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		Contract - From: 1999 To: 1999 This page lists 113 cases, and was prepared on 20 May 2019. Â Billson v Tristem [2000] LandTR 220 1999 ChD Rattee J Landlord and Tenant, Contract 1 Citers Â Mira Oil Resources of Tortola v Bocimar NV [1999] 2 Lloyd's Rep 101 1999 ChD Contract Colman J discussed the application of the contra preferentem rule: "Further, this is not a case where the meaning of the words is so finely balanced that the contra proferentum rule should be applied in favour of the owners. If in the view of the Court one of two suggested meanings is significantly preferable to the other, as a matter of construction, it can safely be concluded that the former meaning reflects the mutual intention of the parties." 1 Citers Â Balfour Beatty Civil Engineering Ltd v Technical and General Guarantee Co Ltd (1999) 68 Con LR 180 1999 CA Waller LJ Contract A guarantor undertook to pay on first demand on receipt of a certificate: "Stating that the Sub-Contractor has failed to fulfil its obligations under the said Sub-Contract and that the sum demanded is due and payable and such demand shall be accepted by the Surety as conclusive evidence that the sum of demand is due hereunder." Held: Waller LJ said: "This bond contains language which seems to me to make it absolutely clear that this is a bond intended to be met without the surety having either the right or the duty to make any detailed inquiry provided the demand letter conforms with the conditions of the bond. It requires payment on 'first demand'; it provides that the statements required to be made should be conclusive evidence of the facts stated therein. That is the clearest possible indication that as between the surety, and the promisee, there will be no investigation into the underlying facts." 1 Citers Â Credit Suisse First Boston (Europe) Ltd v Seagate Trading Co Ltd [1999] 1 Lloyds Rep 784 1999 Rix J Contract, Jurisdiction An oral contract for the sale of Russian Notes was followed by a Trade confirmation with an English jurisdiction clause. It was said that this document was fraudulently presented by Credit Suisse as a mere perfunctory confirmation (which it was not) and that the oral contract was not with Credit Suisse Europe but with Credit Suisse US and that there was a specific agreement that the deal was to be centred in New York where Credit Suisse US had its centre of business. Held: The English jurisdiction clause could not be relied on, whether or not the allegations of fraud were, in the event, made out. 1 Citers Â Kingscroft Insurance Company Limited, Walbrook Insurance Company Limited etc v The Nissan Fire and Marine Insurance Company Limited (No 2) [1999] Lloyds Insurance and Reinsurance Law Reports 603 1999 Insurance, Contract An expert witness: "can, and indeed should inform the court of any aspects of the commercial background which have a bearing on the construction of the contract and explain their relevance". 1 Citers Â Hostgill Ltd v Egahart Ltd Times, 05 January 1999 5 Jan 1999 ChD Contract Term providing 'sums payable are . . exclusive of VAT' meant that if the transaction was to be VATable, then VAT was payable in addition to the purchase price. Though badly drafted the clause had to be read with some meaning, it was not merely descriptive. Â Frederick Charles Larkham Patricia Winifred Larkham v Robert Vaughan Ashman and Beryl Ashman [1999] EWCA Civ 540 12 Jan 1999 CA Contract [ Bailii ] Â Foley; Transworld Gaming Limited v Ferranti Instrumentation Limited and Ferranti Plc [1999] EWCA Civ 564 13 Jan 1999 CA Damages, Contract [ Bailii ] Â JFS (Uk) Limited (Previously Johnson Filtration Systems Limited), USF Surface Preparations Limited (Previously Tilghman Wheelabrator Limited) v Dwr Cymru Cyf [1999] EWHC Technology 270 14 Jan 1999 TCC Contract, Torts - Other Contract. Contract for erection of water treatment works. Whether still in force in relation to a new site when planning permission for original site refused. Effect of express term: "Should planning permission be refused and the Works moved to an alternative site ....". Warranty. Warranty that "solids removed .... generally 60 - 90% of the feed". Apparent compliance during acceptance tests. Failure to comply during "protocol" tests ordered during the proceedings. Misrepresentation. "Promissory" representations. Criterion of falsity. 1 Cites 1 Citers [ Bailii ] Â Fitzgerald Omo-Etiobio v American Express Europe Limited [1999] EWCA Civ 565 14 Jan 1999 CA Contract [ Bailii ] Â Alger, Brownless and Court Copyservices Limited v Jitesh Thakrar Trading As Thakrar and Co (a Firm) [1999] EWCA Civ 574 15 Jan 1999 CA Contract The defendant firm of solicitors signed a lease of a photocopier, but claimed to have agreed oral terms which contradicted those set out in the document they signed. Held: The judge was entitled to make his assessment of the witnesses as he had and to calculate the damages as he had done. 1 Cites [ Bailii ] Â Indian Herbs (Uk) Ltd v Hadley and Ottoway Limited; Richard Townsend; Indian Herbs Research and Supply (Pvt) Ltd; Indian Herbs (Europe) Limited and Graham Wheeler [1999] EWCA Civ 627 21 Jan 1999 CA Contract, Agency 1 Cites [ Bailii ] Â Â Freeguard v Rogers; CA 26-Jan-1999 - [1999] EWCA Civ 658 Â Â Bromarin Ab and Another v IMD Investments Limited; CA 29-Jan-1999 - [1999] EWCA Civ 678; [1999] STC 301 Â Performing Right Society Limited v Boizot Times, 10 February 1999; [1999] EWCA Civ 700 2 Feb 1999 CA Intellectual Property, Contract The terms of the licenses issued by the Society are clear, and enforceable. Royalties for performances where charged by reference to the amount paid to the musicians, and irrespective of what proportion of the music played is licensed. [ Bailii ] Â Valerie Jean Tait (T/a Popcorn Company) v R Patel [1999] EWCA Civ 716 4 Feb 1999 CA Contract [ Bailii ] Â Fattah Nejad v City Index Limited [1999] EWCA Civ 736 8 Feb 1999 CA Contract Application for leave to appeal. 