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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: 1995 To: 1995

This page lists 58 cases, and was prepared on 20 May 2019.

 
Boustany v Piggott [1995] 69 PandCR 298
1995
PC
Lord Templeman
Contract, Equity
In discussing what was said to be unconscionable contract, the Board accepted that "It is not sufficient to attract the jurisdiction of equity to prove that a bargain is hard, unreasonable or foolish; it must be proved to be unconscionable, in the sense that "one of the parties to it has imposed the objectionable terms in a morally reprehensible manner, that is to say in a way which affects his conscience"
1 Cites

1 Citers


 
International Fina Services AG v Katrina Shipping Ltd, The Fina Samco [1995] 2 Lloyd's Rep 344
1995
CA
Neill, Roch and Auld LJJ
Contract
Neill LJ said that it was necessary when construing a commercial document to strive to attribute to it a meaning which accords with business common sense. The primary focus is the agreement itself which "must speak for itself, but . . must do so in situ and not be transported to a laboratory for microscopic analysis".

 
Nationwide Anglia Building Society v Ahmed (1995) 70 P and CR 381
1995
CA
Aldous LJ
Land, Contract
The First Defendant agreed to purchase a business from the Second Defendant for £160,000. £80,000 was raised by way of a secured loan from the plaintiff and was paid to the Second Defendant. The balance of £80,000 was left outstanding and secured by way of a second charge against the property. The arrangements for the sale and purchase of the business and the property were embodied in a contract. The agreement said that the Plaintiffs' charge would rank before the Second Defendant's. A Clause provided that the Second Defendant was to retain the use of the property until the whole of the principal money and. interest due under the agreement had been paid. The transfer and mortgage deed were co-dated with the contract. The First Defendant failed to pay both the Second Defendant, and also the mortgage. In possession proceedings the Second Defendant defended on the grounds that the Plaintiffs were not entitled to possession of the property, the Second Defendant's overriding interest in the property taking priority over the first legal charge. It was argued that the Second Defendant had an unpaid vendor's lien which had priority over the first charge. Held: The submission failed. There was no vendor's lien because the Second Defendant had received all he bargained for when he received the second charge, and the rights under the clause were a contractual licence which could not give rise to an overriding interest. Only proprietary interests can be overriding.
The submission also failed because of the decision in Cann.
Aldous LJ continued: "The submission also fails because the charges, the agreement and the transfer were all signed on the same day namely June 1. Thus, his right to occupation under clause 6 did not accrue prior to the creation of the respondent's charge. In Abbey National Buildins Society v. Cann the House of Lords decided that the relevant date for determining the existence of an overriding interest was the date of registration of the estate affected. In this case that date was August 3, 1990. They went on to hold that to acquire an overriding interest against a chargee by virtue of occupation, the person claiming the interest had to have been in actual occupation at the time of the creation of the legal estate. In this case that was June 1, 1990. They concluded that when a purchaser relied on a building society, such as the respondent, to enable completion, the transactions involved were one indivisible transaction and, therefore, there was no scintilla temporis during which the right to occupation vested free of charge.
The same reasoning is applicable to the facts of this case. On June 1, the contract, the transfer and the legal charges were completed. They formed an indivisible transaction and there was no scintilla temporis during which any right to occupation under clause 6 of the agreement vested in the appellant which was free of the respondent's charge. Thus, the right given by clause 6 did not provide an overriding interest under section 70(1)(g) of the 1925 Act even if the right was a proprietary right.
Mr Collins submitted that that conclusion ignored the reality of the position and that at all times the appellant was in occupation. However that submission ignores the reality of the legal position. The appellant gave up his right to occupy as an unpaid vendor by signing the agreement and thereby obtained permission to occupy, which permission did not take effect prior to the respondent's charge."
1 Citers


