Category: Equity

Mellowes Archital Limited v Bell Projects Limited: CA 15 Oct 1997

The court referred to ‘the distinction between the common law defence of abatement and the defence of equitable set-off’.

Judges:

Hobhouse LJ, Buxton LJ

Citations:

[1997] EWCA Civ 2491, [1997] 87 BLR 26

Jurisdiction:

England and Wales

Cited by:

Cited – Edlington Properties Limited v J H Fenner and Co Limited CA 22-Mar-2006
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in . .
Lists of cited by and citing cases may be incomplete.

Construction, Equity

Updated: 09 November 2022; Ref: scu.142889

Swindle, Fillmore, Cox, Rowett v Harrison and Harrison: CA 25 Mar 1997

Negligence short of fraud gave no right to damages for non-disclosure.

Judges:

Evans LJ

Citations:

Times 17-Apr-1997, [1997] PNLR 641, [1997] EWCA Civ 1339, [1997] 4 All ER 705

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Halton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .
Lists of cited by and citing cases may be incomplete.

Equity, Legal Professions, Undue Influence

Updated: 06 November 2022; Ref: scu.141735

Pappadakis v Pappadakis: ChD 19 Jan 2000

Where a party sought rectification of a contract to supply into the contract an element without which the contract was intrinsically invalid, that application could only succeed if there was clear and convincing evidence that the parties had intended another effect, and precisely what that effect was. Here an assignment to unidentified trustees which was ineffective because of the uncertainty could not be repaired since the evidence required was not available.

Citations:

Times 19-Jan-2000

Jurisdiction:

England and Wales

Equity, Contract

Updated: 03 November 2022; Ref: scu.84560

Neville and Another v Wilson and Others: CA 4 Apr 1996

A parole agreement by all the shareholders in a company, to liquidate it, created a constructive trust. That a specifically enforceable agreement to assign an interest in property, created an equitable interest in the assignee, was unquestionably correct. A trust deed governed by s53(2) is not subject to the requirement to be in writing.

Judges:

Lord Justice Nourse, Lord Justice Rose and Lord Justice Aldous

Citations:

Times 04-Apr-1996, [1997] Ch 14

Statutes:

Law of Property Act 1925 53(2)

Jurisdiction:

England and Wales

Citing:

Cited – London and South Western Railway Co v Gomm CA 1882
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .

Cited by:

Cited – Slater v Simm ChD 27-Apr-2007
The deceased and her partner did not marry but owned three properties together. They could not agree on the interpretation of the documents setting out their interests, and whether they had been varied.
Held: The court set out the various . .
Lists of cited by and citing cases may be incomplete.

Company, Equity

Updated: 31 October 2022; Ref: scu.84261

In Re Duxbury’s Settlement Trusts: CA 21 Nov 1994

The Public trustee appealed against an order which had recognised his appointment under the 1959 trust, but had held that because of the explicit prohibition in the trust instrument against a trustee acting alone, he could not act.
Held: Powers under a trust deed were satisfactorily exerciseable by the Public Trustee acting alone despite the trust deed’s express requirement that no trustee shall act alone. The powers given under the Act inevitably included this power: ‘It would be idle to appoint a trustee who was unable to act. Appointment and action were for this purpose inseparable.’ It was futile to distinguish between a power to appoint a sole trustee and the power of that trustee to act alone.

Judges:

Nourse LJ, Henry LJ, Sir John Megaw

Citations:

Times 19-Dec-1994, Gazette 16-Dec-1994, Ind Summary 06-Feb-1995, [1995] 1 WLR 425, [1994] EWCA Civ 21

Links:

Bailii

Statutes:

Public Trustee Act 1906 5(1)

Jurisdiction:

England and Wales

Citing:

Cited – In re Moxon 1916
Under the statutory power of appointing new trustees out of court, the public trustee could be appointed and act even though the instrument might require a minimum of two trustees to act. The section was ‘not merely by way of addition o the . .
Cited – Mettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
Cited – Re Hastings-Bass; Hastings v Inland Revenue CA 14-Mar-1974
Trustees of a settlement had exercised their power of advancement under the section, in order to save estate duty by transferring investments to be held on the trusts of a later settlement. However the actual effect of the advancement was that the . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Updated: 27 October 2022; Ref: scu.81858

Matharu v Matharu: CA 29 Jun 1994

A proprietary estoppel was established by the carrying out of repairs after the making of a representation, and created a right to a licence to occupy the property for life.

Citations:

Gazette 29-Jun-1994, Independent 18-May-1994, Times 13-May-1994

Jurisdiction:

England and Wales

Estoppel, Equity

Updated: 26 October 2022; Ref: scu.83472

Connaught Restaurants Ltd v Indoor Leisure Ltd: CA 17 Sep 1993

The lease provided the tenant would pay the rent ‘without any deduction’.
Held: The words ‘without any deductions’ in a lease were ambiguous and were insufficient to exclude the tenant’s right to claim a set off. Clear words are needed before the court will impute to the parties an intention to exclude the equitable rights of set-off.

Citations:

Gazette 16-Feb-1994, Independent 17-Sep-1993, Times 27-Jul-1993, [1994] 1 WLR 501

Jurisdiction:

England and Wales

Citing:

Cited – British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
Disapproved – Famous Army Stores v Meehan 1993
. .

Cited by:

Cited – Edlington Properties Limited v J H Fenner and Co Limited CA 22-Mar-2006
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in . .
Cited – Marubeni Corporation v Sea Containers Ltd ComC 17-May-1995
Procedure – set-off – contract for supply of containers – construction of contract – clear words to exclude right of set-off – equitable set-off – abatement – defective containers. The words ‘without deduction’ have been held in the context of a . .
Cited – BOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA 29-Apr-1999
The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Equity

Updated: 26 October 2022; Ref: scu.79441

Cheese v Thomas: CA 24 Aug 1993

A transaction entered into was manifestly disadvantageous to him. After a finding of undue influence, losses on the sale of a property are to be shared by both parties, so as to restore the parties to their original positions as near as might be.

Judges:

Lord Nicholls Vice Chancellor

Citations:

Independent 30-Aug-1993, Times 24-Aug-1993, [1994] 1 WLR 129

Jurisdiction:

England and Wales

Cited by:

Cited – Vale v Armstrong, Armstrong ChD 21-May-2004
The claimant sought to set aside a transfer of his house to the defendants made at an undervalue and under an enduring power of attorney, who had charged it to raise money for their business. He had received independent advice.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Undue Influence, Equity

Updated: 26 October 2022; Ref: scu.79002

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

Taylor v Davies: PC 19 Dec 1919

(Ontario) An assignee for the benefit of creditors conveyed mortgaged property to the mortgagee in satisfaction of part of the debt due to him. The mortgagee was also one of the inspectors required by the Canadian legislation to supervise the conduct of assignments for the benefit of creditors. Twelve years after the conveyance creditors commenced proceedings to set it aside. The mortgagee relied on the statute of limitations.
Held: He was entitled to do so. The Board rejected the argument that the mortgagee was an express trustee.
Viscount Cave said: ‘The expressions ‘trust property’ and ‘retained by the trustee’ properly apply, not to a case where a person having taken possession of the property on his own behalf is liable to be declared a trustee by the Court; but rather to a case where he originally took possession upon trust or on behalf of others. In other words they refer to cases where a trust arose before the occurrence of the transaction impeached and not to cases where it arises only by reason of that transaction. The exception no doubt applies, not only to an express trustee named in the instrument of trust, but also to those persons who under the rules explained in Soar v Ashwell and other cases are to be treated as being in a like position; but in their Lordships’ opinion it does not apply to a mere constructive trustee of the character described in the judgment of Sir William Grant.’
Viscount Cave said: ‘The possession of an express trustee was treated by the Courts as the possession of his cestuis que trustent, and accordingly time did not run in his favour against them. This disability applied, not only to a trustee named as such in the instrument of trust, but to a person who, though not so named, had assumed the position of a trustee for others or had taken possession or control of the property on their behalf such (for instance) as the persons enumerated in the judgment of Bowen L.J. in Soar v Ashwell or those whose position was in question in Burdick v Garrick, In re Sharpe, Rochefoucauld v Boustead, and Reid-Newfoundland Co v Anglo-American Telegraph Co. These persons, though not originally trustees, had taken upon themselves the custody and administration of property on behalf of others; and though sometimes referred to as constructive trustees, they were, in fact, actual trustees, though not so named. It followed that their possession also was treated as the possession of the persons for whom they acted, and they, like express trustees, were disabled from taking advantage of the time bar. But the position in this respect of a constructive trustee in the usual sense of the words – that is to say, of a person who, though he had taken possession in his own right, was liable to be declared a trustee in a Court of equity – was widely different, and it had long been settled that time ran in his favour from the moment of his so taking possession. This rule is illustrated by the well-known judgment of Sir William Grant MR in Beckford v Wade.”
(Supreme Court of Calcutta) Recognizance entered into to abide the determination of an appeal vacated upon petition of the Appellant, upon the abandonment of the appeal.

Judges:

Viscount Cave, Viscount Cave, Sumner, Parmoor LL

Citations:

[1920] AC 636, [1919] UKPC 136

Links:

Bailii, Bailii

Jurisdiction:

Canada

Cited by:

Cited – Clarkson v Davies PC 1923
In a case involving fraud, referring to Taylor v Davies, Lord Justice Clerk said that: ‘it was there laid down that there is a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arises only by . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Cited – Williams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Cited – Halton International Inc Another v Guernroy Ltd CA 27-Jun-2006
The parties had been involved in investing in an airline to secure its future, but it was now said that one party had broken the shareholders’ or voting agreement in not allowing further investments on a pari passu basis. The defendants argued that . .
Cited – Clarkson and Another v Davies and Others PC 23-Oct-1922
Ontario – Discussing the Taylor case, the Board said: ‘ . . it was there laid down that there is a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arise only by reason of that transaction.’ . .
Lists of cited by and citing cases may be incomplete.

Limitation, Equity, Litigation Practice

Updated: 24 October 2022; Ref: scu.187432

Anfield (UK) Ltd v Bank of Scotland Plc and Others: ChD 24 Sep 2010

The court was asked as to the remedy of subrogation as it affects the priority of charges.

Judges:

Proudman J

Citations:

[2010] EWHC 2374 (Ch), [2010] 48 EG 86, [2010] 41 EG 126 (CS), [2011] 1 All ER 708, [2011] 1 All ER (Comm) 929, [2011] 1 WLR 2414, [2010] 3 EGLR 75, [2010] NPC 96

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Pickenham Romford Ltd v Deville ChD 31-Jul-2013
The claimant company’s administrators sought an order to have vacated unilateral notices entered against land titles registered to the claimant. The court now gave its reasons for making the order as requested by way of summary relief. The notices . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 21 October 2022; Ref: scu.424265

Cattley and Another v Pollard: ChD 6 Jul 2007

The estate had been defrauded by theis solicitor. The proceeds had been used toward the purchase of a property. The defendant had first been the solicitor’s secretary and had become his wife, and transferee of the property. She denied that she had known anything of the unlawful activity, but this was not accepted. The current executors, now claimants, assertes unlawful assistance, and sought recovery of the house. She now asserted that the clamiants had already been compenated by the solicitors’ insurers, and sought disclosure of related documents.

Judges:

Bragge M

Citations:

[2007] EWHC B16 (Ch), [2007] EWHC 5561 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Cattley and Another v Pollard and Another ChD 7-Dec-2006
The first defendant solicitor misappropriated money from an estate he was administering. The beneficiaries later commenced proceedings against his wife, alleging knowing assistance. She said that that claim was out of time. The claimant responded . .
Lists of cited by and citing cases may be incomplete.

Equity, Litigation Practice

Updated: 21 October 2022; Ref: scu.346772

Patel v Mirza: SC 20 Jul 2016

The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums advanced, saying he need not return it because the contract was for an illegal purpose. The defendant now appealed against a decision that he must return it.
Held: His appeal failed. A claimant who satisfies the ordinary requirements of a claim for unjust enrichment, should not be debarred from enforcing his claim by reason only of the fact that the money which he seeks to recover was paid for an unlawful purpose. There may be rare cases where for some particular reason the enforcement of such a claim might be regarded as undermining the integrity of the justice system, but there were no such circumstances in this case. In wanting it back he was seeking to unwind the arrangement, not to profit from it.
Lord Neuberger P said: ‘When faced with a claim based on a contract which involves illegal activity (whether or not the illegal activity has been wholly, partly or not at all undertaken), the court should, when deciding how to take into account the impact of the illegality on the claim, bear in mind the need for integrity and consistency in the justice system, and in particular (a) the policy behind the illegality, (b) any other public policy issues, and (c) the need for proportionality.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Toulson, Lord Hodge

Citations:

[2016] WLR(D) 417, [2016] UKSC 42, [2016] 3 WLR 399, [2016] 2 Lloyd’s Rep 300, [2016] Lloyd’s Rep FC 435, UKSC 2014/0218