1 Cites 1 Citers [ Bailii ] Â A H Field v R Tibbs [1999] EWCA Civ 750 10 Feb 1999 CA Contract [ Bailii ] Â George Dunne Cameron Hosking v Legal and General Ventures Limited (2) [1999] EWCA Civ 775 12 Feb 1999 CA Contract, Company, Intellectual Property 1 Cites 1 Citers [ Bailii ] Â Sol Group Limited v Ian Richard Flack [1999] EWCA Civ 793 15 Feb 1999 CA Contract [ Bailii ] Â Gabriel v Bailey, Foister and Jagg Limited, Arthur Andersen and Company, Wheeldon [1999] EWCA Civ 836 19 Feb 1999 CA Torts - Other, Contract [ Bailii ] Â Brilliant Maritime Services S A v Guangzhou Ocean Shipping Co Unreported, 19/02/1999 19 Feb 1999 ComC Colman J Agency, Contract ComC Ship owners were not bound by bunker supply contracts made by time charterers. Â John Andrew Martin v Leigh Adrian Norbury and Harry Jones [1999] EWCA Civ 838 22 Feb 1999 CA Contract, Consumer [ Bailii ] Â Â Ellis Tylin Limited (Now Known As Dalkia Technical Services Limited v Co-Operative Retail Services Limited; TCC 8-Mar-1999 - [1999] EWHC Technology 249 Â Â G and GB Hewitt Ltd v SAa Namur-Assurances Du Credit; CA 8-Mar-1999 - Gazette, 10 March 1999; Times, 08 March 1999 Â Eli Lilly and Company v Novo Nordisk A/S [1999] EWCA Civ 928 9 Mar 1999 CA Contract The defendant appealed an order refusing dismissal of a claim for rectification of a licence agreement. [ Bailii ] Â Electronic Arts Limited v Ascaron (Uk) Limited and Ascaron Publishing Software Vertriebs Gmbh [1999] EWCA Civ 927 9 Mar 1999 CA Contract [ Bailii ] Â Â Stimpson v Smith; CA 11-Mar-1999 - Times, 22 March 1999; Gazette, 14 April 1999; [1999] EWCA Civ 952; [1999] Ch 340 Â Ian Peter Phillips (Liquidator of A J Bekhor and Co); A J Bekhor and Co (In Administrative Receivership and In Liquidation) v Brewin Dolphin Bell Lawrie Limited (Formerly Brewin Dolphin and Company Limited) and Private Capital Group Limited Times, 30 March 1999; [1999] EWCA Civ 1007; [1999] 1 WLR 2052 17 Mar 1999 CA Morritt LJ Contract When considering whether a breach went to the root of a contract, an associated contract could be split off, even though it would not be split off for insolvency purposes when asking whether a transaction was at an undervalue. Insolvency Act 1986 238 1 Citers [ Bailii ] Â Naser Taher; Safa Limited; International Investment Foundation v Paul Towey; Paul Group International (Insurance Brokers) Ltd and Paul Group Ltd [1999] EWCA Civ 1026 18 Mar 1999 CA Contract, Torts - Other [ Bailii ] Â Regina v Airport Co-Ordination Limited ex parte States of Guernsey Transport Board Interested Parties: Air UK Ltd British Airways Plc Iata [1999] EWHC Admin 264 25 Mar 1999 Admn Contract [ Bailii ] Â Smith and Nephew Pharmaceuticals Ltd, Regina (on the Application of) v Medicines Control Agency [1999] EWHC 260 (Ch) 25 Mar 1999 ChD Jacob J Intellectual Property, Contract [ Bailii ] Â Jones, Jones and Jones v Kaiser [1999] EWCA Civ 1135 30 Mar 1999 CA Equity, Contract 1 Cites [ Bailii ] Â Rosedale (JW) Investments Ltd; Fred Walker; Annette Cunningham; Michael Paul Egerton-Vernon and Jack Walker v British Steel Plc [1999] EWCA Civ 1137 30 Mar 1999 CA Contract [ Bailii ] Â Target Holdings Ltd v Priestley and Another Gazette, 08 April 1999; Gazette, 06 May 1999; Times, 13 May 1999 8 Apr 1999 ChD Land, Contract An oral contract by which a lender agreed to accept repayments of arrears under a mortgage at a certain rate was valid in law despite non-compliance with the section. It was however a contract of disposition, not an executory contract and not caught. A compromise of repayments under a mortgage was valid despite lack of formality. Law of Property (Miscellaneous Provisions) Act 1989 2 Â Top Creative Ltd and Another v St Albans District Council [1999] EWCA Civ 1174 14 Apr 1999 CA Contract, Company [ Bailii ] Â David Michael Barnett v City Literary Institute [1999] EWCA Civ 1161 14 Apr 1999 CA Contract, Defamation [ Bailii ] Â John Hanson v South West Electricity Board [1999] EWCA Civ 1164 14 Apr 1999 CA Land, Contract No obligation on seller's solicitor to provide completion statement. [ Bailii ] Â Lukoil-Kaliningradmorneft Plc v Tata Limited and Global Marine Transportation Inc [1999] EWCA Civ 1252; [1999] 2 Lloyd's Rep 129 23 Apr 1999 CA Contract 1 Cites [ Bailii ] Â Jose Aldao S A v United Distillers Limited and White Horse Distillers Limited [1999] EWCA Civ 1251 23 Apr 1999 CA Contract [ Bailii ] Â Stalham Engineering Company Limited v Michael Horner and Phillip Horner (Trading As F and H Contractors [1999] EWCA Civ 1289 28 Apr 1999 CA Contract [ Bailii ] Â Fitzpatrick v Translink International Limited [1999] EWCA Civ 1296 29 Apr 1999 CA Contract [ Bailii ] Â BOC Group Plc v Centeon Llc and Centeon Bio-Services Inc [1999] EWCA Civ 1293; [1999] 1 All ER (Comm) 970 29 Apr 1999 CA Evans LJ, Brooke LJ Contract, Equity, Company 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 was dismissed. The right of set-off had effectively been excluded. "The meaning of general words, even "whatsoever", may be limited by the context in which they appear. They may be used to refer to a class or category, a genus (or what Mr Pollock called a tribe) of which some but not necessarily all the members are identified in the clause. " and "the hypothesis that the parties intended to exclude rights of set-off can be tested in this way: what words might they have used to make their meaning clear? There is not necessarily a magic formula, but words such as "payment in full without deduction or withholding of any sort" are all familiar in contexts such as this. The failure of the parties to use any such words amounts to an eloquent silence. But this is not determinative of the meaning which the parties did in fact use. The phrase used, that is to say "not affected by ... whatsoever" does tend to include rather than exclude. That is to say, in the present case tends towards meaning that the payment of the full amount due shall not be affected in any way." 1 Cites 1 Citers [ Bailii ] Â Paramount 21 Limited v Holroyd Meek Limited [1999] EWCA Civ 1324 30 Apr 1999 CA Contract [ Bailii ] Â Kenneth R Fox v Henderson Investment Fund Ltd. [1999] 2 Lloyd's Rep. 303 4 May 1999 ComC Timothy Walker J Contract ComC Whether