Tag: Agency

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.’

Judges:

Morritt LJ

Citations:

Times 01-Dec-1995, Gazette 11-Jan-1996, [1996] Ch 207

Statutes:

Law of Property Act 1925 199

Jurisdiction:

England and Wales

Citing:

Appeal from – Halifax 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:

Cited – Scotlife 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’ . .
Cited – Hardy 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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Legal Professions, Banking

Updated: 09 December 2022; Ref: scu.81151

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’.

Judges:

Henderson L

Citations:

[2018] EWCA Civ 540

Links:

Bailii

Statutes:

Limitation Act 1980 32(1)

Jurisdiction:

England and Wales

Citing:

Cited – The 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:

Cited – Boyse (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 . .
Cited – DSG 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’. . .
Cited – Granville 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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Torts – Other, Limitation

Updated: 27 November 2022; 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.

Citations:

[1977] IR 307

Jurisdiction:

England and Wales

Cited by:

Cited – Spice 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 . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Agency, International

Updated: 23 November 2022; 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.

Citations:

Times 21-Feb-2006, [2006] EWCA Civ 63, [2006] 1 WLR 1281

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Citing:

Cited – King 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 . .
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 . .
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 . .
Cited – Page 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 . .
Cited – Duffen 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 part – 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 . .
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 . .
Cited – Litster 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 . .
Cited – 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. . .
Cited – Francovich, 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:

Cited – King 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 . .
Cited – Clarke 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 from – Lonsdale (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’ . .
Lists of cited by and citing cases may be incomplete.

Agency, European

Updated: 04 November 2022; 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.

Citations:

Times 01-Apr-1994, [1994] CCLR 127

Jurisdiction:

England and Wales

Cited by:

Cited – Anglo 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 . .
Lists of cited by and citing cases may be incomplete.

Consumer, Agency

Updated: 26 October 2022; 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’.

Judges:

Steyn LJ

Citations:

Independent 16-Apr-1993, [1993] 2 Lloyds Rep 194

Jurisdiction:

England and Wales

Cited by:

Cited – Sun 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 . .
Cited – 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 . .
Cited – Golden 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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 26 October 2022; 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.

Citations:

Times 30-Dec-1993, Independent 14-Dec-1993

Jurisdiction:

England and Wales

Citing:

Appeal from – Arbuthnot 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 from – Henderson 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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Professional Negligence

Updated: 26 October 2022; 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.’

Judges:

Diplock LJ, Salmon LJ, Lord Denning MR

Citations:

[1966] 1 QB 716, [1965] 3 WLR 276, [1965] 2 Lloyds Rep 63, [1965] 2 All ER 725

Jurisdiction:

England and Wales

Citing:

Cited – Lloyd 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 law – Cheshire 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:

Cited – Dubai 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 . .
Cited – Frans 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 . .
Cited – Lister 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 . .
Approved – Port 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 . .
Explained – Photo 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 . .
Approved – Gilchrist 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: . .
Cited – Mattis 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 . .
Cited – The 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 . .
Cited – Armes 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 . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Negligence, Agency

Updated: 16 September 2022; 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.

Judges:

Lloyd, Wilson, Tomlinson LJJ

Citations:

[2011] EWCA Civ 404

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hersom 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 . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 06 September 2022; 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.

Judges:

Bragge M

Citations:

[2010] EWHC B26 (Ch), [2010] Lloyd’s Rep IR 441

Links:

Bailii

Jurisdiction:

England and Wales

Insurance, Agency, Contract

Updated: 27 August 2022; Ref: scu.426469

De Comas v Prost and Kohler: PC 13 Mar 1865

New South Wales

Citations:

[1865] EngR 311, (1865) 3 Moo PC NS 158, (1865) 16 ER 59, [1865] UKPC 17

Links:

Commonlii, Bailii

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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Agency

Updated: 24 August 2022; 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.

