Verderame v Commercial Union Assurance Co Plc: CA 2 Apr 1992

The insurance brokers, acting to arrange insurance for a small private limited company did not owe a duty in tort to the directors of that company personally. Where an action was brought in a tort and in breach of contract, damages could not be awarded on the tort where they were not available in contract.

Balcombe LJ
[1992] BCLC 793, Times 02-Apr-1992
England and Wales
Citing:
FollowedWatts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .

Cited by:
CitedJohnson v Gore Wood and Co (a Firm) CA 12-Nov-1998
The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
CitedHamilton Jones v David and Snape (a Firm) ChD 19-Dec-2003
The claimant was represented by the respondent firm of solicitors in an action for custody of her children. Through their negligence the children had been removed from the country. She sought damages for the distress of losing her children.
Agency, Insurance, Company, Contract, Negligence, Damages

Updated: 16 November 2021; Ref: scu.181818

Hosking v Marathon Asset Management Llp: ChD 5 Oct 2016

Loss of agent’s share for breach within LLP

The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a limited liability partnership.
Held: The profit share of a partner or LLP member can potentially be subject to forfeiture. A partner or LLP member is an agent the mere fact that someone is a partner or LLP member as well as an agent should not preclude the operation of a principle which affects agents more generally.

Newey J
[2016] EWHC 2418 (Ch), [2016] WLR(D) 501, [2017] Ch 157, [2017] 2 WLR 746,
Bailii, WLRD
Arbitration Act 1996, Partnership Act 1890, Limited Liability Partnerships Act 2000, Limited Liability Partnership Regulations 2001
England and Wales
Citing:
CitedAndrews v Ramsay 1903
The plaintiff asked the defendant estate agents to find a purchaser for his property at a price of pounds 2,500 and if one such was found the agents’ fee would be pounds 50. A purchaser, one Clutterbuck, at pounds 2,100 was found. He paid the agents . .
CitedKeppel v Wheeler CA 1927
The plaintiff engaged the defendant estate agents to sell a property, instructing them to market it at 6,500 pounds but that he would accept 6,000 pounds. The plaintiff accepted an offer of 6,150 pounds ‘subject to contract’. Before exchange, . .
CitedImageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
CitedBank of Ireland and Another v Jaffery and Another ChD 23-May-2012
Claim for breach of fiduciary duty brought by the Bank against one of its erstwhile senior executives.
Held: Vos J concluded that forfeiture of agency fees would be disproportionate and inequitable for breach of an employment or agency . .
CitedDunne v English CA 1874
A partner had made a secret profit from the sale of partnership property.
Held: The other partner sought and obtained relief ‘substantially in accordance with the first and second paragraphs of the prayer of the bill’, which had sought ‘a . .
CitedHelmore v Smith 1886
The relationship between partners is of a fiduciary nature.
Bacon V-C said: ‘If fiduciary relation means anything I cannot conceive a stronger case of fiduciary relation than that which exists between partners. Their mutual confidence is the . .
CitedHilton v Barker Booth & Eastwood (a Firm) CA 22-May-2002
The firm of solicitors acted for both parties in a conveyancing transaction, in a situation when they were permitted to do so. The firm had previously acted for one party in a case where he had been convicted of a crime. The other party said the . .
CitedAvrahami and Others v Biran and Others ChD 25-Jun-2013
Management fees were to be forfeited for breach of a fiduciary duty by an agent. . .
CitedPremium Real Estate Ltd v Stevens 6-Mar-2009
Supreme Court of New Zealand – The court was asked as to the forfeiture of remuneration by an agent for breach of fiduciary duty.
Held: In relation to remoteness of damage, it was observed that the question of foreseeability in common law . .
CitedF and C Alternative Investments (Holdings) Ltd v Barthelemy and Another (No 2) ChD 14-Jul-2011
The court was asked as to the fiduciary obligations owed by members of the board of a limited liability company.
Held: Sales J said that: ‘there is nothing in the Act to qualify the usual fiduciary obligations which an agent owes his principal . .
CitedErikson v Carr 1945
New South Wales – an individual was alleged to have disentitled himself to commission as a result of a breach of duty.
Held: Though the legal rights of the parties would depend on the jury’s conclusions as to, among other things, ‘whether it . .
CitedOlson v Gullo 1994
(Court of Appeal for Ontario) A Mr Olson and a Mr Gullo had formed a partnership to develop a tract of land. Mr Gullo nevertheless bought and sold part of the land for his own account at a substantial profit which he planned to pocket. The trial . .
CitedZahid v M Young Legal Associates Ltd and others CA 16-May-2006
Is it possible for a person to be a partner in a firm, and thus liable jointly with the other partners to creditors of the firm, even if his agreement with them is not that he should be entitled to participate in its profits but that he should be . .
CitedZahid v M Young Legal Associates Ltd and others CA 16-May-2006
Is it possible for a person to be a partner in a firm, and thus liable jointly with the other partners to creditors of the firm, even if his agreement with them is not that he should be entitled to participate in its profits but that he should be . .
CitedReinhard v Ondra Llp and Others ChD 14-Jan-2015
The parties disputed whether the claimant had become a member of the defendant limited liability partnership.
Warren J said: ‘the ‘share’ of a member [of an LLP] is the totality of the contractual or statutory rights and obligations of that . .

Lists of cited by and citing cases may be incomplete.

Agency, Equity, Company

Updated: 10 November 2021; Ref: scu.569924

Imageview Management Ltd v Jack: CA 13 Feb 2009

The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The agent now appealed.
Held: The side deal was and act within the agency and should have been disclosed. This was not an honest breach of contract. This was a secret profit and a breach of fiduciary duty because of the conflict of interest. Not only was the secret payment to be paid across, but no further agency fees were payable.
Jacob LJ said: ‘The law imposes on agents high standards. Footballers’ agents are not exempt from these. An agent’s own personal interests come entirely second to the interest of his client. If you undertake to act for a man you must act 100%, body and soul, for him. You must act as if you were him. You must not allow your own interest to get in the way without telling him. An undisclosed but realistic possibility of a conflict of interest is a breach of your duty of good faith to your client.’ and ‘I accept [counsel for the agent’s] submission that there can be cases of harmless collaterality. And that there can be cases where there is just an honest breach of contract such as Keppel’s case [1927] 1 KB 577. But this is simply not such a case. This is a case of a secret profit obtained because Mr Berry/Imageview was Mr Jack’s agent. And there was a breach of a fiduciary duty because of a real conflict of interest. That in itself would be enough, but there is more: the profit was not only greater than the work done but was related to the very contract which was being negotiated for Mr Jack. Once a conflict of interest is shown, as Atkin LJ said in the last passage quoted, the right to remuneration goes’.
and ‘The policy reason runs as follows. We are here concerned not with merely damages such as those for a tort or breach of contract but with what the remedy should be when the agent has betrayed the trust reposed in him – notions of equity and conscience are brought into play. Necessarily such a betrayal may not come to light. If all the agent has to pay if and when he is found out are damages the temptation to betray the trust reposed in him is all the greater. So the strict rule is there as a real deterrent to betrayal. As Scrutton LJ said in Rhodes’s case 29 Com Cas 19, 28, ‘The more that principle is enforced, the better for the honesty of commercial transactions”.

Mummery LJ, Dyson LJ, Jacob LJ
[2009] EWCA Civ 63, [2009] WLR (D) 56, [2009] 1 All ER (Comm) 921, [2009] 2 All ER 666, [2009] 1 BCLC 724, [2009] 1 Lloyd’s Rep 436, [2009] Bus LR 1034
Bailii, Times, WLRD
England and Wales
Citing:
CitedSalomons v Pender 21-Apr-1865
When a person who purports to act as an agent is not in a position to say to his principal, ‘I have been acting as your agent, and I have done my duty by you,’ he is not entitled to recover any commission from that principal.
Bramwell B said: . .
CitedHippisley v Knee Bros CA 1903
The defendant auctioneers were employed by the plaintiff to sell some goods. The payment was to be percentage commission with a minimum of andpound;20, certain fixed amounts and ‘all out of pocket’ expenses, particularly advertising. The sale . .
CitedBoston Deep Sea Fishing and Ice Co v Ansell CA 1888
An employer having dismissed an employee (its managing director) later learnt of the employee’s fraud.
Held: The employer was allowed to rely upon that fraud to justify the dismissal. Where an agent is in wrongful repudiation of his contract . .
CitedAndrews v Ramsay 1903
The plaintiff asked the defendant estate agents to find a purchaser for his property at a price of pounds 2,500 and if one such was found the agents’ fee would be pounds 50. A purchaser, one Clutterbuck, at pounds 2,100 was found. He paid the agents . .
CitedNitedals Taenstikfabrik v Bruster 1906
Commission was allowed for an agent despite an alleged breach of duty. Neville J discussed Andrews v Ramsay saying its doctrine: ‘does not apply to the case of an agency where the transactions in question are separable’ . .
CitedStubbs v Slater 1910
A deposit by guarantors who had agreed ‘to assign to [the Bank] their certificates of shares in [PPL] by way of deposit’, together with endorsed transfers in blank, would create an equitable mortgage with an implied power of sale. Neville J . .
CitedRhodes v Macalister CA 1923
The plaintiff agent acted to find a seller of mineral rights for the defendant principal. He told his principal that the properties could be purchased for from andpound;8,000 to andpound;10,000. If the agent could find a seller at below . .
CitedKeppel v Wheeler CA 1927
The plaintiff engaged the defendant estate agents to sell a property, instructing them to market it at 6,500 pounds but that he would accept 6,000 pounds. The plaintiff accepted an offer of 6,150 pounds ‘subject to contract’. Before exchange, . .
CitedO’Sullivan v Management Agency and Music Limited CA 1985
The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the . .
CitedDalkia Utilities Services Plc v Celtech International Ltd ComC 27-Jan-2006
The Court was asked to decide (i) which, if either, of the two parties to a 15 year agreement lawfully terminated it; (ii) whether, if one of them did so, it was by giving notice under a contractual termination clause or by way of acceptance of the . .
CitedPhipps v Boardman HL 3-Nov-1966
A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to . .
CitedRobinson Scammel v Ansell 1985
. .
CitedKelly v Cooper and Another PC 25-Nov-1992
There was a dispute between a client and an estate agent in Bermuda. The client sued the estate agent for damages for breach of duty in failing to disclose material information to him and for putting himself in a position where his duty and his . .
CitedWarman International Ltd v Dwyer 1995
(High Court of Australia) A fiduciary diverted a business in breach of his fiduciary duty.
Held: ‘The outcome in cases of this kind will depend upon a number of factors. They include the nature of the property, the relevant powers and . .
CitedMurad and Another v Al Saraj and Another CA 29-Jul-2005
An account of profits is available without proof of loss, and the onus is upon the defaulting party to show that profits are not ones for which he should account . .

Cited by:
CitedAvrahami and Others v Biran and Others ChD 25-Jun-2013
Management fees were to be forfeited for breach of a fiduciary duty by an agent. . .
CitedHosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .

Lists of cited by and citing cases may be incomplete.

Agency, Equity

Updated: 10 November 2021; Ref: scu.282631

FHR European Ventures Llp and Others v Cedar Capital Partners Llc: SC 16 Jul 2014

Approprietary remedy against Fraudulent Agent

The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or commission.
Held: The appeal failed. An agent receiving a secret commission in breach of his fiduciary duties to his principal, held that commission or bribe in trust for that principal, and a proprietary remedy was available in respect of it.
There had been conflicting decisions and much academic discussion over the years as to the availability of the remedy requested. Where an agent acquires a benefit which came to his notice as a result of his fiduciary position, or pursuant to an opportunity which results from his fiduciary position, the general equitable rule (‘the Rule’) is that he is to be treated as having acquired the benefit on behalf of his principal, so it is beneficially owned by the principal. How did the rule apply where the bribe was taken by an agent in breach of his fiduciary duty.

Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Hodge, Lord Collins
[2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P and CR DG1, UKSC 2013/0049
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video
England and Wales
Citing:
At ChDFHR European Ventures Llp and Others v Mankarious and Others ChD 5-Sep-2011
The claimants sought return of what it said were secret commissions earned by the defendants when working as their agents, and the defendants counterclaimed saying that the commissions had been known to the claimants and that additional sums were . .
Appeal fromFHR European Ventures Llp and Others v Mankarious and Others CA 29-Jan-2013
The defendants had taken a secret commission when acting for the claimant. They had succeeded in their action and had an order in their favour, but had been refused a proprietary remedy for the sum received.
Held: The appeal was allowed, and a . .
CitedKeech v Sandford ChD 1726
Trustee’s Renewed Lease also Within Trust
A landlord refused to renew a lease to a trustee for the benefit of a minor. The trustee then took a new lease for his own benefit. The new lease had not formed part of the original trust property; the minor could not have acquired the new lease . .
CitedCarter, Esq v Sir William Henry Palmer, Bart 17-Mar-1842
The employment of counsel as confidential legal adviser disables him from purchasing for his own benefit charges on his client’s etates, without his permission ; and although the confidential employment ceases, the disability continues as long as . .
CitedBowes v The City Of Toronto PC 15-Feb-1858
The mayor of a city who bought discounted debentures issued by the city was in the same position as an agent vis-a-vis the city, and was to be treated as holding the debentures on trust for the city. . .
CitedDunne v English CA 1874
A partner had made a secret profit from the sale of partnership property.
Held: The other partner sought and obtained relief ‘substantially in accordance with the first and second paragraphs of the prayer of the bill’, which had sought ‘a . .
CitedBagnall v Carlton CA 1877
Agents for a prospective company who made secret profits out of a contract made by the company were held to be ‘trustees for the company’ of those profits . .
CitedCook v Deeks and Hinds PC 23-Feb-1916
Company Directors not free to prefer Own Interests
Deeks and Hinds were the directors of a construction company. They negotiated a lucrative construction contract with the Canadian Pacific Railway. During the negotiations, they decided to enter into the contract personally, on their own behalves, . .
CitedRegal (Hastings) Ltd v Gulliver HL 20-Feb-1942
Directors Liability for Actions Ouside the Company
Regal negotiated for the purchase of two cinemas in Hastings. There were five directors on the board, including Mr Gulliver, the chairman. Regal incorporated a subsidiary, Hastings Amalgamated Cinemas Ltd, with a share capital of 5,000 pounds. There . .
CitedPhipps v Boardman ChD 1964
Agents of certain trustees had purchased shares, in circumstances where they only had that opportunity because they were agents.
Held: The shares were held beneficially for the trust. . .
CitedMothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
CitedBhullar and others v Bhullar and Another CA 31-Mar-2003
The claimants were 50% shareholders in a property investment company and sought relief alleging prejudicial conduct of the company’s affairs. After a falling out, two directors purchased property adjacent to a company property but in their own . .
CitedBarker v Harrison 16-Apr-1846
A vendor’s agent had secretly negotiated a sub-sale of part of the property from the purchaser at an advantageous price.
Held: that asset was held on trust for the vendor. . .
CitedFawcett v Whitehouse 21-Dec-1829
The defendant, intending to enter into a partnership with the plaintiffs, negotiated for the grant by a landlord of a lease to the partnership. The landlord paid the defendant andpound;12,000 for persuading the partnership to accept the lease.
CitedSugden v Crossland 18-Feb-1856
A sum of money paid to a trustee to persuade him to retire in favour of the payee was to be ‘treated as a part of the trust fund’. . .
CitedIn re Morvah Consols Tin Mining Co, McKay’s Case CA 1875
A company bought a mine, and shares in the vendor were promised to the company’s secretary.
Held: The shares were held by him for the company beneficially. . .
CitedIn re Western of Canada Oil, Lands and Works Co, Carling, Hespeler, and Walsh’s Cases CA 1875
Shares which had been transferred by a person to individuals to induce them to become directors of a company and to agree that the company would buy land from the person, were held by the individuals on trust for the company. . .
CitedIn re Caerphilly Colliery Co, Pearson’s Case CA 1877
A company director, had received shares from the promoters and then acted for the company in its purchase of a colliery from the promoters.
Held: The shares were held on trust for the company. . .
CitedNant-y-glo and Blaina Ironworks Co v Grave 1878
Shares in a company had been given by a promoter to the defendant to induce him to become a director.
Held: They belonged to the company. . .
CitedEden v Ridsdale Railway Lamp and Lighting Co Ltd CA 1889
The company was held to be entitled as against a director to shares which he had secretly received from a person with whom the company was negotiating. . .
CitedMartin v Lowry (HM Inspector of Taxes) KBD 15-Jun-1925
The taxpayer had other business, but purchased a substantial quantity of cloth and resold it. He said this was not by way of trade. The Revenue said that he had used all the standard trade practices, and it was taxable as such.
Held: The . .
CitedMartin v Lowry (HM Inspector of Taxes) CA 1926
The appellant purchased the entire stock of government surplus aircraft linen. He had another main business and had intended to resell it immediately. When that failed to promise a profit he set out to sell and sold the material over several months . .
CitedWilliams v Barton 1927
A trustee, who recommended that his co-trustees use stockbrokers who gave him a commission, held the commission on trust for the trust. . .
CitedTyrrell v The Bank Of London And Sir J v Shelley And Others HL 27-Feb-1862
A solicitor retained to act for a company in the course of formation secretly arranged to benefit from his prospective client’s anticipated acquisition of a building called the ‘Hall of Commerce’ by obtaining from the owner a 50% beneficial interest . .
CitedMetropolitan Bank v Heiron CA 1880
A claim brought by a company against a director was time-barred: the claim was to recover a bribe paid by a third party to induce the director to influence the company to negotiate a favourable settlement with the third party. The bank failed in its . .
CitedLister and Co v Stubbs CA 1890
It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other . .
CitedIn re North Australian Territory Co, Archer’s case CA 1892
A bribe had been paid to an agent. . .
CitedDiplock And Others v Blackburn 19-Jul-1811
If the master of a ship in a foreign port, from the state of the exchange, receives a premum for a bill drawn upon England on account of the ship, this belongs to his owner, although there may have been a usage for masters of shps to apprapriate . .
CitedThe Attorney General of Hong Kong v Reid and Reid And Marc Molloy Co PC 1-Nov-1993
(New Zealand) The Board considered the power to recover property owned by a public official found to have taken bribes.
Held: The bribes received by the policeman were held on trust for his principal, and so they could be traced into . .
CitedKak Loui Chan v Zacharia 1984
(High Court of Australia) The fundamental rule that obliged fiduciaries to account for personal benefit or gain had two separate themes: ‘The variations between more precise formulations of the principle governing the liability to account are . .
CitedFyffes Group Ltd v Templeman and others ComC 22-May-2000
The claimants alleged that over a five year period from 1992 to 1996 their employee Mr Simon Templeman, the first defendant, took bribes amounting to over US $1.4 million from or with the connivance of the second to seventh defendants. The essential . .
CitedDaraydan Holdings Limited, Cairn Estates Limited and Others v Solland International Limited and Others ChD 26-Mar-2004
The court was asked whether Lister and Co v Stubbs 45 ChD 1, a decision of the Court of Appeal, was binding on him or whether he could apply the Privy Council’s decision in Attorney General for Hong Kong v Reid
Held: On the facts of the case . .
CitedSinclair Investments (UK) Ltd v Versailles Trade Finance Ltd and Others CA 29-Mar-2011
The appellant challenged a decision that it was not entitled to a proprietary interest in the proceeds of sale of some shares which had been acquired with the proceeds of a breach of trust. Specifically, the claims gave rise to (i) an issue as to . .
CitedGrimaldi v Chameleon Mining NL (No 2) 21-Feb-2012
Federal Court of Australia
CORPORATIONS – Corporations Act 2001 (Cth), s 9 – ‘director’ – ‘officer’ – de facto director – no single test for determining whether a person is such – assuming or performing the functions of a director of the . .