freezing order of foreign court can provide an illegality defence for a fund manager's failure to follow its client's instructions. Â Â Amec Process and Energy Ltd v Stork Engineers and Contractors Bv (A Company Registered In the Netherlands); TCC 6-May-1999 - [1999] EWHC Technology 238 Â Petrotrade Inc v Texaco Limited [1999] EWHC Admin 406 6 May 1999 Admn Contract [ Bailii ] Â David Allan Leyland v Brian Kirkman [1999] EWCA Civ 1367 10 May 1999 CA Contract [ Bailii ] Â Pegasus Holdings Plc v Changemarch Ltd; Alliance and Jebreel [1999] EWCA Civ 1396 12 May 1999 CA Company, Contract [ Bailii ] Â Â Westacre Investments Inc v Jugoimport-Sdrp Holding Company Limited; etc; CA 12-May-1999 - Times, 25 May 1999; [1999] EWCA Civ 1401; [1999] 3 WLR 811; [1999] 3 All ER 864; [1999] 1 All ER (Comm) 865; [1999] 2 Lloyd's Rep. 65; [1999] CLC 1176; [1999] BLR 279; Independent, 25 May 1999 Â Mean Machines Limited v Blackheath Leisure (Carousel) Limited [1999] EWCA Civ 1408 13 May 1999 CA Contract, Land [ Bailii ] Â Spree Engineering and Testing Ltd. v O'Rourke Civil and Structural Engineering Ltd [1999] EWHC QB 272 18 May 1999 QBD Stow QC Contract [ Bailii ] Â Manatee Towing Co and Anr v Oceanbulk Maritime and Anr. By original action "Bay Ridge" (No. 2) [1999] 2 All ER (Comm) 306; [1999] 2 Lloyd's Rep. 227; [1999] CLC 1204 18 May 1999 ComC Cresswell J Contract ComC Whether negotiations resulted in a binding contract of sale - the legal principles to be applied. 1 Cites Â Parham Khandanpour v L Reay (T/a North East Catering Trailers and Van Conversions) [1999] EWCA Civ 1440 19 May 1999 CA Contract [ Bailii ] Â Walkinshaw v Diniz [2000] 2 All ER (Comm) 237; [2001] 1 Lloyd's Rep. 632 19 May 1999 ComC Thomas J Contract, Arbitration Sports dispute – Formula 1 - scope of jurisdiction of the international panel – was the reference to arbitration or to another form of consensual dispute resolution – meaning of “arbitration”. 1 Citers Â Eli Lilly and Co v Novo Nordisk [1999] EWHC Patents 233 20 May 1999 PatC Intellectual Property, Contract [ Bailii ] Â Â Overseas Medical Supplies Limited v Orient Transport Services Limited; CA 20-May-1999 - [1999] EWCA Civ 1449; [1999] 2 Lloyd's Rep 273 Â Crehan v Courage Limited and Byrne and Inntrepreneur Beer Supply Co Ltd and Langton v Inntrepreneur Beer Supply Co Ltd [1999] EWCA Civ 1501 27 May 1999 CA Lord Justice Schiemann Lord Justice Mance Lord Justice Morritt Commercial, Contract, European The court considered the validity of beer ties affecting public houses. 1 Cites 1 Citers [ Bailii ] Â Kent (T/a Alldrive Hire) v Mike Stacey Limited [1999] EWCA Civ 1527 28 May 1999 CA Contract, Construction [ Bailii ] Â Total Liban Sal v Vitol Energy Sa [1999] EWHC B1 (Comm); [2000] 3 WLR 1142 28 May 1999 ComC Peter Gross QC Contract The court was asked: "If A breaches its contract with B, so as to result in B being liable to C, does B have any claim for substantial damages against A (or is B entitled to equivalent declaratory relief) prior to B discharging its liability to C by payment?" [ Bailii ] Â Luigi Macari v Celtic Football and Athletic Co Ltd [1999] ScotCS 138; 1999 SC 628 8 Jun 1999 SCS Lord President Rodger, Lord Marnoch, Lord Caplan Scotland, Contract, Employment One of the issues was whether Mr Macari had been entitled to refuse to carry out the instructions of the managing director because the club were in breach of another obligation to him under the contract between the parties. Held. In the context of the employer/employee contract, the implied obligation of trust and confidence to be found in that relationship fell to be seen as striking at the very root of the contractual relationship between the parties and that all the other obligations in the contract could be seen as the counterpart of that obligation. Lord Caplan said: "The retention of performance must be directed at a failure on the part of the other party to perform a counterpart obligation. Moreover for retention to be available there must be a continuing failure to perform the counterpart obligation. No retention arises in respect of a past breach of contract by the other party." Lord President Rodger said: "This authoritative gloss by Lord Jauncey confirms that the law does not regard each and every obligation by one party as being necessarily and invariably the counterpart of every obligation by others. One has to have regard to the circumstances. Lord Jauncey deduces from this that a material breach by one party of a particular term of a contract does not of itself mean that he cannot require the other to perform any of his obligations under his contract. Rather, the party in breach cannot insist on the other party performing his obligations in relation to the part of the contract of which the first party is in breach." 1 Cites 1 Citers [ Bailii ] - [ ScotC ] Â British Fermentation Products Limited v Compair Reavell Limited [1999] EWHC Technology 227; (1999) 66 Con LR; [1999] BLR 8 Jun 1999 TCC Contract The terms ''on the other's written standard terms of business' in the Act was not defined in the Act after a deliberate decision by the Law Commission. Unfair Contract Terms Act 1977 3(1) 1 Citers [ Bailii ] Â Dobbing Insurance v David Brady [1999] EWCA Civ 1549 10 Jun 1999 CA Contract [ Bailii ] Â Kenneth Albert Clarke; Marie Elizabeth Clarke v Victor L Oates and Maliga Deri Oates [1999] EWCA Civ 1552 10 Jun 1999 CA Brooke, May, Laws LJJ Land, Contract Boundary dispute 1 Cites [ Bailii ] Â Courage Ltd v Crehan; The Inntrepreneur Beer Supply Co Ltd v Byrne; Same v Langton; Greenalls Management Ltd v Smith; Walker Cain Ltd v McCaughey Gazette, 27 June 1999; Times, 14 June 1999; [1999] EWCA Civ 1500; [2001] 3 WLR 1646; [1999] EuLR 834 14 Jun 1999 CA Commercial, Contract, European There is not to be read into a beer tie term any implied provision that the beer to be supplied under the term was to be supplied at any kind of advantageous price. A tenant seeking damages for failure to supply under such a term was not entitled to set of his claim against rent due. The claim for damages on the basis that