of the agreement, carries the burden of proving the facts necessary for such discharge.

Citations:

[1975] 2 LLR 240

Jurisdiction:

England and Wales

Cited by:

Cited – CEP Holdings Ltd, CEP Claddings Ltd v STENI As QBD 9-Oct-2009
The claimants asserted breach by the defendant of an exclusive distributor agreement. The defendants said that the claimants had failed, as required by the contract, to use all reasonable endeavours to promote the product.
Held: There was no . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 24 October 2022; Ref: scu.377300

Day Morris Associates v Voyce and Another: CA 26 Feb 2003

The claimant estate agents appealed dismissal of their claim for commission. The owners were splitting up, and there was to begin with no clear instruction to market the property. Later the property was sold privately, but to a buyer introduced by the claimant to Mrs Voyce. The agent asked the court to go beyond its normal appellate function to remedy a defect in the trial in that the judge had relied upon a point unargued by the parties, as to whether Mrs Voyce had accepted the offer to act.
Held: The parties wre given some latitude in the scope of their arguments. The judge had not clearly identified the contractual history. A contractual acceptance has to be a final and unqualified expression of assent to the terms of the offer. Here Mrs Voyce’s behaviour had been enough to constitute such acceptance. Appeal allowed.

Judges:

Lord Justice Sedley Mrs Justice Black

Citations:

[2003] EWCA Civ 189

Links:

Bailii

Statutes:

Civil Procedure Rules 52.11(3)(b)

Jurisdiction:

England and Wales

Agency, Contract, Civil Procedure Rules

Updated: 24 October 2022; Ref: scu.179568

Luxmoore-May and Another v Messenger May Baverstock: CA 1990

A claim was brought against a firm of fine art auctioneers outside London who failed to spot that two small paintings of foxhounds might in fact be the work of the celebrated painter of animals George Stubbs. The paintings, which had been very dirty and overpainted when assessed by the auctioneer, were given a reserve price of pounds 40 for the pair and sold for pounds 840. They were subsequently sold as being by Stubbs for pounds 88,000.
Held: The auctioneer’s appeal succeeded.
The two pictures had initially been consigned by the claimants to the auctioneer ‘for research’. Slade LJ held that this term had no standard, recognised meaning but that in the context of that case the duty of the auction house was: ‘to express a considered opinion as to the sale value of the foxhound pictures, and for this purpose to take further appropriate advice.’
The Court then considered what was the standard of skill and care which the plaintiff had the right to expect of the auction house in the discharge of their duties. Each member of the Court emphasised that the defendant was a provincial auction house and not a leading London house. In the leading judgment Slade LJ referred to the analogy with the distinction in the medical world between general practitioners and specialists.
Slade LJ regarded the defendants as akin to ‘general practitioners’ rather than ‘specialists’ and held that the standard of skill and care required of them was to be judged only by reference to what may be expected of a general practitioner. He also warned against assessing the defendant’s behaviour with the benefit of hindsight and set out an important rider: ‘The valuation of pictures of which the artist is unknown, pre-eminently involves an exercise of opinion and judgment, most particularly in deciding whether an attribution to any particular artist should be made. Since it is not an exact science, the judgment in the very nature of things may be fallible, and may turn out to be wrong. Accordingly, provided that the valuer has done his job honestly and with due diligence, I think that the court should be cautious before convicting him of professional negligence merely because he has failed to be the first to spot a ‘sleeper’ or the potentiality of a ‘sleeper’: . . ‘

Judges:

Slade LJ, Mann LJ, Sir David Croom-Johnson

Citations:

[1990] 1 WLR 1009

Jurisdiction:

England and Wales

Cited by:

Cited – Thwaytes v Sotheby’s ChD 16-Jan-2015
The claimant had sold a painting through the defendant auctioneers. He sought damages after it was certified to be an original rather than copy Caravaggio painting, and worth very substantially more. . .
Lists of cited by and citing cases may be incomplete.

Contract, Professional Negligence

Updated: 24 October 2022; Ref: scu.648602

Slater and Gordon (UK) 1 Ltd v Watchstone: ComC 6 Sep 2019

Hearing of urgent vacation business on the defendant’s application for permission (i) to make certain amendments to its defence and (ii) to bring a counterclaim against the claimant (S and G) for breach of confidence, inducing breach of contract and unlawful means conspiracy.

