The parties had settled terms for concluding business arrangements between them. The agreement released and referred all claims in law and in equity ‘save for fraud’ to the UK courts. The respondents now wanted to bring a case alleging breach of a contractual or fiduciary duty, and to bring the case in the US, saying that as the claims amounted to fraud, and were there excluded from the jurisdiction provision. The claimants sought an order to prevent them.
Held: The concept of dishonesty was not an essential element of a fraud. Looking at the contract, any claim for fraud was to be brught in England. The judge had incorrectly conflated ‘claims in fraud’ and ‘in the case of fraud’. This narrowed down the the phraseology of the release. The word ‘fraud’ did not require as an essential element an allegation of dishonesty. The document was an international commercial one, and it would be wrong to import too narrow a meaning: ‘in the commercial context of this case the concept of ‘fraud’ is wider than the concept of the tort of deceit where a fraudulent misrepresentation (or equivalent) is required.’
Mummery, Longmore, Toulson LJ
[2009] EWCA Civ 1363, Times 12-Jan-2010, [2010] Lloyd’s Rep FC 197, [2009] 2 CLC 991
Bailii
England and Wales
Citing:
Appeal from – Cavell USA Inc and Another v Seaton Insurance Company and Another ComC 11-Dec-2008
The court gave preliminary rulings as to the meanings on a term sheet signed by both parties which set out arrangements for the termination of other agreements between them. The sheet had released the second defendant from all claims ‘whether in law . .
Cited – Reddaway and Co Ltd v Banham and Co Ltd HL 1896
The plaintiff manufactured and sold Camel Hair Belting. The defendant also began to sell belting made of camel’s hair in the name of Camel Hair Belting. The trader claimed a right in the term ‘Camel Hair’.
Held: The term was descriptive. Where . .
Cited – Satyam Computer Services Ltd v Upaid Systems Ltd CA 9-May-2008
The parties had settled their action, but the claimant now wished to assert that the compromise was based on a concealed fraud. The defendant argued that the agreement precluded re-opening the case.
Held: It was only by the clearest of words . .
Cited – Welham v Director of Public Prosecutions HL 1961
The House considered what was required to establish an ‘intent to defraud’.
Held: Lord Radcliffe said: ‘Now, I think that there are one or two things that can be said with confidence about the meaning of this word ‘ defraud ‘. It requires a . .
Cited – Barclays Bank v Cole CA 1966
There was a bank robbery and the robber had paid in part of the stolen proceeds into another branch of the same bank and the bank sued the robber to recover the stolen monies after the robber had been convicted of robbery and the robber had claimed . .
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 – Kensington International Ltd v Republic of Congo CA 7-Nov-2007
The defendants appealed against orders requiring them to disclose documents in an action regarding the payment of bribes, saying that the requirement effectively required them to incriminate themselves.
Held: The appeal failed. The public . .
Lists of cited by and citing cases may be incomplete.
Insurance, Torts – Other
Updated: 01 November 2021; Ref: scu.384147