the tie contravened the Treaty was referred to the European Court. EC Treaty Art 81 1 Cites 1 Citers [ Bailii ] - [ Bailii ] Â Carole Vanessa Domeika v Stephen Lunn [1999] EWCA Civ 1603 17 Jun 1999 CA Consumer, Contract [ Bailii ] Â Machan Singh Chauhan; Hardeep Kaur Chauhan and Manjit Singh Dhillon v Kulwant Singh Sandhu [1999] EWCA Civ 1610 17 Jun 1999 CA Otton LJ, Robert Walker LJ Contract [ Bailii ] Â Finley v Connell Associates (A Firm) Times, 23 June 1999; Gazette, 30 June 1999 23 Jun 1999 QBD Contract Where a discharge of a principal debtor only was sufficiently clearly expressed, it was effective, and a reservation of the right to right to proceed against the surety could be implied. Â Â Carmichael and Another v National Power Plc; HL 24-Jun-1999 - Times, 23 November 1999; Gazette, 01 December 1999; Gazette, 17 December 1999; [1999] 4 All ER 897; [1999] UKHL 47; [1999] 1 WLR 2042; [2000] IRLR 43; [1999] ICR 1226 Â Becerra v Close Brothers [1999] EWHC 289 (Comm) 25 Jun 1999 ComC Thomas J Contract, Agency ComC Claim for fee for introducing successful bidder at a controlled auction – no express contract – no implied contract based on City practice – claim for quantum meruit failed because no express or implied request – claim in restitution based on free acceptance (assuming that there is a principle of free acceptance) and incontrovertible benefit also failed - plaintiff held to be acting in own self-interest – level of reasonable remuneration. Agency – effective cause. 1 Cites 1 Citers [ Bailii ] Â General Guarantee Corporation Limited v East Anglian Finance Limited and Kim Cairns [1999] EWCA Civ 1684 25 Jun 1999 CA Contract [ Bailii ] Â Manches and Co (a Firm) v Saeid Esmaeili [1999] EWCA Civ 1700 28 Jun 1999 CA Contract [ Bailii ] Â Andrew Haden Parrott; Emily van Evera v John Stephen Battye and Mahrokh Fariba Battye [1999] EWCA Civ 1693 28 Jun 1999 CA Land, Contract [ Bailii ] Â South West Water Services Ltd v International Computers Ltd Unreported, 29 June 1999; [1999] BLJ 420 29 Jun 1999 HH Judge John Toulmin CMG QC Contract The court looked at an allegation that there had been a total failure of consideration: "In my view the hardware did not have any significant value to SWW in itself (except for a minimal second hand value). Equally I am satisfied that the customer contact and workflow SRS did not have any intrinsic value to SWW which would prevent SWW claiming in restitution. In my view SWW did not get any part of that for which they paid the purchase money. They paid the purchase money for ICL to devise and install a computer system to conform to SWW's URS. They did not receive any part of the Computer System. SWW did not contract in a vacuum to receive management know-how. They contracted to receive management services to enable the computer system to be delivered not as an end in itself." 1 Citers Â Mohammed v Alaga and Co (A Firm) [2000] CP Rep 87; [1999] 3 All ER 699; [1999] 2 Costs LR 169; [2000] 1 WLR 1815; [1999] EWCA Civ 3037 30 Jun 1999 CA Lord Bingham LCJ, Otton LJ, Robert Walker LJ Legal Professions, Contract 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. Bingham LJ summarised the arguments of the plaintiff: "(1) In the absence of any statutory or other legal restriction everyone is free to make any contract they like and such contracts are enforceable. (2) While the Solicitors Act confers power on the Law Society to make rules to regulate the conduct of solicitors, the Law Society has no power to regulate the conduct of the public at large who are not solicitors. (3) Thus, while the Law Society may lawfully forbid solicitors to make fee-sharing agreements, it has no power to forbid anyone else, nor to ordain that such agreements shall be unenforceable save by solicitors. (4) In the absence of an effective legal prohibition a non-solicitor party who makes a fee-sharing agreement with a solicitor is entitled to enforce it. (5) it would be repugnant if the party prohibited from making such an agreement (the solicitor) were free to take the benefits accruing to him under the agreement, but were then entitled to plead the illegality of the agreement when called upon to pay the consideration due to the other contracting party, particularly when (as assumed here) that party is ignorant of the prohibition binding on the solicitor." He then rejected the arguments, saying: "(1) Section 31 confers power on the Law Society to make, with the concurrence of the Master of the Rolls, subordinate legislation governing the professional practice and conduct of solicitors. (2) When making such subordinate legislation the Law Society is acting in the public interest and not (should there be any conflict) in the narrower interests of the solicitors' profession: see Swain v the Law Society [1983] 1AC 598. The concurrence of the Master of the Rolls is required as a guarantee that the interests of the public are fully safeguarded. (3) By rule 3 of the Practice Rules, and by the Referral Code, solicitors are permitted to accept referrals and introductions only provided that introducers are not rewarded by commission or otherwise. (4) By rule 7 solicitors are prohibited from sharing fees or agreeing to do so. (5) Thus there is a prohibition on the making by solicitors of agreements of the kind assumed to have been made in this case. (6) Although it is true that the prohibition is only imposed in terms on solicitors, and they alone are liable to imposition of a professional penalty for breach, a contract requires the concurrence of at least two parties and the effect of the prohibition, if observed, is to outlaw the making of such agreements. (7) There are substantial reasons why, in the public interest, such agreements should be outlawed, some of those reasons being described by Lightman J. (8) It follows that it would defeat the public interest, which rule 7 in particular exists to promote, if a non-solicitor party to a fee sharing agreement could enlist the aid of the court to enforce against a solicitor an agreement which the solicitor is prohibited from making. (9) If the