Judges:

Bryan J

Citations:

[2019] EWHC 2371 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Information, Contract, Torts – Other

Updated: 24 October 2022; Ref: scu.642105

Thwaytes v Sotheby’s: ChD 16 Jan 2015

The claimant had sold a painting through the defendant auctioneers. He sought damages after it was certified to be an original rather than copy Caravaggio painting, and worth very substantially more.

Judges:

Rose J

Citations:

[2015] EWHC 36 (Ch), [2015] WLR(D) 12, [2016] 1 WLR, [2016] 1 All ER 423, [2015] PNLR 12

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Hunter v Hanley 4-Feb-1955
The pursuer had been injured when the hypodermic needle being used by the defender doctor broke in use. The pursuer said that the direction by the judge as to accepted practice for the use of such needles.
Held: The court considered the . .
Cited – Luxmoore-May and Another v Messenger May Baverstock CA 1990
A claim was brought against a firm of fine art auctioneers outside London who failed to spot that two small paintings of foxhounds might in fact be the work of the celebrated painter of animals George Stubbs. The paintings, which had been very dirty . .
Cited – Edward Wong Finance Co Ltd v Johnson Stokes and Master PC 1984
(Hong Kong) The defendant’s solicitors completed a mortgage in ‘Hong Kong style’ rather than in the old fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the . .
Cited – Bolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
Cited – Zabihi v Janzemini and others ChD 28-Nov-2008
The claimant sought the return of jewellery of substantial value. The defendants said that they had been returned or sold and accounted for.
Held: The court must do its best on such evidence as it feels able to accept to place some kind of . .
Cited – Zabihi v Janzemini and Others CA 30-Jul-2009
The claimant said that he had left valuable jewelry with the defendant for sale. The defendant said at first they had been stolen, but then returned jewelry which the claimant denied was what had been left. The defendant appealed a finding that he . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 24 October 2022; Ref: scu.541725

Berezovsky v Hine and Others (1718): ComC 7 Jul 2011

The court heard an application to strike out a claim against the fourth defendant.

Judges:

Mann J, Gloster J

Citations:

[2011] EWHC 1718 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Berezovsky v Hine and Others (1777) ComC 7-Jul-2011
Claimant’s application for an order requiring the parties to rely at trial on an expert report as to contemporary Russian history. . .
See Also – Berezovsky v Hine and Others (1776) ChD 7-Jul-2011
The claimant requested the court to make an order requiring the parties to rely upon an expert’s report as to contemporary Russian history. . .
Cited – Berezovsky v Hine and Others (1716) ChD 7-Jul-2011
The court heard the defendant’s application to strike out certain elements of the claimant’s pleadings. . .

Cited by:

Cited – Berezovsky v Hine and Others CA 7-Oct-2011
The claimant appealed against an order for the disclosure to and use by the defendants of certain documents. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 23 October 2022; Ref: scu.441582

Esso Petroleum Company Ltd v Miller and others: CA 8 Oct 2001

Renewed application for permission to appeal, with a further application to admit new evidence, made by Mrs Miller in connection with an application which she lost to set aside a judgment entered against her by consent in an action which Esso Petroleum Company Limited brought against her in 1994,

Citations:

[2001] EWCA Civ 1484

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 23 October 2022; Ref: scu.201390