Judges:

Sir Montague Smith

Citations:

[1874] UKPC 20

Links:

Bailii

Jurisdiction:

Canada

Cited by:

Cited – Mohamud 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 . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Agency

Updated: 20 August 2022; Ref: scu.418905

Adler v Ananhall Advisory and Consultancy Services Ltd: CA 18 Jun 2009

The parties disputed the effect of an agreement providing for commission on introduction of purchasers for a property. The client alleged fraudulent misrepresentation.

Judges:

Arden, Toulson, Goldring LJJ

Citations:

[2009] EWCA Civ 586

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Torts – Other

Updated: 28 July 2022; Ref: scu.347057

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

Judges:

Rix, Jonathan Parker, Longmore LJJ

Citations:

[2005] EWCA Civ 646

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Barbados 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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 01 July 2022; 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.

Judges:

The Honourable Mr Justice Langley

Citations:

[2004] EWHC 44 (Comm), [2004] Eu LR 477, [2004] UKCLR 384, [2004] 1 All ER (Comm) 991

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Days Medical Aids Ltd v Pihsiang Machinery Manufacturing Co Ltd and others CA 13-Jul-2004
. .
Lists of cited by and citing cases may be incomplete.

Contract, Agency, European

Updated: 09 June 2022; 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. ‘

Judges:

Lord Justice Schiemann, Lord Justice Rix

Citations:

[2003] EWCA Civ 1349, [2004] Eu LR 664

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Agency, European

Updated: 08 June 2022; 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.

Judges:

Ward, Tuckey LJJ, Lightman J

Citations:

Times 21-Aug-2003, [2003] EWCA Civ 1238, Gazette 02-Oct-2003, [2003] EuLR 858

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993 (1993 No 3173) 2(1)

Jurisdiction:

England and Wales

Citing:

Adopted – 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 . .

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

European, Agency

Updated: 08 June 2022; 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.

Judges:

The Honourable Mr Justice Langley

Citations:

[2003] EWHC 1956 (Comm), [2003] 2 Lloyds Rep. 874

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .

Cited by:

Cited – Three 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 . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 07 June 2022; Ref: scu.185226

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.’

Judges:

Bingham J

Citations:

[1983] 2 Lloyds Rep 658

Jurisdiction:

England and Wales

Citing:

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 . .

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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Agency, Banking

Updated: 02 June 2022; 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.’

Judges:

Pelling QC HHJ

Citations:

[2013] EWHC 215 (Ch)

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Agency

Updated: 02 June 2022; Ref: scu.568645

J Jarvis and Sons Ltd v Castle Wharf Developments Ltd, Gleeds Management Services Ltd, Franklin Ellis Architects Ltd: CA 19 Jan 2001

Judges:

Peter Gibson, Arden LJJ, Collins J

Citations:

[2001] EWCA Civ 19, [2001] Lloyds Rep PN 308, (2001) 17 Const LJ 430, [2001] NPC 15

Links:

Bailii

Jurisdiction:

England and Wales

Construction, Professional Negligence, Agency

Updated: 31 May 2022; Ref: scu.147399

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.’

Judges:

Morritt, Thorpe, Popplewell LJJ

Citations:

[1999] EWCA Civ 1942

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993

Jurisdiction:

England and Wales

Citing:

Cited – Stergios 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 . .
Cited – Gibbs Mew Plc v Gemmell and Gibbs Mew Plc and Centric Pub Company Ltd v 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 . .
Cited – Crehan 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:

Cited – Claramoda 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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Landlord and Tenant

Updated: 31 May 2022; 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’.