court were to allow its process to be used to enforce agreements of this kind, the risk would inevitably arise that such agreements would abound, outwith the knowledge of the Law Society, to the detriment of the public. This is in my judgment plainly a case in which the relevant legislation (rule 7) prohibits not only the act but the contract to perform it also." Addressing the "restitutionary" claim for payment at the contractual rate, Lord Bingham said: "If, contrary to his first submission, the contract between the parties was illegal and unenforceable, Mr McCombe contended that the plaintiff was entitled to pursue a claim in quasi-contract or restitution. In the pleading, and before the judge (and initially before this court), that claim was pursued as a ground for claiming 50 per cent of legal aid fees earned by the defendant, namely the same reward as would have been recovered under the alleged agreement if it had not been illegal or unenforceable. In response to questions by the court, however, Mr. McCombe accepted that if recovery under the contract was precluded on the grounds of public policy, the plaintiff could scarcely hope to recover exactly the same relief by relabelling his ground of claim. He would, as was acknowledged have no ground for claiming 50 per cent, save by reference to the contract which the court has held to be illegal and unenforceable." Robert Walker LJ spoke of the claim in quantum meruit: "In the present case, by contrast, it was common ground that the judge should approach the summons under R.S.C., Ord 14A on the footing that the claimant was innocent in the sense of being unaware of the prohibition on fee-sharing contained in rule 7 of the Solicitors' Practice Rules. Rule 7 was not of course made for the purpose of protecting persons in the position of the claimant. It was made for the benefit and the protection of the general public, as the judge clearly explained in a passage already read by Lord Bingham of Cornhill C.J. Nevertheless, the claimant may be able to establish at trial that he was not culpable, or was significantly less culpable than the defendant solicitors, and that they should not be unjustly enriched as the result of unremunerated services such as interpreting and translating actually performed by the claimant for the solicitors' clients. Remuneration which the claimant received on that basis would be a proper disbursement and would not, it seems to me, involve either a payment for introduction or the sharing of part of the solicitors' own profit costs." 1 Cites 1 Citers [ Bailii ] Â Evans v James (Administratrix of the Estate of Thomas Hopkin Deceased) [1999] EWCA Civ 1759 5 Jul 1999 CA Land, Contract Before the parties called evidence, and having read the papers, the court considered that there was no real defence shown, and invited submissions. Negotiations for the grant of a tenancy had been terminated by the sudden illness of the proposed tenant. His family asserted a contract was concluded. Held: There was no prospect of upholding the assertion that the solicitor's actions bound his client landlord. A solicitor does not have apparent or implied authority to make a contract for the disposal or acquisition of an interest in land on behalf of his client. In this case, and despite the absence of an application for summary judgment the judge had been right to raise the isue, and indeed it should have been raised earlier. Law of Property (Miscellaneous Provisions) Act 1989 1 Cites 1 Citers [ Bailii ] Â BHP Petroleum Ltd and Others v British Steel Plc and Another [1999] 2 All ER (Comm) 544; [1999] 2 Lloyd's Rep 583 5 Jul 1999 ComC Rix J Contract There was a contract for the supply of steel for a pipeline. It excluded liability for "loss of production, loss of profits, loss of business or any other indirect losses or consequential damages" Held: Rix J referred to as a conundrum by the inclusion of the word "other", because there is authority that "loss of profits" is prima facie an example of direct loss and loss of production and loss of business are merely variations on that theme. Rix J said: "In my judgment the best solution is to construe the clause as though it read "for loss of production, loss of profits, loss of business or indirect losses or consequential damages of any other kind" and accept that the parties may have been in error to permit the inference that the former phrases are examples of indirect or consequential loss. At least in that way, each of the phrases is given its authoritative meaning, which is what the parties must be supposed to have given their closest attention to. If, however, only production, profit, or business which is within the second limb of Hadley v Baxendale is intended to be referred to, then everything in the clause other than "indirect losses or consequential damages" become redundant and the previous phrases become dangerously misleading and potentially valueless". (1) A work rectification clause covering defects appearing within 24 months of delivery "at which time all liability of the supplier relating to the Work shall terminate" held to amount to a cesser of all liability in respect of any defect, including defects caused by negligence did not apply merely to the additional obligation to rectify: Hancock v Brazier [1966] 1 WLR 1317 and Pearce & High v Baxter [1999] CLC 749 distinguished. (2) Similarly, a cap of 15% of the relevant contract price by line item applied to any liability, whether or not due to negligence. (3) Claims for financial losses due to deferred production of oil and gas held to be within each of the exclusions of loss or production, loss of profits, and loss of business. Losses incurred in mitigation of such loss of production also held to be due to loss of production and similarly so excluded. (4) Obiter: the application of an exclusion of "indirect losses or consequential damages" in the context of an off-shore oil and gas development discussed: Croudace v Cawoods [1978] 2 Lloyd's Rep 55, and Deepak v ICI [1999] 1 Lloyd's Rep 387 discussed. 