Drake v Thos Agnew and Sons Limited: QBD 8 Mar 2002

The claimant sought the return of money paid by him for a painting. He said it had been sold to his agent as by ‘Van Dyck’ but subsequently proved not to be so. He had employed an agent to acquire the painting, but the agent had not disclosed to him a letter from the defendants, and had also altered the catalogue to improve the provenance. The buyer asserted it was a sale by description. The seller said these were statements of opinion.
Held: The claim failed. The statement as to the painter was a statement of opinion, and there was no express term making that opinion part of the contract. The buying agent was experienced and would expect no more. A judge should not presume to have a ‘expert’s eye’.
Buckley J discussed evidence relevant to the attribution of a painting: ‘Attribution of an Old Master can depend on various matters, including: provenance, historical research and the experienced eye of an expert, usually a trained art historian. In this case neither provenance nor history gives an answer or even very much help. The knowledge of van Dyck’s studio practice which art historians have acquired is certainly of some assistance, but in the end, both Sir Oliver and Mr. Agnew agreed the matter was to be resolved by ‘eye’. From listening to them both I understood that to mean rather more than just observation. Whilst it is vital to have keen observation it is also necessary to have knowledge of an artist’s methods and style and to be sufficiently familiar with his work to be able to recognise his artistic ‘handwriting’. Even that is not all. It involves also a sensitivity to such concepts as quality, emotion, mood and atmosphere. To an extent ‘eye’ can be developed but, like many other human attributes it is partly born in a man or woman. Were it otherwise there would be many more true experts. This is not a digression. It is rather important to my function in this case. A judge is not bound by expert opinion. A judge may presume to find that an expert’s final opinion is based on illogical or even irrational reasoning and reject it. But a judge should not himself assume an expertise he does not possess. Thus here, if the question had turned on analysis of historical data or inferences to be drawn from surviving documents, I would have been entitled, with such assistance from the experts as I had received, to have drawn my own conclusions; but it does not. It turns on ‘eye’. However I may regard my own taste or appreciation of things artistic, I must not presume to have an expert’s ‘eye’ for a van Dyck’.

Judges:

The Honourable Mr Justice Buckley

Citations:

[2002] EWHC 294 (QB)

Links:

Bailii

Statutes:

Sale of Goods Act 1979 13

Jurisdiction:

England and Wales

Citing:

Cited – Oscar Chess Ltd v Williams CA 11-Nov-1956
Where somebody warrants something, the person giving the warranty binds himself or herself to it. Lord Denning suggested that the test of an interpretation was what an intelligent bystander would reasonably infer contracting parties had agreed upon. . .
Cited – Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd CA 15-Dec-1989
The defendant auctioneer sold a painting to the plaintiff which turned out to be a forgery. The plaintiff appealed against a finding that it had not relied upon the attribution, saying that there had been a breach of the requirement that the paintig . .

Cited by:

Cited – Avrora Fine Arts Investment Ltd v Christie, Manson and Woods Ltd ChD 27-Jul-2012
The claimants had bought a painting (Odalisque) through the defendant auctioneers. They now claimed that it had been misattributed to Kustodiev, and claimed in negligence and misrepresentation.
Held: Based on the connoisseurship evidence, the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 October 2022; Ref: scu.167727

Butler v Bankside Commercial Ltd: CA 27 Feb 2020

The Court considered the interpretation of a provision in a standard form of conditional fee agreement (a ‘CFA’) made on Law Society terms. The term in question entitles the solicitors, on termination of their retainer in certain circumstances, to payment both of their basic charges and disbursements and also their success fee if the client goes on to win her claim. What is in dispute is what triggers that entitlement. The relevant provision of the CFA expresses the trigger event as follows: ‘We can end this agreement if you reject our opinion about making a settlement with your opponent.’

Judges:

Lord Justice Lewison

Citations:

[2020] EWCA Civ 203

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Costs

Updated: 23 October 2022; Ref: scu.648516

Orion Finance Ltd v Crown Financial Management Ltd: 1994

Judges:

Vinelott J

Citations:

[1994] 2 BCLC 607

Jurisdiction:

England and Wales

Cited by:

Cited – Orion Finance Ltd v J D Williams and Company Ltd CA 23-Jun-1995
The finance company had taken an assignment of the benefit of a lease of computer equipment and sought payment from the defendants. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 22 October 2022; Ref: scu.241287

Munro and Others v Rothfield: HL 28 Jun 1920

A debtor arranged with a particular creditor for payment of his debt in certain instalments if a general scheme to which the particular creditor would be a party were carried through; that arrangement conferred a privilege on the particular creditor over the other creditors to the proposed general scheme; the general scheme was agreed to; the particular creditor obtained in absence a decree on his debt acting on his particular agreement; the creditors of the general scheme suspended. Held ( aff. judgment of First Division) that the general scheme was only voidable not void, the arrangement with the particular creditor void as fraudulent, or superseded.