Cited by:
CitedAIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
CitedBailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
CitedCrown Prosecution Service v Aquila Advisory Ltd SC 3-Nov-2021
. .

Lists of cited by and citing cases may be incomplete.

Agency, Equity, Torts – Other

Leading Case

Updated: 09 November 2021; Ref: scu.534405

In re J (Enduring Power of Attorney): ChD 12 Mar 2009

(Court of Protection) The donor executed a document purporting to appoint his wife to be his attorney, with an alternative. The document was based on a published precedent. The Public Guardian (PG) thought this provision of an alternative invalid.
Held: The Act required the use of the form set out, but then allowed variations to it which did not contradict any provision of the Act, and did allow successive attorneyships. The PG said that paragraph 20 required any multiple appointment to be either joint or joint and several. Such appointments were not in fact prohibited, and would give rise to no greater complexity than might arise through the use of multiple and successive deeds which were clearly allowed. The Act should be construed so as to allow people to make the arrangements they felt suitable and without creating technical traps for them. The power was valid.

Lewison J
[2009] EWHC 436 (Ch)
Bailii
Enduring Powers of Attorney Act 1985, Enduring Powers of Attorney (Prescribed Form) Regulations 1990
England and Wales
Citing:
CitedScottish and Newcastle Plc v Raguz HL 29-Oct-2008
The lease had been assigned by the claimant to the defendant and on again to a tenant who became insolvent. The landlord had recovered sums said to be due from the claimant who now sought an indemnity from the defendant. The defendant said that the . .
CitedX v Y, Z sub nom In re E (Enduring power of attorney) ChD 18-Feb-2000
The application was an appeal against an order registering an enduring power of attorney. The appeal from Master Lush was by way of rehearing. The donor had executed two powers. The second was invalid, and the donees of the first power sought to . .

Lists of cited by and citing cases may be incomplete.

Agency, Health

Updated: 01 November 2021; Ref: scu.317986

Millar Son and Co v Radford: CA 1903

For an estate agent to recover his commission, it was ‘necessary’ to show that the agent’s introduction was an ‘efficient’ (namely effective) cause in bringing about the transaction.

Sir Richard Henn Collins MR
(1903) 19 TLR 575
England and Wales
Cited by:
CitedThe County Homesearch Company (Thames and Chilterns) Ltd v Cowham CA 31-Jan-2008
The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed from a finding that they were obliged to pay his commission. The judge found . .
CitedFoxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
CitedCharania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
Agency, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.264092

The County Homesearch Company (Thames and Chilterns) Ltd v Cowham: CA 31 Jan 2008

The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed from a finding that they were obliged to pay his commission. The judge found that it was not implied into the contract that the commission would be payable only if the agent was an effective contributor to the transaction.
Held: The appeal was dismissed. The main reason for implying the term would be to avoid the client having to pay two commissions, but that was already precluded, and express terms were inconsistent with the term sought to be implied, and ‘The fact that it may be arguable whether a term should be implied . . does not mean that there is a doubt about the meaning of a written term’.

Longmore LJ
[2008] EWCA Civ 26, [2008] 1 EGLR 24, [2008] 1 WLR 909, [2008] NPC 10, [2008] 15 EG 178
Bailii
Estate Agents Act 1979, Unfair Terms in Consumer Contracts Regulations 1999 (1999 SI No. 2083) 7(2)
England and Wales
Citing:
CitedThe Moorcock CA 1889
Unless restricted by something else, an employer ought to find work to enable a workman to perform his part of the bargain, namely, to do his work. A term will be implied into a contract only to the extent required to give the contract efficacy: ‘if . .
CitedShirlaw v Southern Foundries (1926) Ltd CA 1939
The court warned against the over-ready application of any principle to justify the implication of terms into a contract. McKinnon LJ set out his ‘officious bystander’ test: ‘If I may quote from an essay which I wrote some years ago, I then said: . .
CitedBrian Cooper and Co v Fairview Estates (Investments) Ltd CA 13-Mar-1987
A substantial property developer sought a tenant for its office block and agreed with his selling agent to pay ‘a full scale letting fee . . should you introduce a tenant by whom you are unable to be retained and with whom we have not been in . .
CitedToulmin v Millar HL 1887
The agent claimed a second commission when his principal, who had already paid a commission for the procuring of a tenant, was asked to pay a second commission on the purchase of the property by the tenant at a later date.
Held: Where there . .
CitedDoyle v Mount Kidston Mining and Exploration Property Ltd 1984
(Queensland) McPherson J considered an estate agent’s contract: ‘it would have been quite artificial to suppose that the parties intended that the agent should earn his commission simply by finding an individual who, independently of any further . .
CitedShirlaw v Southern Foundries (1926) Ltd HL 1940
Where a party enters into an arrangement which can only take effect by the continuance of an existing state of circumstances, there is an implied engagement on his part that he will do nothing of his own motion to put an end to that state of . .
CitedMillar Son and Co v Radford CA 1903
For an estate agent to recover his commission, it was ‘necessary’ to show that the agent’s introduction was an ‘efficient’ (namely effective) cause in bringing about the transaction. . .

Cited by:
CitedOffice of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
CitedFoxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
CitedGlentree Estates Ltd and Others v Favermead Ltd ChD 20-May-2010
The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original . .

Lists of cited by and citing cases may be incomplete.

Contract, Agency, Consumer

Updated: 01 November 2021; Ref: scu.264035

Aluminium Industrie Vaassen B V v Romalpa Aluminium Ltd: CA 16 Jan 1976

The seller sold aluminium to the defendant, but included a clause under which they retained title in the materials sold, even if mixed in with manufactured goods, until they had been paid for the metal. The defendants appealed a finding that the receivers held the proceeds of sale of the manufactured goods on trust for the plaintiffs.
Held: The appeal failed. The intention of the clause was to secure for as long as possible payment of the purchase price of the aluminium. There had to be read into the contract a duty on the defendant to act under the fiduciary relationship of principal and agent, bailor and bailee, as was contemplated in the clause. The plaintiffs could trace the proceeds of the sub-sales, and recover them.

Megaw, Roskill and Goff L.JJ
[1976] 1 WLR 676
lip
England and Wales
Citing:
CitedIn re Hallett’s Estate; Knatchbull v Hallett CA 1880
Where a trustee of a policy used money received from others to make payment of premiums on an insurance policy, they would be entitled to a lien on the policy. Where an asset was acquired exclusively with trust money, the beneficiary could either . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Company, Equity, Agency

Leading Case

Updated: 01 November 2021; Ref: scu.174733

Director of Legal Aid Casework and Others v Briggs: CA 31 Jul 2017

Orse In re Briggs (Incapacitated Person)
Sir Brian Leveson P, King , Burnett LJJ
[2017] EWCA Civ 1169, [2017] WLR(D) 535, (2017) 158 BMLR 88, [2018] 2 All ER 990, [2018] 2 WLR 152, [2017] COPLR 370, [2017] CP Rep 45, , [2018] Fam 63
Bailii, WLRD
Mental Capacity Act 2005
England and Wales
Citing:
Appeal fromBriggs v Briggs and Others (EWCOP 48) CoP 24-Nov-2016
The Court considered whether the disagreement about whether it was in the best interests of Mr B for him to be given clinically assisted nutrition and hydration, was one which could be determined . .

Cited by:
CitedAn NHS Trust and Others v Y and Another SC 30-Jul-2018
The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2021; Ref: scu.591676

Tongue v Royal Society for The Prevention of Cruelty To Animals and Another: ChD 12 Oct 2017

The respondent society had removed cattle from the claimant’s farm after findings against the farmer under the 1911 Act. The parties now disputed liability for the costs incurred.
Newey J
[2017] EWHC 2508 (Ch), [2017] WLR(D) 668
Bailii, WLRD
Protection of Animals Act 1911
England and Wales

Updated: 29 August 2021; Ref: scu.597474

Siu Yin Kwan and Another v Eastern Insurance Co Ltd: PC 16 Dec 1993

Insurers are liable to undisclosed principals on an indemnity policy, provided it was made with the range of their authority. The claim arose out of the death of two seamen on their employers’ vessel but the employers were not named in the relevant policy.
Lord Lloyd said: ‘There are two reasons why their Lordships prefer the decision in Mark Rowlands . . In the first place the words ‘event or events’ in section 2, while apt to describe the loss of the vessel are hardly apt to describe . . liability arising under the common law, as a consequence of the loss of the vessel. Secondly, section 2 must take colour from the short title and preamble to Section 1. By no stretch of the imagination could indemnity insurance be described as a ‘mischievous kind of gaming’. Their Lordships are entitled to give section 2 a meaning which corresponds with the obvious legislative intent.’
Lord Lloyd of Berwick said: ‘For present purposes the law can be summarised shortly. (1) An undisclosed principal may sue and be sued on a contract made by an agent on his behalf, acting within the scope of his actual authority. (2) In entering into the contract, the agent must intend to act on the principal’s behalf. (3) The agent of an undisclosed principal may also sue and be sued on the contract. (4) Any defence which the third party may have against the agent is available against his principal. (5) The terms of the contract may, expressly or by implication, exclude the principal’s right to sue, and his liability to be sued. The contact itself, or the circumstances surrounding the contract, may show that the agent is the true and only principal.’
Lord Lloyd
Gazette 02-Feb-1994, Times 16-Dec-1993, [1994] 2 AC 199, [1994] 1 All ER 213, [1994] 2 WLR 370
Insurance Act 1774 2
Commonwealth
Citing:
AppliedMark Rowlands v Berni Inns Ltd CA 1985
The plaintiff owned the freehold and had let the basement to the defendant. The plaintiff insured the building. The defendant covenanted to pay to the plaintiff an insurance rent equal to the proportionate cost of insuring the part of the building . .

Cited by:
CitedFeasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey ComC 17-May-2002
The fact that there was more than one insurance policy in place for the same interest would not preclude a claim under one of them. A mutual underwriting group insured members against personal injury and so forth through ‘lineslip’ policies. The . .
CitedBanca Nazionale Del Lavoro Spa v Playboy Club London Ltd and Others SC 26-Jul-2018
The Playboy casino required a reference for a customer, but asked for this through a third party. The bank was not aware of the agency but gave a good reference for a customer who had never deposited any money with them and nor to whom it had issued . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.89287

Temple Legal Protection Ltd v QBE Insurance (Europe) Ltd: ComC 23 Apr 2008

Beatson J
[2008] EWHC 843 (Comm), [2008] Lloyd’s Rep IR 643
Bailii
England and Wales
Cited by:
Appeal fromTemple Legal Protection Ltd v QBE Insurance (Europe) Ltd CA 6-Apr-2009
‘In the present case the binder gives Temple certain valuable rights, including a right in Section 27.1 to ‘retain’ commission out of premiums, but they do not include any rights of a security or proprietary nature to which the authority can be . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.267064

Keppel v Wheeler: CA 1927

The plaintiff engaged the defendant estate agents to sell a property, instructing them to market it at 6,500 pounds but that he would accept 6,000 pounds. The plaintiff accepted an offer of 6,150 pounds ‘subject to contract’. Before exchange, another potential buyer offered 6,750 pounds. Instead of communicating that offer to their principal, the agents went to the original offeror, suggesting he could sell on and make a profit. They did so in good faith, believing that they had already fulfilled their duty to their principal, not understanding that only formal exchange of contract brings their duty to an end.
Held: The plaintiff was awarded damages for breach of the agents’ duty. These were the difference between the two prices, namely 600 pounds less the extra commission which that 600 pounds would have earned. But the plaintiff had to pay commission on the sale itself.
Bankes LJ said: ‘The appellant contended that the agents have disentitled themselves to recover the commission, but I do not take that view at all. It seems to me that an agent might quite properly claim his commission, and yet have to pay damages for committing a bona fide mistake which amounts to a breach of duty. In these circumstances, I think the respondents are entitled to the claim which they make for commission.’
Atkin LJ said: ‘The other question is whether the respondents should succeed on their counterclaim. Now I am quite clear that if an agent in the course of his employment has been proved to be guilty of some breach of fiduciary duty, in practically every case he would forfeit any right to remuneration at all. That seems to me to be well established. On the other hand, there may well be breaches of duty which do not go to the whole contract, and which would not prevent the agent from recovering his remuneration; and as in this case it is found that the agents acted in good faith, and as the transaction was completed and the appellant has had the benefit of it, he must pay the commission. Therefore, I think, the defendants are entitled to recover on their counterclaim.’
Bankes LJ, Atkin LJ
[1927] 1 KB 577
England and Wales
Cited by:
CitedImageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
CitedAvrahami and Others v Biran and Others ChD 25-Jun-2013
Management fees were to be forfeited for breach of a fiduciary duty by an agent. . .
CitedHosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.282639

Moran Yacht and Ship Inc v Pisarev and Another: CA 11 Feb 2016

[2016] EWCA Civ 317, [2017] 1 All ER (Comm) 62, [2016] 1 Lloyds Rep 625
Bailii
England and Wales
Cited by:
CitedRock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.616602

Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another: CA 1 Dec 1995

The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s agent.
Morritt LJ discussed section 199: ‘Counsel for the wife submitted that it did not apply as the knowledge came to the knowledge of the solicitors for the lender as such when they were instructed to act on behalf of the lender on 19 June 1990. In the case of the wife it was submitted that the solicitors were not instructed by her as ‘agents to know.’
I do not accept either of these submissions. In my view the section has to be applied in accordance with its terms to the facts of this case. There is no doubt that the information as to the true purpose of the remortgage loan imparted by the husband came to the knowledge of the solicitors on 12 June 1990 as the solicitors for the husband and wife alone for they were not instructed to act for the lenders until 19 June at the earliest. That knowledge once acquired remained with the solicitors and cannot be treated as coming to them again when they were instructed on behalf of the lenders. As counsel for the wife accepted, their knowledge cannot be treated as divided or disposed of and reacquired in that way. The conclusion seems to me to be inescapable, namely that knowledge of the relevant matters facts or things did not come to the solicitors as the solicitors for the lenders. Accordingly it did not come to them ‘as such.’ It was not disputed that the lender is a purchaser within the definition contained in section 205(1)(xxi) of the Law of Property Act 1925. Consequently section 199(1)(ii)…b) precludes the solicitors’ knowledge of the relevant matters or facts being imputed to the lender.’
Morritt LJ
Times 01-Dec-1995, Gazette 11-Jan-1996, [1996] Ch 207
Law of Property Act 1925 199
England and Wales
Citing:
Appeal fromHalifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another ChD 27-Jun-1995
The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s . .