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Video Summary, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Pearce v Brooks 1866
The contract was for the hire of an ornamental brougham to a prostitute which was supplied with knowledge that it would be used ‘as part of her display’. She returned it in a damaged condition, and refused to make any payments under the contract as . .
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 – Anderson Ltd v Daniel 1924
A claim for the price of goods was held to be unenforceable because the seller had failed to give the buyer an invoice containing details which the seller was required to give him by statute. . .
Cited – Hall v Woolston Hall Leisure Limited CA 23-May-2000
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . .
Cited – J M Allan (Merchandising) Limited v Cloke CA 1963
the plaintiff rented to the defendant a roulette table, together with copies of a book of rules, for use in a club. The rules stated that a charge of sixpence was payable on any bet before the croupier spun the wheel. Using a roulette table in a . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
Cited – Ashmore, Benson, Pease and Co v A V Dawson Ltd CA 1973
By acquiescing in the unlawful overloading of the hauliers’ lorries, the consignors’ assistant transport manager and his assistant made the haulage contract unenforceable at the instance of the consignors, who were unable to recover when a lorry . .
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 – Hughes v Asset Managers Plc CA 13-May-1994
The appellants had entered into discretionary investment management agreements wth the respondent. The investments made a substantial losss which the appellants sought to recover, saying that the agreements were void under the 1958 Act.
Held: . .
Cited – Bakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Courage Ltd and Crehan v Crehan and Courage Ltd and Others ECJ 20-Sep-2001
The company had leased a public house to the respondent. The lease was subject to a tie, under which the respondent had to purchase supplies from the company. The company came to sue for the price of beer supplied. The respondent asserted that the . .
Cited – Gibbs Mew Plc v Gemmell and Gibbs Mew Plc and Centric Pub Company Ltd v Gemmell CA 22-Jul-1998
The brewery sought possession of a public house, tied by type. The lessee claimed damages for breach of Art. 81 and a declaration that the Block Exemption was inapplicable to his lease. His appeal from the judge’s order in favour of the brewery was . .
Cited – Mohammed v Alaga and Co (A Firm) CA 30-Jun-1999
A party appealed against a finding that an agreement as to fee sharing with a solicitors’ firm, being in breach of the Solicitors Practice Rules, was unenforceable and void.
Held: The appeal failed as to illegality, but succeeded on a quantum . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others CA 3-May-2012
The court was asked as to ‘the availability of the defence of illegality to a claim on a cross-undertaking in damages where (1) the holder of a patent enforceable in this jurisdiction has obtained an interim injunction against the defendant from . .
Cited – Nelson v Nelson 9-Nov-1995
High Court of Australia McHugh J spoke of the so called ‘reliance rule’: ‘The [reliance] rule has no regard to the legal and equitable rights of the parties, the merits of the case, the effect of the transaction in undermining the policy of the . .
Cited – Mohammed v Alaga and Co (A Firm) ChD 2-Apr-1998
A party to an agreement to share in solicitors’ fees contrary to professional rules was unable to enforce it in any way. . .
Cited – Fitzgerald v F J Leonhardt Pty Ltd 13-May-1997
High Court of Australia – Contract – Illegality – Contract to drill bores – Claim by driller against landowner for money due under contract – Drilling without statutory permit – Whether obligation to obtain permit cast on landowner or driller – . .
Cited – Still v Minister of National Revenue 1997
An American citizen lawfully entered Canada and applied for permanent residence status. Pending consideration of her application, acting in good faith, she accepted employment but did so without obtaining a work permit as required by the Immigration . .
Cited – Parkingeye Ltd v Somerfield Stores Ltd CA 17-Oct-2012
The claimant company operated parking management for the defendant, charging customers for overparking. The defendant came to believe that the claimant’s behaviour was over-aggressive, and the use of falsehoods, and terminated the contract. The . .
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Cited – Maxim Nordenfelt Guns and Ammunition Co v Nordenfelt CA 1893
Bowen LJ said: ‘Rules which rest upon the foundation of public policy, not being rules which belong to the fixed or customary law, are capable, on proper occasion, of expansion or modification’ . .
Cited – Smith v Bromley 1760
Lord Mansfield granted recovery to the plaintiff of money paid by the plaintiff to procure her brother’s discharge from bankruptcy, which was an illegal consideration. As he explained, Lord Mansfield, at p 698, regarded it as in the public interest . .
Cited – Best, Regina (on The Application of) v The Secretary of State for Justice CA 21-Jan-2015
The court was asked whether an application for a person to be registered under the 2002 Act as the proprietor of a registered estate in land by reason of a period of adverse possession is valid, where part of the relevant period of possession . .
Cited – Collier v Collier CA 30-Jul-2002
Fraudulent Intent Negated Trust
The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – Walker v Chapman 1790
The defendant, who was a page to the King, offered to take a bribe of pounds 50 from the plaintiff in return for securing him a place in the Customs. The bribe was paid but the plaintiff did not obtain the appointment and so he sued for the return . .
Cited – Vallejo v Wheeler 1774
Lord Mansfield said: ‘In all mercantile transactions the great object should be certainty: and therefore, it is of more consequence that a rule should be certain, than whether the rule is established one way or the other. Because speculators in . .
Cited – Knauer v Ministry of Justice SC 24-Feb-2016
The court was asked: ‘whether the current approach to assessing the financial losses suffered by the dependant of a person who is wrongfully killed properly reflects the fundamental principle of full compensation, and if it does not whether we . .
Cited – Jogee and Ruddock (Jamaica) v The Queen SC 18-Feb-2016
Joint Enterprise Murder
(and in Privy Council) The two defendants appealed against their convictions (one in Jamaica) for murder, under the law of joint enterprise. Each had been an accessory when their accomplice killed a victim with a knife. The judge in Jogee had . .
Cited – Sharma and Another v Simposh Ltd CA 23-Nov-2011
The parties created an oral (and therefore void) contract for a development, the claimants paid a deposit, expressed to be non-refundable, and the defendant builders completed the building work. The buyers backed out. The developer now appealed . .
Cited – Vita Food Products Inc v Unus Shipping Co Ltd PC 30-Jan-1939
(Nova Scotia) Goods were shipped from Newfoundland under a bill of lading which contained an exemption for loss caused by the servants of the carrier. This exemption was void by the law of Newfoundland, whose legislature had enacted the Hague Rules, . .
Cited – Bowmakers Ltd v Barnet Instruments Ltd CA 1945
An action was brought for the wrongful conversion of machine tools delivered under hire purchase agreements which contravened wartime statutory orders. The plaintiff established its legal title to the goods at issue without relying upon the illegal . .
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 – Sajan Singh v Sandra Ali PC 16-Dec-1959
(Malaysia) Unless a statute provides otherwise (expressly or by necessary implication), property can pass under a transaction which is illegal as a contract. . .
Cited – Hardy v Motor Insurers’ Bureau CA 1964
The court was asked whether insurance pursuant to the Road Traffic Act 1960 would provide valid cover for the benefit of a third party injured by deliberately criminal conduct on the part of the driver.
Held: Diplock LJ said: ‘The rule of law . .
Cited – Clayton v Regina 13-Dec-2006
Kirby J said that waiting for a modern Parliament to grapple with issues of law reform is like ‘waiting for the Greek Kalends. It will not happen’ and that ‘Eventually courts must accept this and shoulder their own responsibility for the state of . .
Cited – Hall v Hebert 29-Apr-1993
(Canadian Supreme Court) After they had been drinking heavily together, Mr Hebert, who owned a muscle car, allowed Mr Hall to drive it, including initially to give it a rolling start down a road on one side of which there was a steep slope. The car . .
Cited – Neville v Wilkinson 19-Dec-1782
Lord Thurlow LC ‘declared his opinion’ that: ‘In all cases where money was paid for an unlawful purpose, the party, though particeps criminis, might recover at law; and that the reason was, that if courts of justice mean to prevent the perpetration . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – Tappenden And Others, Assignees of Bray v Randall 19-Jun-1801
This was a successful claim for the repayment of money paid for an unenforceable consideration which failed, Heath J said obiter that there might be ‘cases where the contract may be of a nature too grossly immoral for the court to enter into any . .
Cited – Cross v Kirkby CA 18-Feb-2000
The claimant was a hunt saboteur and the defendant a local farmer. The claimant shouted to the defendant ‘You’re fucking dead’ and jabbed him in the chest and throat with a broken baseball bat. In order to ward off further blows, the defendant . .
Cited – Taylor v Bowers CA 15-Feb-1876
The plaintiff, being in embarrassed circumstances, in pursuance of an agreement between him and A, made over all his stock-in-trade to A, and fictitious bills of exchange were given by A in plaintiff’s favour. Possession of the goods was given to A, . .
Cited – Burrows v Rhodes 22-Mar-1899
The plaintiff was induced to enlist in the Jameson Raid of 1895, contrary to section 11 of the Foreign Enlistment Act 1870, by the defendants’ fraudulent representation that it had the sanction of the Crown (which would have made it lawful). Kennedy . .
Cited – Parkinson v College of Ambulance Ltd and Harrison 1925
the plaintiff made a donation to a charity to secure a knighthood. When the honour failed to materialise he sued for the return of his money. The claim was rejected. Lush J said that ‘no Court could try such an action and allow such damages to be . .
Cited – Tribe v Tribe CA 26-Jul-1995
Illegal intent alone rebutted presumption
The plaintiff held 499 of the 500 issued shares of a company. In 1986 he wished to retire and transferred 30 shares to his son, one of four children, who was to take over the business. In 1988 he was worried about a bill for dilapidations, and, to . .
Cited – Palaniappa Chettiar v Arunasalam Chettiar PC 31-Jan-1962
Malaya . .
Cited – Saunders v Edwards CA 24-Mar-1986
The parties had agreed for the sale and purchase of land and chattels, but had deliberately misdescribed the apportionment so as to reduce tax liability. The purchasers then brought an action for misrepresentation. The vendor replied that the action . .

Cited by:

Cited – Henderson v Dorset Healthcare University NHS Foundation Trust CA 3-Aug-2018
Upon the allegedly negligent release of the claimant from mental health care, she had, while in the midst of a serious psychotic episode, derived from the schizophrenia, killed her mother and been convicted of manslaughter. She now sought damages in . .
Cited – Singularis Holdings Ltd v Daiwa Capital Markets Europe Ltd SC 30-Oct-2019
The Court was asked whether a claim against a bank for breach of the Quincecare duty is defeated if the customer is a company, and the fraudulent payment instructions are given by the company’s Chairman and sole shareholder who is the dominating . .
Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 11 October 2022; Ref: scu.567275

The Bank of London v Tyrrell: CA 30 Jun 1859

A solicitor is accountable to his clients for the benefits which he may have derived clandestinely in transactions in which he was professionally engaged.
A solicitor was active in founding a banking company. Before its establishment he entered into a secret arrangement with a stranger, that the, latter should purchase some property eligible for the banking house on a joint speculation. After its establishment the company purchased part of the premises for their banking house, not knowing that their solicitor was interested in it.
Held: The solicitor must account to the company for all the profit made by him by the whole transaction ; but that the stranger was under no such liability.
Sir John Romilly MR said that the solicitor had held on trust for the client both (i) his interest in (and therefore his subsequent share of the proceeds of sale of) the Hall, and (ii) with ‘very considerable hesitation’, his interest in the adjoining land.

Judges:

Sir John Romilly MR

Citations:

[1859] EngR 789, (1859) 27 Beav 273, (1859) 54 ER 107

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Tyrrell v The Bank Of London And Sir J v Shelley And Others HL 27-Feb-1862
A solicitor retained to act for a company in the course of formation secretly arranged to benefit from his prospective client’s anticipated acquisition of a building called the ‘Hall of Commerce’ by obtaining from the owner a 50% beneficial interest . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Equity

Updated: 11 October 2022; Ref: scu.288141

In re Lind; Industrials Finance Syndicate Ltd v Lind: CA 1915

The court considered the nature of an equitable assignment of a copyright. Phillimore LJ opined said: ‘The assignment does, however, operate as a contract to assign if and when the property comes into existence, and to use the words of [Jessel M.R.], when it come into existence, equity, treating as done that which ought to be done, fastens upon that property, and the contract to assign thus becomes a complete assignment.
This is intelligible and workable if nothing happens between the date of the assignment (construed as a contract to assign) and the date when the property comes into existence; but if in the intervening period something happens which may affect the contract, as, for instance, a statutory discharge of the assignor from all his obligations, does the contract to assign still become in due course a complete assignment?
. . If the assurance rest in contract and if by consequence the only way in which equity fastens upon the property be by the operation of the doctrine of specific performance, then the liability under the contract would be, as it seems to me, discharged by bankruptcy.
. . In order that the assignment may survive and have its effect it must give to the assignee something more than a mere right in contract, something in the nature of an estate or interest.’
Swinfen Eady LJ said: ‘an agreement to charge future property creates an immediate charge upon the property coming into existence, independently of the contract to execute some further charge, and cannot be said to rest in contract only.’
Bankes LJ said ‘that equity regarded an assignment for value of future-acquired property as containing an enforceable security as against the property assigned quite independent of the personal obligation of the assignor arising out of his imported covenant to assign’.

Judges:

Phillimore LJ, Swinfen Eady LJ, Bankes LJ

Citations:

[1915] 2 Ch 345

Jurisdiction:

England and Wales

Cited by:

Cited – B4U Network (Europe) Ltd v Performing Right Society Ltd CA 16-Oct-2013
Composers had entered an agreement with the respondent, assigning all copyrights in their works to the respondent. The respondent asserted also an equitable assignment of all future works. The appellant asserted that the rights in the particular . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Equity

Updated: 07 October 2022; Ref: scu.541518

Ogilvie v Littleboy: CA 1897

Lindley LJ discussed the variation of a gift for mistake: ‘Gifts cannot be revoked, nor can deeds be set aside, simply because the donors wish they had not made them and would like to have back the property given. Where there is no fraud, no undue influence, no fiduciary relationship between donor and donee, no mistake induced by those who derive any benefit by it, a gift, whether by mere delivery or by deed, is binding on the donor . . In the absence of all such circumstances of suspicion a donor can only obtain back property which he has given away by showing that he was under some mistake of so serious a character as to render it unjust on the part of the donee to retain the property given to him.’

Judges:

Lindley LJ

Citations:

(1897) 13 TLR 399

Jurisdiction:

England and Wales

Cited by:

Cited – Pitt and Another v Holt and Others ChD 18-Jan-2010
The deceased had created a settlement in favour of his wife. He suffered serious injury and placed the damages in trust, but in a form which created an unnecessary liability to Inheritance Tax on his death. The wife’s mental health act receiver now . .
Cited – Pitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .
Appeal from – Ogilvie v Allen HL 1899
The plaintiff, a widow, had executed deeds founding two charities and devoting to them a considerable part of the large fortune which she had inherited from her husband, but later brought proceedings to set the deeds aside asserting that she had not . .
Cited – Brazzill and Others v Willoughby and Others CA 27-May-2010
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .
Cited – Futter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 07 October 2022; Ref: scu.402002

In re Akerman: ChD 2 Jul 1891

The court was asked whether in the division of the testator’s residuary estate three of the testator’s seven children had to bring into account statute-barred debts due to the estate.
Held: They were bound to bring them into account. Kekewich J restated the rule in Cherry v Boultbee: ‘A person who owes an estate money, that is to say, who is bound to increase the general mass of the estate by a contribution of his own, cannot claim an aliquot share given to him out of that mass without first making the contribution which completes it. Nothing is in truth retained by the representative of the estate; nothing is in strict language set off; but the contributor is paid by holding in his own hand a part of the mass, which, if the mass were completed, he would receive back. That is expanding what the Lord Chancellor calls in Cherry v Boultbee ‘a right to pay out of the fund in hand,’ rather than a set-off.’

Judges:

Kekewich J

Citations:

[1891] 3 Ch 212, [1891] UKLawRpCh 118

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Restated – Cherry v Boultbee HL 22-Nov-1839
B died having made a will leaving a fund to pay income to A who owed her money but had been made bankrupt before the death. The debt to B remained unpaid.
Held: The liability to pay the debt and the right to receive the legacy had never tested . .

Cited by:

Cited – Brazzill and Others v Willoughby and Others CA 27-May-2010
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .
Cited – In re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity, Wills and Probate

Updated: 04 October 2022; Ref: scu.416576

Investment Trust Companies v Revenue and Customs: CA 12 Feb 2015

The claimants having sought repayment of overpaid VAT, they now complained of sums deducted by the Revenue.
Held: The Court allowed the Lead Claimants’ appeal, to the extent of the notional pounds 75 paid in respect of dead periods, and allowed the Commissioners’ appeal in respect of the notional pounds 25.
In particular: 1. That the judge had been right to conclude that the Lead Claimants had a direct cause of action in unjust enrichment against the Commissioners for VAT paid under a mistake of law.
2. That he had been wrong to treat this cause of action as excluded by section 80(7).
3. That he had been wrong to conclude that the notional pounds 25 retained by the Managers represented the discharge of any subsisting obligation to refund that amount on the part of the Commissioners, and that, accordingly, the Commissioners could not have been enriched by more than the notional pounds 75 for any of the accounting periods in question. Any domestic claim in unjust enrichment for the notional pounds 25 lay against the Managers alone.
4. That the Lead Claimants had no direct claim against the Commissioners for the notional pounds 25 under EU law, given the claim they had in that amount against the Managers.