Judges:

Millett LJ

Citations:

Times 02-Aug-1996, [1996] EWCA Civ 533, [1998] Ch 1, [1997] 2 WLR 436, [1996] 4 All ER 698

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Birmingham 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. . .
Cited – Arklow 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 . .
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 . .
Cited – The 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 . .
Cited – Marks 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 . .
Cited – Marks 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 . .
Cited – Newgate 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 . .
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 . .
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 . .
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 . .
Cited – Lloyds 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. . .
Cited – Barnes and Another v Black Horse Ltd QBD 31-May-2011
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 . .
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
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 . .
Cited – Portman 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 . .
Cited – Mortgage 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 . .
Cited – Leeds 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 . .
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 . .
Cited – AIB 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 . .
Cited – Halton 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 . .
Cited – Lehtimaki 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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions, Equity, Agency

Updated: 29 May 2022; 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.’

Judges:

District Judge Eldergill

Citations:

[2016] EWHC COP 10

Links:

Bailii

Statutes:

Mental Capacity Act 2005 57

Jurisdiction:

England and Wales

Cited by:

Approved – The 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. . .
Lists of cited by and citing cases may be incomplete.

Agency, Health

Updated: 23 May 2022; 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.

Judges:

Lush SJ

Citations:

[2015] EWCOP 35

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – The 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. . .
Lists of cited by and citing cases may be incomplete.

Agency, Health

Updated: 23 May 2022; 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.

Citations:

Times 26-Apr-2000, Gazette 25-May-2000, [2000] EWCA Civ 144

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Land, Legal Professions

Updated: 20 May 2022; 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)

Citations:

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

Links:

Bailii, Bailii

Statutes:

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 from – Ingmar GB Limited v Eaton Leonard Technologies Inc CA 31-Jul-1998
Case referred to ECJ. . .

Cited by:

At ECJ – 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 . .
Cited – Honyvem 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. . .
Cited – Lonsdale (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’ . .
Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
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 . .
Lists of cited by and citing cases may be incomplete.

Agency, European, Commercial

Updated: 19 May 2022; 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.

Judges:

Patten J

Citations:

Times 05-Jul-2001

Statutes:

Limitation Act 1980 36(1)(f)

Cited by:

Cited – McLaughlin 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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Trusts, Limitation

Updated: 19 May 2022; 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.

Judges:

Bowers J

Citations:

Times 15-May-2001, [2001] EWHC QB 462, [2001] EuLR 567, [2001] All ER (D) 78

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993 No 3053

Citing:

Cited – King 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 . .

Cited by:

Cited – Lonsdale (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’ . .
Lists of cited by and citing cases may be incomplete.

Agency, Commercial, European, Damages

Updated: 18 May 2022; 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.

Citations:

[1903] 72 LJKB 865

Cited by:

Approved – Rhodes 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 . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 18 May 2022; 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.

Citations:

[1968] 1 WLR 1858

Jurisdiction:

England and Wales

Cited by:

Cited – Dun 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 . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Agency

Updated: 16 May 2022; 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?’

Judges:

Nourse LJ

Citations:

[1987] 2 EGLR 23

Jurisdiction:

England and Wales

Cited by:

Cited – Harwood 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 . .
Cited – Nahum 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 . .
Considered – Chasen 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 . .
Cited – Burney 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 . .
Cited – Standard 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 . .
Cited – Becerra 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 . .
Cited – Foxtons 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 . .
Cited – MSM 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 . .
Cited – Charania 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.
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 16 May 2022; Ref: scu.180396

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.’

Judges:

Wills J

Citations:

[1893] 1 QB 346

Jurisdiction:

England and Wales

Agency

Updated: 16 May 2022; Ref: scu.616745

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.

Citations:

[1776] EngR 25, (1776) 1 Cowp 395, (1776) 98 ER 1150

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Warlow 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, . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 15 May 2022; 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

Citations:

[1783] EngR 64, (1783) 4 Bro PC 38, (1783) 2 ER 26

Links:

Commonlii

Jurisdiction:

Commonwealth

Wills and Probate, Agency

Updated: 15 May 2022; 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/

Citations:

[1846] EngR 605, (1846) 15 M and W 367, (1846) 153 ER 892

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Warlow v Harrison CExC 26-Nov-1859
Unless public notice of this was given, a bid from the seller himself was fraudulent. He appealed against rejection of his claim against the auctioneer.
Held: The appeal failed on the existing pleadings, but said that the plaintiff might . .
Cited – Barry 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 . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 15 May 2022; 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.