Judges:

Viscount Haldane, Viscount Finlay, Viscount Cave, Lord Dunedin and Lord Shaw

Citations:

[1920] UKHL 501, 57 SLR 501

Links:

Bailii

Jurisdiction:

Scotland

Contract, Insolvency

Updated: 22 October 2022; Ref: scu.631534

Deutsche Bank Ag v Total Global Steel Ltd: ComC 11 May 2012

The claimant claimed damages of 5,781,000 Euros from the defendant for breach of four contracts by which DB acquired from TGS through the European Union Emissions Trading System for 5,737,440 Euros a total of 492,000 Certified Emissions Reductions (‘CERs’), which are instruments created under the Kyoto Protocol to the United Nations Framework Convention on Climate Change (‘UNFCCC’). DB’s claim is that the contracts provided that the CERs ‘may be used for determining compliance with emissions limitation commitments pursuant to and in accordance with the [EUETS]’. They complain that the CERs that they acquired from TGS did not meet that requirement (i) because they had previously been ‘surrendered’ under the EUETS, that is to say exchanged for allowances, and the European Commission, as regulator of the EUETS, had introduced and published in December 2009 and January 2010 a check that prevented surrendered CERs from being used for compliance purposes under it, and (ii) in any case, they argue, surrendered CERs could not legally have been so used. (I shall adopt the expression ‘surrendered CERs’ as a convenient label, and I shall refer to CERs that have not been surrendered as ‘conventional CERs’.

Judges:

Andrew Smith J

Citations:

[2012] EWHC 1201 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Environment

Updated: 21 October 2022; Ref: scu.457627

Compagnie Noga D’Importation Et D’Exportation Sa v Abacha and others: CA 23 Jul 2003

Judges:

Waller LJ, Tuckey LJ, Laws LJ

Citations:

[2003] EWCA Civ 1100

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Abacha and Another v Compagnie Noga D’Importantion Et D’Exportation Sa QBD 3-May-2001
The court had handed to the parties a draft judgement, but one party then asked the judge to reconsider it.
Rix LJ referred to the need to balance the concern for finality against the ‘proper concern that courts should not be held by their own . .
Cited – Stilk v Myrick KBD 16-Dec-1809
No Obligation Incurred without Consideration
The plaintiff agreed to sail with the defendant on a voyage being paid pounds 5.00 a month. Two crew deserted and the captain asked the remainder to do their work sharing the wages saved. The plaintiff sought the additional sum above the articled . .

Cited by:

See Also – Abacha and Another v Compagnie Noga D’Importantion Et D’Exportation Sa CA 23-Jul-2003
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 21 October 2022; Ref: scu.249058

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.

Citations:

[2005] EWCA Civ 563

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

At First Instance – Filobake Ltd v Rondo Ltd and Another TCC 21-Apr-2004
. .
Leave – Filobake Ltd v Rondo Ltd and Another CA 9-Jul-2004
. .

Cited by:

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 – 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.

Contract, Damages

Updated: 21 October 2022; Ref: scu.224839

Tony Mekwin MTV (and Co) v National Westminster Bank Plc: CA 9 Jul 1997

The claimant sought damages after his mastercard was wrongly retained by a suspicious petrol station attendant acting upon the instructions of the defendant.
Held: There was no liability. The claimant was understanadbly upset but he had suffered no loss, and the card itself was the property of the Bank.

Citations:

[1997] EWCA Civ 2074

Jurisdiction:

England and Wales

Contract, Banking

Updated: 21 October 2022; Ref: scu.142471

Smith and Smith v Messrs Lindsay and Kirk and others: SCS 16 Dec 1999

Where a contract specifically provided that it would become unenforceable after two years from the date of the contract, an action for breach of contract, and not just an action for performance of it, was also time barred after the expiry of the agreed time. This applied even if, as in this case, the breach occurred within the two year period. The word ‘enforceable’ should not be given such a constrained meaning as to limit it to an action for performance.

Citations:

Times 16-Mar-2000, [1999] ScotCS 302

Links:

Bailii

Jurisdiction:

Scotland

Contract, Limitation, Contract

Updated: 21 October 2022; Ref: scu.163734

Morris-Garner and Another v One Step (Support) Ltd: CA 22 Mar 2016

Alleged breach of non-solicitation covenants in the sale of a business providing ‘supported living’ services for children leaving care and vulnerable adults.
Held: The defendant’s appeal was dismissed.
The test was whether an award of damages on the Wrotham Park basis was the just response in the particular case. That was a matter for the judge to decide on a broad brush basis. He was entitled to take into account the difficulties which the claimant would have in establishing damages on the ordinary basis. There would be very real problems in showing what placements the claimant lost because of the appearance of Positive Living on the scene, and in addition any loss of goodwill was inherently difficult to measure.
Christopher Clarke LJ observed that the amount taken as the reasonable sum for the relaxation of restrictive covenants might represent more, perhaps far more, than the loss realistically to be regarded as, in the event, suffered by their breach. So a Wrotham Park award could bear no relationship to the practical effect of any competition from Positive Living. Further, the assessment of a reasonable price might involve consideration of several imponderables, such as the likely effect of future competition, which would also arise in any assessment of general damages. Nevertheless, Christopher Clarke LJ did not regard these considerations as justifying a denial of Wrotham Park damages.