 
Aggeliki Charis Compania Maritima SA v Pagnan SpA - The Angelic Grace [1995] 1 Lloyd's Rep 87
1995
CA
Leggatt LJ, Millett LJ, Neill LJ
Jurisdiction, Contract
On the charterers' orders the Angelic Grace was required to tie up alongside another vessel which they owned. Whilst unloading the weather turned and the vessels collided. Each blamed the other and the owners claimed a salvage. The court considered the clause "all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying on business in London." Held: The judgment of Rix J was approved. The parties had most probably wished to have one stop adjudication, so that if a part of the claim or cross claim arose out of the contract it was inherently likely that the parties intended that they should all be heard in one forum if the facts were closely knitted together.
The court rejected the idea that the grant of an injunction to restrain foreign proceedings which were in clear breach of contract would offend against comity. It did so on the basis that it is vexatious and oppressive for a party to maintain proceedings in breach of its agreement not to do so. Millett LJ: "In my judgment, the time has come to lay aside the ritual incantation that this is a jurisdiction which should only be exercised sparingly and with great caution. There have been many statements of great authority warning of the danger of giving an appearance of undue interference with the proceedings of a foreign Court. Such sensitivity to the feelings of a foreign Court has much to commend it where the injunction is sought on the ground of forum non conveniens or on the general ground that the foreign proceedings are vexatious or oppressive but where no breach of contract is involved. In the former case, great care may be needed to avoid casting doubt on the fairness or adequacy of the procedures of the foreign Court. In the later case, the question whether proceedings are vexatious or oppressive is primarily a matter for the Court before which they are pending. But in my judgment there is no good reason for diffidence in granting an injunction to restrain foreign proceedings on the clear and simple ground that the defendant has promised not to being them.
I cannot accept the proposition that any Court would be offended by the grant of an injunction to restrain a party from invoking a jurisdiction which he had promised not to invoke and which it was its own duty to decline.
In my judgment, where an injunction is sought to restrain a party from proceeding in a foreign Court in breach of an arbitration agreement governed by English law, the English Court need feel no diffidence in granting the injunction, provided that it is sought promptly and before the foreign proceedings are too far advanced. I see no difference in principle between an injunction to restrain proceedings in breach of an arbitration clause and one to restrain proceedings in breach of an exclusive jurisdiction clause as in Continental Bank NA v Aeakos Compania Naviera SA, [1994] 1WLR 588. The justification for the grant of the injunction in either case is that without it the plaintiff will be deprived of its contractual rights in a situation in which damages are manifestly an inadequate remedy. The jurisdiction is, of course, discretionary and is not exercised as a matter of course, but good reason needs to be shown why it should not be exercised in any given case."
Leggatt LJ said: "The question in a nutshell is whether the relevant claims and cross-claims arise out of the contract. It is common ground that the question must be answered in the light of The Playa Larga [1983] 2 Lloyd's Law Reports 171, in which the Court upheld the dictum of Mr Justice Mustill that a tortious claim does arise out of a contract containing an arbitration clause if there is a sufficiently close connection between the tortious claim and a claim under the contract. In order that there should be a sufficiently close connection, as the Judge said, the claimant must show either that the resolution of the contractual issue is necessary for a decision on the tortious claim, or, that the contractual and tortious disputes are so closely knitted together on the facts that an agreement to arbitrate on one can properly be construed as covering the other."
1 Cites

1 Citers


 
St Paul Fire and Marine Insurance Co (UK) Ltd v McConnell Dowell Constructors Ltd [1995] 2 Lloyds Rep 116
1995
CA
Evans LJ
Contract, Insurance
The court discussed the general principles as to the meaning of 'inducement' in the context of insurance contract. Held: If the three underwriters who gave evidence had been told the truth, on no view would they have underwritten the insurance at the same premium on terms which included subsidence risk. The court also considered the role played by presumption that if the recipient had known the truth, he would still have been willing to make the contract, but only on different terms, notably, but not only as to premium. "The existence of such a presumption is recognised in the authorities (Halsbury’s Laws vol 31 par 1067) 'Inducement cannot be inferred in law from proved materiality, although there may be cases where the materiality is so obvious as to justify an inference of fact that the representee was actually induced, but, even in such exceptional cases, the inference is only a prima facie one and may be rebutted by counter evidence.' " and there is "the need to distinguish "materiality" from "inducement", although inevitably the two overlap. Here, the evidence of the three underwriters who did give evidence and of the expert witnesses was clear. If the underwriters had been told the true state of the ground conditions, as revealed by the 1982 report, and of the conflicting views expressed by the authors of that report and by Worleys, then they would have called for further information and in all probability either refused the risk or accepted it on different terms. In fact, all four underwriters including Mr Earnshaw accepted it without any relevant enquiries. There is no evidence to displace a presumption that Mr Earnshaw like the other three was induced by the non-disclosure or misrepresentation to give cover on the terms on which he did. In my judgment, these insurers also have discharged their burden of proof."
1 Cites

