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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Contract - From: 1991 To: 1991

This page lists 31 cases, and was prepared on 20 May 2019.

 
Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) [1991] 2 LLoyds Rep 40
1991
ChD
Evans J
Contract, Transport
The ship was returned late from a charter. The court was asked whether or not the legitimacy of the last voyage fell to be established at the date when the order was given or at the time when the last voyage began. Held: It was the second: "the charterer does commit a breach of contract by failing to redeliver at the end of the charter period and is liable in damages, if the market rate exceeds the charter rate, as well as for hire until redelivery takes place".
1 Citers


 
Patten v Burke Publishing Ltd [1991] 1 WLR 527
1991
ChD
Millet J
Contract, Litigation Practice
The publisher to whom the plaintiff author had sold the rights to his book became insolvent. He sought a declaration that it would be in breach of the contract. Held: The guiding principle which determines how the discretion is to be exercised whether to grant declarations is that the Court must do what is necessary to achieve justice. If a contract had been repudiated, and was no longer in effect, a declaration would be the way to achieve fullest justice by making it clear to the plaintiff that he was free of the contract.
1 Citers


 
Scally v Southern Health and Social Services Board [1991] 4 All ER 563; [1992] 1 AC 294; [1991] IRLR 525
1991
HL
Lord Bridge
Northern Ireland, Health Professions, Contract, Damages, Employment
The plaintiffs were junior doctors employed by the respondents. Their terms had been collectively negotiated, and incorporated the Regulations. During the period of their employment different regulations had given and then taken way their right to purchase additional superannuation contributions. They had not been told of the rights and had failed to exercise them. They claimed damages for breach of contract and of statutory duty. Held: The term was valuable and not negotiated with the plaintiffs. The defendants had a duty to bring the new rights to their attention. "If a duty of the kind in question is not inherent in the contractual relationship, I do not see how it could possibly be derived from the tort of negligence." The claims were not time barred because the obligation to inform had been continuing.
Contracts of Employment and Redundancy Payments Act (Northern Ireland) 1965 4(1) 5 - Health Services (Superannuation) Regulations (Northern Ireland) 1962 (1962 (NI) 237) - Health Services (Superannuation) (Amendment) (Number 3) Regulations (Northern Ireland) 1974 (1974 (NI) 327)
1 Citers


 
East v Mawer [1991] 1 WLR 461
1991
CA

Contract

Misrepresentation Act 1967
1 Citers


 
Hewcastle Catering Ltd v Ahmed and Elkamah [1992] ICR 626; [1991] IRLR 473
1991
CA

Employment, Contract
The employers devised a VAT evasion scheme depending in part on the co-operation of the employees, but the employees themselves received no benefit. After giving evidence against their employers, the plaintiffs were dismissed. The employer appealed a finding of unfair dismissal, saying the employees were to be prevented from relying upon their unlawful agreement. Held: Public policy would be against making such a claim impossible. A contract would be void for illegality if in all the circumstances it would be an affront to the public conscience to allow it to be enforced. Such a defence should not succeed where the defendant's own conduct was signficantly more reprehensible than the claimant's.
Value Added Tax Act 1983 2(3) 39(1) 39(2) - Customs and Excise Management Act 1979 152
1 Citers


 
Wright v Tennent Caledonian Breweries Ltd 1991 SLT 823
1991
IHCS
Lord Allanbridge, Lord Sutherland Lord President Hope
Contract
The court sought to construe a deed of variation of a loan agreement. In the case of two or more individuals, the obligations and conditions affecting the borrower were to be binding on the individuals "jointly and severally". Despite this, one of the debtors submitted that her liability under the loan agreement was only pro rata, because it would have required clear provisions in the deed of variation to incorporate the joint and several liability into the loan agreement. Held: The court rejected that argument. Lord Allanbridge: "In my opinion the statement in clause 1.03 of the deed of variation that the obligations and conditions affecting the borrower shall be binding on two or more persons jointly and severally goes beyond a mere definition of the expression 'the borrower'. It is concerned not with the question who is to be taken to be the borrower - that is to say, with the person or persons to whom that expression extends - but with the measure of the obligations undertaken by those persons in that capacity." The whole structure of the loan agreement as varied "including the use of the expression 'the borrower' in the singular at the outset to describe the two persons who are to receive the loan" confirmed his view that the debtors' liability under the agreement was joint and several (as opposed to pro rata).
1 Citers