Judges:

Moore-Bick, Patten, Beatson LJJ

Citations:

[2015] EWCA Civ 82, [2015] WLR(D) 73, [2015] BVC 10, [2015] STI 519, [2015] STC 1280

Links:

Bailii, WLRD, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Main Judgment – Investment Trust Companies v HM Revenue and Customs ChD 2-Mar-2012
The claimant had properly accounted for VAT on its transactions for many years, but a decision of the European court had latterly ruled that the services were exempt. The claimant sought restitution from HMRC, who responded by arguing that . .
AT ChD (2) – Investment Trust Companies v Revenue and Customs ChD 26-Mar-2013
The claimant investment Trust companies sought repayment of taxes paid in error by way of restitution.
Held: The range of the the law of restitution to recover any tax unlawfully exacted was to be be restricted to those situations where the . .

Cited by:

Appeal from – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Lists of cited by and citing cases may be incomplete.

VAT, Equity

Updated: 04 October 2022; Ref: scu.542510

Investment Trust Companies v HM Revenue and Customs: ChD 2 Mar 2012

The claimant had properly accounted for VAT on its transactions for many years, but a decision of the European court had latterly ruled that the services were exempt. The claimant sought restitution from HMRC, who responded by arguing that substantial parts of the claim were out of time.
Held: 1. That, using the notional figures referred to above, the Commissioners had been enriched in the full amount of pounds 100, even if only pounds 75 was paid to them by a Manager after deducting pounds 25 in respect of input tax paid to its own suppliers. In the judge’s view, although the pounds 25 was not paid to the Commissioners, it was nevertheless used by the Commissioners to give the Managers a credit for that input tax.
2. That the Commissioners were enriched at the expense of the Lead Claimants because, in economic terms, the person at whose expense the VAT was paid was the customer. The enrichment was also unjust.
3. That a cause of action in unjust enrichment was, however, excluded under domestic law by section 80(7) of the 1994 Act, which protects the Commissioners from liability other than as provided in that section.
4. That the Lead Claimants had a directly effective right to repayment against the Commissioners under EU law, which required a remedy to be made available in respect of the full notional pounds 100, not merely the pounds 75.
5. That EU law did not, on the other hand, require national law to give the Lead Claimants any remedy in respect of amounts falling within the scope of the time-bar imposed by section 80(4). Any EU-based claims would be subject (in effect) to the same limitation period.
It has now become conventional to consider the question whether English law recognises a right to restitution by reference to the four questions identified by Lord Steyn in Banque Financiere namely:
a) Has the defendant been benefited, in the sense of being enriched? b) Was the enrichment at the claimant’s expense?
c) Was the enrichment unst?
d) Are there any defences?
Held: 1. That, using the notional figures referred to above, the Commissioners had been enriched in the full amount of pounds 100, even if only pounds 75 was paid to them by a Manager after deducting pounds 25 in respect of input tax paid to its own suppliers. In the judge’s view, although the pounds 25 was not paid to the Commissioners, it was nevertheless used by the Commissioners to give the Managers a credit for that input tax.
2. That the Commissioners were enriched at the expense of the Lead Claimants because, in economic terms, the person at whose expense the VAT was paid was the customer. The enrichment was also unjust.
3. That a cause of action in unjust enrichment was, however, excluded under domestic law by section 80(7) of the 1994 Act, which protects the Commissioners from liability other than as provided in that section.
4. That the Lead Claimants had a directly effective right to repayment against the Commissioners under EU law, which required a remedy to be made available in respect of the full notional pounds 100, not merely the pounds 75.
5. That EU law did not, on the other hand, require national law to give the Lead Claimants any remedy in respect of amounts falling within the scope of the time-bar imposed by section 80(4). Any EU-based claims would be subject (in effect) to the same limitation period.

Judges:

Henderson J

Citations:

[2012] EWHC 458 (Ch), [2012] STC 1150, [2012] STI 1373, [2012] Eu LR 470, [2012] BVC 109

Links:

Bailii

Statutes:

Value Added Tax Act 1994 80(7)

Jurisdiction:

England and Wales

Citing:

Applied – Banque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .

Cited by:

Principle Judgment – Investment Trust Companies v Revenue and Customs ChD 26-Mar-2013
The claimant investment Trust companies sought repayment of taxes paid in error by way of restitution.
Held: The range of the the law of restitution to recover any tax unlawfully exacted was to be be restricted to those situations where the . .
Cited – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .
Main Judgment – Investment Trust Companies v Revenue and Customs CA 12-Feb-2015
The claimants having sought repayment of overpaid VAT, they now complained of sums deducted by the Revenue.
Held: The Court allowed the Lead Claimants’ appeal, to the extent of the notional pounds 75 paid in respect of dead periods, and . .
At First Instance – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Cited – Bank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
Lists of cited by and citing cases may be incomplete.

VAT, Equity, European

Updated: 04 October 2022; Ref: scu.451850

AIB Group (UK) Plc v Mark Redler and Co (A Firm): ChD 23 Jan 2012

The claimant bank sought damages from the defendant solicitors, saying that they had paid on mortgage advance moneys but failed to deliver as promised and required, a first mortgage over the property purchased. The solicitors had failed to discharge an existing first charge (to Barclays). The parties now disputed whether the sum due to the bank was the entire sum loaned, or only the net sum lost after the sale.
Held: The solicitors had acted in good faith, but in breach of trust.
Prima facie the bank was entitled to reconstitution of the trust fund by repayment of the amount wrongly paid away. As to the bank’s alternative claim for equitable compensation or damages, he said that where the breach consisted of failure to discharge a prior mortgage, with the result that the bank’s interest had been postponed to the Barclays charge, the bank was entitled to equitable compensation for the additional amounts due to Barclays for which Barclays had security in priority to the bank. The solicitors were therefore liable to the bank for the additional amount ultimately obtained by Barclays by reason of its prior security.
The court analysed the breach of trust: ‘ In the present case, . . . what the defendant’s instructions authorised them to do with the funds paid to them was to pay to Barclays (or to its account) such sum as was required to procure a release of its charge, and pay the balance to the borrowers or to their order. Had they complied with their instructions they would have paid (taking all the figures in round terms) andpound;1.5m to Barclays and andpound;1.8m to the borrowers. In the event they paid andpound;1.2m to Barclays and andpound;2.1m to the borrowers. In my judgment, in so doing they committed a breach of trust in so far as payment was made contrary to the authority they had been given.
It does not however in my judgment necessarily follow that the whole of the payment of andpound;3.3m was made in breach of trust. The difference between what the defendant did and what it ought to have done if it had complied with its instructions was the andpound;300,000 that should have been paid to Barclays but was instead paid to the borrowers. That in my judgment was the extent of the breach of trust committed. It was not a breach of trust to pay andpound;1.2m to Barclays; that payment was made as partial performance of the authority and obligation to discharge Barclays’ secured debt. It was not a breach of trust to pay andpound;1.8m to the borrowers, as that was the sum to which they were entitled. The breach consisted of the failure to retain an additional andpound;300,000 and apply that to the discharge of the Barclays debt.’

Judges:

David Cooke HHJ

Citations:

[2012] EWHC 35 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Appeal from – AIB Group (UK) Plc v Mark Redler and Co Solicitors CA 8-Feb-2013
The defendant firm of solicitors had acted for the claimants under instructions to secure a first charge over the secured property. They failed to secure the discharge of the existing first charge, causing losses. AIB asserted breach of trust.
At ChD – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Torts – Other, Equity, Damages

Updated: 04 October 2022; Ref: scu.450453

Johnson v The King: PC 22 Jun 1904

(Sierra Leone) For restitutionary claims, an action for money had and received only the net sum could be recovered.

Citations:

[1904] AC 817, [1904] UKPC 38

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

Applied – London, Chatham and Dover Railway Co v South Eastern Railway Co HL 1893
The Lord Chancellor was considering the position of a creditor whose debtor refused to exchange accounts as agreed, thus preventing the creditor from quantifying the debt.
Held: The House declined to alter the rule in Page -v- Newman.

Cited by:

Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Lists of cited by and citing cases may be incomplete.

Damages, Equity

Updated: 01 October 2022; Ref: scu.419598

Brooksbank v Smith: 24 Feb 1836

In this case, trustees under a will, who were solicitors, had by mistake transferred stock to a person not entitled. Baron Alderson said, this being under circumstances of mistake, it appeared clear to him that the Plaintiffs were entitled to equitable relief ; for, on looking into the authorities he found that fraud or mistake were each of them grounds for relief in equity. Then came the question, whether the Statute of Limitations was a bar? The Statute of Limitations did not apply to Courts of Equity so as to bind them, Undoubtedly, they had exercised discretion, and very rightly, upon the rules laid down. For instance, in cases of fraud, Courts of Equity did not apply the rule in the same manner as Courts of law, which were so bound by the words of the statute, that if the cause of action bad occurred more than six years before, however equitabIe it might be, they could not permit the statute to run. Courts of Equity held, that in cases of fraud, the statute of Limitations ran from the discovery of the fraud, It appearet to jim that cases of mistake fell under the same rule, and that it would be inequitable to apply the Statute of Limitations, except in cases where a party had lain by after the mistake had been discovered, more than six years ; in this case the mistake had been discovered within six years, the statute did not, therefore, bar the Plaintiff’s claim.

Judges:

Baron Alderson

Citations:

[1836] EngR 447, (1836) Donn Eq 11, (1836) 47 ER 193 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Smith v Brooksbank 25-Jun-1834
A bequeathed a reversionary interest, expectant on his wife’s death, in a sum of stock to B. B. bequeathed it to C., and C. bequeathed it to D, who, on the death of A’s wife, filed a bill against the trustees to have the stock transferred to him, . .

Cited by:

See Also – Brooksbank And Another v Smith 24-Feb-1836
The testatrix died in 1818 leaving a fund in trust, subject to a life interest, for her children in equal shares, with substitutional gifts if any child predeceased her leaving issue. Her daughter Elizabeth did predecease her by two months, but on . .
Cited – Test Claimants In The Franked Investment Income Group Litigation v Inland Revenue SC 23-May-2012
The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European . .
Lists of cited by and citing cases may be incomplete.

Equity, Limitation

Updated: 29 September 2022; Ref: scu.314779

Mohammed v Gomez and Others: PC 19 Dec 2019

(Trinidad and Tobago) The appellant challenged the decision of the Court of Appeal, disagreeing with the trial judge, that the three respondents are entitled to equitable interests in the homes built and maintained by them on his property during the ownership of his predecessors.

Judges:

Lady Hale, Lord Wilson, Lord Carnwath, Lord Lloyd-Jones, Lady Arden

Citations:

[2019] UKPC 46

Links:

Bailii

Jurisdiction:

England and Wales

Land, Equity

Updated: 22 September 2022; Ref: scu.645939

FHR European Ventures Llp and Others v Mankarious and Others: ChD 5 Sep 2011

The claimants sought return of what it said were secret commissions earned by the defendants when working as their agents, and the defendants counterclaimed saying that the commissions had been known to the claimants and that additional sums were due. The claimants had employed the defendants as their agents in the acquisition of an interest in a very substantial hotel. The defendants had also taken a commission of 10m euros from the sellers.
Held: The court found the second defendant, while acting with the first and third defendants for the claimants in the purchase of a hotel, not to have made proper disclosure that it was to receive a substantial commission from the vendor. The court made a declaration of liability for breach of fiduciary duty by the second defendant for its failure to obtain the claimants’ consent in respect of the fee, and had ordered it to pay that sum to the claimants. The court declined to grant the claimants a proprietary remedy in respect of that sum sum.

Judges:

Simon J

Citations:

[2011] EWHC 2308 (Ch), [2012] 2 BCLC 39

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hindmarsh and Another v Brigham and Cowan Ltd 1943
An agent may not put himself in a position or enter into a transaction in which his personal interest, or his duty to another principal may conflict with his duty to his principal, unless his principal, with full knowledge of all the material . .
See Also – Aboualsaud v Aboukhater and Another QBD 19-Sep-2007
Claim for commission – introduction of purchaser – denial of verbal contract. . .
Cited – Rhodes v Macalister CA 1923
The plaintiff agent acted to find a seller of mineral rights for the defendant principal. He told his principal that the properties could be purchased for from andpound;8,000 to andpound;10,000. If the agent could find a seller at below . .

Cited by:

See Also – FHR European Ventures Llp and Others v Mankarious and Others ChD 15-Nov-2011
A costs order was to be made. The court now considered whether it should be against one defendant alone, or against all defendants jointly and severally.
Held: The court should (i) make a declaration of liability for breach of fiduciary duty . .
Appeal from – FHR European Ventures Llp and Others v Mankarious and Others CA 29-Jan-2013
The defendants had taken a secret commission when acting for the claimant. They had succeeded in their action and had an order in their favour, but had been refused a proprietary remedy for the sum received.
Held: The appeal was allowed, and a . .
At ChD – FHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Agency, Equity

Updated: 19 September 2022; Ref: scu.444300

Szepietowski v The Serious Organised Crime Agency: CA 21 Jul 2011

The claimant owned properties subject to charges in favour of a bank. The Agency alleged that the properties represented the proceeds of crime. The agency had settled its claim by taking a second charge over one property. When that was sold, only sufficient funds were available to discharge the bank’s first charge, and the Agency requested an order to require the Bank to recover its loans from the other properties.

Judges:

Arden, Sullivan, Patten LJJ

Citations:

[2011] EWCA Civ 856, [2011] WTLR 1435

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Director of the Assets Recovery Agency v Szepietowski and others Admn 29-Sep-2006
The respondent had objected that the appointment of an interim receiver had been based upon information obtained in the course of investigations undertaken in connection with different proceedings and allegations.
Held: The enforcement agency . .
See Also – Szepietowski v Assets Recovery Agency Admn 28-Nov-2006
The first respondent applied for the freezing and receiving orders in relation to two properties and chattels obtained by the first respondent under the 2002 Act to be discharged on the footing that the Agency Director has not shown that she has a . .
See Also – Assets Recovery Agency v Szepietowski and others CA 24-Jul-2007
The defendant had had set aside an interim order for assets recovery. The director appealed against a finding by the court below that he did not have ‘a good arguable case’, justifying an interim recovery order.
Held: The appeal succeeded. On . .
See Also – Serious Organised Crime Agency v Szepietowski and others ChD 27-Feb-2009
Several of the defendants applied for assets to be excluded from an interim receiving order in order to enable them to meet legal expenses. . .
See Also – Assets Recovery Agency v Szepietowski and Others ChD 19-Mar-2009
The applicant defendants sought to have excluded from the effect of restrictions on their dealing with property, property which was held under trusts.
Held: The applications were rejected. There were well established rules allowing trustees . .
See Also – Serious Organised Crime Agency v Szepietowski and Others (No 2) ChD 1-Jul-2009
The Agency asked to have set aside four orders allowing the defendant to have excluded from his assets subject to an interim receiving order to allow payment of his legal expenses.
Held: There was no rule that assets once excluded from an . .
Appeal from – Serious Organised Crime Agency v Szepietowski and Others ChD 15-Oct-2010
The court was asked whether, as second mortgagee on the defendant’s properties, the claimant agency had the equitable power of marshalling of prior charges. The first chargee had charges over two properties, and sold the first, satisfying it debt, . .
Cited – Manks v Whiteley 1911
. .