Judges:

Cockburn CJ, Shee J

Citations:

[1865] EngR 651, (1865) 6 B and S 420, (1865) 122 ER 1250

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Cited – Warlow v Harrison CExC 26-Nov-1859
Unless public notice of this was given, a bid from the seller himself was fraudulent. He appealed against rejection of his claim against the auctioneer.
Held: The appeal failed on the existing pleadings, but said that the plaintiff might . .

Cited by:

Cited – Barry 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 . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 15 May 2022; Ref: scu.281563

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.

Citations:

Times 04-Jul-2000

Statutes:

Sixth Council Directive 77/388/EEC

Citing:

Appealed to – Commissioners 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 . .

Cited by:

Appeal from – Commissioners 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 . .
Lists of cited by and citing cases may be incomplete.

VAT, Agency

Updated: 15 May 2022; Ref: scu.79388

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?’

Judges:

Atkinson J

Citations:

[1939] 4 All ER 116

Jurisdiction:

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 . .
Lists of cited by and citing cases may be incomplete.

Company, Agency

Updated: 11 May 2022; 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.

Citations:

[1854] EngR 785, (1854) 5 Giff 13, (1854) 66 ER 902

Links:

Commonlii

Jurisdiction:

England and Wales

AGENCY

Updated: 07 May 2022; 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.

Judges:

White J

Citations:

[1988] 1 EGLR 21, [1988] 19 EG 129

Jurisdiction:

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 . .
Cited – Jaques v Lloyd D George and Partners 1968
. .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
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 . .
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 . .

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, . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 07 May 2022; Ref: scu.231524

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.

Citations:

(1890) 6 TLR 316

Jurisdiction:

England and Wales

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 . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 04 May 2022; Ref: scu.568646

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.’

Judges:

Sir George Jessel MR

Citations:

(1874) LR 18 Eq 524

Jurisdiction:

England and Wales

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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Equity, Agency, Company

Updated: 04 May 2022; Ref: scu.551499

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’.’

Judges:

Scott LJ

Citations:

[1948] 1 KB 349, [1948] 1 All ER 85

Jurisdiction:

England and Wales

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 . .
Lists of cited by and citing cases may be incomplete.

Administrative, Agency

Updated: 04 May 2022; Ref: scu.540479

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.

Citations:

[1764] EngR 3, (1764) 2 Eden 220, (1764) 28 ER 882 (C)

Links:

Commonlii

Jurisdiction:

England and Wales

Agency

Updated: 02 May 2022; Ref: scu.375212

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.’

Judges:

Buckley, Bridge and Templeman LJJ

Citations:

[1980] 2 WLR 565, [1980] Ch 548, [1980] 1 All ER 942

Links:

lip

Jurisdiction:

England and Wales

Citing:

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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract, Land, Agency

Updated: 28 April 2022; 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 . . ‘

Judges:

Roch LJ, Dillon LJ

Citations:

Gazette 12-Jan-1994, Times 29-Nov-1993, [1995] EMLR 118, [1994] 2 All ER 737, [1994] Ch 271, [1994] 2 WLR 660

Jurisdiction:

England and Wales

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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Litigation Practice

Updated: 28 April 2022; Ref: scu.85022

Chr Salvesen and Co v Rederi Aktiebolaget Nordstjernan: HL 14 Apr 1905

A foreign shipowner employed a Leith shipbroker to find freight for a vessel. The shipbroker entered into negotiations with third parties and reported to his principal that he had ‘fixed’ the ship on certain terms. As a matter of fact no bargain was concluded between the shipbroker and the third parties. Held (1) that the shipbroker was liable to the shipowner for loss incurred by the latter by reason of his relying on the former’s incorrect statement; (2) that in the absence of evidence that the shipowner sustained any loss of profit by his reliance on the incorrect statement, no damages fell to be awarded him in respect of loss of profit, but that a sum fell to be paid him as compensation and solatium in respect of outlays on telegrams and trouble.