1 Citers


 
Philips Electronique v British Sky Broadcasting Ltd [1995] EMLR 472
1995
CA
Sir Thomas Bingham MR
Contract
There is a presumption against adding terms to a contract. The presumption is stronger where the contract is in writing and represents an apparently complete bargain between the parties. Sir Thomas Bingham MR set out Lord Simon's formulation, and described it as a summary which distilled "the essence of much learning on implied terms" but whose "simplicity could be almost misleading". He then explained that it was "difficult to infer with confidence what the parties must have intended when they have entered into a lengthy and carefully-drafted contract but have omitted to make provision for the matter in issue", because "it may well be doubtful whether the omission was the result of the parties' oversight or of their deliberate decision", or indeed the parties might suspect that "they are unlikely to agree on what is to happen in a certain . . eventuality" and "may well choose to leave the matter uncovered in their contract in the hope that the eventuality will not occur". Sir Thomas continued: "The question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear. Tempting, but wrong. [He then quoted the observations of Scrutton LJ in Reigate, and continued] [It is not enough to show that had the parties foreseen the eventuality which in fact occurred they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred ..."
Bingham MR stated:
"The question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear. Tempting, but wrong. . . [It is not enough to show that had the parties foreseen the eventuality which in fact occurred they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred."
1 Cites

1 Citers


 
Toomey v Eagle Star Insurance Co Ltd (No 2) [1995] 2 Lloyd's Rep 88
1995
QBD
Colman J
Insurance, Contract
Applying Canada Steamship Lines Ltd v The King, Colman J said: "Notwithstanding the commercial purpose of this transaction, the correct approach, as a matter of construction, is to conclude that in fact the effect of cl (a) is only to exclude the right to avoid for innocent material misrepresentation and innocent material non-disclosure and not for negligent misrepresentation or non-disclosure".
1 Cites

1 Citers


 
Phillips Electronique Grand Public SA v British Sky Brodcasting Ltd [1995] EMLR 472
1995
CA
Sir Thomas Bingham MR
Contract
The court warned against being less than stringent when seeking to imply a term into a contract: "The courts' usual role in contractual interpretation is, by resolving ambiguities or reconciling apparent inconsistencies, to attribute the true meaning to the language in which the parties themselves have expressed their contract. The implication of contract terms involves a different and altogether more ambitious undertaking: the interpolation of terms to deal with matters for which, ex hypothesi, the parties themselves have made no provision. It is because the implication of terms is so potentially intrusive that the law imposes strict constraints on the exercise of this extraordinary power . .
The question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear. Tempting, but wrong . . .
And it is not enough to show that had the parties foreseen the eventuality which in fact occurred they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred"
1 Citers


 
Saphena Computing Ltd v Allied Collection Agencies Ltd [1995] FSR 616
1995

Staughton LJ
Intellectual Property, Contract
The court faced a claim as regards an undeveloped computer system which was sold with bugs "warts and all". Held: The court spoke of expert evidence that in a bespoke system bugs were inevitable.
1 Citers



 
 Timeload Ltd v British Telecommunications plc; CA 1995 - [1995] EMLR 459

 
 Lockland Builders v Rickwood; 1995 - [1995] 77 BLR 42
 
Thomson v Thomas Muir (Waste Management Ltd) 1995 SLT 403
1995


Scotland, Contract
To imply a term into a contract, the court must be persuaded that the contract is unworkable without it.
1 Citers


 
Little v Courage Ltd Ind Summary, 06 February 1995; Times, 06 January 1995; (1994) 70 P and CR 469
6 Jan 1995
CA

Landlord and Tenant, Contract
The tenancy contained an option for the tenant to renew, subject to agreement being reached with the brewer on a business plan. The tenant said he wished to renew, but the brewer did not present a business plan or agreement, and then the landlord refused to grant a new lease, saying that no new plan or agreement had been entered into. Held: The tenant's appeal succeeded. The renewal of the lease under the covenant was enforced against the Landlord, despite the failure of the condition precedent. The brewer's refusal to agree a plan did not allow the Landlord to refuse a new lease. The lease should be read so as to make the plan and agreement a condition, only if one was offered by the brewer. Under that reading, the landlord would not be entitled to refuse to renew the lease.
1 Cites