Cited by:
CitedScotlife Home Loans (No 2) Limited v Melinek and Melinek CA 9-Sep-1997
The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .
CitedHardy and others v Fowle and Another ChD 26-Oct-2007
Mortgagees claimed possession of the land. The occupiers claimed a right of occupation under a lease. The mortgagees argued that the lease had been surrendered.
Held: The lease had been surrendered by a deed. The defects in notice alleged did . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.81151

Andrews v Ramsay: 1903

The plaintiff asked the defendant estate agents to find a purchaser for his property at a price of pounds 2,500 and if one such was found the agents’ fee would be pounds 50. A purchaser, one Clutterbuck, at pounds 2,100 was found. He paid the agents pounds 100 by way of deposit. The agents paid the principal pounds 50 and, with the principal’s consent, retained pounds 50 as their commission. But it then transpired that the agents had had a side deal with Clutterbuck whereby he paid them pounds 20. In the first action the principal claimed and recovered the pounds 20 as a secret profit made by the agent in breach his duty of good faith. In the second action the principal claimed the return of the pounds 50.
Held: He succeeded – even though he had had the benefit of the agent’s services.
Lord Alverstone CJ said: ‘It is said that the defendants ought not to be called upon to hand over the andpound;50 to the plaintiff because the plaintiff has had the benefit of their services. The principle of Salomons v. Pender (1865) 3 HandC 639 seems to me to govern the case, and it is, in my opinion, amply sufficient to do so. In that case it was held that an agent who was himself interested in a contract to purchase property of his principal was not entitled to any commission from the principal. The principle there laid down is that, when a person who purports to act as an agent is not in a position to say to his principal, ‘I have been acting as your agent, and I have done my duty by you,’ he is not entitled to recover any commission from that principal . . It seems to me that this case is only an instance of an agent who has acted improperly being unable to recover his commission from his principal. It is impossible to say what the result might have been if the agent in this case had acted honestly. It is clear that the purchaser was willing to give andpound;20 more than the price which the plaintiff received, and it may well be that he would have given more than that. It is impossible to gauge in any way what the plaintiff has lost by the improper conduct of the defendants. I think, therefore, that the interest of the agents here was adverse to that of the principal. A principal is entitled to have an honest agent, and it is only the honest agent who is entitled to any commission. In my opinion, if an agent directly or indirectly colludes with the other side, and so acts in opposition to the interest of his principal, he is not entitled to any commission. That is, I think, supported both by authority and on principle; but if, as is suggested, there is no authority directly bearing on the question, I think that the sooner such an authority is made the better.’
Wills J said: ‘The andpound;50 in question was paid by the purchaser to the defendants as agents for the plaintiff as part of the andpound;100 deposit on the purchase, and the defendants were allowed by the plaintiff to retain andpound;50 in the belief that they had earned that sum as commission. If the money had all been paid over, and the defendants had had to sue the plaintiff for commission, it seems to me perfectly clear that they could not recover it. They would have no chance whatever of succeeding in such an action, and I think that they ought not to stand in any better position because the plaintiff, believing that they had acted properly, had allowed them to retain the andpound;50. The case ought to be the same whether the commission has already been paid or whether the agent has to sue for it.’
Lord Alverstone CJ, Wills J
[1903] 2 KB 635
England and Wales
Citing:
AppliedSalomons v Pender 21-Apr-1865
When a person who purports to act as an agent is not in a position to say to his principal, ‘I have been acting as your agent, and I have done my duty by you,’ he is not entitled to recover any commission from that principal.
Bramwell B said: . .

Cited by:
CitedImageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
CitedNitedals Taenstikfabrik v Bruster 1906
Commission was allowed for an agent despite an alleged breach of duty. Neville J discussed Andrews v Ramsay saying its doctrine: ‘does not apply to the case of an agency where the transactions in question are separable’ . .
CitedHosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.282635

Gresport Finance Ltd v Battaglia: CA 23 Mar 2018

Henderson LJ referred to the judgment of Neuberger LJ in Sephton in which he discussed the need for there to be an assumption that the claimant desires to know that there has been a fraud. Henderson LJ observed: ‘Another way to make the same point . . might be that the ‘assumption’ referred to by Neuberger LJ is an assumption on the part of the draftsman of section 32(1), because the concept of reasonable diligence only makes sense if there has been something to put the claimant on notice of the need to investigate whether there has been a fraud, concealment or mistake (as the case may be’.
Henderson L
[2018] EWCA Civ 540
Bailii
Limitation Act 1980 32(1)
England and Wales
Citing:
CitedThe Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .

Cited by:
CitedBoyse (International) Ltd v Natwest Markets Plc and Another ChD 27-May-2020
Claim alleging misselling of interest rate hedging products. The court considered the defendants strike out application, and applications for leave to amend pleadings.
Held: it will normally be appropriate for summary judgment to be pursued on . .
CitedDSG Retail Limited and Another v Mastercard Incorporated and Others CAT 14-Feb-2019
Roth J explained Henderson L’s observation in Gresport as meaning that: ‘ . . the concept of reasonable diligence is to be applied on the assumption that the claimant is on notice of the need to investigate’. . .
CitedGranville Technology Group Ltd and Others v Infineon Technologies Ag and Another ComC 25-Feb-2020
Flaux J summarised the principles to be applied when considering what discovery of a fraud was, and what was ‘reasonable diligence’ so as to set the limitation clock started.
He observed that: ‘If section 32(1) involved a statutory assumption . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.608348

Smelter Corporation v O’Driscoll: 1977

(Ireland) In an action for misrepresentation, it did not matter that the representation was made by an agent who did not know that the representation was untrue.
[1977] IR 307
England and Wales
Cited by:
CitedSpice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .

These lists may be incomplete.
Updated: 08 May 2021; Ref: scu.194201

Lonsdale v Howard and Hallam Ltd: CA 8 Feb 2006

The claimant sought damages after his agency with the defendants was terminated. The central issue was whether compensation was to be calculated at two years commission as derived from French practice or otherwise.
Held: ‘there is no clear agreement on the principles governing the assessment of compensation under regulation 17(6) . . . the common law concept of mitigation has no part to play in the exercise, so that the court is not concerned with any steps that the agent might have taken to obtain other employment following the termination of the agency, and that a broad approach is to be adopted to the assessment of compensation.
However the basis of calculation remains unclear . . The two years’ commission rule derived from the practice of the French courts . . has been widely regarded as unsatisfactory and has rarely been applied. . [R]egulation 17(6) requires them to make an award of compensation that is just and equitable in all the circumstances, rather than an award that compensates the agent for any specific loss he has suffered.’ The Directive had not sought to impose a consistent method of calculation of compensation, but ‘the purpose of the regulation is not to provide compensation for damage caused by a breach of duty (for which a claim could be made outside the terms of the Regulations in any event), but to provide compensation for the loss of goodwill for which a claim would not otherwise arise.’ The damages did not only consist of loss of goodwill, but also loss of earnings. ‘The damage suffered by the agent as a result of the termination of his relations with his principal is normally the loss of the agency business, including whatever goodwill attaches to it.’ Any valuation should be at the date of termination.
[2006] EWCA Civ 63, Times 21-Feb-2006, [2006] 1 WLR 1281
Bailii
Commercial Agents (Council Directive) Regulations 1993, Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents
England and Wales
Citing:
CitedKing v T Tunnock Limited IHCS 2000
The pursuer had been employed as a commercial agent by the defendant which carried on business as a baker. The pursuer sold only the defendant’s cakes and biscuits. The defendant decided to close its bakery business. The claimant sought compensation . .
CitedTigana Ltd v Decoro Ltd QBD 3-Feb-2003
The claimant sought compensation after its sales agency agreement with the defendant was terminated. He had opened up several substantial sales channels for the respondent’s products within the UK. There were difficulties in the products (leather . .
CitedIngmar GB Ltd v Eaton Leonard Inc QBD 31-Jul-2001
The applicants sought damages as commercial agents following the termination of their exclusive agency for the sale of the respondents goods in the UK. The defendants claimed the contract was governed exclusively by Californian law. The European . .
CitedPage v Combined Shipping and Trading Co Ltd CA 24-May-1996
Mr Page was taken on to trade in commodities for the defendant for a minimum period of four years. Six months later the defendant’s parent company decided to cease trading activities, and he began proceedings claiming compensation under regulation . .
CitedDuffen v Fra Bo Spa CA 30-Apr-1998
The plaintiff had been appointed as an exclusive sales agent for the defendant for a minimum period of four years. The defendants terminated it eighteen months early claiming fraudulent misrepresentation.
Held: The clause setting the damages . .
Doubted in partPJ Pipe and Valve Co. Ltd. v Audco India Ltd QBD 2-Sep-2005
The claimant was an agent in the petrochemical industry promoting and selling the defendant’s valves. There were two agency agreements, one relating solely to products to be supplied to a particular petro-chemical complex in Nanhai, the other being . .
CitedPure Fishing (UK) Ltd v Cooper Watkins and Bartle CA 29-Sep-2003
The claimant sought a compensation payment under the Regulations after its sales agency for fishing tackle was terminated. The defendant argued that compensation was payable only where the agency was terminated before its term.
Held: The . .
CitedLitster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
CitedLight and Others v Ty Europe Ltd CA 25-Jul-2003
The claimants sought damages under the regulations. They were self employed sales agents. At first they were sub agents but upon the ceasing to trade of the main agents they had acted directly for the principal. Those agencies had been terminated. . .
CitedFrancovich, Bonifaci and others v Italy ECJ 19-Nov-1991
LMA The claimants, a group of ex-employees sought arrears of wages on their employers’ insolvency. The European Directive required Member States to provide a guarantee fund to ensure payment of employees’ arrears . .

Cited by:
CitedKing v RCO Support Services Limited and Yorkshire Traction Company Limited CA 8-Dec-2000
The appellant was employed by the first respondents as a steam cleaning operative. The first respondent had contracted to supply cleaning services to the second respondent at one of the second respondent’s yards, where buses were cleaned. The . .
CitedClarke v Kato and Others; Cutter v Eagle Star Insurance Co Ltd HL 25-Nov-1998
Save exceptionally, a car park is not a road for the purposes of road traffic legislation on obligatory insurance. It is an unjustified strain on the language. A distinction made between the road ways and the parking bays was artificial and . .
Appeal fromLonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd HL 4-Jul-2007
The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ . .

These lists may be incomplete.
Updated: 19 April 2021; Ref: scu.238356

Lease Management Services Ltd v Purnell Secretarial Services Ltd: CA 1 Apr 1994

A leasing company adopting the style of a like supplier had to adopt that supplier’s representations.
Times 01-Apr-1994, [1994] CCLR 127
England and Wales
Cited by:
CitedAnglo Group Plc, Winther Brown and Co Ltd v Winter Brown and Co Ltd, BML (Office Computers) Ltd, Anglo Group Plc, BML (Office Computers) Ltd TCC 8-Mar-2000
Contract – Contract for provision of computer services – purchaser contract with finance company – duty of co-operation to be implied in computer contracts – practice – responsibilities of expert witnesses generally – whether computer company liable . .

These lists may be incomplete.
Updated: 09 April 2021; Ref: scu.82976

First Energy (UK) Ltd v Hungarian International Bank Ltd: CA 16 Apr 1993

A manager, though he lacked actual authority to authorise and offer a particular loan facility to the plaintiff, still did so by sending him a letter of offer which was accepted.
Held: Albeit the manager lacked actual authority to make the loan and that no other person in the bank had held him out as having such authority, by reason of his very position he was a person who would ordinarily have authority to communicate the decision of more senior members of the bank who were authorised to make and/or approve such a loan and the plaintiff was accordingly entitled to rely upon the offer he had received. Steyn LJ said that a ‘theme that runs through our law of contract is that the reasonable expectations of honest men must be protected. It is not a rule or a principle of law. It is the objective which has been and still is the principal moulding force of our law of contract. It affords no licence to a Judge to depart from binding precedent. On the other hand, if the prima facie solution to a problem runs counter to the reasonable expectations of honest men, this criterion sometimes requires a rigorous re-examination of the problem to ascertain whether the law does indeed compel demonstrable unfairness’.
Steyn LJ
Independent 16-Apr-1993, [1993] 2 Lloyds Rep 194
England and Wales
Cited by:
CitedSun Life Assurance Company of Canada (A Company Established Pursuant To the Laws of Canada) v CX Reinsurance Company Limited (Formerly CNA Reinsurance Company Ltd) CA 6-Mar-2003
The claimant appealed a refusal to order that a dispute between insurer and re-insurer be referred to arbitration. One party sought to avoid liability under the policy, alleging misrepresentation. Discussions had been undertaking settling a revised . .
CitedJordan Grand Prix Limited v Vodafone Group Plc ComC 4-Aug-2003
The claimant asserted that the defendant had agreed in the course of a telephone conversation, to provide sponsorship, and sought to enforce that agreement. There were considerable conflicts of evidence.
Held: Evidence given on behalf of the . .
CitedGolden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .

These lists may be incomplete.
Updated: 09 April 2021; Ref: scu.80555

Arbuthnott v Feltrim; Deeny v Gooda Walker; Henderson v Merrett: CA 14 Dec 1993

Underwriters owe a professional duty of care to Lloyds names in underwriting, even though they were acting as agents.
Times 30-Dec-1993, Independent 14-Dec-1993
England and Wales
Citing:
Appeal fromArbuthnot and Others v Feltrim and Others; Deeny and Others v Gooda Walker Ltd and Others QBD 12-Oct-1993
Lloyds’ names sought damages from their underwriting agents for negligence. The court had to decide as a preliminary issue whether any duty of care arose to the names.
Held: Until 1990, names signed an agreement with a member’s agent who in . .

Cited by:
Appeal fromHenderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .

These lists may be incomplete.
Updated: 09 April 2021; Ref: scu.77859

Morris v C W Martin and Sons Ltd: CA 1965

The plaintiff took her mink stole to the defendants for cleaning. An employee received and stole the fur. The judge had held that the defendants were not liable because the theft was not committed in the course of employment.
Held: The defendants were liable. Bailment includes as an element an assumption of responsibility by the bailee to keep the goods safe, that is to say to take reasonable care of the goods. In a bailment for reward the duty was non-delegable.
The employee had converted the fur in the course of his employment. Though the authorities were not straightforward, he had not commiteed the act while ‘on a frolic of his own’.
Diplock LJ said: ‘If the principle laid down in Lloyd v Grace, Smith and Co [1912] AC 716 is applied to the facts of the present case, the defendants cannot in my view escape liability for the conversion of the plaintiff’s fur by their servant Morrissey. They accepted the fur as bailees for reward in order to clean it. They put Morrissey as their agent in their place to clean the fur and to take charge of it while doing so. The manner in which he conducted himself in doing that work was to convert it. What he was doing, albeit dishonestly, he was doing in the scope or course of his employment in the technical sense of that infelicitous but time-honoured phrase. The defendants as his masters are responsible for his tortious act.’ and
‘ If the bailee in the present case had been a natural person and had converted the plaintiff’s fur by stealing it himself, no one would have argued that he was not liable to her for its loss. But the defendant bailees are a corporate person. They could not perform their duties to the plaintiffs to take reasonable care of the fur and not to convert it otherwise than vicariously by natural persons acting as their servants or agents. It was one of their servants to whom they had entrusted the care and custody of the fur for the purpose of doing work upon it who converted it by stealing it. Why should they not be vicariously liable for this breach of their duty by the vicar whom they had chosen to perform it? . . ‘ and
‘ . . Nor are we concerned with what would have been the liability of the defendants if the fur had been stolen by another servant of theirs who was not employed by them to clean the fur or to have the care and custody of it. The mere fact that his employment by the defendants gave him the opportunity to steal it would not suffice . . .. I base my decision in this case on the ground that the fur was stolen by the very servant whom the defendants as bailees for reward had employed to take care of it and clean it.’
Salmon LJ said: ‘the defendants are liable for what amounted to negligence and conversion by their servant in the course of his employment’. He emphasised the importance of the thief being the servant through whom the defendants had chosen to discharge their duty to take reasonable care of the fur.’ A bailee for reward is not answerable for a theft by any of his servants but only for a theft by such of them as are deputed by him to discharge some part of his duty of taking reasonable care . . So in this case, if someone employed by the defendants in another depot had broken in and stolen the fur, the defendants would not have been liable. Similarly . . if a clerk employed in the same depot had seized the opportunity of entering the room where the fur was kept and had stolen it, the defendants would not have been liable . .’
Lord Denning said: ‘Once a man has taken charge of goods as a bailee for reward, it is his duty to take reasonable care to keep them safe: and he cannot escape that duty by delegating it to his servant. If the goods are lost or damaged, whilst they are in his possession, he is liable unless he can show – and the burden is on him to show – that the loss or damage occurred without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty.’
Diplock LJ, Salmon LJ, Lord Denning MR
[1966] 1 QB 716, [1965] 3 WLR 276, [1965] 2 Lloyds Rep 63, [1965] 2 All ER 725
England and Wales
Citing:
CitedLloyd v Grace, Smith and Co HL 1912
Mrs Lloyd delivered the title deeds of her cottages at Ellesmere Port to the solicitors’ managing clerk, who defrauded her.
Held: Vicarious liability can extend to fraudulent acts or omissions if those were carried out in the course of the . .
No longer good lawCheshire v Bailey CA 1905
A silversmith hired a coach and coachman from the defendants in order to show his wares to customers around London. But the coachman entered into a conspiracy with others to steal the silver. Held The Court dismissed the claim for damages against . .