 
The Amazonia [1991] Lloyd's Rep 236
1991
CA
Dillon LJ
Contract
The court rehearsed the doctrine that a common mistake as to the law would vitiate a contract, Though the rule was well established, the particular contract was void on the basis of a mistake as to foreign law because foreign law is to be treated by the English courts as a question of fact.
1 Cites

1 Citers



 
 Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd; HL 1991 - [1991] 2 AC 249; [1990] 1 QB 665; [1990] 2 All ER 947; (1990) 6 ANZ Insurance Cases 60-987; [1990] 3 WLR 364
 
Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd (1991) 58 SASR 184
1991

King CJ
Contract, Commonwealth
The court considered the creditor's duty of disclosure to a surety. Held: The duty of disclosure extends to any unusual feature surrounding the transaction between the creditor and the surety (a) of which the creditor is or ought to be aware, (b) of which the surety is unaware, and (c) which the creditor appreciates, or in the circumstances ought to appreciate, might be unknown to the surety and might affect the surety's decision to become a surety.
1 Citers


 
Royscot Trust Ltd v Rogerson [1991] 2 QB 297; [1991] EWCA Civ 12
1991


Damages, Torts - Other, Contract, Damages
Doyle -v- Olby (Ironmongers) Ltd was an appropriate way of assessing damages for an action under the Act, and damages are calculated on the basis of fraud.
A client misled into an investment is entitled to the measure of damages he would receive for a fraud.
Misrepresentation Act 1967 2(1)
1 Cites

1 Citers

[ Bailii ]
 
Crittal Windows Ltd v Stormseal (UPVC) Window Systems Ltd [1991] RPC 265
1991

Scott J
Contract

1 Citers


 
Elpis Maritime Company Limited v Marti Chartering Company Limited (The Maria D) [1991] 3 WLR 330; [1992] 1 AC 21; [1991] 3 All ER 758; [1991] 2 Lloyds Rep 311
1991
HL
Lord Brandon
Contract, Transport
Brokers (Marti) were to guarantee a charter on the Gencon form, which contained, as one of the additional typed clauses a provision (Clause 24) in the following terms: "Demurrage guaranteed and payable directly by charterers to owners. However Marti guarantees about outstanding demurrage, if any, and for balance freight" The brokers stamped and signed the front page "For and on behalf of charterers as brokers only". The intervening pages were, so far as the brokers were concerned, simply stamped with the brokers' stamp without any indication of capacity. The last page (which was the last page of the typed additional clauses 18-55) bore the brokers stamp and a signature below the words "Charterers". There was an oral contract, made in the course of telephone conversations, by which Marti guaranteed the liabilities of the charterers in respect of demurrage and the balance of the freight. Held: Lord Brandon indicated that there were two possibilities: a) Marti signed the page containing clause 24 as a contracting party, in which case the prior oral agreement of guarantee was subsumed in the written agreement signed by Marti on its own account so that there was a written agreement of guarantee signed by the person to be charged therewith and enforceable in the first of the two ways prescribed by the Statute; and b) Marti signed the charterparty, including clause 24, solely as agents of the charterers, in which case the signature, although affixed as agent for the charterers, was nevertheless a note or memorandum of the prior oral agreement. It was irrelevant with what intention or in what capacity Marti signed. Held: The contention failed. It was irrelevant in what capacity or with what intention the document there being considered was signed. What mattered was the signature.
1 Cites

1 Citers


 
Chapman v Aberdeen Construction Group [1991] IRLR 505
1991

Lord Caplan
Contract, Employment, Scotland
It having been conceded that contracts of service fell within section 15 of the 1977 Act, the court found that the question whether the contract was a consumer contract depended on the circumstances. Though the employee pursuer was to be regarded as a consumer in relation to his contract of employment with the defenders, the term consumer may not sit comfortably on an employee in relation to his work.
Unfair Contract terms Act 1977 15
1 Citers