 
De Balkany v Christie Manson and Woods Ltd Independent, 19 January 1995; (1997) 16 Tr LR 163
19 Jan 1995
QBD
Morison J
Contract, Torts - Other
Over-painting was deemed to be a forgery within the Christie terms and conditions. The exception was excluded. Christie's was liable under the guarantee it had given. Morison J also considered (obiter) the defendant's possible liability in tort, and whether they had assumed responsibility for the attribution: "I first look at the question generally without reference to the conditions.
The special features of this case are that Christie's themselves have sole discretion over how they describe a lot. This fact is made known to buyers, in the sense that Christie's disclose to potential bidders some of the terms on which they are acting for the seller. Christie's employ skilled personnel who take considerable trouble to satisfy themselves as to the accuracy of the catalogue entries. This is well known. Buyers will know, therefore, that Christie's have satisfied themselves as to the authenticity of a Lot, and the cataloguing practice which is disclosed, gives considerable latitude for appropriate qualifications where Christie's are of the opinion that such is called for. The buyer is required to pay a substantial premium to the auctioneer. If the auctioneer assumes no responsibility to him, one might ask what the payment is for. On the other hand, in normal circumstances, a buyer has no reason to believe that an auctioneer has assumed any responsibility to him. The auctioneer is the seller's agent. The buyer only becomes contractually bound by the conditions when his bid has been accepted.
On balance, and primarily because Christie's take responsibility for the catalogue description which is an important feature from the buyer's point of view, and because the buyer pays a premium, I would be inclined to the view that there was an assumption of responsibility such that Christie's become liable to a buyer for negligent misstatement in the catalogue entries.
Do the Conditions affect this conclusion? Condition 3(a) says that statements in the catalogue are statements of Christie's opinion. Condition 11(a), under what might be thought to be an inappropriate heading 'Guarantee', excludes responsibility for the 'correctness' of any such statement but it does not, in terms, exclude responsibility for negligence. Condition 3(c) says that buyers must satisfy themselves as to the opinions expressed in the catalogue. I am, somewhat reluctantly, forced to the conclusion that Christie's have made it reasonably clear that they have not assumed any responsibility to the buyer for the way in which the statements in the catalogue are prepared.
In my judgment, a buyer at Christie's, as a buyer at a car auction, must satisfy himself about the goods and cannot, in law, rely upon what Christie's have said. The only right which a buyer has is that given to him by clause 11(b) where there is a forgery or where Christie's have been guilty of deceit. I do not regard this conclusion as satisfactory because it means that a buyer has got nothing of substance for his premium."
1 Citers


 
West of England Shipowners Mutual Insurance Association (Luxembourg) v Cristal Ltd [1995] 1 Lloyd's Rep 560; Lloyd's List March 15 1995
25 Jan 1995
ComC
Waller J
Contract, Arbitration
cw Contract - contractual rights - fulfilment of conditions - freedom to fulfil bargain - court action precluded - ouster clauses - arbitration - term - construction - one party sole arbitrator of construction - contrary to public policy - exceptions - international contract - public policy - application
The parties disputed a contract providing compensation for oil pollution losses. It was between oil companies who contributed to the fund and its administrators, Cristal. It provided that Cristal was to 'be the sole judge in accordance with these terms of the validity of any claim made hereunder'. The claimant association made a claim which Cristal rejected. It was accepted that the association was to be treated as a party to the contract.
1 Cites

1 Citers


 
Regalian Properties Plc and Another v London Docklands Development Corporation Gazette, 25 January 1995; [1995] 1 WLR 212; [1995] Ch 212
25 Jan 1995
ChD
Rattee J
Land, Contract
Negotiations intended to result in a contract were expressly on the basis that each party was free to withdraw from the negotiations at any time, the costs of a party in preparing for the intended contract were incurred at its own risk and it was not entitled to recover them by way of restitution if for any reason no contract resulted. It was held that by the deliberate use of the words "subject to contract" in their usual sense, each party had accepted that if no contract was concluded any resultant loss should lie where it fell. Held: The costs of the failed negotiations were not recoverable. The phrase 'subject to contract' is so widely used that parties must be assumed to know its effect without having it explained.
1 Citers


 
Swiss Bank Corporation v Parry and Others Times, 09 February 1995
9 Feb 1995
QBD

Contract
Success fee clause not sufficiently precise to support claim - must explain.