Cited by:
CitedDubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
CitedDubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
CitedFrans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .
CitedLister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
ApprovedPort Swettenham Authority v T W Wu and Co (M) Sdn Bhd PC 19-Jun-1978
A gratuitous bailee assumes a duty to take reasonable care of the chattel: ‘This standard, although high, may be a less exacting standard than that which the common law requires of a bailee for reward [but] the line between the two standards is a . .
ExplainedPhoto Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
ApprovedGilchrist Watt and Sanderson Pty Ltd v York Products Pty Ltd PC 1970
(New South Wales – Australia) The defendants were stevedores who had lost two cases of clocks that they had received as sub-bailees of the shipowners, who in turn owed a duty to deliver them to the plaintiffs under the bills of lading.
Held: . .
CitedMattis v Pollock (T/A Flamingo’s Nightclub) QBD 24-Oct-2002
The claimant sought damages after being assaulted by a doorman employed by the defendant.
Held: The responsibility of the nightclub owner for the actions of his aggressive doorman was not extinguished by the separation in time and place from . .
CitedThe Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
CitedArmes v Nottinghamshire County Council SC 18-Oct-2017
The claimant had been abused as a child by foster parents with whom she had been placed by the respondent authority. The court was now asked, the Council not having been negligent, were they in any event liable having a non-delegable duty of care . .

These lists may be incomplete.
Updated: 14 March 2021; Ref: scu.214665

Knight Frank Llp v Du Haney: CA 12 Apr 2011

The court was asked whether an agent, who in the course of making a contract with a third party misrepresents the name of his principal, attracts either liability for breach of warranty of authority or personal liability on the contract in circumstances where the principal is nonetheless identified and his correct name capable of being established.
Held: The appeal failed. The judge’s findings made it clear that the claimant had not acted as principal but as agent.
Lloyd, Wilson, Tomlinson LJJ
[2011] EWCA Civ 404
Bailii
England and Wales
Citing:
CitedHersom v Bernett 1954
The defendant had sold stolen goods to the plaintiff, saying that he acted as agent only for an undisclosed principal. The plaintiff had had to return the goods to the true owner. The court rejected the defendant’s assertion as to who was the true . .

These lists may be incomplete.
Updated: 07 March 2021; Ref: scu.432648

Crowson v HSBC Insurance Brokers Ltd: ChD 23 Nov 2010

The court was asked whether a person who is not in a contractual relationship with an insurance broker nonetheless has rights of action in tort and/or contract where the insurance to be arranged is also for his benefit.
Bragge M
[2010] EWHC B26 (Ch), [2010] Lloyd’s Rep IR 441
Bailii
England and Wales

Updated: 02 March 2021; Ref: scu.426469

De Comas v Prost and Kohler: PC 13 Mar 1865

New South Wales
[1865] EngR 311, (1865) 3 Moo PC NS 158, (1865) 16 ER 59, [1865] UKPC 17
Commonlii, Bailii
Cited by:
CitedBailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .

These lists may be incomplete.
Updated: 28 February 2021; Ref: scu.423908

Mackay and Another v The Commercial Bank of New Brunswick and Others: PC 14 Mar 1874

(New Brunswick) It may be generally assumed that, in mercantile transactions, principals do not authorise their agents to act fraudulently, frauds are beyond the agent’s authority in the narrowest sense of which the expression admits; but that so narrow a sense would be opposed to justice and so a wider construction had been put on the words, and that it was difficult to define how far it went.
Sir Montague Smith
[1874] UKPC 20
Bailii
Canada
Cited by:
CitedMohamud v WM Morrison Supermarkets plc SC 2-Mar-2016
The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first . .

These lists may be incomplete.
Updated: 26 February 2021; Ref: scu.418905

Aboualsaud v Aboukhater and Another: QBD 19 Sep 2007

Claim for commission – introduction of purchaser – denial of verbal contract.
Nelson J
[2007] EWHC 2122 (QB)
Bailii
Cited by:
See AlsoFHR European Ventures Llp and Others v Mankarious and Others ChD 5-Sep-2011
The claimants sought return of what it said were secret commissions earned by the defendants when working as their agents, and the defendants counterclaimed saying that the commissions had been known to the claimants and that additional sums were . .

These lists may be incomplete.
Updated: 05 February 2021; Ref: scu.261912

Explora Group Plc v Hesco Bastion Ltd and Another: CA 20 Jul 2005

Rix, Jonathan Parker, Longmore LJJ
[2005] EWCA Civ 646
Bailii
England and Wales
Cited by:
CitedBarbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .

These lists may be incomplete.
Updated: 24 January 2021; Ref: scu.228922

Days Medical Aids Limited v Pihsiang Machinery Manufacturing Co Ltd, Pihsiang Wu (Also Known As Donald P H Wu), Chiang Ching-Ming Wu (Also Known As Jenny Wu): ComC 29 Jan 2004

Alleged repudiation of exclusive distribution agreement.
Held: The claim succeeded in part.
The Honourable Mr Justice Langley
[2004] EWHC 44 (Comm), [2004] Eu LR 477, [2004] UKCLR 384, [2004] 1 All ER (Comm) 991
Bailii
England and Wales
Cited by:
Appeal fromDays Medical Aids Ltd v Pihsiang Machinery Manufacturing Co Ltd and others CA 13-Jul-2004
. .

These lists may be incomplete.
Updated: 11 January 2021; Ref: scu.192285

Pure Fishing (UK) Ltd v Cooper Watkins and Bartle: CA 29 Sep 2003

The claimant sought a compensation payment under the Regulations after its sales agency for fishing tackle was terminated. The defendant argued that compensation was payable only where the agency was terminated before its term.
Held: The regulations provided that compensation was payable also where the agency simply expired by effluxion. ‘termination having been given a wide meaning under Regulation 17, a principal can be regarded under Regulation 18(a) as having terminated an agency contract when he fails to renew it. ‘
Lord Justice Schiemann, Lord Justice Rix
[2003] EWCA Civ 1349, [2004] Eu LR 664
Bailii
Commercial Agents (Council Directive) Regulations 1993, Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents 17
England and Wales
Citing:
CitedMoore v Piretta Pta Ltd QBD 11-May-1998
M had a series of agency contracts selling women’s clothing. The last contract was in 1994, and on termination, M claimed an indemnity under the contract which itself applied the regulations. Reg 17(3) gave an indemnity for new customers, where the . .

Cited by:
CitedLonsdale v Howard and Hallam Ltd CA 8-Feb-2006
The claimant sought damages after his agency with the defendants was terminated. The central issue was whether compensation was to be calculated at two years commission as derived from French practice or otherwise.
Held: ‘there is no clear . .

These lists may be incomplete.
Updated: 10 January 2021; Ref: scu.187103

Light and Others v Ty Europe Ltd: CA 25 Jul 2003

The claimants sought damages under the regulations. They were self employed sales agents. At first they were sub agents but upon the ceasing to trade of the main agents they had acted directly for the principal. Those agencies had been terminated.
Held: In addition to the question of whether they were agents within the directive, a claimant also had to have a contractual relationship. That did not apply here, and the claims failed.
Ward, Tuckey LJJ, Lightman J
Times 21-Aug-2003, [2003] EWCA Civ 1238, Gazette 02-Oct-2003, [2003] EuLR 858
Bailii
Commercial Agents (Council Directive) Regulations 1993 (1993 No 3173) 2(1)
England and Wales
Citing:
AdoptedTigana Ltd v Decoro Ltd QBD 3-Feb-2003
The claimant sought compensation after its sales agency agreement with the defendant was terminated. He had opened up several substantial sales channels for the respondent’s products within the UK. There were difficulties in the products (leather . .

Cited by:
CitedLonsdale v Howard and Hallam Ltd CA 8-Feb-2006
The claimant sought damages after his agency with the defendants was terminated. The central issue was whether compensation was to be calculated at two years commission as derived from French practice or otherwise.
Held: ‘there is no clear . .

These lists may be incomplete.
Updated: 10 January 2021; Ref: scu.186034

Jordan Grand Prix Limited v Vodafone Group Plc: ComC 4 Aug 2003

The claimant asserted that the defendant had agreed in the course of a telephone conversation, to provide sponsorship, and sought to enforce that agreement. There were considerable conflicts of evidence.
Held: Evidence given on behalf of the claimant was inconsistent and incredible. No contract was made, the person dealing for Vodaphone did not have authority to make any final agreement, and this was known to the claimant. The claim failed entirely.
The Honourable Mr Justice Langley
[2003] EWHC 1956 (Comm), [2003] 2 Lloyds Rep. 874
Bailii
England and Wales
Citing:
CitedFirst Energy (UK) Ltd v Hungarian International Bank Ltd CA 16-Apr-1993
A manager, though he lacked actual authority to authorise and offer a particular loan facility to the plaintiff, still did so by sending him a letter of offer which was accepted.
Held: Albeit the manager lacked actual authority to make the . .

Cited by:
CitedThree Rivers District Council and others v The Governor and Company of the Bank of England ComC 12-Apr-2006
The claimants had pursued compensation over many years from the defendants alleging various kinds of misfeasance in regulating the bank BCCI. The action had collapsed.
Held: ‘this was extraordinary litigation which came to an abrupt albeit . .

These lists may be incomplete.
Updated: 10 January 2021; Ref: scu.185226

Parks v Esso Petroleum Company Limited: CA 23 Jul 1999

The claimant sought to add a claim under the regulations for compensation after termination of his agency for the defendants. The lower court had rejected his claim saying that the petrol products he sold were at a price fixed by Esso, and that since he did not negotiate the price he fell outside the regulations.
Held: The word ‘negotiate’ need not include the bargaining of price, but did require more than a collection of funds after a self-service sale: ‘he took no part in the customer’s choice and self-service.’
Morritt, Thorpe, Popplewell LJJ
[1999] EWCA Civ 1942
Bailii
Commercial Agents (Council Directive) Regulations 1993
England and Wales
Citing:
Leave to appealParks v Esso Petroleum Company Limited CA 23-Nov-1998
A renewed application for leave to appeal and for an application for leave to serve and set down out of time a notice of appeal in respect of which leave was given. . .
CitedStergios Delimitis v Henninger Brau AG ECJ 28-Feb-1991
ECJ A beer supply agreement is prohibited by Article 85(1) of the EEC Treaty if two cumulative conditions are met. The first is that, having regard to the economic and legal context of the agreement at issue, it . .
CitedGibbs Mew Plc v Graham Gemmell and Gibbs Mew Plc and Centric Pub Company Ltd v Graham Gemmell CA 22-Jul-1998
The brewery sought possession of a public house, tied by type. The lessee claimed damages for breach of Art. 81 and a declaration that the Block Exemption was inapplicable to his lease. His appeal from the judge’s order in favour of the brewery was . .
CitedCrehan v Courage Limited and Byrne and Inntrepreneur Beer Supply Co Ltd and Langton v Inntrepreneur Beer Supply Co Ltd CA 27-May-1999
The court considered the validity of beer ties affecting public houses. . .

Cited by:
CitedClaramoda Ltd v Zoomphase Ltd (T/A Jenny Packham) ComC 13-Nov-2009
The former distribution agent sought to claim under the Regulations. The defendant said that the claim had not been notified as it should, within one year. The agency was for the sale of fashion items. Termination had been informal, stating that it . .

These lists may be incomplete.
Updated: 02 January 2021; Ref: scu.146857

Mothew (T/a Stapley and Co) v Bristol and West Building Society: CA 24 Jul 1996

The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse to further borrowing when he knew that they were using an overdraft to obtain further funding. The plaintiff claimed in breach of trust.
Held: A claim for damages for a solicitor’s failure to disclose the existence of a 2nd mortgage must show that damage flowed from the failure alleged.
Millett LJ said: ‘A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary.’
He is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary: ‘A fiduciary who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of the obligation of undivided loyalty; he puts himself in a position where his duty to one principal may conflict with his duty to another . . This is sometimes described as ‘the double employment rule.” and
‘Finally, the fiduciary must take care not to find himself in a position where there is an actual conflict of duty so that he cannot fulfil his obligations to one principal without failing in his obligations to the other . . If he does, he may have no alternative but to cease to act for at least one and preferably both. The fact that he cannot fulfil his obligations to one principal without being in breach of his obligations to the other will not absolve him from liability.’
As to breach of the duty: ‘Breach of fiduciary obligation, therefore, connotes disloyalty or infidelity. Mere incompetence is not enough. A servant who loyally does his incompetent best for his master is not unfaithful and is not guilty of a breach of fiduciary duty.’
If the trustee has benefited from the breach, the court will order him to account for it on the application of the beneficiary. Millett LJ described such relief as ‘primarily restitutionary or restorative rather than compensatory’.
Millett LJ
Times 02-Aug-1996, [1996] EWCA Civ 533, [1998] Ch 1, [1997] 2 WLR 436, [1996] 4 All ER 698
Bailii
England and Wales
Cited by:
CitedBirmingham Midshires Building Society v Infields (A Firm) TCC 20-May-1999
The defendant solicitors had acted for the lenders and borrower in a mortgage transaction. The claimant sought repayment of the entire loan, alleging breach of fiduciary duty, in having preferred the interests of one client over those of another. . .
CitedArklow Investments Ltd and Another v Maclean and Others PC 1-Dec-1999
PC (New Zealand) Land was offered for sale. A potential buyer, the appellant was approached by a merchant bank with a proposal for finance. When he sought finance elsewhere, a company associated with the bank . .
CitedDEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
CitedThe Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003
The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of . .
CitedMarks and Spencer plc v Freshfields Bruckhaus Deringer (A Firm) ChD 2-Jun-2004
The claimant sought an injunction preventing the respondent form of solicitors acting for a client in a bid for the claimant, saying that the firm was continuing to act for it, and that a conflict of interest arose.
Held: Though the . .
CitedMarks and Spencer Group Plc and Another v Freshfields Bruckhaus Deringer CA 3-Jun-2004
The defendant firm of solicitors sought leave to appeal against an injunction requiring them not to act for a client in making a bid to take over the business of the claimant, a former client of the firm.
Held: Leave was refused. The appeal . .
CitedNewgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
CitedHilton v Barker Booth and Eastwood HL 3-Feb-2005
The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedRatiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
CitedLloyds TSB Bank Plc v Markandan and Uddin (A Firm) ChD 14-Oct-2010
The claimant sought damages saying that the defendant firm of solicitors had failed to deal properly with a conveyance having paid across the mortgage funds to a non-existent firm of solicitors and without obtaining the appropriate documents at all. . .
CitedBarnes and Another v Black Horse Ltd QBD 31-May-2011
barnes_blackQBD11
The claimants sought repayment by the bank of sums paid to them for Payment Protection Insurance policies sold to them in connection with loans made by the bank. The Bank now resisted an application for leave to amend the particulars of the . .
CitedCook v The Mortgage Business Plc CA 24-Jan-2012
cook_mbpCA2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
CitedPortman Building Society v Hamlyn Taylor Neck (a Firm) CA 22-Apr-1998
The mortgage advance had been against an express requirement that the client use the property as his private residence. After the client defaulted, the appellant lender discovered that the solicitors acting for themselves and the lay client had . .
CitedMortgage Express v Abensons Solicitors (A Firm) ChD 20-Apr-2012
The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation . .
CitedLeeds and Holbeck Building Society v Arthur and Cole ChD 2001
A claim for breach of fiduciary duty by a solicitor as against his lender client, required that it be found that the solicitor ‘did not disclose matters which he admittedly ought to have done to the claimant, intentionally and consciously, knowing . .
CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
CitedAIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
CitedHalton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .
CitedLehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .

These lists may be incomplete.
Updated: 27 December 2020; Ref: scu.140400

The Public Guardian’s Severance Applications: CoP 19 Jun 2017

18 applications by the Public Guardian for the severance of clauses in instruments intended to have effect as Lasting Powers of Attorney – When severance is and is not necessary – Construction of section 12 (gifts) in relation to providing for the needs of others from the donor’s estate
District Judge Eldergill compared and contrasted the new terminology in the latest versions of the prescribed forms with the statutory language in s.9(4): ‘It is always risky to depart from the statutory language when drafting forms and the adoption of the headings ‘Preferences’ and ‘Instructions’ in the forms introduced by the Amendment Regulations is potentially misleading.
The term ‘instructions’ is not synonymous with ‘conditions or restrictions’.
Equally, the term ‘preferences’ is not synonymous with ‘best interests’ or a donee’s duty when deciding what is in the donor’s best interests to consider anything written in section 7 of the form concerning the donor’s wishes, feelings, beliefs and values, and the other factors to be considered by their donee(s): see s.4(6) of the 2005 Act.’
District Judge Eldergill
[2016] EWHC COP 10
Bailii
Mental Capacity Act 2005 57
England and Wales
Cited by:
ApprovedThe Public Guardian v DA and Others CoP 5-Oct-2018
The court considered the validity of lasting powers of attorney in the authorisation of euthanasia, and the appointment of multiple attorneys. . .