Judges:

Longmore, Christopher Clark, King LJJ

Citations:

[2016] EWCA Civ 180, [2016] WLR(D) 161, [2017] QB 1

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal from – One Step (Support) Ltd v Morris-Garner and Another QBD 7-Jul-2014
The defendant had sold her interest in the claimant company, undertaking not to compete. The claimant now sought damages alleging a breach.
Held: The defendants had acted in breach of contract by breaching the non-compete covenants (although . .
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .

Cited by:

Appeal from (CA) – 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 . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 October 2022; Ref: scu.561215

Macquarie Generation v Peabody Resources Ltd: 14 Dec 2000

Beazley JA concluded: ‘Thus, it is not relevant for the Court to determine whether, if the true position had been known, the representee would or would not have altered his position in relation to the contract. ‘It is enough if a full and exact revelation of the material facts might have prevented him from doing so.” and ‘[r]escission for misrepresentation in relation to a carefully negotiated written contract requires close examination of the alleged misrepresentation and its impact upon the representee at the time of contract’.
Mason P noted that: ‘[r]escission for misrepresentation in relation to a carefully negotiated written contract requires close examination of the alleged misrepresentation and its impact upon the representee at the time of contract’

Judges:

Beazley JA, Mason P

Citations:

[2000] NSWCA 361, [2001] Aust Contract Reports 90-121

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Cramaso Llp v Ogilvie-Grant, Earl of Seafield and Others SC 12-Feb-2014
The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 19 October 2022; Ref: scu.536801

One Step (Support) Ltd v Morris-Garner and Another: QBD 7 Jul 2014

The defendant had sold her interest in the claimant company, undertaking not to compete. The claimant now sought damages alleging a breach.
Held: The defendants had acted in breach of contract by breaching the non-compete covenants (although less extensively than had been assumed in the expert reports) between August 2007 and 20 December 2009, that they had also breached the non-solicit covenants between 20 December 2006 and 20 December 2009 by soliciting business from seven local authorities, and that the first defendant had also acted in breach of the contractual confidentiality clause and an equitable duty of confidence by appropriating the market research information in April 2006 and subsequently using it to set up Positive Living.
This was a prime example of a case in which Wrotham Park damages should be and were available. It would, he said, be difficult for the claimant to identify the financial loss it had suffered by reason of the defendants’ wrongful competition, not least because there was a degree of secrecy in the establishment of Positive Living’s business which had not been fully reversed by the disclosure process. In his judgment it would be just for the claimant to have the option of recovering damages in the amount which might reasonably have been demanded in 2007 for releasing the defendants from their covenants, not least because the covenants provided that the restraint was subject to consent, not to be unreasonably withheld.

Judges:

Phillips J

Citations:

[2014] EWHC 2213 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .

Cited by:

Appeal from – Morris-Garner and Another v One Step (Support) Ltd CA 22-Mar-2016
Alleged breach of non-solicitation covenants in the sale of a business providing ‘supported living’ services for children leaving care and vulnerable adults.
Held: The defendant’s appeal was dismissed.
The test was whether an award of . .
At QBD – 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 . .
Lists of cited by and citing cases may be incomplete.

Contract, Company

Updated: 19 October 2022; Ref: scu.533828

Filatona Trading Ltd and Another v Navigator Equities Ltd and Others: CA 6 Feb 2020

The main question raised on this appeal is, in what circumstances does the wording of a contract preclude the intervention and reliance on that contract by a disclosed and identified principal?

Judges:

Lord Justice Simon

Citations:

[2020] EWCA Civ 109

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 19 October 2022; Ref: scu.647010

Thomson v Christie Manson and Woods Ltd and Another: CA 12 May 2005

Claim against auctioneers – antique vases – possible copies. Both parties appealed against elements of the judgment.
May LJ said: ‘But, even accepting that individual points such as these are amenable to judicial appellate evaluation whatever the expert opinion, no appellate court should cherry pick a few such points so as to disagree with a composite first instance decision which, in the nature of a jig-saw, depended on the interlocking of a very large number of individual pieces, each the subject of oral expert evidence which the appellate court has not heard.’