 
Barclays Bank Plc v Fairclough Building Ltd (No 2) Times, 15 February 1995; Ind Summary, 20 February 1995
15 Feb 1995
CA

Contract, Construction, Contract
Contractors taking on building work should be assumed to have taken account of the possible presence of asbestos when quoting for the work.
1 Cites

1 Citers


 
Barclays Bank Plc v Fairclough Building Ltd (No 2) Times, 15 February 1995; Ind Summary, 20 February 1995
15 Feb 1995
CA

Contract, Construction, Contract
Contractors taking on building work should be assumed to have taken account of the possible presence of asbestos when quoting for the work.
1 Cites

1 Citers


 
Norweb Plc v Dixon Times, 24 February 1995; [1995] 1 WLR 636
24 Feb 1995
QBD

Crime, Contract, Utilities
Electric supply was not made under a contract properly so called, and no offence was committed of harassment for payment. If there is a statutory obligation to enter into a form of agreement the terms of which are laid down, at any rate in their most important respects, there is no contract
Administration of Justice Act 1970 40(1)
1 Citers



 
 Commission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd); CA 4-Mar-1995 - Times, 04 March 1995; Independent, 15 March 1995; [1995] 2 All ER 929; [1995] Ch 259; [1995] 26 EG 129
 
Gamerco Sa v ICM Fair Warning (Agency) Ltd and Another [1995] EWHC QB 1
31 Mar 1995
QBD
Gsrlsnd J
Contract
The plaintiff Spanish concert promoter, and the defendant rock group, Guns 'n' Roses, agreed to provide a concert at the stadium of Atetico Madrid, but shortly before it was due to take place, the stadium was deemed unfit, and its licence withdrawn. Another stadium was not available, and the plaintiff sought recovery of sums paid in advance. The court was asked whether the contract provided a term that the plaintiffs should obtain all bnecessary licences, whether the cointract had been frustrated, and whether the obligation on the defendant was limited to being ready willing and able to perform. Held: The claim succeeded. The contract had been frustrated: "The contract was to appear and actually to give a performance at the Vincente Calderon starting at 22.30 lasting 90 minutes. This could not be done, not because a permit was revoked but because the stadium had been found to be unsafe. In any event it was impossible for the defendants to perform their side of the bargain; they could not appear in the stadium any more than the plaintiffs could perform their obligations to erect the stage, the roof and generally to prepare the venue." and nor had the plaintiffs undertaken to bear all commercial risks.
Law Reform (Frustrated Contracts) Act 1943 1(2)
1 Cites

[ Bailii ]
 
City Leisure (Holdings) Ltd v Lord Mayor and Citizens of the City of Westminster Unreported, 06 April 1995
6 Apr 1995
ComC
Phillips J
Contract, Local Government
Contract - ultra vires - power of local authority to grant an indemnity - power of local authority to borrow - acquiring the use of borrowed money
Local Government Act 1972 111 - Local Government (Miscellaneous) Provisions Act 1976 19(1)

 
European Consulting Unternehemensberatung Aktiengesellschaft v Refco Overseas Ltd Unreported, 12 April 1995
12 Apr 1995
ComC
Clarke J
Contract, Financial Services
cw Contract - breach of contract - futures and options trading - entitlement to close contracts - consideration

 
Themehelp Ltd v West and Others Ind Summary, 26 June 1995; Times, 02 May 1995
2 May 1995
CA

Contract, Litigation Practice
Guarantor's obligations not affected save by matters outside the guarantee. The beneficiary of a guarantee was restrained from enforcement of it whilst an allegation of fraud remained unresolved.

