Re Stirrup’s Contract: 1961

The parties disputed whether good title had been shown when an assent under seal had been used where a conveyance ordinarily should have been used.
Held: Good title had been shown. Though the law is concerned with substance rather than form, it would not be consistent with the orderly development of the common law if the court could, as a matter of construction, produce the result that it believed the parties to the contract wanted by rewriting the contract.
Wilberforce J said that a purchaser of land is entitled to be satisfied ‘that his vendor is seized of the estate which he is purporting to sell, in this case the fee simple, and that he is in a position, without the possibility of dispute or litigation, to pass that fee simple to the purchaser.’ and
‘Section 63 states that every conveyance is effectual to pass all the estate which the conveying party has or which is intended to be so passed; and if that is read in conjunction with the definition section, Section 205 (1) (ii), by which the expression ‘conveyance’ includes an assent, that produces the result that an assent, provided that it is under seal, is effective to pass whatever estate the conveying party has.
I would be reluctant to decide this case on the basis of a mechanical argument of that kind alone, but I think on the broad framework of the Act, provided that the sole form of requirement of being under seal is complied with, any document, since 1925, at any rate, is effective to pass a legal estate, provided that the intention so to pass it can be ascertained.
I therefore feel on both those branches of the argument that the vendor here is correct in saying that, although the document is described as an assent, and although admittedly the case was not one for which an assent should be used, yet, nevertheless, on the intention to be ascertained from it and having regard to the statutory provisions, it was perfectly effective to pass the fee simple to the purchaser, and I propose so to declare.’ and
Where the title shown is less than perfect, the question is whether the risk is ‘so remote or so shadowy as to be one to which no serious attention need be paid . . the test must always be, would the court, in an action for specific performance at the instance of the vendors, force a title containing the alleged defect upon a reluctant purchaser ?’

Wilberforce J
[1961] 1 WLR 449
Law of Property Act 1925 63 20(91)
Cited by:
Cited – PW and Co v Milton Gate Investments Ltd (BT Property Ltd and another, Part 20 defendants) ChD 8-Aug-2003
The parties, head lessor and sub-lessess, had assumed that following Brown -v- Wilson the sub-lease would continue upon the determination of the head lease, and had overlooked Pennell which overruled Brown v Wilson. However the lease made express . .
Cited – Barclays Bank Plc v Weeks Legg and Dean (a Firm); Barclays Bank Plc v Lougher and Others; Barclays Bank Plc v Hopkin John and Co CA 21-May-1998
The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because . .
Cited – Harbour Estates Limited v HSBC Bank Plc ChD 15-Jul-2004
The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The . .
Cited – Barclays Bank Plc v Weeks Legg and Dean ChD 26-Feb-1996
The failure by a conveyancer to disclose a right of way either to his lay client or to the lender was not a breach of his undertaking to acquire a good and marketable title. The Solicitor had applied the money in accordance with the undertaking even . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Leading Case

Updated: 01 November 2021; Ref: scu.190576

Thompson v Hudson: HL 1869

An agreement is not penalty if it simply reserves to a creditor the right to have his debt paid in full in the event that his debtor does not pay on a due date a smaller sum that he has agreed to accept in satisfaction
Lord Hatherley said: ‘I take the law to be perfectly clear upon these matters which we have to consider with reference to this and the subsequent agreements, namely, that where there is a debt actually due, and in respect of that debt a security is given, be it by way of mortgage or be it by way of stipulation that in case of its not being paid at the time appointed a larger sum shall become payable, and be paid, in either of those cases Equity regards the security that has been given as a mere pledge for the debt, and it will not allow either a forfeiture of the property pledged, or any augmentation of the debt as a penal provision, on the ground that Equity regards the contemplated forfeiture which might take place at Law with reference to the estate as in the nature of a penal provision, against which Equity will relieve when the object in view, namely, the securing of the debt, is attained, and regarding also the stipulation for the payment of a larger sum of money, if the sum be not paid at the time it is due, as a penalty and a forfeiture against which Equity will relieve.
Now, that being clear on the one hand, it is equally clear on the other that where there is a debt due, and an agreement is entered into at the time of that debt having become due and not being paid, in regard to farther indulgence to be conceded to the debtor, or farther time to be accorded to him for the payment of the debt, or in regard to his paying it immediately, if that be a portion of the stipulations of the agreement, or at some future time which may be named, and the creditor is willing to allow him certain advantages and deduction from that debt, as well as to extend the time for its payment, if adequate and proper security in the mind of the creditor be afforded him as his part of the bargain in respect of which he is to make these concessions, then it is perfectly competent to the creditor to say: ‘If the payment be not made modo et forma as I have stipulated, then forthwith the right to the original debt reverts, and it is to be open to me to proceed with reference to the original debt, and to exercise all those powers which I possess for compelling payment of the original debt; in other words, I am entitled to be replaced in the position in which I was when this agreement; which has been not broken, was entered into’.’
Lord Colonsay said: ‘It is the reservation of an existing right. It is not the emergence of a right that was never in existence at all except on the violation of the agreement which was made. It is merely the reservation of what is the just and honest right of the party, which he was willing to waive to a certain extent, provided his debtor would do certain things, but if the debtor fails in doing those things, then that right which belongs to the creditor shall continue to belong to him, and he may enforce it’.
Lord Westbury said: ‘It is plain enough that if part of a debt has been duly and unconditionally remitted, the part so unconditionally remitted ceases. If it be revived it becomes a subject in respect of which there is no longer any contract in existence, and which therefore may properly be regarded as a penalty.’