 
Concordia Trading B V v Richco International Ltd [1991] 1 Lloyd's Rep 475
1991

Evans J
Contract
Under a FOB contract the sellers sold to the buyers a quantity of Argentine soya beans. The contract incorporated the provisions of GAFTA 64 (General Contract FOB Terms for Grain in Bulk) which included clause 24 default (set out in part at page 480 of the judgment). The contract was part of a string. The sellers failed to present documents. In the event the documents were tendered to the end buyer and receiver of the cargo and were accepted and paid for. Later, the vessel carried the goods to Odessa and discharge began. The buyers claimed damages in respect of the sellers' default in not tendering documents, contending that the date of default was 29.9.87. The sellers argued (i) that the date of their (undisputed) default in failing to tender the documents to the buyers took place later again when the documents would normally have become available to the buyers and (ii) the market price of the goods (or the documents representing the goods) was ubstantially lower than the contract price and the buyers were only entitled to nominal damages. The dispute was referred to arbitration. The Board of Appeal accepted the buyers' contention that the sellers' default took place on 29 September. In their award they stated that the sellers were not in default until the day it was no longer possible for them to purchase the documents for the goods in order to fulfil the contract, which was 28 September. The basis for the award was that as the contract was silent as to the time for performance of the sellers' obligation to tender the documents to the buyers, this was by legal implication a reasonable time, and such time continued until it became impossible for the sellers to obtain the documents. The sellers appealed, the question of law for decision being whether the Board were wrong in law in holding that the date of default was 29 September, and if so by reference to what criteria should the date of default be established? Evans J held that there was on the FOB seller who was obliged by his contract to obtain and tender the shipping documents, a duty to perform that obligation forthwith i.e. with all reasonable despatch, subject to there being no express provision or time limit to the contrary in the contract. The sellers' duty to send forward the documents forthwith remained the same as in the general case even though a string, circle or insolvency was involved. Since the sellers' obligation was to tender the shipping documents forthwith and they were in breach of contract if they failed to do so, it seemed likely that that duty should have been performed on or shortly after 5 August, but that was for the Board of Appeal to decide. The question raised is the "date of default" for the purposes of the present contract. In Toprak Mansulleri Ofisi v Finagrain Compagnie Commerciale Agricole et Financière S.A., [1979] 2 Lloyd's Rep. 98 Mr Justice Robert Goff (as he then was) held at p. 109 that the same words "in default of fulfilment of contract" in cl. 28 of GAFTA 27 –...meant, quite simply, the day on which [the buyers] failed to perform the obligation which entitled the sellers to determine the contract

 
The Black Falcon [1991] I LLR 77
1991

Steyn J
Contract, Transport
The ship under charter was returned late. The arbitrators had awarded the market rate of hire from the date when the vessel would have been delivered if she had not undertaken her last (illegitimate) voyage rather than from the last date when she could have been delivered without a breach of charterparty. Held: The courtoverturned the award: "In my judgement the arbitrators' approach conflicts with the principle governing the calculation of damages which was enunciated in The Dione . . A study of the judgments of the majority reveals that this case is authority for the proposition that in circumstances where the owners undertook the illegitimate last voyage without waiving their rights to claim damages, the charterers' obligation is to pay the charter rate until the last permissible date for redelivery, and thereafter pay the market rate until the actual redelivery . . I am of course bound by this decision. But . . I would have come to the same conclusion in the absence of authority."
1 Citers