 
OK Petroleum AB v Vitol Energy SA Unreported, 05 May 1995
5 May 1995
ComC
Colman J
Transport, Contract
cw Shipping - demurrage - notification of claim - incorporation of time bar from charterparty into sale contract - construction of incorporation provisions


 
 Wright v The Jockey Club; QBD 15-May-1995 - Times, 16 June 1995
 
Grace v Leslie and Godwin Financial Services Ltd Ind Summary, 12 June 1995; Times, 16 May 1995; [1995] LRLR 472
16 May 1995
ComC
Clarke J
Insurance, Negligence, Contract
Lloyds' brokers are to keep contract slips as evidence of the policy whilst ever a possibility of a claim exists. A failure to do so can hamper the conduct of the litigation to the detriment of syndicate members, and the broker can be liable to them in contract and in negligence.
1 Citers


 
Marubeni Corporation v Sea Containers Ltd Unreported, 17 May 1995
17 May 1995
ComC
Waller J
Litigation Practice, Contract
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 purely commercial contract to exclude the right of set-off. The court was concerned with a clause which incorporated the word "deduction" with payment: "... without any deductions or withholdings whatsoever." Held: The words were not terms of art: "It is unlikely either could be described as a clear word. At the end of the day therefore, the question is one of construction in the context of the contract as a whole and it is to that I shall now turn." The right of set-off was excluded.
1 Cites

1 Citers


 
Clansmen Sporting Club Ltd and Another v Robinson Times, 22 May 1995
22 May 1995
QBD

Contract
A requirement to act in accordance with rule does not import that rule into the contract


 
 Vitol Sa v Norelf Ltd ('the Santa Cara'); CA 26-May-1995 - Times, 02 June 1995; Ind Summary, 12 June 1995; [1995] 3 All ER 971; [1996] QB 108
 
Manheath Ltd v H J Banks and Co Ltd (Scotland) Times, 02 June 1995; 1996 SC 42
2 Jun 1995
OHCS

Contract
If contract is subject to a suspensive condition, performance is not waivable.
1 Citers



 
 Boyter v Thomson; HL 15-Jun-1995 - Gazette, 06 September 1995; Times, 16 June 1995; [1995] UKHL 20; [1995] 3 WLR 36; [1995] 2 AC 628; [1995] 3 All ER 135; 1995 SC (HL) 15; 1995 SLT 875; 1995 SCLR 1009

 
 New Hampshire Insurance Co and Others v MGN Ltd and Others (No 1); CA 15-Jun-1995 - Times, 25 July 1995
 
Orion Finance Ltd v Heritable Finance Ltd Unreported, 23 June 1995
23 Jun 1995

A.G.S. Pollock Q.C. Deputy Judge
Contract

1 Citers


 
Orion Finance Ltd v J D Williams and Company Ltd [1995] EWCA Civ 1
23 Jun 1995
CA

Contract
The finance company had taken an assignment of the benefit of a lease of computer equipment and sought payment from the defendants.
1 Cites

[ Bailii ]
 
White Arrow Express Ltd and Others v Lamey's Distribution Ltd Ind Summary, 26 June 1995; Times, 21 July 1995
26 Jun 1995
CA

Damages, Contract
Where a claim was framed as a fraction of the contract consideration, the plaintiff has fixed his damages. Where he claims to have contracted for a deluxe service rather than a normal level, it was for him to show the difference.


 
 Trafalgar House Construction (Regions) Ltd v General Surety and Guarantee Co Ltd; HL 4-Jul-1995 - Gazette, 19 July 1995; Times, 04 July 1995; [1995] 3 All ER 737; [1996] 1 AC 199
 
Cala Homes (South) Ltd and others v Alfred McAlpine Homes East Ltd [1995] EWHC 7 (Ch); [1995] FSR 818
6 Jul 1995
ChD
Laddie J
Litigation Practice, Intellectual Property, Contract
The plaintiff alleged that the defendant had copied its house designs after a senior employee involved in creating the designs left and eventually came to work for the defendant. The plaintiff alleged that the copying was flagrant allowing additional damages. Held: Though some work had been outsourced, the employee remained the author, and his employer retained the copyright as his employer, and therefore infringement had occurred: "to have regard merely to who pushed the pen is too narrow a view of authorship. What is protected by copyright in a drawing or a literary work is more than just the skill of making marks on paper or some other medium. It is both the words or lines and the skill and effort involved in creating, selecting or gathering together the detailed concepts, data or emotions which those words or lines have fixed in some tangible form which is protected. It is wrong to think that only the person who carries out the mechanical act of fixation is an author."
Copyright Designs and Patents Act 1988 97(2)
1 Cites