These lists may be incomplete.
Updated: 22 December 2020; Ref: scu.588180

Re XZ; XZ v The Public Guardian: CoP 19 May 2015

XZ executed an LPA which stipulated a number of restrictions and conditions designed to ensure that his attorneys did not act until his incapacity had been unequivocally confirmed by two psychiatrists, whose opinion was subject to review by a ‘protector’, and had endured for a minimum period of 60 days. The Public Guardian refused to register the LPA because he considered that the conditions imposed an unreasonable fetter on the attorneys’ power to act and were, therefore, ineffective as part of an LPA.
Held: Lush SJ granted a declaration that the LPA did not contain any provisions which would render it ineffective and made an order that the Public Guardian register the instrument. The court held that the Public Guardian’s function under paragraph 11 of Schedule 1 to the Act was limited to considering whether the conditions and restrictions in an LPA were ineffective as part of an LPA or would prevent the instrument from operating as a valid LPA. If he concluded that they could not be given legal effect, then he was under a duty to apply to the court for determination of the point under s.23(1). Otherwise, he had a duty to register the power. Neither the court nor the Public Guardian was concerned with whether a restriction that does not contravene the terms of the 2005 Act might pose practical difficulties in its operation. In this case, the Public Guardian had failed to identify any specific provision of the Act or the 2007 Regulations or the common law of agency that had been infringed by the provisions in XZ’s LPA.
Lush SJ
[2015] EWCOP 35
Bailii
England and Wales
Cited by:
CitedThe Public Guardian v DA and Others CoP 5-Oct-2018
The court considered the validity of lasting powers of attorney in the authorisation of euthanasia, and the appointment of multiple attorneys. . .

These lists may be incomplete.
Updated: 22 December 2020; Ref: scu.546869

Secured Residential Funding plc v Douglas Goldberg Hendeles and Co (a Firm): CA 19 Apr 2000

Two linked companies were in business from the same premises lending money on mortgage. A loan from one company was made but supported only by documentation in the name of the other. The error was noticed, but new documents not prepared until after completion. In possession proceedings, the lender had to show that the money had been advanced by its associate as its agent. The operative date was the date on which the mortgage advance was made, not on completion.
Times 26-Apr-2000, Gazette 25-May-2000, [2000] EWCA Civ 144
Bailii
England and Wales

Updated: 19 December 2020; Ref: scu.89148

Ingmar Gb Ltd v Eaton Leonard Technologies Inc: ECJ 16 Nov 2000

When a commercial agency was terminated in circumstances which under community law would entitle the agent to compensation, that compensation was payable even though the contract expressed itself to be governed by the law of California, and the principal was resident in California. The regime was a mandatory one for the protection of such agents, and would override private contractual provisions.
ECJ Directive 86/653/EEC – Self-employed commercial agent carrying on his activity in a Member State – Principal established in a non-member country – Clause submitting the agency contract to the law of the country of establishment of the principal)
Times 16-Nov-2000, C-381/98, [2000] ECR I-9305, [2000] EUECJ C-381/98, [2001] 1 CMLR 9, [2000] EUECJ C-381/98 – O
Bailii, Bailii
Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents 17
Citing:
Reference fromIngmar GB Limited v Eaton Leonard Technologies Inc CA 31-Jul-1998
Case referred to ECJ. . .
[1998] EWCA Civ 1366

Cited by:
At ECJIngmar GB Ltd v Eaton Leonard Inc QBD 31-Jul-2001
The applicants sought damages as commercial agents following the termination of their exclusive agency for the sale of the respondents goods in the UK. The defendants claimed the contract was governed exclusively by Californian law. The European . .
[2001] EWHC QB 3
CitedHonyvem Informazioni Commerciali (Freedom Of Establishment) ECJ 23-Mar-2006
Europa Independent commercial agents – Directive 86/653/EEC – Entitlement of a commercial agent to an indemnity after termination of the contract. . .
C-465/04, [2005] EUECJ C-465/04, [2006] ECR I-02879
CitedLonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd HL 4-Jul-2007
The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ . .
[2007] UKHL 32, Times 10-Jul-08
CitedRossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
Rossetti_diamondQBD2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
[2011] EWHC 2482 (QB)

These lists may be incomplete.
Updated: 18 December 2020; Ref: scu.82330

Clarke (Executor of the Will of Francis Bacon, Deceased) v Marlborough Fine Art (London) Ltd and Another: ChD 5 Jul 2001

Francis Bacon sold his paintings through the defendant agents for many years. The original contractual arrangement grew into a fiduciary one. The claimants asserted that the defendants were in breach of that fiduciary duty, the defendants asserted that the relationship remained contractual, and that it was now time barred.
Held: There may be a true constructive trust which would not be time barred, rather than a remedial constructive trust. The test was whether the trustee was a true trustee, whether of a constructive or an express trust. Nor was it clear that a court of equity would have time barred a claim in undue influence.
Patten J
Times 05-Jul-2001
Limitation Act 1980 36(1)(f)
Cited by:
CitedMcLaughlin and Others v Newall QBD 31-Jul-2009
The claimant asked the court to strike out the defence that the claimant had compromised his claim by agreement. The defendant had written letters critical of the claimants who were governors of a school which had disciplined his daughter a teacher . .
[2009] EWHC 1925 (QB)

These lists may be incomplete.
Updated: 17 December 2020; Ref: scu.79197

Barret Mckenzie and Co Ltd v Escada (UK) Ltd: QBD 1 Feb 2001

The court considered the method of calculation of compensation payable to a commercial agent on termination of the agency. The directive provided that the agent should be compensated, not indemnified, and the way an English court calculated compensation need not follow other European jurisdictions. A tariff system would be unfair, and the court must make allowance for the amounts expended by the agent. Accordingly it would be unjust to base the compensation on the gross return, but it should rather be based upon the net income of the agency.
Bowers J
Times 15-May-2001, [2001] EWHC QB 462, [2001] EuLR 567, [2001] All ER (D) 78
Bailii
Commercial Agents (Council Directive) Regulations 1993 No 3053
Citing:
CitedKing v T Tunnock Limited IHCS 2000
The pursuer had been employed as a commercial agent by the defendant which carried on business as a baker. The pursuer sold only the defendant’s cakes and biscuits. The defendant decided to close its bakery business. The claimant sought compensation . .
[2000] Eur LR 531, [2000] SLT 744, [2000] ScotCS 70, 2000 SC 424

Cited by:
CitedLonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd HL 4-Jul-2007
The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ . .
[2007] UKHL 32, Times 10-Jul-08

These lists may be incomplete.
Updated: 17 December 2020; Ref: scu.78249

Andrew v Ramsay and Co: 1903

The defendant had been employed as agent by the plaintiff to sell property belonging to the plaintiff. The defendant achieved this and was paid his commission, but had also taken a secret commission from the buyer. The plaintiff sought repayment of the commission.
Held: The action succeeded. Where an agent takes a commission secret from his principal, the principal may refuse to pay or recover any commission under the main agency contract. The action for and recovery of the secret commission had not operated as a ratification of the sale.
[1903] 72 LJKB 865
Cited by:
ApprovedRhodes v Macalister CA 1923
The plaintiff agent acted to find a seller of mineral rights for the defendant principal. He told his principal that the properties could be purchased for from andpound;8,000 to andpound;10,000. If the agent could find a seller at below . .
(1923) 29 Com Cas 19

These lists may be incomplete.
Updated: 16 December 2020; Ref: scu.522275

Harmond Properties Ltd v Gajdzis: CA 1968

The County Court decided that a notice to quit given to a tenant by a director of the landlord company in his own name was valid.
Held: The decision was correct. The director had carried out the letting and acted as if he were the landlord in every way. He was held to have been the general agent of the landlord.
[1968] 1 WLR 1858
England and Wales
Cited by:
CitedDun and Bradstreet Software Services (England) Ltd; Dun and Bradstreet Software Services Ltd v Provident Mutual Life Assurance Association and General Accident Linked Life Assurance CA 9-Jun-1997
Break clauses had been exercised on behalf of the plaintiffs. The defendant landlords appealed a decision upholding the notices. A penalty rent had been sought.
Held: There had been no sufficient agency established to validate the notice. The . .
[1997] EWCA Civ 1816

These lists may be incomplete.
Updated: 15 December 2020; Ref: scu.188164

Wood (John D) and Co v Dantata; Beauchamp Estates v Dantata: CA 1987

The purchaser liked inspecting houses and the vendor had appointed ten firms to act for him as estate agents. Each of the estate agents was approached by this purchaser and each of the estate agents took the would be purchaser over the property of the vendor. An estate agency’s clients resisted payment of his fees. Two agents were saying they were entitled to commission. The result depended upon whether the agent had introduced the purchaser. The parties had accepted that ‘in order to succeed one or other of the two firms had to show that they introduced the ultimate purchaser and that such introduction was the (my emphasis) effective cause of the purchase.’
Held: The familiar meaning of the word introduction was the bringing together of two people who have not previously met, and the phrase ‘introduction of a purchaser’ could only mean the ‘introduction of the person who ultimately purchases, not to the property, but to the purchase, or, if you look at it from the vendors angle, to the sale; in either case to the transaction that takes place’. The fact that one agent introduces a person who ultimately purchases after a later introduction by another agent will not necessarily entitle the first agent to commission. In such a case the court must determine which of the two agents was the effective cause of the transaction taking place.
Nourse LJ: ‘As I have said, the learned judge recorded an acceptance by all three counsel that in order to succeed one or other of the two firms had to show that they introduced the ultimate purchaser and that such introduction was the effective cause of the purchase. That would seem to suggest that there are two questions to be answered, and it would certainly explain the importance which the learned judge attached to the chief’s retention of a lively interest in the property when he went there again on September 9. In truth I think that there is but a single question to be answered: which of the two firms introduced the chief to the sale? Both language and authority establish that that question must be answered by answering this further question: which of the two firms was the effective cause of the sale? Here I would gratefully adopt the following statement of the law in Bowstead on Agency , 15th ed, at p230, to which the learned judge referred:
… the fact that one agent introduces a person who ultimately purchases after a later introduction by another agent will not necessarily entitle the first agent to commission. In such a case the court must determine which of the two agents was the effective cause of the transaction taking place.
The difficulties in clarifying the mind on this question are, I think, caused by the familiar meaning of the word ‘introduction’ as the bringing together of two people who have not previously met. Thus it is natural, when looking at the word in its present context, to attach significance to the first bringing together of the property and the person who ultimately purchases it. But the full phrase is ‘the introduction of a purchaser’ and I think that that can only mean the introduction of the person who ultimately purchases, not to the property, but to the purchase or, if you look at it from the vendor’s angle, to the sale: in either case to the transaction which ultimately takes place. And if you then apply the primary dictionary meaning of ‘introduction’, you find that what you are looking for is the leading or bringing in of the purchaser to that transaction. That makes it clear that first acquaintance is not paramount and it explains why the test is expressed by reference to the effective cause of the transaction.
Which of the two firms was the effective cause of the sale to the chief?’
Nourse LJ
[1987] 2 EGLR 23
England and Wales
Cited by:
CitedHarwood T/A RSBS Group v Smith and Smith and Bedwell Watts and Company (a Firm) CA 14-Nov-1997
An estate agent with sole selling rights was not entitled to claim commission on a sale where he had contributed no act to the sale, even though his terms were specific enough to deal with the particular circumstances which had arisen here. Such a . .
Times 08-Dec-97, [1997] EWCA Civ 2725, [1998] 1 EGLR 5
CitedNahum v Royal Holloway and Bedford New College CA 12-Nov-1998
An estate agent was entitled to his commission when he could show that it was he who had brought about the relationship of buyer and seller. Delay and actions of others intended to hide that causation did not defeat the claim. The defendant asked . .
Times 19-Nov-98, [1998] EWCA Civ 1760, [1999] EMLR 252
ConsideredChasen Ryder and Co v Hedges CA 1993
The vendor first instructed the plaintiffs to sell his residential home. They introduced several people, but no offers were made. The vendor went to another firm of agents. An extended planning consent was obtained, and one of the original enquirers . .
[1993] 1 EGLR 47, [1993] 39 EG 123
CitedBurney v The London Mews Company Ltd CA 7-May-2003
The defendant sought to appeal judgment against him for his estate agent’s commission. They had been appointed sole agents. A second firm obtained the particulars for their own retained clients, but then copied the particulars onto their own . .
[2003] EWCA Civ 766
CitedStandard Life Assurance Company (Incorporated Under Laws of Scotland By Act of Parliament) v Egan Lawson Limited CA 21-Nov-2000
The defendant appealed against judgment in favour of his (buyer’s) estate agent for his commission in finding the property for it. A previous offer was rejected by the seller, but a subsequent agent of the buyer obtained the acceptance of a further . .
[2000] EWCA Civ 293, [2001] 1 EGLR 27
CitedBecerra v Close Brothers ComC 25-Jun-1999
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 . .
[1999] EWHC 289 (Comm)
CitedFoxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
foxtons_bicknellCA2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
[2008] EWCA Civ 419, Times 01-May-08, [2008] All ER (D) 328 (Apr), [2008] 2 EGLR 23
CitedMSM Consulting Ltd v United Republic of Tanzania QBD 30-Jan-2009
The claimants sought commission or a quantum meruit for the part they had taken in finding a suitable site for the defendant’s High Commission in London.
Held: The works undertaken were consistent with the claimant seeking work from the . .
[2009] EWHC 121 (QB)
CitedCharania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
[2009] EWCA Civ 1123

These lists may be incomplete.
Updated: 15 December 2020; Ref: scu.180396

Commissioners of Customs and Excise v Littlewoods Organisation Plc: ChD 4 Jul 2000

The enhanced commission paid to mail order catalogue agents for supplying services to the company and which was to be set off against goods purchased by the agents themselves from the mail order company were vatable. The commission earned represented in part a discount on the goods purchased, but in reality was also a consideration for the supply of the agents’ services.
Times 04-Jul-2000
Sixth Council Directive 77/388/EEC
Citing:
Appealed toCommissioners of Customs and Excise v Littlewoods Organisation plc CA 26-Oct-2001
Agents of the taxpayer received commission on sales. They could take it in cash, or at an enhanced rate on goods purchased. How was the tax to be calculated on the goods sold to the agent? The right to take goods at the enhanced rate arose from a . .
Times 07-Nov-01, Gazette 29-Nov-01, [2001] EWCA Civ 1542, [2002] BVC 71, [2001] BTC 5608, [2001] STC 1568, [2002] RTR 16, [2001] STI 1381

Cited by:
Appeal fromCommissioners of Customs and Excise v Littlewoods Organisation plc CA 26-Oct-2001
Agents of the taxpayer received commission on sales. They could take it in cash, or at an enhanced rate on goods purchased. How was the tax to be calculated on the goods sold to the agent? The right to take goods at the enhanced rate arose from a . .
Times 07-Nov-01, Gazette 29-Nov-01, [2001] EWCA Civ 1542, [2002] BVC 71, [2001] BTC 5608, [2001] STC 1568, [2002] RTR 16, [2001] STI 1381

These lists may be incomplete.
Updated: 14 December 2020; Ref: scu.79388

Watteau v Fenwick: QBD 1893

The defendant brewers owned a beerhouse. They appointed a manager of the business; the license was always taken out in the name of the manager, whose name also appeared over the door. By the agreement between the defendants and their manager, the latter was forbidden to purchase certain articles for the purpose of the business, which were to be supplied by the defendants; but the manager, in contravention of his instructions, ordered such articles from the plaintiff for use in the business; the plaintiff supplied the goods and gave credit for them to the manager only. Subsequently, upon discovering that the defendants were the real owners of the business, the plaintiff sued them for the value of the goods’.
Held: The plaintiff succeeded as the defendants who were the real principals, were liable for all acts of their agent which were within the authority usually conferred upon as an agent of his particular character, although he had never been held out by the defendants as their agent, and although the authority given to him by them had been exceeded.
Wills J. said: ‘once it is established that the defendant was the real principal, the ordinary doctrine as to principal and agent applies — that the principal is liable for all the acts of the agent which are within the authority usually confided to an agent of that character, notwithstanding limitations, as between the principal and the agent, put upon that authority. It is said that it is only so where there has been a holding out of authority — which cannot be said of a case where the person supplying the goods knew nothing of the existence of a principal. But I do not think so. Otherwise, in every case of undisclosed principal, or at least in every case where the fact of there being a principal was undisclosed, the secret limitation of authority would prevail and defeat the action of the person dealing with the agent and then discovering that he was an agent and had a principal.’
Wills J
[1893] 1 QB 346
England and Wales