1 Citers Â Fattah Nejad v City Index Limited [1999] EWCA Civ 1812; [2001] GCCR 2461 12 Jul 1999 CA Contract 1 Cites 1 Citers [ Bailii ] Â Michael Graham Young (t/a Michael Graham Young Chartered Surveyors (a Firm) v JR Smart (Builders) Limited [1999] EWCA Civ 1834 14 Jul 1999 CA Contract [ Bailii ] Â Birkett v Acorn Business Machines Limited Gazette, 11 August 1999; [1999] EWCA Civ 1866; Times, 15 August 1999 16 Jul 1999 CA Sedley LJ, Colman J Contract The parties had entered into a contract, which both knew was to be used to defraud a third party finance company. When one sued the other for breach, the court refused to order the contract to be enforced when he became aware of the fraud. Held: The decision was correct even though neither party to the action had sought to plead the fraud. 1 Citers [ Bailii ] Â MDIS Limited (Formerly Mcdonnell Information Systems Limited) v Swinbank London and Edinburgh Insurance Company Limited Aegon Insurance Company (Uk) Limited [1999] EWCA Civ 1884; [1999] EWCA Civ 1883; [1999] 2 All ER (Comm.) 722 19 Jul 1999 CA Clarke LJ Insurance, Contract Clarke LJ discussed the process of construction: "in any process of construction it is appropriate to take the language of the particular clause as the starting point. It is, however, not in dispute that the words used must be considered in the context of the particular clause as a whole and that the clause must in turn be considered in the context of the policy as a whole, which must in its turn be set in its surrounding circumstances or factual matrix. Moreover, as Lord Hoffmann pointed out in the now well-known case of Investors Compensation Ltd v Hopkin & Sons (a firm), Alford v West Bromwich Building Society, Armitage v West Bromwich Building Society [1998] 1 All ER 98 at 114, [1998] 1 WLR 896 at 912-913 interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, and the meaning of the document is what the parties using the relevant words against the relevant background would reasonably have been understood to mean." [ Bailii ] - [ Bailii ] Â Mohammed Anzal Zatoon Begum v Faizel Ellahi [1999] EWCA Civ 1911 21 Jul 1999 CA Contract [ Bailii ] Â Ozkan Hifzi v Margaret Coulson [1999] EWCA Civ 1933 22 Jul 1999 CA Contract [ Bailii ] Â Â Modahl v British Athletics Federation; HL 23-Jul-1999 - Times, 23 July 1999; [1999] UKHL 37 Â Collin and Hobson Limited v Montgomery (T/a L L Briggs Chilled Foods) [1999] EWCA Civ 1996 28 Jul 1999 CA Contract [ Bailii ] Â O Palomo Sa v Turner and Co; Turner and Co v O Palomo Sa Times, 30 August 1999; Gazette, 08 September 1999; [1999] EWCA Civ 2007; [2000] 1 WLR 37 28 Jul 1999 CA Evans LJ Legal Professions, Contract A solicitor's bill could only be taxed within one year of its delivery, but the common law right to challenge a bill on the grounds that the amount charged was unreasonable could continue after that time limit. The common law right to object to paying more than was reasonable was not displaced by the Act, and could allow a court to tax a bill outside the one year limit. Evans LJ said: "the position apart from the Act is broadly as follows. If the solicitor wishes to be paid and is not in funds he will need to sue and prove that his charges were either expressly agreed or are reasonable charges. If he is in funds and purports to deduct the amount of his bill but the client challenges the deduction, the solicitor will still need to prove that the charges were either expressly agreed or were reasonable charges. The question is whether the client loses these rights to challenge the amount of the bill after the period for taxation has passed . . a client who is sued by his solicitor for the amount of his charges is entitled to challenge the reasonableness of the sum claimed, notwithstanding that the period during which he may apply for an order for taxation under what is now s. 70 of the 1974 Act has expired. . Nor do we consider that the solicitor is disadvantaged by the possibility that the client is entitled to have the reasonableness of the charges assessed by the court after the statutory periods for taxation have expired. He can himself claim an order for taxation under s. 70(2), without any time limit, and obtain a form of summary judgment when the taxation certificate is issued . . We do not see any difficulty in holding that the solicitor's claim is for a reasonable sum, whether by statute or at common law, and not for a liquidated sum. Again in accordance with general principles, the burden of proving that the sum is reasonable rests upon him. This is supported, if authority is needed, by the judgments in Re Park [Re Park, Cole v. Park (1889) 41 Ch D 326] and Jones & Son v. Whitehouse [[1918] 2 KB 61]…" Solicitors Act 1974 70 1 Cites 1 Citers [ Bailii ] Â System Security Limited v John Uzoma [1999] EWCA Civ 2060 30 Jul 1999 CA Roch LJ, Wilson J Contract Application for leave to appeal against small claims arbitration award. [ Bailii ] Â Ealing Community Transport Ltd v Council of London Borough of Ealing [1999] EWCA Civ 2044 30 Jul 1999 CA Contract [ Bailii ] Â Seymour Segnit v Christopher Cotton [1999] EWCA Civ 2057 30 Jul 1999 CA Contract Application for leave to appeal. [ Bailii ] Â Amoco (UK) Exploration Company (a Company Incorporated In Delaware USA) and others v Imperial Chemical Industries Plc Amoco (Uk) Exploration Company (a Company Incorporated In Delaware Usa) and others v Teeside Gas Transportation Limited [1999] EWCA Civ 2034 30 Jul 1999 CA Kennedy LJ, Ward LJ, Tuckey LJ Contract [ Bailii ] Â Sinochem International Oil (London) Co Ltd v Fortune Oil Co Ltd [1999] EWHC Commercial 204; [2000] 1 Lloyd's Rep 682 3 Aug 1999 ComC Colman J Arbitration, Contract ComC Appointment of arbitrator: applications to set aside appointment on the ground of no binding agreement to . . (under section 17(3) of the Arbitration Act) and applications challenging on arbitrator's jurisdiction (under section 67(1) of the Arbitration Act: need for a procedure appropriate to the issue whether there was a binding agreement being determined by the Court instead of the arbitrators. [ Bailii ] Â Harbinger UK Ltd