Judges:

May, Jonathan Parker, Smith LJJ

Citations:

[2005] EWCA Civ 555, [2005] PNLR 38

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Thomson v Christie Manson and Woods Ltd and Another QBD 2004
Two urns had been auctioned as ‘a pair of Louis XV porphyry and gilt-bronze two-handled vases’. The buyer claimed that this was false. The parties agreed Christie’s had impliedly represented that it had reasonable grounds for its opinion.

Cited by:

Cited – Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd CA 18-Oct-2018
Leave to appeal – refused – claim under indemnity
Coulson LJ, disposing of the application for permission to appeal after oral hearing, addressed the question of appeals against a judge’s evaluation of expert evidence:
‘A first instance . .
Cited – Kynaston-Mainwaring v GVE London Ltd CA 19-Oct-2022
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 October 2022; Ref: scu.224840

Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd: CA 18 Oct 2018

Leave to appeal – refused – claim under indemnity
Coulson LJ, disposing of the application for permission to appeal after oral hearing, addressed the question of appeals against a judge’s evaluation of expert evidence:
‘A first instance judge’s assessment of, or evaluations based upon, expert evidence adduced at trial must be approached by an appellate court with similar caution. Whilst it has been said that a reconsideration of an expert’s opinion may be slightly easier than a finding of fact, because the underlying report will be in writing (see Thomson v Christie Manson and Woods Ltd [2005] EWCA Civ 555; [2005] PNLR 38), the same case also provides a salutary warning that, since the evaluation of expert evidence is likely to be bound up with a wider evaluation of matters of fact, an appellate court will still be very slow to intervene.’

Citations:

[2018] EWCA Civ 2403, [2019] 4 WLR 56

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Thomson v Christie Manson and Woods Ltd and Another CA 12-May-2005
Claim against auctioneers – antique vases – possible copies. Both parties appealed against elements of the judgment.
May LJ said: ‘But, even accepting that individual points such as these are amenable to judicial appellate evaluation whatever . .

Cited by:

Cited – Kynaston-Mainwaring v GVE London Ltd CA 19-Oct-2022
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 October 2022; Ref: scu.628687

Rowles-Davies and Others v Call 24 7 Ltd: ChD 16 Jun 2010

The claimants contend that the defendant is obliged to make payments which they say are due under an Agreement between a company called Claims Support Limited (‘CSL’) and the defendant and damages for wrongful termination of the Agreement.

Judges:

Bernard Livesey QC

Citations:

[2010] EWHC 1443 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 17 October 2022; Ref: scu.425965

Vivienne Westwood Ltd v Conduit Street Development Ltd: ChD 27 Feb 2017

The court considered the effect of a side letter, made between a tenant and a landlord at the same time as the grant of a lease, and the payment and acceptance of rent pending a review of rent payable under the lease. The issues are whether a review of the rent payable was impliedly agreed by the payment and acceptance of rent at an increased rate, and whether the terms of the side letter entitling the landlord to terminate its effect are unenforceable as a contractual penalty.

Judges:

Mr Fancourt QC

Citations:

[2017] EWHC 350 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Landlord and Tenant, Contract

Updated: 15 October 2022; Ref: scu.581324

Glencore International Ag v Msc Mediterranean Shipping Company Sa and Another: ComC 10 Jul 2015

Glencore claimed against MSC damages for breach of contract, bailment and conversion in relation to a cargo of three containers of cobalt briquettes. The cargo had been been shipped from Fremantle to Antwerp on the ‘MSC Eugenia’ under a bill of lading (the ‘B/L’) issued by MSC. Glencore complained that only one of the containers was delivered and the other two were misappropriated. The evidence does not show quite what happened to the missing containers, but it is common ground (and recorded as such in the list of issues) that they were ‘delivered to unauthorised persons’.

Judges:

Andrew Smith J

Citations:

[2015] EWHC 1989 (Comm), [2015] CN 1274

Links:

Bailii

Jurisdiction:

England and Wales

Transport, Contract

Updated: 15 October 2022; Ref: scu.550071