Cited by:

Appeal from – Szepietowski v The National Crime Agency SC 23-Oct-2013
S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 16 September 2022; Ref: scu.442020

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 recognising their worth, they sought to sell and pocket the profit. The claimant sought restitutionary relief. The court now considered what evidence was to be admitted to assist interpretation of the contract.
Held: ‘on an objective interpretation of the Trade set in its admissible factual matrix and having regard to the admissible documentation recording and/or implementing it, its subject-matter was a specified notional amount of GDNs stated in PENs with a price prescribed and calculated accordingly.’ and ‘ in the commercial world, any dispute as to the subject-matter of the sale which does not take into account the price agreed is nonsensical: the two march together and in the event of any uncertainty as to subject-matter the one helps clarify the other. ‘

Judges:

Hildyard J

Citations:

[2019] EWHC 2380 (Ch), [2019] WLR(D) 525

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

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 . .
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 . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Sigma Finance Corporation, Re; (in administrative receivership) SC 29-Oct-2009
The court considered how the losses of the insolvent company were to be distributed as between secured creditors and preferential creditors, given the terms of the applicable trust deed.
Held: The court considered the interpretations of the . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Cited – Challinor and 20 Others v Juliet Bellis and Co and Egan ChD 19-Mar-2013
The court considered the correct approach to the award of statutory interest.
Held: Hildyard J said: ‘As to (1), it seems to me that the Court’s overall approach in the authorities cited to me is to distinguish between (a) cases relating to . .
Cited – Hamid (T/A Hamid Properties) v Francis Bradshaw Partnership CA 2-May-2013
. .
Cited – Revenue and Customs v Secret Hotels2 Ltd SC 5-Mar-2014
The Court was asked as to: ‘the liability for Value Added Tax of a company which markets and arranges holiday accommodation through an on-line website. The outcome turns on the appropriate characterisation of the relationship between the company, . .
Cited – Arnold v Britton and Others SC 10-Jun-2015
Absurdity did not defeat a clear clause
A standard lease of plots on a caravan park, contained a provision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: The tenants’ appeal failed . .
Cited – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
Cited – EW Savory Ltd v The World of Golf Limited ChD 1914
The Court was asked to ascertain the particular items making up the subject matter of an assignment of copyright in, inter alia, ‘four golfing subjects’ as set out in a receipt.
Held: Neville J said: ‘Then it is said that there is not a . .
Cited – Liverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .
Cited – Policie CR, Krajske reditelstvi policie Usteckeho kraje, odbor cizinecke policie v Al Chodor and Others ECJ 15-Mar-2017
Police detention of Immigrants to follow rules
ECJ (Judgment) Reference for a preliminary ruling – Criteria and mechanisms for determining the Member State responsible for examining an application for international protection – Regulation (EU) No 604/2013 . .
Cited – Ali v Petroleum Company of Trinidad and Tobago (Trinidad and Tobago) PC 13-Feb-2017
(Trinidad and Tobago) The Board considered the test for when the implication of a contractual term was necessary.
Held: The defendant would not have chosen the claimant for redundancy if he had not accepted voluntary redundancy. The term . .
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
Cited – County Securities Pty Ltd v Challenger Group Holdings Pty Ltd 14-Aug-2008
(Supreme Court of New South Wales – Court of Appeal) The court considered a transaction with two parts, one of which (for the transfer of certain Equity Swaps) was wholly in writing; and the other part of which (a hedge involving the acquisition of . .
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 . .
Cited – Crema v Cenkos Securities Plc CA 16-Dec-2010
C sought payment of broker fees after assisting in raising funds for a venture capital company. The parties disputed the terms as to when payment was to be made.
Held: The appeal was allowed. The evidence did not allow the inference of the . .
Cited – Norcross and Others v Georgallides (Estate of) ComC 14-Aug-2015
Allegations of diversion of club assets to private company. . .
Cited – Tidal Energy Ltd v Bank of Scotland Plc CA 31-Jul-2014
Lord Justice Floyd said: ‘A customer gives its bank (‘the remitting bank’) instructions to pay one of its suppliers using the clearing houses automated payment system (‘CHAPS’). The instructions include the correct name of the supplier whom the . .
Cited – In re Sea Containers Services Ltd ChD 19-Sep-2012
. .
Cited – 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 . .
Cited – Associated Japanese Bank (International) Ltd v Credit du Nord SA 1988
A contract of guarantee was made, but based upon a term of fundamental importance which was mistaken as to the existence of certain machines.
Held: The court must first look to the nature of the purported agreement. Steyn J said: ‘Logically, . .
Cited – Loveridge and Loveridge v Healey CA 20-Feb-2004
The landowner sought to recover possession of land occupied under an agreement by a mobile home owner.
Held: It was necessary for the land owner to show that he had complied with the requirements under the Act. It was insufficient for the . .
Cited – 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: . .
Cited – The Co-Operative Bank Plc v Hayes Freehold Ltd and Others ChD 20-Jul-2017
. .
Cited – The Moorcock CA 1889
Unless restricted by something else, an employer ought to find work to enable a workman to perform his part of the bargain, namely, to do his work. A term will be implied into a contract only to the extent required to give the contract efficacy: ‘if . .
Lists of cited by and citing cases may be incomplete.

Banking, Equity

Updated: 15 September 2022; Ref: scu.640898

The Manchester Ship Canal Company Ltd v Vauxhall Motors Ltd: CA 17 May 2018

Judges:

Lewison, Floyd, David Richards LJJ

Citations:

[2018] EWCA Civ 1100, [2018] WLR(D) 304, [2019] Ch 331, [2018] 2 P and CR 18, [2019] 2 WLR 330

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal from – General Motors UK Ltd v The Manchester Ship Canal Company Ltd ChD 30-Nov-2016
The claimants had had a long standing licence to discharge water in the defendant’s canal. Having failed to pay the license fee, the licence was revoked. The claimants sought relief from forfeiture.
Held: Granted . .

Cited by:

At CA – The Manchester Ship Canal Company Ltd v Vauxhall Motors Ltd SC 23-Oct-2019
Limits on relief from forfeiture of land
In the context of land, equitable relief is only available for forfeiture of property rights, as opposed to a right to possession under a contract. . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 15 September 2022; Ref: scu.616330

Goodman v Goodman, Clegg, Manuel: ChD 14 Jul 2006

The claimant sought rectification of the will to alter a clause leaving a monthly sum to the first defendant. She said it did not reflect the deceased’s wishes. It was accepted that ‘ the burden of proof rests on her to establish a case that Guy’s will fails to carry out his intentions because of a failure by Mr Wood to understand his instructions, and that that failure led to the inclusion in the will of clause 3. It is also accepted that because the will in its present form was executed with the necessary degree of formality, it requires convincing evidence to make out such a case.’
Held: The heavy burden was satisfied on the evidence, and rectification was appropriate. The clause complained of was clearly part of another arrangement between the parties and had not been altered with the rest.

Judges:

Evans-Lombe J

Citations:

[2006] EWHC 1757 (Ch)

Links:

Bailii

Statutes:

Administration of Justice Act 1982 20

Jurisdiction:

England and Wales

Citing:

Cited – In re Segelman (dec’d) ChD 1996
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity

Updated: 14 September 2022; Ref: scu.243152

Samsoondar v Capital Insurance Company Ltd: PC 14 Dec 2020

(From the Court of Appeal of the Republic of Trinidad and Tobago) ‘retrospectivity of a judicial interpretation of a statute, which overturned a previous judicial interpretation, and, in the light of that, there are questions on contractual interpretation and on the compulsory or mistaken discharge of another’s legal liability in the law of unjust enrichment.’

Judges:

Lord Lloyd-Jones, Lord Briggs, Lady Arden, Lord Leggatt, Lord Burrows

Citations:

[2020] UKPC 33

Links:

Bailii

Jurisdiction:

England and Wales

Insurance, Equity, Contract

Updated: 12 September 2022; Ref: scu.659463

Mediterranea Reffineria Siciliana Petroli SpA v Mabanaft GmbH: CA 2 Jan 1978

The plaintiff sought orders to assist it in tracing the product of a cargo of oil, delivery of which was alleged to have been obtained from the plaintiff without the production of bills of lading, Mr. Justice Mocatta had made a sweeping order requiring directors and an employee of the defendant company to make full disclosure of certain specified facts on affidavits and directed that one of them should file an affidavit of documents. The defendant appealed.
Held: The appeal failed. Templeman LJ said: ‘A court of equity has never hesitated to use the strongest power to protect and preserve a trust fund in interlocutory proceedings on the basis that, if the trust fund disappears by the time the action comes to trial, equity will have been invoked in vain.’

Judges:

Templeman LJ

Citations:

Court of Appeal transcript 816

Jurisdiction:

England and Wales

Cited by:

Cited – A v C (Note) ChD 1980
The plaintiffs said the first defendant had defrauded them of substantial sums, and implicated other defendants. They claimed against five defendants variously for conspiracy to defraud and deceit and for breach of warranty. They also sought to . .
Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Equity

Updated: 11 September 2022; Ref: scu.416375

Gibbon v Mitchell: ChD 1990

G executed a deed surrendering his life interest in a trust fund in order to vest the property in his two children: the deed did not have that effect because of two errors (one of which was ignoring the fact that his life interest was subject to protective trusts), with the result that the fund became subject to discretionary trusts for the remainder of his life and only then would it vest in his two children, and also in further as yet unborn children. He was not advised that the effects of the deed would be to bring about a forfeiture of his life interest and thus invoke the operation of the discretionary trusts provided for in s 33 of the Trustee Act 1925. In fact, in entering the deed on the advice of his solicitors, the plaintiff had intended to reduce the effects of inheritance tax which would be incurred if the terms of the settlement, in which he purported to surrender his life interest, remained in force.
Held: This was a case, not for rectification, but for setting aside for mistake. When challenging the decisions of trustees using the rule in Hastings-Bass, looking at considerations of the actual or potential adverse tax consequences of the exercise of the power are not relevant. The court limited the jurisdiction to set aside for mistake to cases where there is a mistake of law or fact as to the effect of the transaction itself as opposed merely to the consequence or advantages to be gained by entering into it.
Millett J reviewed the authorities and said: ‘In my judgment, these cases show that, wherever there is a voluntary transaction by which one party intends to confer bounty on another, the deed will be set aside if the court is satisfied that the disponor did not intend the transaction to have the effect that it did. It will be set aside for mistake whether the mistake is a mistake of law or of fact, so long as the mistake is as to the effect of the transaction itself and not merely as to its consequences or the advantages to be gained by entering into it. The proposition that equity will never relieve against mistakes of law is clearly too widely stated.’ and ‘Mr Gibbon did not merely execute the deed under a mistake of law as to the legal consequences of his doing so. He executed it under a mistake as to its legal effect . . Since its effect was not that which he intended, he is entitled to have it set aside.’

Judges:

Millett J

Citations:

[1990] 1 WLR 1304, [1990] 3 All ER 338

Statutes:

Trustee Act 1925 33

Jurisdiction:

England and Wales

Citing:

Cited – Re Hastings-Bass; Hastings v Inland Revenue CA 14-Mar-1974
Trustees of a settlement had exercised their power of advancement under the section, in order to save estate duty by transferring investments to be held on the trusts of a later settlement. However the actual effect of the advancement was that the . .
Cited – Stone v Godfrey 10-Dec-1853
The father of a female infant, who was himself tenant by the curtesy, but whose right was regarded as doubtful, became next friend of his daughter in a suit against the trustee of his late wife’s real estates, in which a decree was obtained for a . .
Cited – Whiteside v Whiteside CA 1950
The husband had executed a deed in favour of his former wife after dissolution of their marriage covenanting to pay a specified sum per annum free of income tax up to but not exceeding a stated amount. This provision was in substitution for one . .

Cited by:

Cited – Abacus Trust Company (Isle of Man) Colyb Limited v Barr, Barr, and Barr ChD 6-Feb-2003
The court considered the Rule in Hastings-Bass, and specifically (1) whether the trustee’s decision is open to challenge when the failure to take a consideration into account is not attributable to a breach of fiduciary duty on the part of the . .
Cited – AMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
Cited – Fender (Administrator of FG Collier and Sons Ltd) v National Westminster Bank Plc ChD 26-Sep-2008
The administrator sought declarations as to whether to treat the bank as a secured or unsecured creditor.
Held: The court directed the Administrator to recognise the Bank as a secured creditor, as if the Deed of Release had never been . .
Cited – Pitt and Another v Holt and Others ChD 18-Jan-2010
The deceased had created a settlement in favour of his wife. He suffered serious injury and placed the damages in trust, but in a form which created an unnecessary liability to Inheritance Tax on his death. The wife’s mental health act receiver now . .
Cited – Anker-Petersen v Christensen ChD 2002
Where a mistake is made as to the effect of an appointment under a trust it may be possible to invoke the court’s jurisdiction to rescind the appointment. Davis J considered Millett J’s distinction between ‘effect’ and ‘consequences’: ‘An example in . .
Cited – Pitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .
Cited – Futter and Another v Futter and Others ChD 11-Mar-2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .
Cited – Allnutt and Another v Wilding and others; Re Strain (deceased) CA 3-Apr-2007
The trustees of a discretionary settlement requested its rectification on the basis that the now deceased settlor’s solicitor had mistakenly not appreciated the need to confer interests in possession on the beneficiaries, with the consequence that . .
Cited – Ashcroft v Barnsdale and Others ChD 30-Jul-2010
The parties sought to rectify a deed of family arrangement varying a will. The variation deed had had several mistakes which in fact increased the sum of Inheritance Tax owed. HMRC refused to accept the rectification deed unless approved by the . .
Cited – Futter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 10 September 2022; Ref: scu.181650

Barraclough v Mell and others: ChD 1 Dec 2005

Moneys due under a will had been misdistributed. The correct beneficiary sought repayment. The executor sought to rely upon a trustee exemption clause.
Held: The trustee exemption clause was effective to protect the executor as such. She had acted mistakenly and negligently, but honestly. However, in her additional capacity as an overpaid beneficiary, she was liable to repay the sums. Also the rule against double portions applied to require repayment by one recipient of a mispayment.

Citations:

[2005] EWHC B17 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Allcard v Skinner CA 1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
Cited – Armitage v Nurse; etc CA 19-Mar-1997
A clause in a trust deed may validly excuse trustees from personal liability for even gross negligence. The trustee was exempted from liability for loss or damage ‘unless such loss or damage shall be caused by his own actual fraud’.
Held: The . .
Cited – In re Pollock; Pollock v Worrall 1885
An example of a gift which is made under a special consideration is where the gift satisfies a particular moral duty identified in the will. . .
Cited – In re Vaux CA 1939
The term ‘portion’ has a ‘qualitative significance’ as well as purely quantitative significance. As to the doctrine of ademption: (Sir Wilfrid Greene MR) ‘The rule against double portions rests upon two hypotheses; first of all, that under the will . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity

Updated: 07 September 2022; Ref: scu.236337

Pitt and Another v Holt and Another: CA 9 Mar 2011

Judges:

Mummery, Longmore, Lloyd LJJ

Citations:

[2011] EWCA Civ 197, [2011] Pens LR 175, 13 ITELR 749, [2011] STC 809, [2012] Ch 132, [2011] STI 743, [2011] WTLR 623, [2011] WTLR 623, [2011] 2 All ER 450

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal From – Pitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .

Cited by:

Appeal from – Futter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 03 September 2022; Ref: scu.430469

UCB Corporate Services Limited v Williams: CA 2 May 2002

The wife of a borrower sought to defend a claim for possession of the property by the chargor. She claimed that he signature had been obtained by an equitable fraud.
Held: Undue influence occurred when improper means of persuasion were used to procure the complainant’s consent such that the consent ought not fairly to be treated as the expression of the complainant’s free will. Equity proceeded on the basis that there was no consent. Such would be enough to set aside the transaction as against the wrongdoer, and the lender was fixed with notice of that right. There was no need for the wife to establish that but for the trick, she would not have signed.

Judges:

Lord Justice Peter Gibson

Citations:

Times 27-May-2002, Gazette 13-Jun-2002, [2002] EWCA Civ 555

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – CIBC Mortgages Plc v Pitt and Another HL 21-Oct-1993
Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to . .
Cited – Downs v Chappell; Downs v Stephenson Smart (a Firm) CA 1996
The plaintiff purchased a book shop. He claimed that in doing so he had relied upon the accounts prepared and signed off by the respective defendants.
Held: The judge had been wrong by testing what would have been the true figures as against . .

Cited by:

Cited – Yorkshire Bank Plc v Tinsley CA 25-Jun-2004
The defendant’s husband had charged the matrimonial home on several occasions to the claimant. It was found that the first charges were affected by undue influence and could not be enforced. The defendant argued that the last charge which replaced . .
Lists of cited by and citing cases may be incomplete.

Land, Equity, Undue Influence

Updated: 02 September 2022; Ref: scu.170225

Clydesdale Bank Plc v Workman and Others: ChD 12 Dec 2013

Claim by the Defendants against the Third Party for equitable compensation or damages for alleged knowing assistance in a breach of trust. The breach of trust was the paying away of monies representing the proceeds of sale of a property that had been charged by its registered owner to the Claimant in these proceedings,

Citations:

[2013] EWHC B38 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Equity, Banking

Updated: 01 September 2022; Ref: scu.522670

Mountney v Treharne: CA 8 Aug 2002

In ancillary relief proceedings in a divorce, the husband had been ordered to transfer his interest in property to his wife. Before it was put into effect, he became insolvent. The wife and receiver competed for the interest to have been transferred.
Held: Upon the order taking effect (upon the decree absolute), the wife acquired an equitable interest in the property, and the trustee in bankruptcy took subject to that interest. The ratio in Maclurcan was directly applicable and binding, though the correctness of that decision was doubted. It is the order of the court exercising the matrimonial jurisdiction which effects the transfer of the beneficial interest not the subsequent disposition made by or on behalf of the individual who later becomes bankrupt.

Judges:

Lord Justice Aldous, Lord Justice Laws and Lord Justice Jonathan Parker

Citations:

Times 09-Sep-2002, Gazette 10-Oct-2002, [2002] EWCA Civ 1174, [2003] Ch 135, [2002] Fam Law 809, [2002] 3 WLR 1760, [2002] 3 FCR 97, [2002] BPIR 1126, [2002] 2 FLR 930

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 24(1)(a), Insolvency Act 1986 283(5)

Jurisdiction:

England and Wales

Citing:

Doubted – Maclurcan v Maclurcan CA 1897
A wife sought a divorce petition for her husband’s adultery. On her application for maintenance, a sum of andpound;90 per annum was to be secured for her life on interests of the husband under two wills.
Held: The court confirmed the report . .

Cited by:

Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Family, Equity

Updated: 01 September 2022; Ref: scu.174820

Benedetti v Sawiris and Others: CA 16 Dec 2010

The claimant had claimed a reward for his role in securing a very substantial business deal for the defendants. The judge had rejected claims in contract but had awarded a sum of 67m Euros on a quantum meruit basis. He appealed saying that the award had been miscalculated. The defendants appealed against the finding of liability.
Held: There had been a miscalulation. The ordinary market value of the services in fact rendered by Mr Benedetti, had been held to be 36.3m euros, and the figure of 67m euros was referable to 60 per cent of the services in respect of which Mr Benedetti was claiming a quantum meruit. He had been paid for 60% of his entitlement and te balance now due was 14m euros. The Holding company defendants were not liable.

Judges:

Arden, Rimer, Etherton LJJ

Citations:

[2010] EWCA Civ 1427

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal From – Benedetti and Another v Sawiris and Others ChD 15-Jun-2009
The claimant sought payment for his services to the defendants for his work in facilitating a substantial buy out of an Italian energy company.
Held: The claim succeeded on a quantum meruit basis to the extent of 75m euros but not otherwise. . .
First Instance consequentials – Benedetti and Another v Sawiris and Others ChD 21-Jul-2009
Orders consequential on the main judgement to apportion liability as between the various defendants. . .

Cited by:

Appeal from – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 29 August 2022; Ref: scu.427207

Jones v Churcher and Another: QBD 18 Mar 2009

Citations:

[2009] EWHC 722 (QB), [2009] 2 Lloyd’s Rep 94, [2009] EWHC B17 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 26 August 2022; Ref: scu.380359

Taylor and Another v Sir Thomas Plumer: KBD 10 Feb 1815

Sir Thomas Plumer gave a bank draft to a stockbroker for the purpose of buying exchequer bills, and the stockbroker instead used the draft for buying American securities and doubloons for his own purposes.
Held: Sir Thomas was able to trace his property into the securities and doubloons in the hands of the stockbroker, and so defeat a claim made to them by the stockbroker’s assignees in bankruptcy.

Judges:

Lord Ellenborough CJ

Citations:

[1815] EWHC KB J84, (1815) 3 M and S 562

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Equity

Updated: 26 August 2022; Ref: scu.248379

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 ‘knowing receipt’ case it is only necessary to show that the defendant knew that the monies paid to him were trust monies and of circumstances which made the payment a misapplication of them. Unlike a ‘knowing assistance’ case it is not necessary, and never had been necessary, to show that the defendant was in any sense a participator in the fraud.’

Judges:

Vinelott J

Citations:

Independent 28-Sep-1994, [1993] 1 WLR 484

Jurisdiction:

England and Wales

Citing:

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 by:

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

Professional Negligence, Equity

Updated: 24 August 2022; Ref: scu.80209

Moriarty and Another v Various Customers of BA Peters Plc (In Administration): ChD 22 Jul 2008

Judges:

Strauss QC Hhj

Citations:

[2008] EWHC 2203 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Moriarty and others v Various Customers of BA Peters Plc (In Administration) ChD 29-Apr-2008
The company had acted as boat sales and brokerage. Claims were made on its insolvency as to the status of boats sold and unsold, and of deposits paid and held by the company. . .

Cited by:

Appeal from – Moriarty and Another v Atkinson and Various Customers of BA Peters Plc CA 16-Dec-2008
The company, a boat sales agent, made a promise to its customers to hold the funds received from them in a trust account. In breach of that promise, it used the funds to pay its own debt. The customers now appealed against a refusal to allow them to . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Consumer, Equity

Updated: 24 August 2022; Ref: scu.276673

Daventry District Council v Daventry and District Housing Ltd: ChD 30 Jul 2010

The parties had negotiated for the transfer to the defendant of the claimant’s housing stock, the associated management team, and the pension and other related assets and obligations. The claimant sought rectification of the agreement to reflect what it said had been that truly reached.
Held: The request for rectification failed.

Judges:

Vos J

Citations:

[2010] EWHC 1935 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Daventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 22 August 2022; Ref: scu.421361

Reeve v Lisle and others: CA 1902

The parties had entered into a series of agreements for loans, and partnerships. The defendants resisted a request by the plaintiff to be allowed, under the agreement, into partnership on a failure to repay the loan.
Held: The appeal succeeded. The agreements were separate, and there could be no objection that one constituted a clog on the equity of redemption.
Vaughan Williams explained: ‘I do not understand the defendant’s counsel to dispute that it is competent for a mortgagee to enter into an agreement to purchase from the mortgagor his equity of redemption. The only objection to such an agreement is, that it must not be part and parcel of the original loan or mortgage bargain. The mortgagee cannot, at the moment when he is lending his money and taking his security, enter into an agreement the effect of which would be that the mortgagor would have no equity of redemption. But there is nothing to prevent that being done which in substance and fact is subsequent to and independent of the original bargain.’

Judges:

Vaughan Williams LJ

Citations:

[1902] 1 Ch 53

Jurisdiction:

England and Wales

Cited by:

Appeal from – Reeve v Lisle and others HL 1902
In 1896 the plaintiffs agreed to lend andpound;5,000 to the defendant to be secured by a ship mortgage (executed later), requiring that if at any time during the period of two years the plaintiffs should elect to enter into partnership with the . .
Cited – Jones v Morgan CA 28-Jun-2001
The claimant appealed against an order refusing him enforcement an agreement for the purchase of a one half share in a property. The judge had found the agreement to be unconscionable.
Held: The appeal was dismissed. The judge had wrongly . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 21 August 2022; Ref: scu.443248

The Lindsay Petroleum Company v Hurd and Others: PC 20 Jan 1874

The court discussed the basis of the equitable doctrine of laches.
Lord Selbourne LC said: ‘Now the doctrine of laches in courts of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy, either because the party has by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case if an argument against relief which otherwise would be just is founded upon mere delay that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantial equitable. Two circumstances, always important in such case, are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.’
Canada

Judges:

Sir Barnes Peacock, Lord Selbourne LC

Citations:

(1874) LR 5 PC 221, [1873] 5 AC 221, [1874] UKPC 2

Links:

Bailii

Jurisdiction:

Commonwealth

Equity

Updated: 20 August 2022; Ref: scu.418890

Re Turcan: CA 1888

A man effected an insurance policy which contained a term that it should not be assignable in any case whatever. He had previously covenanted with trustees to settle after-acquired property.
Held: The court will seek to protect the interests of those who are contractually entitled to have the benefit of an inalienable asset even before the fruits of the asset have been realised. Although he could not assign the benefit of the policy so as to give the trustees the power to recover the money from the insurance company, he could validly make a declaration of trust of the proceeds, which required him to hand over such proceeds to the trustees.

Citations:

(1888) 40 ChD 5

Jurisdiction:

England and Wales

Cited by:

Cited – Barbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 20 August 2022; Ref: scu.249316

Vodafone Ltd and Others v The Office of Communications (Ofcom): ComC 17 May 2019

Mobile network providers had paid annual licence fees, based upon calculations in legislation since quashed. The parties disputed the restitution of sums overpaid.

Judges:

Adrian Beltrami QC sitting as a High Court judge

Citations:

[2019] EWHC 1234 (Comm), [2019] WLR(D) 298

Links:

Bailii, WLRD

Statutes:

Wireless Telegraphy (Licence Charges) Regulations 2011

Jurisdiction:

England and Wales

Utilities, Equity

Updated: 18 August 2022; Ref: scu.642044

Venture North Sea Gas Ltd v Nuon Exploration and Production UK Ltd: Comc 10 Feb 2010

Application for specific performance of contract.

Judges:

Gross J

Citations:

[2010] EWHC 204 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Yewbelle Ltd v London Green Developments Ltd, Knightsbridge Green Limited ChD 8-Dec-2006
The court considered what were the obligations undertaken by a party contracting to use reasonable endeavours.
Held: The question is one of substance, not form, to be determined objectively. Lewison J said: ‘the essence of the obligation . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 14 August 2022; Ref: scu.396727

In re Ellenborough, Towry Law v Burne: ChD 1903

The court declined to give effect to a voluntary disposition of a mere expectancy. Buckley J said: ‘It cannot be and is not disputed that if the deed had been for value the trustees could have enforced it. If value be given, it is immaterial what is the form of assurance by which the disposition is made, or whether the subject of the disposition is capable of being thereby disposed of or not. An assignment for value binds the conscience of the assignor. A court of Equity as against him will compel him to do that which ex hypothesi he has not effectually done.’

Judges:

Buckley J

Citations:

[1903] 1 Ch 697

Jurisdiction:

England and Wales

Citing:

Cited – Tailby v Official Receiver HL 1888
A creditor can create, for good consideration an equitable charge over book debts which will attach to them as soon as they come into existence.
Lord Macnaghten said: ‘It was admitted by the learned counsel for the respondent, that a trader . .

Cited by:

Cited – Re Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 14 August 2022; Ref: scu.519438

Commissioner of State Revenue v The Royal Insurance Australia Ltd: 7 Dec 1994

(High Court of Australia) A payment had been made under statute which was later repealed with retrospective effect.
Held: The monies paid under the retrospectively repealed statute had not been paid under a mistake of law at common law.

Judges:

Brennan, Toohey and McHugh JJ

Citations:

(1994) 182 CLR 51, 126 ALR 1

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 09 August 2022; Ref: scu.236529

Szepietowski v The National Crime Agency: SC 23 Oct 2013

S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that property was sold, the bank’s first charge (securing money also recoverable under other charges) left insufficient value to clear the sums payable to the Agency under the agreement. The Agency had obtained orders for the equitable marshalling of the debts in favour of the Bank so as to leave sufficient equity to pay the sum due.
Held: The defendant’s appeal against the order in favour of the Agency succeeded. The peculiar situation here was that the second charge in favour of the agence did not, as in all reported cases, secure a debt as such, but only a contingent liability. The equitable remedy of marshalling was not available (Lord Carnwath and Lord Hughes JJSC dissenting in part).
Lord Neuberger said: ‘I have concluded that as a matter of principle, marshalling is not available to a second mortgagee where, as here, the common property does not secure a debt due from the mortgagor, but is merely available as security for what the second mortgagee can extract from that property . . in such a case, there is simply nothing, in particular no debt due from the mortgagor, from which the right to marshal can arise, once the common property has been sold and the proceeds of sale distributed in accordance with the legal priorities . . where the second mortgage does not secure a debt owing from the mortgagor to the second mortgagee, the right to marshal should not normally exist once the common property is sold by the first mortgagee and the proceeds of sale distributed, because there would be no surviving debt owing from the mortgagor to the second mortgagee. In such a case, equity should proceed on the basis that the second mortgagee normally takes the risk that the first mortgagee will realise his debt through the sale of the common property rather than the sale of the other property.’