Judges:

Lord Chancellor (Halsbury), Lord Davey, and Lord Robertson

Citations:

[1905] UKHL 557, 42 SLR 557

Links:

Bailii

Jurisdiction:

England and Wales

Agency

Updated: 26 April 2022; Ref: scu.621175

Lloyd v Grace Smith and Co: HL 19 Jul 1912

A principal is liable in damages for the fraud of his agent, whether benefited thereby or not, provided the agent is acting within the scope of his employment. In a case where a clerk, purporting to act on behalf of his employer a solicitor, obtained control of and embezzled the property of a client, held that the fact that the clerk was apparently invested by his employer with power to act for him was sufficient to make the employer responsible for his fraud.

Judges:

Earl Loreburn, the Earl of Halsbury, Lords Macnaghten, Atkinson, Shaw, and Robson

Citations:

[1912] UKHL 606, 50 SLR 606

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Torts – Other

Updated: 25 April 2022; Ref: scu.619250

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’

Judges:

Jordan CJ

Citations:

(1945) 46 SR (NSW) 9

Jurisdiction:

England and Wales

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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Agency

Updated: 12 April 2022; Ref: scu.569931

Daly v Lime Street Underwriting Agencies: 1987

A name at Lloyds confers an irrevocable power of attorney on his managing agent to underwrite business.

Citations:

[1987] 2 FTLR 277

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 . .
Lists of cited by and citing cases may be incomplete.

Insurance, Agency

Updated: 12 April 2022; Ref: scu.568650

Walsh v Whitcomb: 1797

Lord Kenyon said that powers of attorney are ‘revocable from their nature’.

Judges:

Lord Kenyon

Citations:

[1803] EngR 393, (1796, 1799, 1803) 2 Esp 565, (1803) 170 ER 456 (B)

Links:

Commonlii

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 . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 12 April 2022; Ref: scu.344434

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.’

Judges:

Lord Macnaghten, Lord Watson, Lord Fitzgerald

Citations:

(1887) 12 App Cas 531

Jurisdiction:

England and Wales

Citing:

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 . .

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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 12 April 2022; Ref: scu.219302

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.

Citations:

Times 19-Apr-1995

Statutes:

Housing Act 1988 27 28

Jurisdiction:

England and Wales

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 . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Agency

Updated: 10 April 2022; Ref: scu.88993

The Great Estates Group Ltd v Digby: CA 13 Oct 2011

The Claimant, an estate agent, considers that it was cut out of its entitlement to commission on the sale of a property in London in the buoyant market of the summer of 2007. By these proceedings it seeks compensation for that loss.
Toulson LJ explained that, if the contract was ‘capable’ of being read in two ways, the meaning which would result in validity might be upheld ‘even if it is the less natural construction’.

Judges:

Rix, Lloyd, Toulson LJJ

Citations:

[2011] EWCA Civ 1120, [2012] 2 All ER (Comm) 361

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 10 April 2022; Ref: scu.445446

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.’

Judges:

Lord Goff

Citations:

Times 29-Mar-1994, Gazette 11-May-1994, [1994] 2 AC 324

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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Transport, Commonwealth, Contract, Agency

Updated: 09 April 2022; 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).’