1 Citers

[ Bailii ]
 
Associated Dairies Ltd v Baines and Others Gazette, 19 July 1995; Times, 06 July 1995
6 Jul 1995
CA

Contract, Commercial
A milkman's round agreement with the dairy supplying him with milk for sale, was registerable as a restrictive agreement if the words so require despite alternative remedies, and even though in this instance it might be borderline.
Restrictive Trade Practices Act 1976 9(3)
1 Cites

1 Citers


 
Baynham and Others v Philips Electronics (Uk) Ltd Times, 19 July 1995
19 Jul 1995
QBD

Contract
An annual variation of peripheral terms of a contract did not make the contract fatally uncertain.

 
Barclays Bank Plc v Schwartz Times, 02 August 1995
2 Aug 1995
CA

Contract
Illiteracy and unfamiliarity with English do not provide a defence under contract law.

 
Firstpost Homes Ltd v Johnson and Others Gazette, 15 September 1995; Times, 14 August 1995; [1995] 1 WLR 1567; [1995] 4 All ER 355
14 Aug 1995
CA
Peter Gibson, Balcombe, Hutchison LJJ
Land, Contract
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties. Held: The requirements of Section 2 had not been satisfied because it was the letter which contained the contract which referred to the plan and incorporated it and it was the letter which under Section 2 had to be signed. A typed signature is insufficient for a land contract. Old Frauds cases are irrelevant under the new regime introduced for exchange and otherwise of contracts for the sale of land.
New provisions on signatures are to stand free of both old cases and statutes on the topic. The purpose of section 2 was to introduce a new and stricter regime in relation to contracts for the creation or transfer of interests in land.
Peter Gibson LJ said: "The point is a short one and largely one of first impression, though in considering whether the two sheets of paper are one document or two for the purposes of s 2 of the 1989 Act it is important to bear in mind that the section expressly contemplates that one document may incorporate the terms of a second document by reference. It seems to me that the natural way of looking at the letter enclosing the plan, to use the significant language of the letter, is to treat the letter alone as one document and the plan as another document, the terms of which are incorporated in the letter. That incorporation comes about because of the reference in the letter to the plan as showing what are the 15.64 acres of land at the rear of Fulfen Farm." and "the Act of 1989 seems to me to have a new and different philosophy from that which the Statue of Frauds 1677 and section 40 of the Act of 1925 had."
Balcombe LJ: "Like the proverbial elephant, a document may be difficult to define but it is easy to recognise".
Law of Property (Miscellaneous Provisions) Act 1989 2
1 Citers


 
Dataliner Ltd v Vehicle Builders and Repairers Association Independent, 30 August 1995
30 Aug 1995
CA

Contract
Exhibitor recovered for costs of attending badly promoted trade exhibition.

 
National Power Plc v United Gas Company Ltd and Anr Unreported, 5 October 1995
5 Oct 1995
ComC
Colman J
Contract
cw Sales of natural gas. Whether gas of contractual description delivered. Seller's reliance on thermal purchase contracts to effect delivery under volumetric contract. Clause permitting termination on failure to commence to remedy "material" breach: meaning of "material".
1 Cites

1 Citers



 
 Bovis Construction (Scotland) Ltd v Whatlings Construction Ltd; HL 19-Oct-1995 - Gazette, 24 January 1996; Times, 19 October 1995; [1995] CLY 5569; 1995 SLT 1339
 