Judges:

Lord Neuberger, President, Lord Sumption, Lord Reed, Lord Carnwath, Lord Hughes

Citations:

[2013] UKSC 65, [2013] 3 WLR 1250, [2014] Lloyd’s Rep FC 1, [2014] 1 BCLC 143, [2014] 1 All ER 225, [2014] 1 AC 338, [2013] WLR(D) 408, UKSC 2011/0196

Links:

Bailii, Bailii Summary, WLRD, SC Summary, SC

Jurisdiction:

England and Wales

Citing:

See Also – Director of the Assets Recovery Agency v Szepietowski and others Admn 29-Sep-2006
The respondent had objected that the appointment of an interim receiver had been based upon information obtained in the course of investigations undertaken in connection with different proceedings and allegations.
Held: The enforcement agency . .
See Also – Szepietowski v Assets Recovery Agency Admn 28-Nov-2006
The first respondent applied for the freezing and receiving orders in relation to two properties and chattels obtained by the first respondent under the 2002 Act to be discharged on the footing that the Agency Director has not shown that she has a . .
See Also – Assets Recovery Agency v Szepietowski and others CA 24-Jul-2007
The defendant had had set aside an interim order for assets recovery. The director appealed against a finding by the court below that he did not have ‘a good arguable case’, justifying an interim recovery order.
Held: The appeal succeeded. On . .
See Also – Serious Organised Crime Agency v Szepietowski and others ChD 27-Feb-2009
Several of the defendants applied for assets to be excluded from an interim receiving order in order to enable them to meet legal expenses. . .
See Also – Assets Recovery Agency v Szepietowski and Others ChD 19-Mar-2009
The applicant defendants sought to have excluded from the effect of restrictions on their dealing with property, property which was held under trusts.
Held: The applications were rejected. There were well established rules allowing trustees . .
See Also – Serious Organised Crime Agency v Szepietowski and Others (No 2) ChD 1-Jul-2009
The Agency asked to have set aside four orders allowing the defendant to have excluded from his assets subject to an interim receiving order to allow payment of his legal expenses.
Held: There was no rule that assets once excluded from an . .
At First Instance – Serious Organised Crime Agency v Szepietowski and Others ChD 15-Oct-2010
The court was asked whether, as second mortgagee on the defendant’s properties, the claimant agency had the equitable power of marshalling of prior charges. The first chargee had charges over two properties, and sold the first, satisfying it debt, . .
Cited – Bank of Credit and Commerce International Sa (In Liquidation) (No 8) CA 2-Oct-1996
Not all debts which were eligible for proof in bankruptcy were also eligible for a set off.
Rose Ljexplained the doctrine of equitable marshallling, saying: ‘The doctrine of marshalling applies where there are two creditors of the same debtor, . .
Appeal from – Szepietowski v The Serious Organised Crime Agency CA 21-Jul-2011
The claimant owned properties subject to charges in favour of a bank. The Agency alleged that the properties represented the proceeds of crime. The agency had settled its claim by taking a second charge over one property. When that was sold, only . .
Cited – Sir Ralph Bovey v Skipwith 1671
Mortgage Priorities
In 1651, Sir Francis Drake made the Plaintiff a Security out of the Manor and Rectory of Waltham upon Thames. Afterwards in 1656, Drake made the Defendant a Security for Money out of the Rectory only (the Defendant having no Notice then of the . .
Cited – Povye’s Case 1680
A was indebted l1500 whereof l500 was secured by mortgage, the residue by bond ; A, before his death makes a lease of all his lands to trustees for payment of his debts, which lease in the whole was worth about l1200 ; the heir of A. after his . .
Cited – Lanoy v The Duke And Dutchess of Athol 13-Nov-1742
There being a borrowing and a lending in the case of a mortgage, the real estate is considered only as a pledge, and the personal liable in the first place ; but this rule has never been carried so far, as to extend it to a provision in a . .
Cited – Aldrich v Cooper, Durham v Lankester, Durham v Armstrong 26-Apr-1803
Lord Eldon LC discussed the equitable principle of marshalling and said: ‘two estates [were] mortgaged to A; and one of them mortgaged to B. He has no claim under the deed upon the other estate. It may be so constructed that he could not affect that . .
Cited – Kendall, Ex Parte 7-May-1811
Lord Eldon LC said: ‘The equity is clear upon the authorities, that, if two funds of the debtor are liable to one creditor, and only one fund to another, the former shall be thrown upon that fund, to which the other cannot resort; in order that he . .
Cited – Wallis v Woodyear 1855
Wood V-C said that a first mortgagee has the right to have recourse to ‘any of his securities which first come to hand’ and to ‘realise his securities in such manner and order as he thinks fit’. . .
Cited – Manks v Whiteley 1911
. .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 07 August 2022; Ref: scu.516926

In re Auriferous Properties Ltd (No 2): 1898

A claim was made in the liquidations by a creditor, but the creditor also held shares in the company which were not fully paid up.
Held: The creditor plaintiff could recover nothing as a creditor until all his liability as a contributory had been properly discharged. The liquidator of the company was entitled to prove in the winding up of a corporate contributory for the whole amount due by way of calls on the shares without set-off.
Wright J said: ‘There is no contract for a set-off, nor do the articles of association of either company appear to contain any provision for it, nor do the general statutes of set-off apply. Nor, as it seems, is the doctrine of set-off in bankruptcy . . applicable to this case . . But in my opinion this case is governed by the principle established in Grissell’s case [In re Overend, Gurney and Co (1866) LR 1 Ch App 528] and is within the express terms of the Lord Chancellor’s judgment in that case. If the creditor-contributory were allowed to take the dividend without paying the call, he would be receiving payment of part of the debt which the company owes to him without making his contribution to the fund out of which that debt, with the other debts of the company, was to be paid. ‘If’, Lord Chelmsford says, ‘the amount of an unpaid call cannot be satisfied by a set-off of an equivalent portion of a debt due to the member of a company upon whom it is made, it necessarily follows in the last place, that the amount of such call must be paid before there can be any right to receive a dividend with the other creditors. The amount of the call being paid, the member of the company stands exactly on the footing of the other creditors with respect to a dividend upon the debt due to him from the company. The dividend will be of course upon the whole debt, and the member of the company will from time to time, when dividends are declared, receive them in like manner when either no call has been made, or having been made, when he has paid the amount of it.”

Judges:

Wright J

Citations:

[1898] 2 Ch 428

Jurisdiction:

England and Wales

Citing:

See Also – In re Auriferous Properties Ltd (No 1) ChD 1898
African Gold Properties Ltd (the Gold Company) held shares in Auriferous Properties Ltd (the Auriferous Company). In January 1896, the Auriferous Company became indebted to the Gold Company in the sum of pounds 2,775. Two calls were made by the . .

Cited by:

Cited – In re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency

Updated: 07 August 2022; Ref: scu.449848

Povye’s Case: 1680

A was indebted l1500 whereof l500 was secured by mortgage, the residue by bond ; A, before his death makes a lease of all his lands to trustees for payment of his debts, which lease in the whole was worth about l1200 ; the heir of A. after his death, sells as much land as payeth l1400, whereof the mortgage for l500 was part (which was more than the value of the trust estate). Povye, who was a creditor for the other l100, brought his bill against the heir and the trustees, to have his debt satisfied out of this trust estate.
It was insisted for the heir, that, having paid as far as the value of the trust estate did extend, he ought not to have his lands charged any farther.
But it was ruled, that as the trust lands were not sufficient to satisfy the whole debt, the heir and the trustees and the mortgagee should not juggle together to cheat other creditors, by paying the mortgage first off ;(2) but on the contrary the trust lands should be applied in the first place for the other debts, because the mortgage could be at no damage, being secured by his mortgage; but on the contrary, if the mortgage should be first satisfied, the other creditors might lose their debts ; and so the plaintiff in this case had relief for his debt.

Citations:

[1680] EngR 191, (1680) 2 Freem Chy 51, (1680) 22 ER 1052 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Szepietowski v The National Crime Agency SC 23-Oct-2013
S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 07 August 2022; Ref: scu.402402

Kendall, Ex Parte: 7 May 1811

Lord Eldon LC said: ‘The equity is clear upon the authorities, that, if two funds of the debtor are liable to one creditor, and only one fund to another, the former shall be thrown upon that fund, to which the other cannot resort; in order that he may avail himself of his only security: where that can be done without injustice to the debtor or the creditor: but that principle has never been pressed to the effect of injustice to the common debtor . .’

Judges:

Lord Eldon LC

Citations:

[1811] EngR 268, (1811) 17 Ves Jun 514, (1811) 34 ER 199

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See Also – Kendall, Ex Parte 25-May-1813
. .
Cited – Szepietowski v The National Crime Agency SC 23-Oct-2013
S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 07 August 2022; Ref: scu.339352

Forster v Wilson: 1843

English law regards insolvency set off as a way of achieving substantial justice between the parties.

Judges:

Parke B

Citations:

(1843) 12 M and W 191

Jurisdiction:

England and Wales

Cited by:

Cited – McGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency

Updated: 07 August 2022; Ref: scu.266613

Warnborough Ltd v Garmite Ltd: CA 5 Nov 2003

Warnborough (W) sold real property to Garmite (G), leaving the purchase price outstanding but secured by a mortgage in favour of W. G also granted W an option to repurchase the property. The issue was whether the option to repurchase was ‘a clog on the equity of redemption’.
Held: The appeal was allowed with the result that the issue as to the character of the transaction had to be determined at a subsequent trial.
Jonathan Parker LJ referred to the need to assess the real nature and substance of the transaction. The Court had to look at the ‘substance’ of the transaction and to enquire as to the true nature of the bargain which the parties had made. To do that, the Court examined all the circumstances, with the assistance of oral evidence if necessary. Where the alleged ‘clog’ was entered into against the background of a sale of the property, by the grantee of the option as owner of the property to the grantor, for a price left outstanding on mortgage there must be ‘a very strong likelihood’ that on an examination of all the circumstances the court would conclude that the substance of the transaction was one of sale and of purchase and not one of mortgage. The transaction undoubtedly involved a genuine and enforceable mortgage. The court’s approach did not involve a finding that the mortgage was ineffective or had some other character but rather that the part of the transaction which involved a mortgage was not to be regarded as the dominant part of the transaction, which identified the character of the transaction. The transaction was a composite of its parts and although one part of the transaction involved a mortgage, the legal character of the composite transaction was a transaction of sale and purchase. The court rejected the argument that the sale was ‘incidental to the loan’ as turning the transaction ‘on its head’.

Judges:

Lord Justice Simon Brown Lord Justice Judge Lord Justice Jonathon Parker

Citations:

[2003] EWCA Civ1544

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – G and C Kreglinger v The New Patagonian Meat and Cold Storage Company HL 20-Nov-1913
Mortgagor’s collateral dvantage is not a clog
The appellant woolbrokers had lent the respondent andpound;10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The . .

Cited by:

Cited – Brighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 06 August 2022; Ref: scu.187543

Falcke v Scottish Imperial Insurance Co: CA 1886

The owner of a policy of life assurance mortgaged the policy to secure repayment of a loan. Subsequently the owner, now the owner of an equity of redemption in the policy, paid two annual premiums which became due under the policy. The policy was then sold and a question arose as to whether the proceeds of sale should be applied in repaying the owner the amount of the two premiums in priority to the claims of the mortgagee.
Held: The owner had not acquired by the payments of the premiums any interest in the policy in priority to the claims of the mortgagee.
Cotton LJ said: ‘if a stranger pays a premium on a policy that payment gives him no lien on the policy. A man by making a payment in respect of property belonging to another, if he does so without request, is not entitled to any lien or charge on that property for such payment.’
Bowen LJ said: ‘The general principle is, beyond all question, that work and labour done or money expended by one man to preserve or benefit the property of another do not according to English law create any lien upon the property saved or benefited, nor, even if standing alone, create any obligation to repay the expenditure. Liabilities are not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will.’

Judges:

Cotton LJ, Bowen LJ

Citations:

(1886) 34 ChD 234

Jurisdiction:

England and Wales

Cited by:

Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Cited – Foskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
Cited – Petroleo Brasileiro Sa v Ene Kos 1 Ltd (‘The MT Kos’) SC 2-May-2012
The MT Kos had been chartered by the appellants. The respondents failed to make payments, and notice was given to withdraw the vessel. The contract said that such a notice was without prejudice to any claim. At the time, the vessel was laden. The . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 06 August 2022; Ref: scu.187410

Bank of Credit and Commerce International Sa (In Liquidation) (No 8): CA 2 Oct 1996

Not all debts which were eligible for proof in bankruptcy were also eligible for a set off.
Rose Ljexplained the doctrine of equitable marshallling, saying: ‘The doctrine of marshalling applies where there are two creditors of the same debtor, each owed a different debt, one creditor (A) having two or more securities for the debt due to him and the other (B) having only one. B has the right to have the two securities marshalled so that both he and A are paid so far as possible. Thus if a debtor has two estates (Blackacre and Whiteacre) and mortgages both to A and afterwards mortgages Whiteacre only to B, B can have the two mortgages marshalled so that Blackacre can be made available to him if A chooses to enforce his security against Whiteacre. For the doctrine to apply there must be two debts owed by the same debtor to two different creditors.’
. . and ‘[Marshalling] is never allowed to delay or defeat the creditor with several securities in the collection of his debt and the enforcement of his securities. He is allowed to realise his securities as he pleases’.

Judges:

Rose LJ

Citations:

Gazette 02-Oct-1996, [1996] Ch 245, [1996] 2 BCLC 254, [1996] 2 WLR 631, [1996] 2 All ER 121

Statutes:

Insolvency Rules 1986 4.90

Jurisdiction:

England and Wales

Cited by:

Cited – Szepietowski v The National Crime Agency SC 23-Oct-2013
S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Banking, Insolvency, Equity

Updated: 06 August 2022; Ref: scu.78144

Stannard v Fisons Ltd; Stannard v Fisons Pensions Trust: CA 2 Jan 1990

The purchaser of a business said that the company had made insufficient contributions to its pensions fund before the transfer, and sought payment of the sums underpaid. The defendants argued that, applying Hastings-Bass, unless that principle were satisfied, the trustees’ decision as to the amount to be transferred should not be disturbed.
Held: Hastings-Bass and Mettoy involved the voluntary exercise by trustees of a discretion, whereas here the trustees were under an obligation to exercise their discretion at a particular time and after fulfilling a given condition. Having found that they had not complied with that obligation, so that the question was how their failure to perform that obligation should be remedied.

Citations:

[1990] 1 PLR 179, (1992) IRLR 27, [1991] Pen LR 225

Jurisdiction:

England and Wales

Citing:

Distinguished – Mettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .

Cited by:

Appeal from – Stannard v Fisons Pension Trust Limited CA 1991
Fisons had sold their fertiliser division to Norsk Hydro. Acting on advice of actuaries and thinking that the fund was in deficit, the trustees made a transfer to a new fund to provide for pensions of transferring employees in accordance with a . .
Cited – Pitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .
Cited – Futter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 05 August 2022; Ref: scu.245022

Grindal and Another v Hooper and Others: ChD 17 Dec 1999

A conveyance to joint tenants required any severance of the joint tenancy, to be recorded by endorsing the notice of severance on the transfer. The joint tenancy was purported to be severed, but no notice was endorsed. The failure to endorse the notice could not defeat the validity of the severance. The purpose of the clause was to assist any purchaser in obtaining good title, and was not intended to limit the effect of any severance as between the tenants.