 
Dimskal Shipping Co SA v International Transport Workers Federation ("The Evia Luck") [1991] 4 All ER 871; [1992] 2 AC 152; [1992] 1 Lloyds Rep 115; [1992] IRLR 78; [1992] ICR 37; [1991] 3 WLR 875
1991
HL
Lord Goff of Chievely
Contract
The Plaintiff shipowners had been induced by industrial action against a vessel in Sweden, which actions would be lawful under Swedish law, to undertake to enter into written agreements with the ITF under which, inter alia, more generous agreements were to be entered into for payment of the crew, back-dated and back pay was to be paid under these. One of the documents signed provided that the undertaking was to be governed by English law. The Plaintiffs purported to avoid the agreements for duress and to recover the monies that they had paid under them. Held: The House considered the developing law of economic duress. The contract had to be avoided before a claim for restitution could be maintained. The question of whether economic pressure constituted duress of such a kind as to entitle the innocent party to avoid the contract is to be determined by reference to the proper law of the contract. In order to justify avoidance of a contract, the economic pressure must be such as to be called illegitimate.
Lord Goff said: "I start from the generally accepted proposition, embodied in rule 184 set out in Dicey & Morris, The Conflict of Laws, 11th ed. (1987), vol.2, p.1213, that the material or essential validity of a contract is governed by the proper law of the contract, which in the present case is English law. Rule 184 is one of a ground of rules (rules 181-187) concerned with the scope of application of the proper law of a contract. It is expressed to be subject to two exceptions. The first exception asserts that a contract is generally invalid in so far as its performance is unlawful by the law of the place of performance; with that exception we are not, in my opinion, here concerned. The second (which is not strictly an exception to rule 184) concerns the primacy of what used to be called the distinctive policy of English law over any provision of foreign law, in so far as such provision might be relevant to the validity or invalidity of a contract; to that topic, I will briefly return in a moment.
Accordingly in the present case we look to English law, as the proper law, to discover whether the contract may, as a matter of principle, be affected by duress and, if so, what constitutes duress for this purpose; what impact such duress must have exercised upon the formation of the contract; and what remedial action is available to the innocent party. We know, of course, that by English law a contract induced by duress is voidable by the innocent party; and that one form of duress is illegitimate economic pressure, including the blacking or the threat of blacking of a ship. I can see no reason in principle why, prima facie at least, blacking or the threat of blacking a ship should not constitute duress for this purpose, wherever it is committed - whether within the English jurisdiction or overseas; for in point of fact its impact upon the contract does not depend upon the place where the relevant conduct occurs.
It follows therefore that, prima facie at least, whether or not economic pressure amounts to duress sufficient to justify avoidance of the relevant contract by the innocent party is a matter for the proper law of the contract, wherever that pressure has been exerted. Here, of course, the proper law is English law. Moreover in the present case there was at the relevant time no applicable statutory provision of English law which required that blacking or the threat of blacking should not be regarded as duress. So, unencumbered by any such provision, we are left simply with an English contract which is voidable by the innocent party if the formation of the contract has been induced by duress in the form of blacking or the threat of blacking a vessel. The question then arises whether there is any basis in law for rejecting this simple approach, on the ground that the conduct in question was lawful by the law of the place where it occurred, viz. Swedish law.
Before your Lordships, it was the primary submission of Mr. Burton on behalf of the I.T.F. that in relation to any duress abroad, in English law the court should, subject to overriding questions of public policy, look to the law of the place of duress to test its lawfulness or legitimacy. I of course accept that, if Mr. Burton's submission is correct, it must be subject to the qualification that, if it was inconsistent with the distinctive policy of English law to treat the relevant conduct as lawful, the English courts (consistently with the second exception to rule 184 in Dicey & Morris, The Conflict of Laws) would refuse to do so. But the question is whether Mr. Burton's submission is correct. I have to say that I know of no authority which supports his submission which, if correct, would require the recognition and formulation of a fresh exception to rule 184 in Dicey & Morris."
1 Citers


 
Sealace Shipping Co Ltd v Oceanvoice Ltd, The Alecos M [1991] 1 Lloyd's Rep 120
1991
CA
Neill LJ
Contract, Damages
The parties contracted for the sale of a ship, including a spare propeller. When the ship was delivered there was no spare propeller. It was common ground that there was no market for secondhand propellers. So the only way of providing a spare propeller would have been to commission the manufacture of a new propeller at great expense. The arbitrator had held that this would be unreasonable. Instead, he awarded the scrap value of the propeller, since that was all the buyer had actually lost by reason of the seller's breach. Held: The arbitrator's decision was upheld
Neill LJ said: "I can only read his award as meaning that he asked the question: what did these buyers really suffer as a result of the non-delivery of this spare propeller with this vessel? And he gave the answer: they lost its scrap value which in the circumstances was the only value which it had for them."
1 Citers