Ter Neuzen v Korn [1995] 3 SCR 674
19 Oct 1995

La Forest, L'Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ
Commonwealth, Contract, Negligence, Damages
CANLII (Supreme Court of Canada) The plaintiff underwent AI treatment by the defendant, during the course of which she contracted HIV-AIDS. She claimed in negligence and contract. Held. A court must consider whether a common law warranty of fitness and merchantability should be implied into the contract which includes services as well as the provision of materials. However, such a warranty will not be implied in all circumstances. The court must examine the specific nature of the contract and the relationship between the parties in order to assess whether it was the intention of the parties that such a warranty be implied. Courts must be very cautious in their approach to implying contractual terms. A rationale for implying warranties in contracts of goods and services is that a supplier of goods generally has recourse against the manufacturer under the Sale of Goods Act as a result of the statutory conditions imposed. While it is true that the primary purpose of the implied warranty is to hold the supplier of goods liable notwithstanding the absence of negligence, different considerations apply in the context of the medical profession than in the ordinary commercial context. The doctor cannot trace the liability back to the initial manufacturer. Moreover, it must be recognized that biological products such as blood and semen, unlike manufactured products, carry certain inherent risks. It would be inappropriate to imply a warranty of fitness and merchantability in the circumstances of this case. Moreover, any warranty would simply be to take reasonable care.
[ Canlii ]
 
AEG (UK) Limited v Logic Resource Limited [1995] EWCA Civ 19; [1996] CLC 265
20 Oct 1995
CA
Hobhouse LJ
Contract
The question of the reasonableness of a clause must be assessed having regard to the relevant clause viewed as a whole: it is not right to take any particular part of the clause in isolation, although it must also be viewed against a breach of contract which is the subject matter of the case before the court.
Unfair Contract Terms Act 1977
1 Citers

[ Bailii ]
 
West of England Ship Owners Mutual Insurance Association (Luxembourg) v Cristal Ltd (The Glacier Bay) Times, 26 October 1995; Independent, 01 November 1995; [1996] 1 Lloyd's Rep 370; [1996] CLC 240
26 Oct 1995
CA
Neill LJ
Transport, Arbitration, Contract
An agreement giving to a 'sole judge' the power to make a final decision was effective, and there was no appeal from his decision. The defendant's decision in his capacity as Convention administrator was as a final arbiter and was unreviewable. Held: The appeal was allowed. The agreement was unusual, but the deceisions was final and binding " . . .subject . . . to any question of unfairness, bad faith or perversity". Neill LJ "It remains the general rule of common law that an agreement wholly to oust the jurisdiction of the Courts is against public policy and void. . . . It is clear, however, that in applying the rule questions of fact are treated differently from questions of law . . ."
1 Cites

1 Citers


 
Taylor v Bhail Ind Summary, 20 November 1995; [1995] EWCA Civ 54; [1996] CLC 377; 50 Con LR 70
1 Nov 1995
CA
Sir Stephen Brown P, Russell LJ, Millett LJ
Contract
A contract involving a fraudulent insurance claim will not be enforced by courts.
1 Citers

[ Bailii ]

 
 Jervis v Harris; CA 14-Nov-1995 - Ind Summary, 04 December 1995; Gazette, 24 January 1996; Times, 14 November 1995; [1995] EWCA Civ 9; [1996] Ch 195; [1996] 2 WLR 220; [1996] 1 All ER 303; [1996] 1 EGLR 78; [1996] 10 EG 159

 
 Bowerman and Another v Association of British Travel Agents Ltd; CA 21-Nov-1995 - Times, 24 November 1995; Independent, 23 November 1995; [1996] CLC 451
 
Barber v NWS Bank Plc Independent, 01 December 1995; Times, 27 November 1995
27 Nov 1995
CA

Contract
A conditional sale term that the owner owned the car was a contract condition, not a warranty.

 
Spargos Mining Nl v Atlantic Capital Corporation Times, 11 December 1995
11 Dec 1995
QBD

Contract
A debt action cannot be dressed as equitable claim for money had and received.
1 Cites

1 Citers


 
Tabor v Ginns Ind Summary, 11 December 1995
11 Dec 1995
CA

Contract
A second agreement varying a first but to take effect in the future may leave the first agreement intact.

 
Vaswani v Italian Motors (Sales and Services) Ltd Co [1995] UKPC 48; [1996] 1 WLR 270; [1996] RTR 115
12 Dec 1995
PC

Contract
(Hong Kong)
[ Bailii ]

 
 Vaswani v Italian Motors (Sales and Services) Ltd; PC 15-Dec-1995 - Gazette, 17 January 1996; Times, 15 December 1995

 
 Holt and Another v Payne Skillington (A Firm); CA 22-Dec-1995 - Gazette, 17 January 1996; Times, 22 December 1995
 
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