Citations:

Gazette 17-Dec-1999, Gazette 20-Jan-2000, Times 08-Feb-2000

Jurisdiction:

England and Wales

Land, Equity

Updated: 05 August 2022; Ref: scu.81050

Child Poverty Action Group, Regina (on the Application of) v Secretary Of State for Work and Pensions: CA 14 Oct 2009

CPAG appealed against a refusal of a declaration that the respondent could use only the 1992 Act to recover overpayment of benefits where there had been neither misrepresentation nor non-disclosure.
Held: The appeal succeeded, and the court made a declaration that: ‘where a benefit falling within section 71(11) of the Social Security Administration Act 1992 is paid pursuant to the machinery contained in Part I Chapter II of the Social Security Act 1998, it can only be reclaimed from the claimant under section 71 of that Act (or some other specific statutory provision).’
There was no common law power which the respondent could rely upon to make recovery of overpayments in such a situation. The respondent could not use the law of restitution to recover accidental overpayments. The 1992 Act stated all the circumstances in which recovery could be made.

Judges:

Sedley LJ, Lloyd LJ, Wilson LJ

Citations:

[2009] EWCA Civ 1058, Times 21-Oct-2009, [2010] 1 WLR 1886

Links:

Bailii

Statutes:

Social Security Administration Act 1992 71(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Child Poverty Action Group, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 27-Feb-2009
Challenge to defendant’s practice in seeking recovery of overpayments.
Held: The court refused to grant a declaration that the respondent could not use common law or equitable powers to recover over-payment of benefits where the payee had . .
Cited – Attorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an . .
Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Cited – Monro v HM Revenue and Customs CA 9-Apr-2008
The Commissioners conceded that, in principle, there could be a common law right to recover sums paid by way of tax under a mistake of law, but argued that such a claim was precluded because it would be inconsistent with the statutory scheme under . .
Cited – Deutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
Cited – Woolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .

Cited by:

Appeal from – The Child Poverty Action Group v Secretary of State for Work and Pensions SC 8-Dec-2010
The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not . .
Cited – Legal Services Commission v Henthorn QBD 4-Feb-2011
The claimant sought to recover overpayments said to have been made to the defendant barrister in the early 1990s. Interim payments on account had been made, but these were not followed by final accounts. The defendant, now retired, said that the . .
Lists of cited by and citing cases may be incomplete.

Benefits, Equity

Updated: 04 August 2022; Ref: scu.376132

In re Gray’s Inn Construction Co Ltd: CA 1980

After the presentation of a petition for the winding up of the company moneys were paid in and out of the company’s bank account which was overdrawn. The liquidator issued a summons for a declaration that the amounts credited and/or debited to the account by the bank during the relevant period constituted dispositions of the company’s property which were void under s.227 of the Companies Act 1948. The liquidator further sought an order that the bank pay those moneys to the liquidator as constituting dispositions of the property of the company.
Held: In the exercise of the court’s discretion whether to make a validation order, the overriding principle is that the court must always do its best to ensure that the interests of the unsecured creditors will not be prejudiced. On an application for a validation order in the period between the presentation of the petition and its hearing, the court will need to be satisfied that it is in the interests of the creditors generally that the transaction should be allowed to proceed.
Buckley LJ said: ‘When a customer’s account with his banker is overdrawn he is a debtor to his banker for the amount of the overdraft. When he pays a sum of money into the account, whether in cash or by payments in of a third party’s cheque, he discharges his indebtedness to the bank pro tanto. There is clearly in those circumstances, in my judgment, a disposition by the company to the bank of the amount of the cash or of the cheque.’
After stating that in the case before the court the company’s account with the bank was overdrawn, he said: ‘Mr Heslop does not dispute that all payments out of the company’s account to third parties, not being payments to agents of the company as such are dispositions of the company’s property; . . That all such payments out must be dispositions of the company’s property is, I think, indisputable . .’

Judges:

Buckley, Goff LJJ and Sir David Cairns

Citations:

[1980] 1 WLR 711

Statutes:

Companies Act 1948 227

Jurisdiction:

England and Wales

Cited by:

Cited – Rose v AIB Group (UK) plc and Another ChD 9-Jun-2003
The bank had received and paid substantial sums from the company before the petition for insolvency had been presented, and had discharged the director’s charge on his house. The liquidator sought restitution under the Act. The bank replied that it . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency, Banking

Updated: 31 July 2022; Ref: scu.184534

A v C (Note): ChD 1980

The plaintiffs said the first defendant had defrauded them of substantial sums, and implicated other defendants. They claimed against five defendants variously for conspiracy to defraud and deceit and for breach of warranty. They also sought to trace the sum of andpound;383,872 paid under a mistake of fact induced by fraud, into an account with a further defendant, a bank. That was the only claim against the bank. They had obtained a Mareva Injunction ex parte, against the fraud defendants, and an injunction restraining them all from disposing of the sum of andpound;383,872 if a lesser sum stood to their credit in accounts with the bank. The court was asked what orders could be made to assist the tracing, including disclosure of bank accounts wherever held.
Held: The court may make orders with the purpose of ascertaining the whereabouts of missing trust funds, even though a Mareva order over bank accounts generally could be oppressive. However without that information, the plaintiff may be unable to volunteer the undertakings expected of him. In limited cases where the court decides to make Mareva orders, it may make such disclosure orders as are necessary to ensure that the Mareva jurisdiction is properly and effectively exercised.
An ancillary disclosure order, made in conjunction with an asset preservation order, relies on the same source of jurisdiction as supports the asset preservation order.
Goff J distinguished between Mareva and conventional interlocutory injunctions in aid of a proprietary claim to a fund, holding that the plaintiffs were entitled to an injunction to restrain the defendants from disposing of the trust fund or what remained of it, quite apart from the Mareva jurisdiction.

Judges:

Robert Goff J

Citations:

[1981] QB 956, [1980] 2 All ER 347

Jurisdiction:

England and Wales

Citing:

Cited – Mediterranea Reffineria Siciliana Petroli SpA v Mabanaft GmbH CA 2-Jan-1978
The plaintiff sought orders to assist it in tracing the product of a cargo of oil, delivery of which was alleged to have been obtained from the plaintiff without the production of bills of lading, Mr. Justice Mocatta had made a sweeping order . .
Cited – London and County Securities Ltd v Caplin ChD 26-May-1978
The court made a Mareva order with ancillary disclosure orders for the purpose of enabling the plaintiffs to trace property acquired by the defendant and so take steps to seize that property if it derived from their assets. . .

Cited by:

Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
Approved – Banker’s Trust v Shapira CA 1980
Enforcement through innocent third party bank
Two forged cheques, each for USD500,000, had been presented by two men and as a result USD1,000,000 had been transferred to accounts in their names. The plaintiff sought to trace assets through the banks involved.
Held: The court approved the . .
Cited – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Equity

Updated: 30 July 2022; Ref: scu.416373

Benedetti and Another v Sawiris and Others: ChD 21 Jul 2009

Orders consequential on the main judgement to apportion liability as between the various defendants.

Judges:

Patten LJ

Citations:

[2009] EWHC 1806 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Principle Judg – Benedetti and Another v Sawiris and Others ChD 15-Jun-2009
The claimant sought payment for his services to the defendants for his work in facilitating a substantial buy out of an Italian energy company.
Held: The claim succeeded on a quantum meruit basis to the extent of 75m euros but not otherwise. . .

Cited by:

First Instance consequentials – Benedetti v Sawiris and Others CA 16-Dec-2010
The claimant had claimed a reward for his role in securing a very substantial business deal for the defendants. The judge had rejected claims in contract but had awarded a sum of 67m Euros on a quantum meruit basis. He appealed saying that the award . .
First instance consequential judgment – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 30 July 2022; Ref: scu.349094

Banque Belge pour L’Etranger v Hambrouck: 1921

Money was stolen by a thief. He then paid it by way of a gift into the bank account of the woman with whom he was living. The victim claimed its return from the woman and her bankers. GBP315 of the balance in her account represented part of the stolen money. She argued that, having no notice of the theft, she obtained a good title to it because it was a gift to her from the thief and the fact that she had paid the money into her banking account prevented any following of the money and that an action for money received would therefore not lie.
Held: The victim was entitled to the GBP315. The woman, as a donee, had been unjustly enriched by the receipt of money stolen from the victim and retained GBP315, part of that money. She was bound to reimburse the victim. The trust could be followed into the bank account and it ordered return of the GBP315.
Bankes LJ said: ‘To accept either of the two contentions with which I have been so far dealing would be to assent to the proposition that a thief who has stolen money, and who from fear of detection hands that money to a beggar who happens to pass, gives a title to the money to the beggar as against the true owner – a proposition which is obviously impossible of acceptance.’
Atkin LJ said: ‘as the money paid into the bank can be identified as the product of the original money, the plaintiffs have the common law right to claim it, and can sue for money had and received.’

Judges:

Bankes LJ, Atkin LJ

Citations:

[1921] 1 KB 321

Jurisdiction:

England and Wales

Cited by:

Cited – Shalson v Russo ChD 11-Jul-2003
The claimant sought recovery of substantial sums he had advanced by way of loan, where the loan was induced by fraud. He sought to trace the funds into, inter alia, a motor yacht which it had been used to purchase.
Held: The transaction was . .
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Cited – Banker’s Trust v Shapira CA 1980
Enforcement through innocent third party bank
Two forged cheques, each for USD500,000, had been presented by two men and as a result USD1,000,000 had been transferred to accounts in their names. The plaintiff sought to trace assets through the banks involved.
Held: The court approved the . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 28 July 2022; Ref: scu.186100

Shalson v Russo: ChD 11 Jul 2003

The claimant sought recovery of substantial sums he had advanced by way of loan, where the loan was induced by fraud. He sought to trace the funds into, inter alia, a motor yacht which it had been used to purchase.
Held: The transaction was voidable, not immediately void. On discovery of the fraud, the claimant could put forward a proprietary claim to the money in order to trace them. The lender did not have the benefit of an immediate constructing trust of the money loaned before the contract was rescinded. It was the implied rescission of the loan contract which enabled the proprietary interest. In this case it was not appropriate to allow the claimant to consolidate an overdrawn current and a deposit account. Only those funds which put the account in credit could be taken into account.

Judges:

Rimer J

Citations:

Times 03-Sep-2003, Gazette 18-Sep-2003

Jurisdiction:

England and Wales

Citing:

Cited – Banque Belge pour L’Etranger v Hambrouck 1921
Money was stolen by a thief. He then paid it by way of a gift into the bank account of the woman with whom he was living. The victim claimed its return from the woman and her bankers. GBP315 of the balance in her account represented part of the . .
Cited – El Ajou v Dollar Land Holdings Plc and Another ChD 3-Jan-1993
A non active director may still be company’s ‘directing mind’. The doctrine of attributing the actions of individuals to a company is that ‘Their minds are its mind; their intention its intention; their knowledge its knowledge.’
Tracing was no . .
Cited – Lonhro v Fayed (No 2) 1992
. .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 28 July 2022; Ref: scu.186099

Mcivor v The Northern Bank Executor and Trustee Company Ltd: ChNI 24 Oct 2002

Citations:

[2002] NICh 12

Links:

Bailii

Jurisdiction:

Northern Ireland

Citing:

Cited – Lazard Brothers and Co Ltd v Fairfield Properties Co (Mayfair) Ltd 1977
The court considered the law of laches in its modern context, saying that If between the plaintiff and the defendant it was just that the plaintiff should obtain the remedy the court ought not to withhold it merely because the plaintiff had been . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 28 July 2022; Ref: scu.180242

Kingstreet Investments Ltd v New Brunswick (Finance) Ltd: 11 Jan 2007

(Supreme Court of Canada)

Judges:

McLachlin CJ and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ

Citations:

[2007] 1 SCR 3, 2007 SCC 1

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 28 July 2022; Ref: scu.640905

British Columbia v Canadian Forest Products Ltd: 11 Jun 2004

Canlii Damages – Environmental damages to public lands – Compensation – Forest fire – Valuation of loss of harvestable trees, and of non-harvestable trees in environmentally sensitive areas – Appropriate basis to calculate compensation – Province suing for compensation logging company responsible for fire – Whether Province can sue not only as ordinary landowner but also as parens patriae – Whether Comparative Value Pricing system can be taken into account to reduce compensation – Whether Province entitled to ‘auction value’ of harvestable trees – Whether Province entitled to commercial value of non-harvestable trees plus a premium for environmental value – Whether common law provides for environmental damages.

Judges:

McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ

Citations:

[2004] 2 SCR 74, 240 DLR (4th) 1, 2004 SCC 38, 321 NR 1, [2004] 9 WWR 1, 28 BCLR (4th) 195, 198 BCAC 1, 8 CELR (NS) (3d) 1

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 28 July 2022; Ref: scu.640904

Equuscorp Pty Ltd v Haxton: 8 Mar 2012

High Court of Australia – Restitution – Restitution of benefits derived from unenforceable or illegal contracts – Recovery of money paid as money had and received – Respondents invested in tax driven blueberry farming schemes – Respondents borrowed funds to pay farm management fees – Each investment a ‘prescribed interest’ under Companies Code of each respondent’s home State (‘Code’) – Contrary to s 170(1) of Code, no valid prospectus registered when prescribed interests offered – Farming schemes collapsed – Respondents did not repay loan funds – Loan agreements unenforceable against respondents due to illegality – Whether restitution of loan funds available – Whether failure of consideration – Whether respondents’ retention of loan funds unjust.
Personal property – Alienation of personal property – Assignment of choses in action – Assignment of right to restitution – Deed of assignment included assignment of legal right to debts and ‘all legal and other remedies’ – Whether right to restitution capable of assignment – Whether deed of assignment assigned right to restitution.
Where the right to restitution is assigned the claimant stands in the shoes of the assignor, and is therefore treated as if he had been a party to the relevant transaction, and the defendant’s enrichment had been directly at his expense.

Judges:

French CJ

Citations:

[2012] HCA 7, 246 CLR 498, 86 AJLR 296

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 28 July 2022; Ref: scu.640871

Hanover Shoe Inc v United Shoe Machinery Corporation: 14 Oct 1968

United States Supreme Court

Citations:

[1968] USSC 185, 392 US 481, 88 SCt 2224, 20 LEd2d 1231

Links:

Worldlii

Jurisdiction:

United States

Cited by:

Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Lists of cited by and citing cases may be incomplete.

Equity, Commercial

Updated: 28 July 2022; Ref: scu.640903

Menelaou v Bank of Cyprus UK Ltd: CA 19 Jun 2013

The Court was asked questions about the law of unjust enrichment, and one of the remedies which may be granted to reverse the effect of unjust enrichment, namely subrogation to an unpaid vendor’s lien. The bank had released its charges over property in exchange for the grant of a new charge over other property purchased with the proceeds of sale of the released property was entitled by subrogation to an unpaid vendor’s lien on the new property. The bank appealed against rejection of its claimin unjust enrichment.
Held: The appeal was allowed. Subrogation is not istelf a cause of action, but was rather a remedy granted by equity.
Moses LJ said that economic reality is a ‘somewhat fuzzy concept’

Judges:

Moses, Tomlinson, Floyd LJJ

Citations:

[2014] 1 WLR 854, [2013] WLR(D) 266, [2013] 2 P andCR 21, [2013] EWCA Civ 1960, [2013] EWCA Civ 828

Links:

WLRD, Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Menelaou v Bank of Cyprus Plc ChD 19-Jul-2012
On the sale of the claimant’s property, the solicitors received agreement by the defendant bank to the release of their charge over the property for a certainsum, being less than the loan outstanding. In the course of discharging the loan, a bank . .