Updated: 14 December 2020; Ref: scu.616745

Petterson v Royal Oak Hotel Ltd: 1948

A barman had refused to serve a drunken customer with more alcohol. As the customer was on his way out of the premises, he threw a glass at the barman which broke in pieces at his feet. The barman picked up a piece of the broken glass and threw it back at the departing customer, but missed him and injured the eye of another customer, who sued for damages. At trial, the trial judge found that the barman threw the piece of glass ‘not in order to expedite the departure of the troublesome customer, but as an expression of his personal resentment at the glass being thrown at him’. He found for the claimant.
Held: His judgment was upheld by the Court of Appeal. The barman’s action was an improper mode of doing his job of keeping order in the bar and avoiding altercations, although at the time the customer was leaving.
[1948] NZLR 136
England and Wales
Cited by:
CitedMohamud v WM Morrison Supermarkets plc SC 2-Mar-2016
The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first . .
[2016] WLR(D) 109, [2016] UKSC 11, [2016] ICR 485, [2017] 1 All ER 15, [2016] PIQR P11, [2016] 2 WLR 821, [2016] AC 677, [2016] IRLR 362, UKSC 2014/0087

These lists may be incomplete.
Updated: 14 December 2020; Ref: scu.606514

Bexwell v Christie: 3 Feb 1776

Action does not lie against an auctioneer for selling a horse at the highest price bid for him, contrary to the owner’s express directions not to let him go under a larger sum named. Otherwise, if the owner had directed the auctioneer to set the horse up at such a particular price ; and not lower. The auctioneer might, after the bidding by the owner, have sold to the plaintiff on his first bidding : how then can the auctioneer’s authority have been countermanded?
The bidding by the owner of an item being sold at auction was, in law, fraudulent, and not a bidding at all.
[1776] EngR 25, (1776) 1 Cowp 395, (1776) 98 ER 1150
Commonlii
England and Wales
Cited by:
CitedWarlow v Harrison QBD 25-Nov-1858
Whether Auctioneer liable to bidder – vendor’s bid
Three following horses were advertised for sale at auction being the property of a gentleman and sold without reserve. The auctioneer had knocked one down as sold for 61 guineas, but the bid was from the owner. The plaintiff sued the auctioneer, . .
[1858] EngR 1193, (1858) 1 El and El 295, (1858) 120 ER 920

These lists may be incomplete.
Updated: 14 December 2020; Ref: scu.373292

Beckford v Beckford: PC 28 Apr 1783

A. by will devises all his estates to his eldest son in tail male, with remainders over ; part of the property consisted of an estate in Jamaica, and therefore the testator added the following clause: ‘ And E recommend to my executors, that all sugars, rum, and other plantation produce that is sent to the port of London, be consigned to the house of Collet, Evans, and Co. until such time as any of my sons shall set up in the business of a sugar factor ; then my desire is, that the consignment may pass through his or their hands.’
C. a natural son of the testator’s, set up the business of a sugar factor, during the minority of the devisee, and accordingly got the consignments upon the devisee’s coming of age, C. accounted with him, but insisted on being entitled to his commission not only upon the produce which he had actually sold, but also upon the produce which had been consigned to him, but was not then arrived in the port of London. Held, that the words of the above clause were not imperative, or amounted to words of bequest in favour of C. but were recommendatory only. Held also, that C: was entitled to a commission only upon what he had actually sold, and not upon what was only consigned, but not delivered to him.
DECRETAL ORDPR of Chancery
[1783] EngR 64, (1783) 4 Bro PC 38, (1783) 2 ER 26
Commonlii
Commonwealth

Updated: 14 December 2020; Ref: scu.372193

Thornett v Haines: 28 Apr 1846

Where a sale by auction is advertised or stated by the auctioneer to be ‘without reserve’, the employment by the vendor of a puffer to bid for him, without notice, renders the sale void, and entitles the purchaser to recover back his deposit from the auctioneer/
[1846] EngR 605, (1846) 15 M and W 367, (1846) 153 ER 892
Commonlii
England and Wales
Cited by:
CitedWarlow v Harrison CExC 26-Nov-1859
The plaintiff had bid for a pony for sale at the defendant’s auction ‘without reserve’. It was however sold by the auctioneer defendant, to the owner himself. Unless public notice of this was given, a bid from the seller himself was fraudulent. He . .
[1859] EngR 1046, (1859) 1 El and El 309, (1859) 120 ER 925
CitedBarry v Davies (T/A Heathcote Ball and Co) and Others CA 27-Jul-2000
The claimant sought damages from an auctioneer who had failed to accept his bid, and withdrawn the items from the sale.
Held: In an auction without reserve the auctioneer was not entitled to withdraw an item on the basis that the highest or . .
Times 31-Aug-00, Gazette 12-Oct-00, [2000] EWCA Civ 235

These lists may be incomplete.
Updated: 14 December 2020; Ref: scu.302500

Mainprice v Westley: 4 Jul 1865

Liability of auctioneer. Sale without reserve. Undisclosed principal – 1. A declaration alleged that the defendant, an auctioneer, published handbills representing that at a certain day and place he would offer certain premises for peremptory sale by public auction ; that the plaintiff, confiding in those representations, attended at that time and place, whose bid was the highest except a sum bidden by an agent on the part of the vendor, but the defendant would not accept the plaintiff as a purchaser. It appeared in evidence that the handbills stated that on the day and place in question the premises would be offered by the defendant ”for peremptory sale by auction, by direction of the mortgagee with a power of sale, subject to such conditions as will be then declared. For further particulars apply to Mr. H., solicitor, or to the auctioneer.’ H. was the person who brought in the premises. Held, that no contract on which the defendant could be sued personally was proved. 2. Semble, per Cockburn C.J. and Shee J, dubitante Blackburn J., that where an auctioneer, without disclosing his principal, advertises a sale without reserve, he personally contracts that there shall be a sale without reserve.
Cockburn CJ, Shee J
[1865] EngR 651, (1865) 6 B and S 420, (1865) 122 ER 1250
Commonlii
England and Wales
Citing:
CitedWarlow v Harrison CExC 26-Nov-1859
The plaintiff had bid for a pony for sale at the defendant’s auction ‘without reserve’. It was however sold by the auctioneer defendant, to the owner himself. Unless public notice of this was given, a bid from the seller himself was fraudulent. He . .
[1859] EngR 1046, (1859) 1 El and El 309, (1859) 120 ER 925

Cited by:
CitedBarry v Davies (T/A Heathcote Ball and Co) and Others CA 27-Jul-2000
The claimant sought damages from an auctioneer who had failed to accept his bid, and withdrawn the items from the sale.
Held: In an auction without reserve the auctioneer was not entitled to withdraw an item on the basis that the highest or . .
Times 31-Aug-00, Gazette 12-Oct-00, [2000] EWCA Civ 235

These lists may be incomplete.
Updated: 14 December 2020; Ref: scu.281563

Smith, Stone and Knight Limited v Birmingham: 1939

Implied Agency between Parent and Subsidiary

An application was made to set aside a preliminary determination by an arbitrator. The parties disputed the compensation payable by the respondent for the acquisition of land owned by Smith Stone and held by Birmingham Waste as its tenant on a yearly tenancy. Birmingham Waste was a wholly owned subsidiary of Smith Stone and was said in the Smith Stone claim to carry on business as a separate department and agent for Smith Stone. As a yearly tenant, Birmingham Waste, however, had no status to claim compensation. The question was whether, as a matter of law, the parent company could claim compensation for disturbance to the business carried on at the acquired premises. The arbitrator’s award answered this in the negative. Smith Stone applied to set the award aside on the ground of technical misconduct.
Held: The parent company was entitled to compensation in respect of a business carried on by a subsidiary on the basis that the subsidiary was in reality carrying it on on behalf of the parent company.
An implied agency existed between the parent and subsidiary companies so that the parent was considered to own the business carried on by the subsidiary and could claim compensation for disturbance caused to the subsidiary’s business by the local council. In determining whether a subsidiary was an implied agent of the parent, Atkinson J examined whether, on the facts as found by the arbitrator and after rejecting certain conclusions of fact which were unsupported by evidence, Smith Stone was in fact the real owner of the business and was therefore entitled to compensation for its disturbance.
The rule to protect the fact of separate corporate identities was circumvented because the subsidiary was the agent, employee or tool of the parent. The subsidiary company was operating a business on behalf of its parent company because its profits were treated entirely as those of the parent company’s; it had no staff and the persons conducting the business were appointed by the parent company, and it did not govern the business or decide how much capital should be embarked on it. In those circumstances, the court was able to infer that the company was merely the agent or nominee of the parent company.
Atkinson J formulated six relevant criteria, namely:
‘(a) Were the profits treated as profits of the parent?
(b) Were the persons conducting the business appointed by the parent?
(c) Was the parent the head and brain of the trading venture?
(d) Did the parent govern the venture, decide what should be done and what capital should be embarked on the venture?
(e) Did the parent make the profits by its skill and direction?
(f) Was the parent in effectual and constant control?’
Atkinson J
[1939] 4 All ER 116
England and Wales
Cited by:

  • Cited – Reed v Marriott (Solicitors Regulation Authority) Admn 13-May-2009
    The appellant solicitor had entered into an arrangement with a company to receive referrals of personal injury cases. She said that the agreements were deliberately devised to hide the fact that unlawful referral fees were to be paid, by requiring . .
    [2009] EWHC 1183 (Admin)

These lists may be incomplete.
Updated: 07 December 2020; Ref: scu.472101

Harington Bart v Hoggart: 29 Jul 1854

An auctioneer who is employed to sell an estate, and who receives a deposit from the purchaser, is a mere stake-holder, liable to be called upon to pay the money at any time ; and, therefore, although he place the money in the funds and make interest of it, he is not liable to pay such interest to the vendor when the purchase is completed ; though the vendor (without the concurrence of the vendee) gave him notice to invest the money in Government securities.
[1854] EngR 785, (1854) 5 Giff 13, (1854) 66 ER 902
Commonlii
England and Wales

Updated: 03 December 2020; Ref: scu.293642

Brodie, Marshall and Co (Hotel Division) Ltd v Sharer: 1988

The defendant resisted payment of his estate agent’s charges. The agency contract gave the agent sole selling rights, but the purchaser was found on the vendor’s own initiative. The terms made commission was payable if ‘we introduce directly of indirectly a person who agrees to purchase the property.’ Further ‘if during the period of our sole selling agreement the owner deals with a person not introduced by us or by any other agent, we shall be entitled to the same commission as if we had introduced such person.’ The defendant had not withdrawn the plaintiff’s instructions, but the introduction was not by any person within the terms defined.
Held: The agent could recover his commission. The clauses were clear and unambiguous, and had properly been brought to the attention of the defendant. The terms were neither onerous, nor unusual.
White J
[1988] 1 EGLR 21, [1988] 19 EG 129
England and Wales
Citing:

  • Cited – Luxor (Eastbourne) v Cooper HL 1941
    The vendor company had instructed agents to sell properties on its behalf and had agreed to pay commission on completion of the sale. The sale was agreed with a prospective purchaser introduced by the agents. Before the sale was completed, the . .
    [1941] AC 108
  • Cited – Jaques v Lloyd D George and Partners 1968
    . .
    [1968] CLY 35
  • Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
    Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
    Held: The plaintiff had not . .
    [1989] QB 433, [1998] 1 All ER 348, [1987] EWCA Civ 6
  • Cited – Thornton v Shoe Lane Parking Ltd CA 18-Dec-1970
    The claimant had suffered damage at the defendant’s car park. The defendant relied upon an exemption clause printed on the ticket, and now appealed against rejection of its defence under the clause.
    Held: The appeal failed. The more extreme an . .
    [1971] 1 All ER 686, [1971] 2 WLR 585, [1971] 2 QB 163, [1970] EWCA Civ 2, [1971] 1 Lloyd’s Rep 289, [1971] RTR 79

Cited by:

  • Cited – G and S Properties v Donald Francis and Another SCS 13-Jun-2001
    The pursuers were contracted to sell a property with sole selling rights. The contract was terminable on two weeks notice. Notice was given, and another company engaged. A buyer confused the two agents and obtained details from the pursuer’s office, . .
    [2001] ScotCS 148

These lists may be incomplete.
Updated: 02 December 2020; Ref: scu.231524

Domb and Another v Isoz: CA 29 Nov 1979

In a chain of conveyancing transactions, a solicitor sent his contract and deposit to his vendor’s solicitor, asking him to hold it to his order pending exchange. On the next day, that vendor’s solicitors agreed to an exchange of contracts over the telephone on his own purchase, but his client then told him not to proceed. The solicitor did not deliver the contract on that purchase, and claimed that under the postal rule, exchange had not taken place. The purchaser appealed a finding that there was no contract.
Held: A contract had been created. The solicitor had his client’s authority to exchange in this manner, and the contract was made at the time of the agreement on the telephone. The contract could come into existence before the posting of the second part of the contract, which would be the normal rule for postal acceptance.
Buckley LJ: ‘the essential characteristic of exchange of contracts is that each party shall have such a document signed by the other party in his possession or control so that, at his own need, he can have the document available for his own use. Exchange of a written contract for sale is in my judgment effected so soon as each part of the contract, signed by the vendor or the purchaser as the case may be, is in the actual or constructive possession of the other party or of his solicitor. Such possession need not be actual or physical possession; possession by an agent of the party or of his solicitor, in such circumstances that the party or solicitor in question has control over the document and can at any time procure its actual physical possession will, in my opinion, suffice. In such a case the possession of the agent is the possession of the principal. A party’s solicitor employed to act in respect of such a contract has, subject to express instructions, implied authority to effect exchange of contracts and so to make the bargain binding upon his client. This he can, in my judgment, do by any method which is effectual to constitute exchange.’
BRIDGE LJ: ‘A solicitor acting for a vendor or a purchaser who holds his client’s signed part of the contract has his client’s ostensible authority to effect exchange of contracts.’
Templeman LJ: ‘In my judgment a client impliedly authorises, and ostensibly authorises, his solicitor to effect exchange of contracts in such manner and by such agents as the solicitor may think fit. The client confers power to exchange, but is not interested in the machinery or method of exchange, which is a matter for the solicitor and the general law.’
References: [1980] 2 WLR 565, [1980] Ch 548, [1980] 1 All ER 942
Links: lip
Judges: Buckley, Bridge and Templeman LJJ
Jurisdiction: England and Wales
This case cites:

  • Cited – Eccles v Bryant and Pollock CA 1947
    The Plaintiff contended that a letter written by the purchaser’s solicitor which effectively set out the terms of the agreement, enclosed the part of the contract signed by the purchaser, and asked in exchange for the counter-part signed by the . .
    ([1948] Ch 93, [1947] 2 All ER 865)
  • Cited – Johnson v Agnew HL 1979
    The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
    Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
    ([1980] AC 367, [1979] 2 WLR 487, [1979] 1 All ER 883)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.178200

Presentaciones Musicales Sa v Secunda and Another: CA 29 Nov 1993

A writ was issued within the limitation period applicable to the cause of action. However, the authority of the nominal plaintiff was not obtained within the limitation period.
Held: The adoption by a plaintiff of proceedings issued without his authorisation by his solicitor was acceptable where this occurred within the appropriate limitation period. The raising of proceedings was held not to be a nullity.
Roch LJ considered whether the validity of the ratification of the unauthorised act of commencing proceedings was governed by English law or Panamanian law. Counsel for PMSA had submitted that the question of Mr Van Walsum’s authority was governed by Panamanian law and under that law the acts of the liquidators in May 1991 had put the company and Mr Van Walsum in the position they would have been in had Mr Van Walsum had actual authority to commence proceedings in 1988. Roch LJ disagreed: ‘I do not doubt that if the issue had been whether Mr. Van Walsum had actual authority to instruct Goodman Derrick and Co. to issue proceedings in April 1988, that question could only have been resolved by the court examining the law relating to corporate bodies in the Republic of Panama and, probably, the constitution of the plaintiff company. In the present case there is no dispute, for the purposes of resolving the preliminary issue, that Mr. Van Walsum did not have actual authority in April 1988.
What has to be considered, in my view, is first the effect of the contract apparently entered into between the plaintiff company and Goodman Derrick and of the act of Goodman Derrick in issuing proceedings against the defendants. The law which should apply to that contract and to that act, in my opinion, is the law which has the closest connection with that contract and with that act, namely English law. Dicey and Morris, The Conflict of Laws, 12th ed. (1993), p. 1459, under the heading ‘English Conflicts Rules’ says: ‘Where the agent lacks actual authority from the principal, it seems right in principle, that the law applicable to the contract between the agent and a third party, should determine whether the principal is bound or entitled. In effect in this situation one is asking whether the agent had apparent or ostensible authority to bind the principal . . As between the principal and the agent, the scope of the agent’s authority to bind the principal and to confer rights upon him is necessarily determined by the law which governs their relationship, but third parties must be able to assume, at least where the agent has no actual authority from the principal, that the agents’ authority covers everything which would be covered by the authority of an agent appointed under the law applicable to the contract made between the agent and the third party.’
The correct analysis of the facts of this case, in my judgment, is that the agents whose authority really has to be considered are Goodman Derrick and the act, the validity of which has to be considered is their act of commencing proceedings. Goodman Derrick are English solicitors retained, ostensibly on behalf of a Panamanian company, to perform legal services for that company in England. On that analysis the validating of the act of commencing proceedings by later ratification by those who clearly have authority under Panamanian law to do so on behalf of the plaintiffs must be a matter for English law.
. . Once it is shown by the law of Panama that neither Mr. Van Walsum nor Goodman Derrick were authorised to act, the consequences of that lack of authority are matters for the law of the place where the unauthorised act was performed. Thus . . I conclude that the issue of ratification is governed by English law.’
Dillon LJ said: ‘It is well recognised law that where a solicitor starts proceedings in the name of a plaintiff – be it a company or an individual – without authority, the plaintiff may ratify the act of the solicitor and adopt the proceedings. In that event, in accordance with the ordinary law of principal and agent and the ordinary doctrine of ratification the defect in the proceedings as originally constituted is cured . . The reason is that by English law ratification relates back to the unauthorised act of the agent which is ratified . . ‘
References: Gazette 12-Jan-1994, Times 29-Nov-1993, [1995] EMLR 118, [1994] 2 All ER 737, [1994] Ch 271, [1994] 2 WLR 660
Judges: Roch LJ, Dillon LJ
Jurisdiction: England and Wales
This case is cited by:

  • Applied – Adams and Others v Ford and Others CA 26-Apr-2012
    The several claimants had invested in a technology based investment scheme, which they now said was fraudulent. The defendants said that the original, large number of claimants had been reduced, but the lawyers acting for the claimants had issued . .
    ([2012] 3 All ER 247, , [2012] EWCA Civ 544, [2012] WLR(D) 125, [2012] CP Rep 31, [2012] 1 WLR 3211, )

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.85022

Bramhall v Hall: 1764

Defective execution of a power refused to be supplied in favour of a natural son against persons claiming under a subsequent valid execution of it.
References: [1764] EngR 3, (1764) 2 Eden 220, (1764) 28 ER 882 (C)
Links: Commonlii
Jurisdiction: England and Wales

Last Update: 27 November 2020; Ref: scu.375212

Blackpool Corporation v Locker: CA 1948

The effect of the delegation of a power is that the power in question is exercisable by the delegate and no longer by the pricipal delegator.
Scott LJ discussed the rule that ignorance of the law is no excuse: The maxim that ignorance of the law does not excuse any subject represents the working hypothesis on which the rule of law rests in British democracy. That maxim applies in legal theory just as much to written as to unwritten law, i.e., to statute law as much as to common law or equity. But the very justification for that basic maxim is that the whole of our law, written or unwritten, is accessible to the public – in the sense, of course, that, at any rate, its legal advisers have access to it, at any moment, as of right’ . . ‘John Citizen’ should not be ‘in complete ignorance of what rights over him and his property have been secretly conferred by the minister’ as otherwise ‘For practical purposes, the rule of law . . breaks down because the aggrieved subject’s remedy is gravely impaired’.’
References: [1948] 1 KB 349, [1948] 1 All ER 85
Judges: Scott LJ
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Reilly and Another, Regina (on The Application of) v Secretary of State for Work and Pensions SC 30-Oct-2013
    The Secretary of State appealed against the decision in favour of Ms Reilly and Mr Wilson, that the 2011 Regulations, made under section 17A of the 1995 Act, did not comply with the requirements of that section, and (ii) a cross-appeal brought by . .
    (, [2013] UKSC 68, [2013] WLR(D) 413, [2014] 1 AC 453, [2013] 3 WLR 1276, [2014] 1 All ER 505, , , UKSC 2013/0064, , )

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.540479

Dunne v English: CA 1874

A partner had made a secret profit from the sale of partnership property.
Held: The other partner sought and obtained relief ‘substantially in accordance with the first and second paragraphs of the prayer of the bill’, which had sought ‘a declaration . . that the Plaintiff was entitled to share equally with the Defendant in the profits . . and that the Defendant was bound to make over to the Plaintiff one half of the profits . .’ Because of the importance which equity attaches to fiduciary duties, ‘informed consent’ to a fiduciary acting for two parties is only effective if it is given after ‘full disclosure’.
Sir George Jessel MR said of a partner: ‘The Defendant was not only in law the agent of the partnership to sell (being himself a partner, and every partner being an agent of the partnership), but he was in fact the agent who had been engaged in negotiating the sale.’
References: (1874) LR 18 Eq 524
Judges: Sir George Jessel MR
Jurisdiction: England and Wales
This case is cited by:

  • Cited – FHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
    Approprietary remedy against Fraudulent Agent
    The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
    (, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P and CR DG1, , , UKSC 2013/0049, , , )
  • Cited – Hosking v Marathon Asset Management Llp ChD 5-Oct-2016
    Loss of agent’s share for breach within LLP
    The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
    (, [2016] EWHC 2418 (Ch), [2016] WLR(D) 501, , [2017] Ch 157, [2017] 2 WLR 746,)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.551499

Doward, Dickson and Co v Williams and Co: 1890

Where an agent’s only interest is a commercial interest in being able to earn his commission, his power of attorney is not secured and is revocable, because the authority is not properly speaking a security at all.
References: (1890) 6 TLR 316
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Bailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
    The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
    (, [2016] UKSC 47, , UKSC 2014/0106, , , , [2016] WLR(D) 455, , [2016] 1 WLR 3179)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.568646

Erikson v Carr: 1945

New South Wales – an individual was alleged to have disentitled himself to commission as a result of a breach of duty.
Held: Though the legal rights of the parties would depend on the jury’s conclusions as to, among other things, ‘whether it was partnership or agency’.
Jordan CJ had observed that ‘if a partner in a subsisting partnership finds that his co-partner has made a secret profit for which he is accountable to the firm, this does not entitle him to rescind the partnership ab initio’ but ‘to require the amount to be brought into the partnership account so that he may receive his proper share of it’, while ‘[i]f a person, acting as agent under a subsisting contract of commission agency, accepts a secret commission in relation to an agency transaction, he must account for it to his principal’ and ‘[o]rdinarily he also forfeits his right to commission’
References: (1945) 46 SR (NSW) 9
Judges: Jordan CJ
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Hosking v Marathon Asset Management Llp ChD 5-Oct-2016
    Loss of agent’s share for breach within LLP
    The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
    (, [2016] EWHC 2418 (Ch), [2016] WLR(D) 501, , [2017] Ch 157, [2017] 2 WLR 746,)

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.569931

Blackburn, Low and Co v Vigors: HL 1887

There was a condition precedent of full disclosure of material facts in an insurance contract. The duty of an agent to disclose circumstances within his own knowledge to the insurer is independent of the duty of the insured to make disclosure, but: ‘it would, in my opinion, be a dangerous extension of the doctrine of constructive notice to hold that persons who are themselves absolutely innocent of any concealment or misrepresentation, and who have not wilfully shut their eyes or closed their ears to any means of information, are to be affected with the knowledge of matters which other persons may be morally though not legally bound to communicate to them.’
References: (1887) 12 App Cas 531
Judges: Lord Macnaghten, Lord Watson, Lord Fitzgerald
Jurisdiction: England and Wales
This case cites:

  • Appeal from – Blackburn, Low and Co v Vigors CA 1886
    Lord Esher MR: ‘This seems to me to be the true doctrine. The freedom from mis-representation or concealment is a condition precedent to the right of the assured to insist on the performance of the contract, so that on a failure of the performance . .
    ((1886) 17 QBD 553)

This case is cited by:

  • Appealed to – Blackburn, Low and Co v Vigors CA 1886
    Lord Esher MR: ‘This seems to me to be the true doctrine. The freedom from mis-representation or concealment is a condition precedent to the right of the assured to insist on the performance of the contract, so that on a failure of the performance . .
    ((1886) 17 QBD 553)
  • Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
    The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
    (, , [2003] UKHL 6, [2003] 1 All ER Comm 349, [2003] 2 Lloyd’s Law Reports 61, [2004] ICR 1708, [2003] Lloyds Rep IR 230, [2003] 1 CLC 358)

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.219302

The Honourable Society of the Middle Temple v Lloyds Bank plc and Another: QBD 8 Feb 1999

Where a cheque marked ‘a/c payee only’ had been stolen, and an English clearing bank collected it as agent for a foreign bank not acting for the payee, that bank was liable for the misrepresentation involved in the presentation. Where a bank asks its English agent for collection to collect English cheques crossed ‘a/c payee’ it is impliedly warranting that its customer is entitled to the proceeds. The court drew a distinction between an agent’s breach of duty as against his principal and an agent’s breach of duty to a third party. Where an agent for a collecting bank was negligent towards a third party payee, he would be indemnified by a collecting bank for any loss caused to a third party as a consequence of performing the collecting bank’s request. This was not so where the loss arose from the agent’s negligence in the actual performance of the collecting bank’s request.
Rix J: ‘When, however, the cheque emerges from that multitude and is referred by the clerical staff to management, albeit only as a result of an inquiry after fate, it seems to me that different considerations come into play. The cheque is no longer a mere item following a course in a factory-like process. It no longer becomes impracticable to give it individual attention, or the attention of management. It is referred for just such individual attention, even if the cause of referral is something collateral.’
References: Times 08-Feb-1999, [1999] 1 All ER (Comm) 193
Judges: Rix J
Statutes: Cheques Act 1992
This case is cited by:

  • Approved – Linklaters (A Firm) v HSBC Bank Plc and and Banco Popular Espanol ComC 22-May-2003
    A stolen cheque was endorsed in blank, and paid through an account opened for that purpose. It had been crossed ‘A/C PAYEE ONLY’ The cheques was paid in, and the money authorised for payment by HSBC. The banks had to apportion responsibility. The . .
    (, [2003] ESHC 1113 (Comm), Gazette 03-Jul-03)
  • Cited – Architects of Wine Ltd v Barclays Bank Plc CA 20-Mar-2007
    The bank appealed summary judgement against it for conversion of cheques. The cheques had been obtained by a fraud.
    Held: The court considered the question of neglience under section 4: ‘The section 4 qualified duty does not require an . .
    (, [2007] EWCA Civ 239, [2007] 2 Lloyd’s Rep 471, [2007] Bus LR D37)

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.89822

Tamarind International Ltd and others v Eastern Natural Gas (Retail) Ltd and Another: QBD 27 Jun 2000

Where self employed agents had been taken on to market the respondent’s services, and those agencies were terminated, such activities were those of commercial agents within the Directive, and they were entitled to compensation. Whether he was a secondary agent or not was a question foreign to English law, and not to be gleaned other than through the Regulations and the facts. If the agents are not secondary, they are within the Regulations. Here the respondent would derive a long term benefit from their activities, and they were not secondary.
Morison J reviewed the genesis of the Directive and made reference to Law Commission Report No 84, 1977 which said: ‘The provisions of the Directive were clearly based upon the German Commercial Code and related to a special category of agent who acted for his principal ‘who must be his standing client’. In German law the commercial agent is ‘identifiable as a member of a particular social group with special social and economic needs’. Such an agent was a quasi employee requiring protection from exploitation’.
References: Times 27-Jun-2000, Gazette 29-Jun-2000, [2000] EuLR 708, [2000] CLC 1397, [2000] EuLR 908
Judges: Morison J
Statutes: Commercial Agents (Council Directive) Regulations 1993 No 3053
This case is cited by:

  • Cited – Ingmar GB Ltd v Eaton Leonard Inc QBD 31-Jul-2001
    The applicants sought damages as commercial agents following the termination of their exclusive agency for the sale of the respondents goods in the UK. The defendants claimed the contract was governed exclusively by Californian law. The European . .
    (, [2001] EWHC QB 3)
  • Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
    Rossetti_diamondQBD2011
    The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
    Held: Whether a party is a commercial agent within the . .
    (, [2011] EWHC 2482 (QB))

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.89699

Sampson and Others v Wilson and Others: CA 19 Apr 1995

A landlord’s estate management agent was not jointly liable with the Landlord for damages for acts of harassment of the tenant committed by the landlord.
References: Times 19-Apr-1995
Statutes: Housing Act 1988 27 28
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Abbott v Bayley CA 20-Jan-1999
    Appeal against award of damages for breach by landlord of covenant for quiet enjoyment and under the 1988 Act.
    Held: The landlord’s appeal failed. ‘There is no fixed point at which it can be said that breaches of the covenant of quiet . .
    (, [1999] EWCA Civ 619)

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.88993

Daly v Lime Street Underwriting Agencies: 1987

A name at Lloyds confers an irrevocable power of attorney on his managing agent to underwrite business.
References: [1987] 2 FTLR 277
This case is cited by:

  • Cited – Bailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
    The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
    (, [2016] UKSC 47, , UKSC 2014/0106, , , , [2016] WLR(D) 455, , [2016] 1 WLR 3179)

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.568650

Neste Oy v Lloyd’s Bank Plc: ChD 1983

A shipping agent (PSL), a client of the defendant, had become insolvent. The defendant sought to combine the accounts. PSL settled on behalf of their shipowner clients bills payable to harbour authorities, pilots, fuel merchants, and other providers of goods and services. The shipowners sometimes put them in funds in advance and sometimes reimbursed them in arrears. The plaintiff shipowners claimed that the unspent balance of six payments made by them to a general account of PSL were held for them in trust. Their primary case was that the payments were subject to an implied trust to pay the money to the suppliers. This arose either by virtue of the agency relationship or as a special purpose (or Quistclose) trust.
Held: The argument was rejected. However, there was a constructive trust of the sixth payment, which had been received after the directors of PSL had concluded that their company was insolvent.
Bingham J approved as ‘in accord with the general principles of equity as applied in England’: ‘the receiving of money which consistently with conscience cannot be retained is, in equity, sufficient to raise a trust in favour of the party for whom or on whose account it was received. This is the governing principle in all such cases. And therefore, whenever any controversy arises, the true question is, not whether money has been received by a party of which he could not have compelled the payment, but whether he can now, with a safe conscience, ex aequo et bono, retain it.’ from Story’s Commentaries on Equity Jurisprudence, 2nd ed.
He applied this to the facts of the case saying: ‘Given the situation of PSL when the last payment was received, any reasonable and honest directors of that company (or the actual directors had they known of it) would, I feel sure, have arranged for the repayment of that sum to the plaintiff’s without hesitation or delay. It would have seemed little short of sharp practice for PSL to take any benefit from the payment, and it would have seemed contrary to any ordinary notion of fairness that the general body of creditors should profit from the accident of a payment made at a time when there was bound to be a total failure of consideration. Of course it is true that insolvency always causes loss and perfect fairness is unattainable. The bank, and other creditors, have their legitimate claims. It nonetheless seems to me that at the time of its receipt PSL could not in good conscience retain this payment and that accordingly a constructive trust is to be inferred.’
References: [1983] 2 Lloyds Rep 658
Judges: Bingham J
This case cites:

  • Cited – Barclays Bank Ltd v Quistclose Investments Ltd; etc HL 31-Oct-1968
    R Ltd were in serious financial difficulties. The company’s overdraft with the appellant bank was almost twice its permitted limit. The company sought a loan of 1 million pounds from a financier, who was willing to lend the company that sum provided . .
    ([1970] AC 567, , [1968] UKHL 4)

This case is cited by:

  • Not justified – Bailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
    The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
    (, [2016] UKSC 47, , UKSC 2014/0106, , , , [2016] WLR(D) 455, , [2016] 1 WLR 3179)

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.568652

Bailey and Another v Angove’s PTY Limited: ChD 2013

The liquidator of the company sought a declaration that sums received by the defendant sales agents on behalf of the insolvent company were to be paid out to the liquidators in full. The court was asked whether the payments by DWL and PLB made after the termination of the ADA were held on trust for Angove or were monies payable to DandD and therefore part of the estate of the insolvent company available for distribution amongst its general creditors.
Held: In the relevant respects the relationship between Angove’s and DandD was that of principal and agent only and not buyer and seller, and that DandD’s authority to collect the price from customers came to an end upon service of Angove’s termination notice.The only contract of sale for the wine that was ordered through DandD was between Angove and (in this case) DWL and PLB
Pelling QC said of the argument that that was insonsistent with the clause in the agreement: ’33. It was submitted on behalf of the Liquidators that because the effect of Clause 22(c) was to impose on the Company the obligation to pay the whole invoice sum due for the goods sold less commission in respect of which a credit note was to be issued for the benefit of the Company that necessarily negatives the true relationship between the Company and Angove being one of principal and agent. I am not able to accept that submission.
First, as I have said, the contract clearly distinguishes between those transactions in respect of which the Company is described as acting as agent and those where it is buying for its own account. It is only in respect of those transactions in respect of which the Company is described as acting as agent that commission is payable and to which the Clause 22 mechanism applies. Clearly therefore the parties considered that the transactions to which this mechanism applied were different from sales to the Company for its own account, which were expressly excluded from its application by Clause 21(a).
Secondly, I do not accept the premise of the submission – namely that because the Company undertakes a direct obligation to pay, that necessarily negatives the relationship being one of principal and agent in relation to transactions to which the mechanism applies. In Teheran – Europe Co. Ltd v. S.T. Belton (Tractors) Ltd [1968] 2 WLR 523, Donaldson J as he then was recognised at 528F that there were three ways in which an agent could conclude a contract on behalf of his principal, the second of which was by creating privity of contract between the third party, the principal and the agent. The outcome of that case was varied on appeal but there was no any disagreement by the Court of Appeal with this part of Donaldson J’s analysis. In the result, it does not follow that because an agent undertakes direct obligations owed to the principal therefore the relationship cannot be one of principal and agent.
I do not accept either the more restricted submission that because the obligation undertaken is one that involves accepting an obligation to pay for the goods that are being sold to the third party that necessarily prevents the relationship from being one of principal and agent. English law has long recognised the concept of a del credere agent – that is an agent who in consideration of a commission guarantees to his principal that third parties with whom he contracts on behalf of the principal will duly pay the sums due under those contracts.
As I have said the ADA must be read as a whole. So read, it applies specifically to at least two types of transaction. It applies primarily to sales to customers identified and introduced by the Company as agent for Angove (in respect of which commission is payable and the Clause 22 mechanism applies) and excepts from this mechanism sales to the Company for its own account. In relation to transactions falling within the last mentioned category the ADA imposes only the limited obligations I mentioned earlier.’
References: [2013] EWHC 215 (Ch)
Judges: Pelling QC HHJ
Statutes: Insolvency Act 1986
This case is cited by:

  • Appeal from – Bailey and Another v Angove’s Pty Ltd CA 7-Mar-2014
    The parties disputed the payment out of sums held by the company’s liquidators under an undertaking given by them. Their case was that if DandD (agents for the insolvent company) acted in the relevant respects as agents, their authority to collect . .
    (, [2014] EWCA Civ 215, [2014] 2 BCLC 129)
  • At first instance – Bailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
    The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
    (, [2016] UKSC 47, , UKSC 2014/0106, , , , [2016] WLR(D) 455, , [2016] 1 WLR 3179)

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.568645

Walsh v Whitcomb: 1797

Lord Kenyon said that powers of attorney are ‘revocable from their nature’.
References: [1803] EngR 393, (1796, 1799, 1803) 2 Esp 565, (1803) 170 ER 456 (B)
Links: Commonlii
Judges: Lord Kenyon
This case is cited by:

  • Cited – Bailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
    The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
    (, [2016] UKSC 47, , UKSC 2014/0106, , , , [2016] WLR(D) 455, , [2016] 1 WLR 3179)

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.344434

Owners of Cargo On K H Enterprise v Owners of Pioneer Container: PC 29 Mar 1994

Owners who were claiming under a bailment must accept the terms of a sub-bailment to which it had agreed. This result is both principled and just. A sub-bailee can only be said for these purposes to have voluntarily taken into his possession the goods of another if he has sufficient notice that a person other than a bailee is interested in the goods so that it can properly be said that (in addition to his duties to the bailee) he has, by taking the goods into his custody, assumed towards that other person the responsibility for the goods which is characteristic of a bailee. This they believe to be the underlying principle.
Where an exclusive jurisdiction clause exists, a party who seeks a stay brought in breach of that agreement to refer disputes to a named forum, will have to show strong cause
Lord Goff asked whether an exclusive jurisdiction clause in a bill of lading issued by a sub-bailee was binding on the cargo owner, and said: ‘Here is a ship, upon which the goods are loaded in a large number of containers; indeed, one container may contain goods belonging to a number of cargo owners. One incident may affect goods owned by several cargo owners, or even (as here) all the cargo owners with goods on board. Common sense and practical convenience combine to demand that all of these claims should be dealt with in one jurisdiction, in accordance with one system of law. If this cannot be achieved, there may be chaos. Much expense may be wasted on litigation in a number of different jurisdictions, as indeed happened in the present case, where there was litigation in eight other countries as well as Hong Kong and Taiwan. There is however no international regime designed to produce a uniformity of jurisdiction and governing law in the case of a multiplicity of claims of this kind. It is scarcely surprising therefore that shipowners seek to achieve uniformity of treatment in respect of all such claims, by clauses designed to impose an exclusive jurisdiction and an agreed governing law . . Within reason, such an attempt must be regarded with a considerable degree of sympathy and understanding . . Their Lordships do not consider that it can possibly be said that the incorporation of such a clause in a bill of lading is per se unreasonable.’
References: Times 29-Mar-1994, Gazette 11-May-1994, [1994] 2 AC 324
Judges: Lord Goff
This case is cited by:

  • Cited – Scottish and Newcastle International Limited v Othon Ghalanos Ltd HL 20-Feb-2008
    The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have . .
    (, [2008] UKHL 11)
  • Cited – Angara Maritime Ltd v Oceanconnect UK Ltd and Another QBD 29-Mar-2010
    The court was asked as to the application of Section 25(1) of the Sale of Goods Act 1979 when an unpaid supplier of bunkers to a time charterer claims against the owner of the vessel.
    Held: The issue was whether as a matter of fact there was a . .
    (, [2010] EWHC 619 (QB), [2011] 1 Lloyd’s Rep 61)

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.84505

Moore v Piretta Pta Ltd: QBD 11 May 1998

M had a series of agency contracts selling women’s clothing. The last contract was in 1994, and on termination, M claimed an indemnity under the contract which itself applied the regulations. Reg 17(3) gave an indemnity for new customers, where the principal continued to derive benefit.
Held: The agency contract was to be interpreted to include the series of contracts, including those before the regulations. The indemnity was capped at one year’s average remuneration over the previous five years. A commercial agent whose contract had been terminated during term of contract was entitled nevertheless to an indemnity in accordance with the Regulations for custom introduced for entire period. In an indemnity case, equitable principles might require there to be taken into account such part of the goodwill as the agent was able to exploit for himself, or for the benefit of another principal.
John Mitting QC said: ‘Consistent with the purpose of achieving harmony between member states, it is in my judgment permissible to look into the law and practice of the country in which the relevant right . . originated . . ; and to do so for the purpose of construing the English (sic) Regulations and to use them as a guide to their application’.
and ‘There are three stages in assessing the amount of the indemnity. First, it has to be asked what is the value of the business to the principal of new customers brought . . by the agent and of existing customers whose business has been significantly increased. The factors to be taken into account in making that judgment include the loss of the business of such customers after the agency has been terminated, whether due to causes beyond the agent’s and principal’s control (for example insolvency on the part of the customer or a decision on the part of that customer to buy goods elsewhere) or to factors within the agent’s control, for example the agent taking the custom of that customer with him. That is because the thing that has to be assessed is the extent to which the principal continues to derive substantial benefits from the efforts of the agent. The value of the business which remains for the benefit of the principal can, and in some cases no doubt should be, assessed by reference to periods as short as a year. But there is nothing in the regulations that requires them to be thus limited. If on the evidence the benefits of the agent’s efforts are likely to endure for more than a year after the termination of the agency then that fact can be taken into account in the assessment and need not be limited to looking at the period of one year after termination only.
The second factor is that the payment must be equitable having regard to all the circumstances and particularly the commission ‘lost’ by the agent. . Other factors which can be taken into account under this head include . . the expenses which the agent would have incurred in earning the commission which was his due. Another factor common to all cases is accelerated payment: the indemnity is accrued as at the date of termination in respect of commission which would have occurred after it. Some discount on that account must be made.
The purpose of the indemnity seems to me to be to award a share of the goodwill built up by the efforts of the agent to him on the termination of the agency. Otherwise the whole benefit of that goodwill will remain with his former principal.
The third step in the calculation is this. Having calculated the amount of the indemnity, a cap is applied. The cap is provided for in reg 17(4).’
References: Times 11-May-1998, [1999] 1 All ER 174, [1998] CLY 113
Judges: John Mitting QC
Statutes: Commercial Agents (Council Directive) Regulations 1993 No 3053, Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents 17
This case is cited by:

  • Cited – Tigana Ltd v Decoro Ltd QBD 3-Feb-2003
    The claimant sought compensation after its sales agency agreement with the defendant was terminated. He had opened up several substantial sales channels for the respondent’s products within the UK. There were difficulties in the products (leather . .
    (, [2003] ECC 23, [2003] EWHC 23 (QB), [2003] EuLR 189)
  • Cited – Smith, Bailey Palmer v Howard and Hallam Ltd QBD 14-Nov-2005
    Claim for compensation after termination of commercial agency agreement. . .
    (, [2005] EWHC 2790 (QB), [2006] EuLR 578)
  • Cited – Stewart Roy v M R Pearlman Limited SCS 10-Mar-1999
    A court investigating legislation, made to implement a European Directive, had still to apply UK principles in that interpretation, and not to disregard entirely common law rules. . .
    (Times 13-May-99, , , 1999 SCLR 803, [1999] ScotCS 71, 1999 SC 459)
  • Cited – David Frape v Emreco International Limited (2) SCS 2-Aug-2001
    . .
    (, , [2001] ScotHC 74, [2001] ScotCS 196)
  • Cited – Hardie Polymers Ltd v Polymerland Ltd SCS 31-Oct-2001
    . .
    (, , [2001] ScotCS 243)
  • Cited – Ingmar GB Limited v Eaton Leonard Technologies Inc CA 31-Jul-1998
    Case referred to ECJ. . .
    (, [1998] EWCA Civ 1366)
  • Cited – Pure Fishing (UK) Ltd v Cooper Watkins and Bartle CA 29-Sep-2003
    The claimant sought a compensation payment under the Regulations after its sales agency for fishing tackle was terminated. The defendant argued that compensation was payable only where the agency was terminated before its term.
    Held: The . .
    (, [2003] EWCA Civ 1349, [2004] Eu LR 664)
  • Cited – Cooper and others v Pure Fishing (UK) Ltd CA 18-Mar-2004
    . .
    (, [2004] EWCA Civ 375)
  • Cited – PJ Pipe and Valve Co. Ltd. v Audco India Ltd QBD 2-Sep-2005
    The claimant was an agent in the petrochemical industry promoting and selling the defendant’s valves. There were two agency agreements, one relating solely to products to be supplied to a particular petro-chemical complex in Nanhai, the other being . .
    (, [2005] EWHC 1904 (QB))

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.83818

McCullagh v Lane Fox and Partners Ltd: QBD 25 Jan 1994

A vendor’s estate agent was liable for a negligent misrepresentation to a party proceeding with a purchase relying upon what had been said, and without his own survey.
References: Gazette 30-Mar-1994, Times 25-Jan-1994
This case cites:

  • Appealed to – McCullagh v Lane Fox and Partners Ltd CA 19-Dec-1995
    There was no duty in negligent mis-statement from a vendor’s estate agent to a purchaser for that purchaser’s financial loss after proceeding without first obtaining a survey relying upon the agent.
    Hobhouse LJ said: ‘On the Sunday, Mr. Scott . .
    (Times 22-Dec-95, [1996] 1 EGLR 35, , [1995] EWCA Civ 8, [1996] PNLR 205)

This case is cited by:

  • Appeal from – McCullagh v Lane Fox and Partners Ltd CA 19-Dec-1995
    There was no duty in negligent mis-statement from a vendor’s estate agent to a purchaser for that purchaser’s financial loss after proceeding without first obtaining a survey relying upon the agent.
    Hobhouse LJ said: ‘On the Sunday, Mr. Scott . .
    (Times 22-Dec-95, [1996] 1 EGLR 35, , [1995] EWCA Civ 8, [1996] PNLR 205)

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.83516

Kelly v Cooper and Another: PC 25 Nov 1992

There was a dispute between a client and an estate agent in Bermuda. The client sued the estate agent for damages for breach of duty in failing to disclose material information to him and for putting himself in a position where his duty and his self-interest conflicted.
Held: It was appropriate to imply a term into the contract to the effect that the agent was entitled to act for other principals selling competing properties and to keep confidential the information obtained from each of those principals, even though that information might well have been material to the client. Estate agents have no general duty to disclose the details of another sale to their client. The existence and scope of the duties of an agent, fiduciary and otherwise, depend on the terms on which they are acting. The court was able to imply into an express contract of agency a term entitling an estate agent to act for numerous other competing principals selling similar properties and to keep confidential information received from each principal. It was known to the principal that the estate agent would be so acting in the course of its business. The effect of the implied term was to modify the normally strict fiduciary duties owed by an agent to the principal not to put himself into a position where his duty and interest conflicted, not to profit from his position (for example, by earning commissions from selling properties for rival principals) and to make disclosure of confidential information to the principal.
Lord Browne-Wilkinson said: ‘In a case where a principal instructs as selling agent for his property or goods a person who to his knowledge acts and intends to act for other principals selling property or goods of the same description, the terms to be implied into such agency contract must differ from those where an agent is not carrying on such general agency business. In the case of estate agents, it is their business to act for numerous principals: where properties are of a similar description, there will be a conflict of interest between the principals each of whom will be concerned to attract potential purchasers to their property rather than that of another. Yet, despite this conflict of interest, estate agents must be free to act for several competing principals otherwise they will be unable to perform their function . . The scope of the fiduciary duties owed by the [estate agent] to the [client] (in particular the alleged duty not to put themselves in a position where their duty and their interest conflicted) are to be defined by the terms of the contract of agency.’
References: Gazette 25-Nov-1992, [1993] AC 205, [1992] 3 WLR 936, [1993] ANZ Conv R 138
Judges: Lord Browne-Wilkinson
This case cites:

  • Approved – Hospital Products Ltd v United States Surgical Corporation 25-Oct-1984
    High Court of Australia – A solicitor’s duty of loyalty to his client’s interest, and his duty to respect his client’s confidences, have their roots in the fiduciary nature of the solicitor-client relationship, but may have to be moulded and . .
    ((1984) 156 CLR 41, (1984) 55 ALR 417, (1984) 58 ALJR 587, 4 IPR 291, [1984] HCA 64, )

This case is cited by:

  • Cited – Silven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris CA 21-Oct-2003
    The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor . .
    (, [2003] EWCA Civ 1409, Times 27-Oct-03, Gazette 20-Nov-03, [2004] 1 WLR 997, [2004] 4 All ER 484)
  • Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
    The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
    (, [2003] EWCA Civ 1048, Times 09-Sep-03, [2004] 1 BCLC 131)
  • Cited – Parker v Parker ChD 24-Jul-2003
    Lord Macclesfield claimed a right to occupy a castle. The owners claimed that he had only a mere tenancy at will. The exact rooms in the castle which had been occupied had varied over time.
    Held: The applicant was entitled to reasonable . .
    (, [2003] EWHC 1846 (Ch))
  • Cited – Prince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
    Conflicts of Duty with former Client
    The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .
    (Times 20-Apr-99, , , [1998] UKHL 52, [1999] 2 AC 222, [1999] 1 All ER 517, [1999] 2 WLR 215)
  • Cited – Hilton v Barker Booth and Eastwood HL 3-Feb-2005
    The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and . .
    (, , [2005] UKHL 8, Times 04-Feb-05, [2005] 1 WLR 567, [2005] 1 All ER 651, [2007] Lloyds Rep PN 1)
  • Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
    The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
    (, [2005] EWHC 1638 (Ch))
  • Cited – Burkle Holdings Ltd v Laing TCC 23-Mar-2005
    The parties had each instructed the same solicitor, but now disputed the entitlement of the other to see documents held by the solicitor. . .
    (, [2005] EWHC 638 (TCC))
  • Cited – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
    The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
    (, [2005] EWCA Civ 1302, Times 29-Nov-05, [2006] 1 All ER 571)
  • Cited – Imageview Management Ltd v Jack CA 13-Feb-2009
    The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
    (, [2009] EWCA Civ 63, , [2009] WLR (D) 56, , [2009] 1 All ER (Comm) 921, [2009] 2 All ER 666, [2009] 1 BCLC 724, [2009] 1 Lloyd’s Rep 436, [2009] Bus LR 1034)
  • Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
    Rossetti_diamondQBD2011
    The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
    Held: Whether a party is a commercial agent within the . .
    (, [2011] EWHC 2482 (QB))

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.82715

Jerry Juhan Developments Sa v Avon Tyres Ltd: QBD 25 Jan 1999

Where bailors were in breach of a term of the bailment to collect the goods, and after lengthy delay the bailees had mislaid the goods, the bailees were under no duty to demonstrate that they had properly cared for the goods until the duty to keep ceased.
References: Times 25-Jan-1999, Gazette 10-Feb-1999
Jurisdiction: England and Wales

Last Update: 21 November 2020; Ref: scu.82516

Fyffes Group Ltd and Others v Templeman and Others: QBD 14 Jun 2000

A person who bribed an agent to award a contract was liable to account for profits secured by the bribery as was the agent he bribed, but unlike for the agent, the extent of his liability was limited to exclude profits which he would have earned in any event. The recompense in damages should not be allowed to lead to the unjust enrichment of the injured party.
References: Times 14-Jun-2000, Gazette 22-Jun-2000, [2000] 2 Lloyds Rep 643
Judges: Toulson J
This case is cited by:

  • Cited – Crown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
    There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
    (Times 05-Feb-04, [2004] EWHC 52 (Ch), , [2004] 1 BCLC 468)
  • Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
    The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
    (, [2005] EWHC 1638 (Ch))
  • Cited – Fiona Trust Holding Corp and others v Privalov and others ComC 21-May-2007
    Allegations were made of different varieties of fraud. Applications were made for freezing orders. . .
    (, [2007] EWHC 1217 (Comm))

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.80712