swarb.co.uk - law index
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Agency - From: 1997 To: 1997
This page lists 10 cases, and was prepared on 02 April 2018.
Bristol and West Building Society v Fancy and Jackson and similar [1997] 4 All ER 582
1997
ChD
Chadwick J
Agency, Legal Professions
The solicitor defendants (and others) had acted for both the lender and the borrower. Under their retainer they were required to notify the lender of any matters which might prejudice its security. The solicitors failed in one case to report that they did not have an official search certificate, in another case to report circumstances that suggested that the true price was lower than the basis on which the advance was made, and in a third case to report circumstances which might have suggested the need for a further valuation. Held: In Fancy and Jackson there was no loss for which the solicitor was responsible. In the second case (Steggles Palmer) the solicitor was responsible for all the consequences of the borrower entering the transaction, because the lender, if it had known what it should have known, would have been unwilling to lend to that borrower at all; and in the third case (Colin Bishop), the solicitor should be liable only for what any further valuation would have shown was the extent of the overvaluation concerned, a matter yet to be adjudicated.
Chadwick J said: "In circumstances where the lender and the borrower instruct separate solicitors, I am not persuaded that a competent solicitor, acting for the lender, would be acting unreasonably if he accepted from the borrower's solicitor a mortgage deed which appeared on its face to have been executed by the mortgagors and witnessed. If there was nothing irregular on the face of the document the lenders' solicitor would be entitled to accept it without question. He would not be required to enquire into the circumstances in which it was executed. But - and this is, of course, an important safeguard - the lender would have the benefit of the implied warranty of authority given by the borrowers' solicitor that he has the authority of the borrowers to complete the mortgage by delivering the mortgage deed - see the judgments of the Court of Appeal in Penn v Bristol & West . . I can see no reason why the position should be different in the circumstances that the same solicitor acts for both the lender and the borrowers. I do not hold that the duty of the solicitor, as solicitor for the lender, is increased by the fact that he acts also for the borrowers: but, equally, I can see no reason why, as solicitor for the borrowers, he should not be taken to warrant to the lender that he is acting for them in the transaction with their authority. That does not, necessarily, mean that that he is warranting that the signature on the mortgage deed is authentic; but it has much the same effect."
and: "The fundamental reason why a person, purporting to act as agent for another would normally be deemed to have warranted his authority so to act is to ensure that any person dealing with the supposed agent is protected against the risk that he does not have the authority which he claims. The supposed agent will normally know whether he has the authority which he claims, or the ability to determine whether he has such authority; whereas any party dealing with him will not. So it is only right that the risk of lack of authority should be borne by the agent by way of an implied warranty. That risk normally manifests itself in the fact that, if the agent does not, in truth, have the authority which he claims, the other party will be deprived of any effective redress against the assumed principal. In such circumstances, the warranty of authority will give equivalent redress against the agent. This appears to have been a major consideration in the emergence and development of the doctrine. But its application is not limited to cases where a transaction entered into in reliance on the supposed authority of the agent was with the alleged principal himself. That is demonstrated by a number of reported cases, most recently Penn . . But I nonetheless agree with Mr Berkley that the core problem sought to be addressed by the imposition of a warranty of authority is whether the person acting as agent did or did not have authority so to act."
However: "On the other hand, a person acting on behalf of another will not normally be deemed to warrant any particular attributes of his principal or any other aspects of the transaction in which he claims to be acting on his behalf"
Sovereign Finance v Silver Crest [1997] CCLR 76
1997
Agency
1 Citers
Page v Combined Shipping and Trading Co Ltd [1997] 3 All ER 656; [1996] EWCA Civ 1312
1997
CA
Staughton LJ
Agency, European
Mr Page was taken on to trade in commodities for the defendant for a minimum period of four years. Six months later the defendant's parent company decided to cease trading activities, and he began proceedings claiming compensation under regulation 17 and applied for an injunction to prevent the defendant from moving its assets abroad. The judge dismissed the application on the grounds that, since the defendant could have operated the agreement for the remainder of its term in a way that would not have enabled him to make any money, he did not have an arguable case that he was entitled to recover a significant sum by way of damages. Held: The claimant's appeal succeeded. It was arguable that Mr Page was entitled to recover compensation under regulation 17(7) calculated by reference to the amount of commission he would have earned if the contract had been performed in accordance with the parties' original intention. Staughton LJ: "commercial agents are a down-trodden race and need and should be afforded protection against their principals". The preamble to the Directive: "points fairly strongly to an intention to depart from the domestic legal provisions of the various countries in the Community, or at any rate some of them, and achieve a regime which is new to some and will be the same for all." It was arguable that the Directive and the Regulations provided a remedy that was not available at common law.
Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents 17 - Commercial Agents (Council Directive) Regulations 1993
1 Citers
[ Bailii ]
Society of Lloyd's v D Leighs and Others; Society of Lloyd's v D Wilkinson and Others [1997] CLC 759; [1997] 6 Re LR 214
20 Feb 1997
ComC
Colman J
Insurance, Agency
ComC Lloyd's Litigation - issues relating to recovery from names. Held: A name at Lloyd's grants a power of attorney to the underwriting agent to execute that power which is irrevocable.
1 Citers
Stewart Chartering Ltd v Owners of the ship 'the Peppy'; Stewart Offshore Services (Jersey) Ltd v Silan Maritime Co and Another; AdCt 15-Apr-1997 - [1997] 2 Lloyds Rep 722
Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd and Another; CA 18-Apr-1997 - Times, 12 May 1997; [1997] 2 LL Rep 369; [1997] EWCA Civ 1454
Rudra v National and Provincial Building Society; Stickley and Kent (Risk Management Unit) Ltd; CA 22-Aug-1997 - [1997] EWCA Civ 2310
The National Insurance and Guarantee Corporation Plc v Imperio Reinsurance Company (UK) and Another; ComC 30-Sep-1997 - Unreported, 30 September 1997
Harwood T/A RSBS Group v Smith and Smith and Bedwell Watts and Company (a Firm); CA 14-Nov-1997 - Times, 08 December 1997; [1997] EWCA Civ 2725; [1998] 1 EGLR 5
Scotlife Home Loans (No 2) Limited v Melinek and Melinek; CA 16-Dec-1997 - [1997] EWCA Civ 3012