Cited by:

Appeal from – Bank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 28 July 2022; Ref: scu.510920

Benedetti and Another v Sawiris and Others: ChD 15 Jun 2009

The claimant sought payment for his services to the defendants for his work in facilitating a substantial buy out of an Italian energy company.
Held: The claim succeeded on a quantum meruit basis to the extent of 75m euros but not otherwise.

Judges:

Patten J

Citations:

[2009] EWHC 1330 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Pallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .

Cited by:

Principle Judg – Benedetti and Another v Sawiris and Others ChD 21-Jul-2009
Orders consequential on the main judgement to apportion liability as between the various defendants. . .
Appeal From – Benedetti v Sawiris and Others CA 16-Dec-2010
The claimant had claimed a reward for his role in securing a very substantial business deal for the defendants. The judge had rejected claims in contract but had awarded a sum of 67m Euros on a quantum meruit basis. He appealed saying that the award . .
At first instance – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 28 July 2022; Ref: scu.347018

Greater Manchester Police v Wigan Athletic AFC Ltd: ChD 21 Dec 2007

The claimant sought payment under section 25 from the defendant football club for the costs of policing football matches. The defendant said that the sums were not due since the events had been over-policed, and had not been agreed or requested.
Held: The club occupied strictly onlt the stadium itself and implied rights of access. Had the police not provided certain cover, the club would have had to have provided alternative marshalling. Though there was no express request to provide policing, one could clearly be implied. There was insufficient evidence to establish any unfairness in the levels of policing required or the charges. The police were able to bring their case within the requirements for restitution set out in Rowe, and to claim on a quantum meruit according to the actual work undertaken. The court set out the basis for calculating the claim for different categories of officers.

Judges:

Mann J

Citations:

[2007] EWHC 3095 (Ch)

Links:

Bailii

Statutes:

Police Act 1996 25, Safety of Sports Grounds Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Glasbrook Brothers Limited v Glamorgan County Council HL 1925
A colliery manager asked for police protection for his colliery during a strike. He wanted police officers to be billeted on the premises. The senior police officer for the area was willing to provide protection by a mobile force, but he refused to . .
Cited – Harris v Sheffield United Football Club Ltd CA 1987
The court was asked whether services provided by the police at Sheffield United Football Club for the club’s home fixtures were ‘special police services’ so that, if they were provided at the club’s request, the police could charge for them. Up . .
Cited – Reading Festival Ltd v West Yorkshire Police Authority CA 3-May-2006
The organisers of a music festival in Leeds appealed a decision that they were liable to pay in full a bill from the police for additional services in policing the festival.
Held: The organisers appeal succeeded. Whilst it was a matter for the . .
Cited – Rowe, Regina (on the Application of) v Vale of White Horse District Council Admn 7-Mar-2003
The local council sought to claim payment for sewerage services enjoyed by a householder.
Held: Where a supplier has supplied services to another and there is no contractual relationship in existence, the law may afford to the supplier . .
Distinguished on the facts – Bookmakers’ Afternoon Greyhound Services Ltd v Wilf Gilbert (Staffordshire) Ltd 1994
The bookmaker defendant received a broadcast information service for which he was prepared to pay. That service carried another information service (‘BAGS’) for which the second provider also sought payment. The bookmaker was not prepared to pay for . .

Cited by:

Appeal from – Greater Manchester Police v Wigan Athletic AFC Ltd CA 19-Dec-2008
The parties disputed the amounts payable by a football club to the police for the attendance of police officers at matches. The defendant appealed against a finding that it had requested the services for which charges had been made under section 25 . .
Lists of cited by and citing cases may be incomplete.

Police, Contract, Equity

Updated: 28 July 2022; Ref: scu.262961

123 East Fifty-Fourth Street Inc v United States: 1946

(Learned Hand J dissenting) The majority affirmed a judgment for refund of cabaret taxes improperly levied in the erroneous belief that the taxpayer’s establishment qualified as a cabaret. The majority held that the limitation statute, in its then form, did not apply to cabaret taxes, which might be refunded without respect to any windfall effect or resulting unjust enrichment.
Circuit Judge Learned Hand dissented, arguing that the taxpayer in that case was barred from refund if it had charged its guests the amount of the tax for which it supposed itself liable as a separate item specifically described as a tax. Judge Hand considered the distinction as crucial whether the taxpayer had made the charge in that form, or had merely included the amount in the bills rendered without saying anything about it

Judges:

Learned Hand J

Citations:

157 F2d 68 (1946)

Jurisdiction:

United States

Cited by:

Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 26 July 2022; Ref: scu.640906

Burston Finance Ltd v Speirway Ltd: ChD 1974

Walton J described the typical case of subrogation: ‘What is the basis of the doctrine of subrogation? It is simply that, where A’s money is used to pay off the claim of B, who is a secured creditor, A is entitled to be regarded in equity as having had an assignment to him of B’s rights as a secured creditor…It finds one of its chief uses in the situation where one person advances money on the understanding that he is to have certain security for the money he has advanced, and, for one reason or another, he does not receive the promised security.’

Judges:

Walton J

Citations:

[1974] 1 WLR 1648

Jurisdiction:

England and Wales

Cited by:

Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 26 July 2022; Ref: scu.640872

Holt v Markham: CA 1923

Scrutton LJ described the legacy of Moses v Macferlan as ‘a history of well-meaning sloppiness of thought’

Judges:

Scrutton LJ

Citations:

[1923] 1 KB 504

Jurisdiction:

England and Wales

Citing:

Cited – Moses v Macferlan KBD 1760
An action for money had and received will only lie where it is inequitable for the defendant to retain the money. The defendant in an action for money had and received ‘can be liable no further than the money he has received’. . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 26 July 2022; Ref: scu.640869

TFL Management Services Ltd v Lloyds Bank Plc: CA 14 Nov 2013

The court was asked: ‘A spends money seeking a judgment for the recovery of a debt from B. A fails to recover the debt because, so the court holds, the debt is not in fact owed by B to A (as A mistakenly thought), but owed by B to C. C then recovers the debt, relying on the judgment in A’s unsuccessful claim. The question raised in this appeal is whether A has a claim based on unjust enrichment against C, enabling him to recover the money expended on obtaining the judgment. ‘
Floyd LJ discussed the case of Ruabon Steamship: ‘the House of Lords . . was not looking at the case through the eyes of the modern law of unjust enrichment’

Judges:

Beatson, Floyd LJJ, Sir Stanley Burnton

Citations:

[2013] EWCA Civ 1415, [2013] 2 CLC 810, [2013] WLR(D) 437, [2014] 1 WLR 2006

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Distinguished – Ruabon Steamship Co v The London Assurance Co HL 1900
Lord Halisbury said: ‘I cannot understand how it can be asserted that it is part of the common law that where one person gets some advantage from the act of another, a right of contribution towards the expense from that act arises.’ Rejecting the . .

Cited by:

Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 26 July 2022; Ref: scu.517758

Relfo Ltd (In Liquidation) v Varsani: CA 28 Mar 2014

Judges:

Arden, Gloster, Floyd LJJ

Citations:

[2014] EWCA Civ 360, [2015] BCLC 14

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 26 July 2022; Ref: scu.523349

Investment Trust Companies v Revenue and Customs: ChD 26 Mar 2013

The claimant investment Trust companies sought repayment of taxes paid in error by way of restitution.
Held: The range of the the law of restitution to recover any tax unlawfully exacted was to be be restricted to those situations where the sums paid to the public authority were so paid in fulfilment of an apparent statutory requirement to do so.

Judges:

Henderson J

Citations:

[2013] EWHC 665 (Ch), [2013] WLR(D) 125

Links:

Bailii, WLRD

Statutes:

Value Added Tax Act 1994 80(7)

Jurisdiction:

England and Wales

Citing:

Principle Judgment – Investment Trust Companies v HM Revenue and Customs ChD 2-Mar-2012
The claimant had properly accounted for VAT on its transactions for many years, but a decision of the European court had latterly ruled that the services were exempt. The claimant sought restitution from HMRC, who responded by arguing that . .

Cited by:

AT ChD (2) – Investment Trust Companies v Revenue and Customs CA 12-Feb-2015
The claimants having sought repayment of overpaid VAT, they now complained of sums deducted by the Revenue.
Held: The Court allowed the Lead Claimants’ appeal, to the extent of the notional pounds 75 paid in respect of dead periods, and . .
At ChD (2) – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Lists of cited by and citing cases may be incomplete.

VAT, Equity

Updated: 26 July 2022; Ref: scu.472042

Menelaou v Bank of Cyprus UK Ltd: CA 4 Jul 2013

The court set out answers to consequential questions raised by their judgment, and the form of declaration required.

Judges:

Moses, Tomlinson, Floyd LJJ

Citations:

[2013] EWCA Civ 814

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

At ChD – Menelaou v Bank of Cyprus Plc ChD 19-Jul-2012
On the sale of the claimant’s property, the solicitors received agreement by the defendant bank to the release of their charge over the property for a certainsum, being less than the loan outstanding. In the course of discharging the loan, a bank . .

Cited by:

See Also – Bank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 26 July 2022; Ref: scu.512161

Rhodes v Macalister: CA 1923

The plaintiff agent acted to find a seller of mineral rights for the defendant principal. He told his principal that the properties could be purchased for from andpound;8,000 to andpound;10,000. If the agent could find a seller at below andpound;9,000, then, the defendant agreed, the plaintiff could have the difference between the actual price and andpound;9,000. The agent found a seller at andpound;6,625 and claimed the difference, viz. andpound;2,375. But secretly the agent had also negotiated with the seller, at a time when they made the contract with the buyer, to be paid a commission on the sale. Lush J had found for the defendant.
Held: The agent’s claim failed. It made no difference to the agent’s position that no damage was caused to his principal, or that the principal may be advantaged by the agent’s breach of duty in accepting the secret commission.
Bankes LJ said: ‘There seems to be an idea prevalent that a person who is acting agent or servant of another is committing no wrong to his employer in taking a commission or bribe from the other side, provided that in his opinion his employer or principal does not have to pay more than if the bribe were not given. There cannot be a greater misconception of what the law is, or what the duty of a servant or agent towards his master or principal in reference to such maters is, and I do not think the rule can too often be repeated or its application more frequently insisted upon. . . what was [the agent’s] position and what was his duty. Of course, as long as he was acting for the vendors of these properties only he was perfectly entitled to suggest to them that they should fix a price which would include a commission to himself, and he would be perfectly justified in receiving that commission or putting forward the price to an intending purchaser as the only price which he could persuade the vendors to give, so long as that was his real opinion. But the moment he accepted the position of agent for the intending purchasers his entire position in law changed. He could no longer consistently with his duty, unless he disclosed the facts, act as agent for the vendors to procure purchasers with the result of some commission or payment to himself. He could not retain that position consistently with his duty to the purchasers of obtaining these properties at as low a price as he possibly could. . . the moment he accepted the position of agent to procure these properties as cheap as possible for the intending purchasers his interest and duty conflicted, and he could no longer act honestly towards the intending purchasers without disclosing to them that in that figure of andpound;8,000 to andpound;10,000 which he had mentioned as the probable price of these properties he had included a figure which he intended should cover a commission to himself.’
Scrutton LJ said: ‘I agree with the judgment that has just been delivered and I only propose to re-state it in my own words because I think it is of very great importance that the principle upon which we are acting should be thoroughly understood, and from Mr Vachell’s argument it is not thoroughly understood by commercial men, especially in that part of the country from which his clients appear to come . . The law I take to be this: that an agent must not take remuneration from the other side without both disclosure to and consent from his principal. If he does take such remuneration he acts so adversely to this employer that he forfeits all remuneration from the employer, although the employer takes the benefit and has not suffered a loss by it. . . I hope it is thoroughly understood in London; and if it is not thoroughly understood in the Forest of Dean, then the sooner it is understood there the better for commercial honesty.’ and
‘But I decide it on the broad principle that whether it causes damage or not, when you are employed by one man for payment to negotiate with another man, to take payment from that other man without disclosing it to your employer is a dishonest act. It does not matter that the employer takes the benefit of his contract with the vendor; that has no effect whatever on the contract with the agent, and it does not matter that damage is not shown. The result may actually be that the employer makes money out of the fact that the agent has taken commission.
In this case, therefore, it appears that as one of the two joint agents has, in breach of his duty, taken commission from the other side, he forfeits, and they both forfeit, all right to remuneration from their employer. The more that principle is enforced the better for the honesty of commercial transactions. I have only repeated what my Lord has said because it cannot be repeated too often to commercial men – that in matters of agency they must act with strict honesty.’
Atkin LJ said: ‘This is a class of case where the Courts always have maintained, and do maintain, and I trust always will maintain, a very high standard of conduct on the part of agents. It is a standard of conduct which I am afraid sometimes conflicts with the standard of conduct adopted for themselves by commercial men – not by honourable men in commerce, but by a great many men engaged in mercantile transactions. I entirely agree with what has been said as to the importance of repeating and letting it be known as widely as possible what the standard of conduct expected of an agent is at law. . . Now that is not an impossible standard of attainment. It is laid down by the law and it is in respect of a practical matter. The remedy is a very simple one and it is well within the compass of any ordinary business man. The complete remedy is disclosure, and if an agent wishes to receive any kind of remuneration from the other side and wishes to test whether it is honest or not, he has simply to disclose the matter to his own employer and rest upon the consequences of that. If his employer consents to it, then he has performed everything that is required of an upright and responsible agent.’

Judges:

Bankes, Scrutton, Atkin LJJ

Citations:

(1923) 29 Com Cas 19

Jurisdiction:

England and Wales

Citing:

Approved – Boston Deep Sea Fishing and Ice Co v Ansell CA 1888
An employer having dismissed an employee (its managing director) later learnt of the employee’s fraud.
Held: The employer was allowed to rely upon that fraud to justify the dismissal. Where an agent is in wrongful repudiation of his contract . .
Approved – Andrew v Ramsay and Co 1903
The defendant had been employed as agent by the plaintiff to sell property belonging to the plaintiff. The defendant achieved this and was paid his commission, but had also taken a secret commission from the buyer. The plaintiff sought repayment of . .

Cited by:

Cited – Imageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
Cited – FHR European Ventures Llp and Others v Mankarious and Others ChD 5-Sep-2011
The claimants sought return of what it said were secret commissions earned by the defendants when working as their agents, and the defendants counterclaimed saying that the commissions had been known to the claimants and that additional sums were . .
Lists of cited by and citing cases may be incomplete.

Agency, Equity

Updated: 26 July 2022; Ref: scu.282636

Taylor v Laird: 10 Jun 1856

Pollock CB asked: ‘One cleans another’s shoes; what can the other do but put them on?’

Judges:

Pollock CB

Citations:

[1856] EngR 648, (1856) 1 H and N 266, (1856) 156 ER 1203, (1856) 25 LJ Ex 329

Links:

Commonlii

Jurisdiction:

England and Wales

Equity, Transport

Updated: 26 July 2022; Ref: scu.291403