v GE Information Services Ltd [1999] EWHC Technology 222 5 Aug 1999 TCC Thornton C HHJ Contract "These preliminary issues are concerned with the construction of an Agreement to supply and support software programs. Two questions were considered. The first was whether the termination clause may be operated so as to bring the Agreement to an end at the end of the Initial Period. The answer was that it can be so operated. The second was whether support and maintenance obligations survive a termination. The answer was that they do. Such on-going obligations were stated, in the Agreement, to survive "in perpetuity". By reliance on the principles of construction of commercial agreements provided for in Investors Compensation Scheme Limited v West Bromwich Building Society, the conclusion was reached that such services should be provided for as long as the defendant was contractually required to provide them to its end users." [ Bailii ] Â PRM Finance Limited (Formerly t/a Premier Facilities Limited) v David Renshaw v Harper Motors (Dukinfield) Limited T/a Ashton Quality Cars [1999] EWCA Civ 2081 11 Aug 1999 CA Contract, Consumer Consumer Credit Act 1974 5 [ Bailii ] Â Liverpool City Council v Rosemary Chavasse Ltd and Another [1999] EWHC 842 (Ch) 18 Aug 1999 ChD Neuberger J Land, Contract [ Bailii ] Â Hume (T/a Benco and Sons) v Anderton (T/a Anderton and Co) [1999] EWCA Civ 2104 24 Aug 1999 CA Robert Walker LJ Contract [ Bailii ] Â Metalmeccanica Fracasso SpA, Leitschutz Handels- und Montage GmbH v Amt der Salzburger Landesregierung fur den Bundesminister fur wirtschaftliche Angelegenheiten C-27/98; [1999] EUECJ C-27/98; [1999] ECR I-5697; [2002] CMLR 1150 16 Sep 1999 ECJ Administrative, Contract Where a tendering process completed leaving only one tender remaining, the contracting authority was not required to award the contract to the only tenderer judged to be suitable: "In a context different from that of the present case (there were several tenderers, not just one) the Court of First Instance stated that "the contracting authority is not bound to follow through to its end a procedure awarding a contract" observing that in that respect the contracting authority enjoys a broad discretion provided that its decision is in no way arbitrary." 1 Cites 1 Citers [ Bailii ] Â Sinochem International v Mobile Sales [1999] 2 All ER (Comm) 522; [1999] 2 Lloyd's Rep 769; [2000] CLC 186 21 Sep 1999 ComC Longmore J Contract No set-off clause - save for sums due to or from affiliates - "fundamental change" in approach to question of construction. 1 Citers Â Liverpool City Council v Rosemary Chavasse Ltd and Another Gazette, 22 September 1999 22 Sep 1999 CA Contract, Local Government Â Codan Trust Company Ltd v Fruit Shippers Ltd Unreported, 12 October 1999 12 Oct 1999 ComC Longmore J Contract ComC Promissory Note - Not negotiable given in support of main contract obligation - anti-set-off clause - Liquidated cross-demand. Â Harbour and General Works Ltd v The Environment Agency Times, 22 October 1999; Gazette, 10 November 1999; [1999] BLR 409 22 Oct 1999 CA Arbitration, Contract, Construction Where parties operated under a contract which provided for arbitration provided reference was claimed within a certain time scale, the failure of one party to apply for a reference in time because he had failed to read that part of the contract was not a sufficient reason to allow an extension of time. This applied even though the term was incorporated by reference, and that such applications need not be construed strictly. 1 Citers Â E A Grimstead and Son Ltd v McGarrigan [1999] EWCA Civ 3029 27 Oct 1999 CA Peter Gibson, Pill, Chadwick LJJ Contract The court considered the effect of an acknowledgement of non-reliance clause: "There are, as it seems to me, at least two good reasons why the courts should not refuse to give effect to an acknowledgement of non-reliance in a commercial contract between experienced parties of equal bargaining power a fortiori, where those parties have the benefit of professional advice. First, it is reasonable to assume that the parties desire commercial certainty. They want to order their affairs on the basis that the bargain between them can be found within the document which they have signed. They want to avoid the uncertainty of litigation based on allegations as to the content of oral discussions at pre-contractual meetings. Second, it is reasonable to assume that the price to be paid reflects the commercial risk which each party - or, more usually, the purchaser - is willing to accept. The risk is determined, in part at least, by the warranties which the vendor is prepared to give. The tighter the warranties, the less the risk and (in principle, at least) the greater the price the vendor will require and which the purchaser will be prepared to pay. It is legitimate, and commercially desirable, that both parties should be able to measure the risk, and agree the price, on the basis of the warranties which have been given and accepted." The court gave effect to a non-reliance clause in a contract. 1 Cites 1 Citers [ Bailii ] Â Garrow v Society of Lloyd's Times, 28 October 1999; Gazette, 03 November 1999 28 Oct 1999 CA Insurance, Contract A proper counterclaim against Lloyd's of London for fraudulent misrepresentation with an amount at stake equal to the amount claimed was a proper basis for setting aside a statutory demand for a sum due to Lloyd's, despite the existence of a deed requiring members to 'pay now and sue later' which purported to disallow counterclaims and set-off. 1 Cites Â Grape Bay Limited v Attorney General [2000] 1 WLR 574; Appeal No 69 of 1998; [1999] UKPC 43 28 Oct 1999 PC Lord Hoffmann, Lord Goff of Chieveley, Lord Clyde, Lord Millett, Sir Christopher Slade Commonwealth, Intellectual Property, Contract PC Bermuda [ Bailii ] Â Anderton and Rowland (A Firm) v Rowland Times, 05 November 1999 5 Nov 1999 QBD Contract Where the rules of an association did not make provision for one member to sue another for a breach of the rules of the association, no such contractual