Judges:

John Mitting QC

Citations:

Times 11-May-1998, [1999] 1 All ER 174, [1998] CLY 113

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

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 . .
Cited – Smith, Bailey Palmer v Howard and Hallam Ltd QBD 14-Nov-2005
Claim for compensation after termination of commercial agency agreement. . .
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. . .
Cited – David Frape v Emreco International Limited (2) SCS 2-Aug-2001
. .
Cited – Hardie Polymers Ltd v Polymerland Ltd SCS 31-Oct-2001
. .
Cited – Ingmar GB Limited v Eaton Leonard Technologies Inc CA 31-Jul-1998
Case referred to ECJ. . .
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 . .
Cited – Cooper and others v Pure Fishing (UK) Ltd CA 18-Mar-2004
. .
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 . .
Lists of cited by and citing cases may be incomplete.

Agency, European, Commercial

Updated: 09 April 2022; 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.

Citations:

Gazette 30-Mar-1994, Times 25-Jan-1994

Citing:

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 . .

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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Negligence, Agency

Updated: 09 April 2022; 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.’

Judges:

Lord Browne-Wilkinson

Citations:

Gazette 25-Nov-1992, [1993] AC 205, [1992] 3 WLR 936, [1993] ANZ Conv R 138

Citing:

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 . .

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 . .
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 . .
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 . .
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 . .
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 . .
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 . .
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. . .
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 . .
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 . .
Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
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 . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 09 April 2022; 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.

Citations:

Times 25-Jan-1999, Gazette 10-Feb-1999

Jurisdiction:

England and Wales

Agency

Updated: 08 April 2022; 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.

Judges:

Toulson J

Citations:

Times 14-Jun-2000, Gazette 22-Jun-2000, [2000] 2 Lloyds Rep 643

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 . .
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 . .
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. . .
Lists of cited by and citing cases may be incomplete.

Agency, Equity

Updated: 08 April 2022; Ref: scu.80712

Computer Associates UK Ltd v The Software Incubator Ltd: CA 19 Mar 2018

Appeal from award following termination of commercial agency, asking whether a licence to use electronically supplied software amounts to the ‘sale of goods’ under the Regulations.

Citations:

[2018] EWCA Civ 518

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993

Jurisdiction:

England and Wales

Agency

Updated: 06 April 2022; Ref: scu.606471

UBS Ag (London Branch) and Another v Kommunale Wasserwerke Leipzig Gmbh: CA 16 Oct 2017

The claimant investment bank sought recovery of its loans. The defendant German municipal water company alleged corruption by its financial advisers who were under financial incentives to sell the claimant’s loans.

Judges:

Gloster LJ, Briggs of Westbourne L, Hamblen LJ

Citations:

[2017] EWCA Civ 1567

Links:

Bailii

Jurisdiction:

England and Wales

Banking, Local Government, Agency

Updated: 31 March 2022; Ref: scu.597393

SAD and Another v SED: CoP 4 Nov 2016

This application raises issues in relation to a Lasting Power of Attorney for property and affairs (an LPA) under which SAD and ACD (the Applicants) were appointed attorneys by their mother, SED (the Respondent).

Judges:

Glentworth DJ

Citations:

[2017] EWCOP 3

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Health

Updated: 24 March 2022; Ref: scu.581700

Messrs Sturrock and Stewart v William Porter, Merchant St Petersburgh, and Alexander Ogilvie, Merchant Leith, His Attorney: HL 27 Mar 1786

Factor – Sale – Notice. – Held, where a foreign merchant was commissioned to purchase flax for a merchant in Dundee, that the former was not liable for the loss of the flax by fire, which he had purchased, though he had not intimated the purchase to his employer; the flax being only part of the quantity ordered, and was put into a store, waiting the arrival of a vessel to take it to Dundee.

Citations:

[1786] UKHL 3 – Paton – 45

Links:

Bailii

Jurisdiction:

Scotland

Agency

Updated: 23 March 2022; Ref: scu.581011

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.’

Judges:

Bankes LJ, Atkin LJ

Citations:

[1927] 1 KB 577

Jurisdiction:

England and Wales

Cited by:

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 . .
Cited – Avrahami 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. . .
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 . .
Lists of cited by and citing cases may be incomplete.

Agency

Updated: 23 March 2022; Ref: scu.282639