 
Goff v Gauthier [1991] 62 PandCR 388
1991


Land, Contract

1 Citers



 
 Hawker v Vickers; 1991 - [1991] 1 NZLR 399
 
The Peonia [1991] I Lloyd's Rep 100
1991
CA
Lord Justice Bingham, Lord Justice Slade
Damages, Transport, Contract
The ship had been returned beyond the charter date. The court was asked whether, when the vessel was sent on a legitimate last voyage but, through no fault of the charterers, was then redelivered after the final terminal date, the owners were entitled in respect of the overrun period to hire at the market rate (if higher than the charterparty rate) or only at the charterparty rate. Held: The owners could claim the market rate. In relation to an illegitimate last voyage Lord Justice Bingham said that the owner: "was entitled to payment of hire at the charterparty rate until redelivery of the vessel and (provided he does not waive the charterer's breach) to damages (being the difference between the charter rate and the market rate if the market rate is higher than the charter rate) for the period between the final terminal date and redelivery".
Lord Justice Slade: "The judgments of Lord Denning MR and Lord Justice Browne in The Dione …are, in my opinion, on a proper analysis, authority binding this Court for the proposition that if charterers send a vessel on a legitimate last voyage and the vessel is thereafter delayed for any reason (other than the fault of the owners) so that it is redelivered after the final terminal date, the charterers will (in the absence of agreement to the contrary) be in breach of contract and accordingly, if the market rate has gone up, will be obliged to pay by way of damages the market rate for any excess period after the final termination date up to redelivery…"
1 Citers


 
Regina v Lord Chancellor, ex parte Nangle [1991] ICR 743; [1992] 1 All ER 897
1991
CA

Employment, Contract, Judicial Review
The applicant was a Civil Servant seeking judicial review of the Department's decision to discipline him. The issue was whether he had a contract of employment or merely a relationship with the Crown, regulated under its prerogative powers. There were a number of documents which, together, comprised Mr Nangle's appointment. There was a letter of appointment which cross referred to other documents which either were enclosed with the letter or were readily available elsewhere. Held: The question whether there was an intention to create legal relations had to be ascertained objectively, and where the terms of the relationship are to be derived solely from the documents, its answer depends upon the construction of those documents: "[I]n our judgment, that the question whether there is an intention to create legal relations is to be ascertained objectively, and where the terms of the relationship are, as here, to be derived solely from the documents, depends upon the construction of those documents. It is possible for a party to believe mistakenly that he is contractually bound to another when in fact he is not; and conversely to believe that he is not when he is. His belief is immaterial. While this remains a subjective belief uncommunicated to the other party, this is plainly correct. But where such a belief is expressed in the documents it must be a question of construction of the documents as a whole what effect should be given to such a statement."
Civil servants enter into legal relations with the Crown in the form of contracts of employment: "In our judgment the use of the word "appointment" is neutral and certainly does not negative an intention to create legal relations. Many contractual relationships of employer and employee are described as appointments".

 
Rockeagle Ltd v Alsop Wilkinson [1992] Ch 47; [1991] 4 All ER 659
1991
CA

Contract, Land
The position of a stakeholder and the two potential claimants to a stake is the subject of a tripartite contract. The relationship between the stakeholder and the two potential claimants is contractual, not fiduciary. The money is not trust money. The stakeholder is not a trustee or agent; he is a principal who owes contractual obligations to the potential claimants to the stake.
At common law, before settlement, if both parties agree as to the way in which the deposit should be paid or otherwise transferred, the stakeholder is obliged to follow that requirement.
Farquharson LJ said: "It is clear from the authorities, and in particular Potters v Loppert [1973] Ch. 399, that the duties and authority of a stakeholder lie in contract or quasi-contract and not as trustee".
1 Cites