obligation could be inferred. The primary obligations were as between the association (the Showmen's Guild) and its members, and not between member and member. Â Hammersmith Hospitals NHS Trust and Others v Troup Bywaters and Anders (A Firm) [1999] EWHC Technology 273 12 Nov 1999 TCC His Honour Judge John Toulmin Cmg Qc Contract, Professional Negligence, Evidence Contract - professional negligence - duty of care - general consulting engineers - advice to NHS trust whether negligent - expert evidence - admissibility of evidence in the same profession with specialist professional expertise. [ Bailii ] Â J Jarvis and Sons Plc v Galliard Homes Ltd [1999] EWHC 277 (TCC); (1999) 71 Con LR 219 12 Nov 1999 CA Contract 1 Citers [ Bailii ] Â Mace and Others v Rutland House Textiles Ltd (In Administrative Receivership) Gazette, 01 December 1999; Times, 11 January 2000 1 Dec 1999 ChD Contract, Equity Company pension trustees granted a sub-lease to the company, and the same solicitor acted for both parties. The company sought rectification of what it claimed was a mistake in the lease. Despite the absence of any clear evidence of the precise nature of the mistake, without any outward expression of accord from which a common intention could be derived, rectification was available where the mistake was as to the language. The trustees should not be prevented from seeking to show their case. The absence of any outward and explicit instructions was not enough to defeat an application for rectification of the agreement, provided there was convincing proof of the common intention asserted. Â Jumbo King Ltd v Faithful Properties Ltd (1999) 2 HKCFAR 279 2 Dec 1999 Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr Justice Nazareth NPJ and Lord Hoffmann NPJ Commonwealth, Contract (Court of Final Appeal of Hong Kong) 1 Citers [ HKLII ] Â Peskin, Milner v John Anderson and Others [2000] 2 BCLC 1 7 Dec 1999 ChD Neuberger J Company, Contract The claimants sought damages for the failure of the defendants, former directors of the RAC, to warn them of the impending re-organisation and demutualisation of the RAC. By resigning in ignorance they had lost the chance to participate in the de-mutualisation. Held: The claim was struck out. The rules of the club did not form a contract with its members. A director does not owe a general fiduciary duty to shareholders of the company. A director of a company could owe a fiduciary duty to shareholders if he had, in relation to the sale of shares, special knowledge not possessed by the shareholders. There was no fiduciary duty in the circumstances of this case. Eight factors led to that conclusion: the absence of any special facts in the relationship of the directors and the members of RACL, which would make the existence of a fiduciary duty more likely; the claimants had resigned membership of their own motion, uninfluenced by any information provided by, or views expressed by, the directors; no specific transaction was in contemplation at the time of the resignations; the defendants did not, in their capacity as directors of RACL, benefit from the claimants ceasing to be members, either directly ( e.g. they did not acquire shares from the members or encourage them to part with their shares) or indirectly ( e.g. by minimising the number of members, so as to increase their share of the proceeds of sale) ; the alleged interest of the directors in profits from the sale in the form of "golden hellos and employment contracts" did not impinge on the issue whether they were under a duty to disclose at an early stage the possibility of selling off the RACMS business; the investigation and promotion of proposals for the de-mutualisation of RACL (including the incurring of costs in relation to the amendments of the Memoranda of RACL and RACMS sanctioned by the court) did not involve the directors in the pursuit of an unauthorised and improper object; it was unreasonable for directors to be put in the sort of position which the claimants' contentions would necessarily involve with regard to the disclosure of contemplated arrangements or transactions best kept confidential; and the claimants' arguments would place directors in the unfortunate position of being "damned if they do and damned if they don't", if they were put under a duty to disclose to the members a contemplated sale which might, or might not, happen. 1 Citers Â Vekaplast Windows (C I ) Limited v Barry Kenneth Jehan and Another (Guernsey) [1999] UKPC 53 13 Dec 1999 PC Lord Browne-Wilkinson, Lord Mackay of Clashfern, Lord Nolan, Lord Clyde, Lord Hobhouse of Woodborough Contract, Evidence PC Guernsey (Appeal No.65 of 1997) The claimant company asserted that cheques drawn by a director in favour of his own company were for services which had not been delivered. He complained that a tape record of part of the a conversation with the defendant had not been admitted, and that three explanations of the additional charges were inconsistent. Held: He had agreed to the approach taken by the court on the admission of the transcript, and the explanations of the additional sums charged were not explanations for the same sums, and were not therefore inconsistent. Appeal dismissed. [ Bailii ] - [ PC ] Â James Smith and Mrs Patricia Smith v Messrs Lindsay and Kirk and others Times, 16 March 2000; [1999] ScotCS 302 16 Dec 1999 SCS Contract, Limitation, Scotland Where a contract specifically provided that it would become unenforceable after two years from the date of the contract, an action for breach of contract, and not just an action for performance of it, was also time barred after the expiry of the agreed time. This applied even if, as in this case, the breach occurred within the two year period. The word 'enforceable' should not be given such a constrained meaning as to limit it to an action for performance. [ Bailii ] Â Â Bland v Sparkes and Another; CA 17-Dec-1999 - Times, 17 December 1999 Â Petrotrade Inc v Texaco Ltd [1999] EWHC 291 (Comm) 21 Dec 1999 ComC Contract [ Bailii ] Â
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