1 Citers



 
 Lark v Outhwaite; 1991 - [1991] 2 Lloyds Rep 132
 
Office Angels Ltd v Rainer-Thomas [1991] IRLR 215
1991
CA
Sir Christopher Slade
Employment, Contract
The court re-stated the principles applicable in testing whether an employee's restrictive covenant was reasonable: "The court cannot say that a covenant in one form affords no more than adequate protection to a covenantee's relevant legitimate interests if the evidence shows that a covenant in another form, much less far-reaching and less potentially prejudicial to the covenantor, would have afforded adequate protection."
The court nevertheless identified a prototype non-solicitation covenant likely to be effective in most cases where there was a need to protect a client connection or a goodwill: "At least at first sight, a suitably drafted covenant precluding the defendants, for a reasonable period of time after the termination of their employment, from soliciting or dealing with clients of the plaintiff with whom they had dealt during the period of their employment would appear to have been quite adequate for the plaintiff's protection in this context."
Sir Christopher Slade said: "The employer's claim for protection must be based upon the identification of some advantage or asset inherent in the business which can properly be regarded as,in a general sense, his property, and which it would be unjust to allow the employee to appropriate for his own purposes, even though he, the employee, may have contributed to its creation."
1 Cites

1 Citers


 
Rath v CS Lawrence and Partners (PJ Cook and Co) (a Firm) (Third Party) [1991] 1 WLR 399
1991
CA

Limitation, Contract
The plaintiff bought the property in 1982, relying on the defendant's survey, which later proved incorrect having failed to identify subsidence. The writ was issued in 1984. Delays before the expiry of the limitation period led the defendant to apply to dismiss the claim for inordinate and inexcusable delay. Held: The plaintiff's appeal against dismissal failed. Once the claim was issued, the plaintiff was under a duty to proceed with reasonable diligence, and delay after issue, and even within the limitation period could justify dismissal.
1 Cites

1 Citers



 
 Sainsbury v O'Connor; CA 1991 - [1991] 1 WLR 963
 
Spiro v Glencrown Properties Ltd and Another [1991] Ch 537; [1991] 1 All ER 600; [1991] 2 WLR 931
1991
ChD
Hoffman J
Land, Contract
The court considered the nature of an option to buy land. Hoffman J said: "The granting of the option imposes no obligation upon the purchaser and an obligation upon the vendor which is contingent upon the exercise of the option. When the option is exercised, the vendor and purchaser come under obligations to perform as if they had concluded an ordinary contract of sale . . The exercise of an option is a unilateral act. It would destroy the very purpose of the option if the purchaser had to obtain the vendor's counter signature to the notice by which it was exercised."
The exercise of an option by notice does not make the notice a contract. The courts have moved away from construing an option as an irrevocable offer as opposed to a conditional contract which arises only when the grantee seeks to exercise unilaterally the option.
Hoffman J spoke as to the Law Commissions report leading to the 1989 Act: "The recommendation that contracts relating to land should be incorporated in a signed document which contains all the terms was, clearly, intended to promote certainty. There is no reason why certainty should be any less desirable in relation to arrangements for security over land than in relation to any other arrangements in respect of land. The present case itself illustrates the need to be able to identify the obligation which is to be secured. I do not find it surprising that Parliament decided to enact legislation which would be likely to have the effect of avoiding disputes on oral evidence as to the obligations which the parties intended to secure".
Law of Property Act 1925 40 - Law of Property (Miscellaneous Provisions) Act 1989 2
1 Citers



 
 Criminal proceedings against Di Pinto; ECJ 14-Mar-1991 - C-361/89; [1991] EUECJ C-361/89; [1991] ECR I-1189
 
Neilson v Stewart [1991] UKHL 13; 1991 SC (HL) 22; 1991 SLT 523; [1991] BCC 713
21 Mar 1991
HL
Lord Jauncey of Tullichettle
Scotland, Contract, Company
The parties disputed whether a completed agreement existed between them. Held: Lord Jauncey of Tullichettle said: "The fact that in the usual case a particular term will be considered essential to the existence of a concluded agreement does not prevent parties from contracting in a peculiar case that it shall not be essential."
1 Citers

[ Bailii ]

 
 Lipkin Gorman (a Firm) v Karpnale Ltd; HL 6-Jun-1991 - [1991] 2 AC 548; [1988] UKHL 12; [1991] 3 WLR 10

 
 Golden Bay Realty Private Ltd v Orchard Twelve Investments Pte Ltd Co; PC 22-Jul-1991 - [1991] UKPC 28
 
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