Lord Westbury, Lord Hatherley, Lord Colonsay
(1869) LR 4 HL 1, (1869) 4 HL 1
England and Wales
Cited by:
Cited – Wright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd ChD 6-Mar-2018
IVA is a special form of contract
Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on . .

Lists of cited by and citing cases may be incomplete.

Contract

Leading Case

Updated: 01 November 2021; Ref: scu.605850

Crockfords Club Ltd v Mehta: CA 8 Jan 1992

The Defendant had gambled at the plaintiff’s casino, using cheques drawn on a company to obtain chips, all of which he lost. The cheques not having been honoured, Crockfords sued the Defendant for repayment of the loan made to him on the issue of the chips, and applied for summary judgment. At first instance, Henry J held that the cheques had been accepted in conditional repayment of the loan, so that on dishonour of the cheques, the Defendant remained liable on the loan. He then held that, just as section 16(2) and (4) validated the cheques, so they validated the underlying loan.
Held: A cheque which had been given in exchange for gaming tokens which complied with the Act was to be enforced as would be any other cheque. The use of such tokens was regulated and supported by the law. No new sub-species of contract was created by the Act.
Lloyd LJ said: ‘The legislative purpose of section 16 of the 1968 Act was to discourage gaming on credit. But consistently with that overall objective Parliament had to allow machinery for enabling lawful gaming to take place at licensed clubs. Otherwise those taking part in the gaming would have had to bring their own cash. The solution adopted was a neat one, and is to be found in section 16(1) and (2). Provided the cheque meets the requirements of subsection (2) and subsection (3), the giving of cash or tokens in exchange for the cheque does not contravene subsection (1).
The error in Mr Glick’s argument is to treat section 16(2) as if it only validated the cheque. It does more than that. It validates the whole transaction. Subsection (1) is subject to subsection (2). Subsection (2) provides that the transaction-that is to say the giving of the cash or tokens in exchange for the cheque-shall not contravene section 16(1). Provided the cheque complies with subsections (2) and (3) there is nothing in subsection (1) to prohibit the underlying loan.
What then was the purpose of section 16(4)? The explanation, like so much else in our law, is historical. The old legislation did not make loans for lawful gaming illegal. The Act of 1710 is concerned with securities. It provides that all securities for repaying money knowingly lent for gaming should be ‘utterly void frustrate and of none effect to all intents and purposes whatsoever’. But this was found to work injustice on an innocent holder for value-that is to say a third party to whom the security may have been negotiated without notice. So 125 years later, by the Act of 1835, Parliament amended the law so as to provide that the security should not be void, but should be deemed to have been given for an illegal consideration. Nothing in either Act affects the underlying loan.
The subsequent history is traced in CHT Ltd v Ward [1965] 2 QB 63. It was argued that it would be absurd to invalidate the security but to leave the contract of loan unaffected. That cannot have been Parliament’s intention. This argument was accepted by the Divisional Court in Carlton Hall Club Ltd v Laurence best reported in 98 LJKB 305. It was held that the consideration for the security which was deemed to be illegal as between immediate parties under the Act of 1835 tainted the loan itself.
It was to prevent this line of argument being resurrected that Parliament found it necessary, or at any rate desirable, to enact section 16(4). The source of the taint has now been removed. There is no longer, therefore, any basis for the argument that the underlying loan is illegal or unenforceable. Indeed, to turn the argument the other way, it would surely be absurd to hold that Parliament had, by the Act of 1968, made the cheque enforceable, but made it a criminal offence to enter into the underlying contract of loan.’

Lloyd LJ
Gazette 08-Jan-1992, [1992] 1 WLR 355
Gaming Act 1968 16
England and Wales
Cited by:
Cited – Aspinall’s Club Ltd v Al-Zayat CA 19-Oct-2007
The claimant had sued the defendant for non-payment under a cheque for andpound;2 million. The cheque had been issued to replace earlier cheques given but not met, for sums staked for gambling at the claimant’s casino. The defendant said that the . .
Cited – Grosvenor Casinos Ltd v National Bank of Abu Dhabi ComC 17-Mar-2008
Banker’s reference no guarantee
An Arab businessman lost pounds 18m at the claimant casino, and wrote scrip cheques against his account with the defendant. The claimant obtained judgment, but being unable to enforce that judgment pursued his bank. The club had used a system where . .
Cited – The Ritz Hotel Casino Ltd v Al Daher QBD 15-Aug-2014
The claimant sought to recover andpound;1m on unpaid cheques. The cheques represented half of the sum gambled away by the defendant in one evening. She now alleged that the claimant had not complied with its duties under the 2005 Act to act . .

Lists of cited by and citing cases may be incomplete.

Contract, Banking

Leading Case

Updated: 01 November 2021; Ref: scu.79676

Premium Nafta Products Ltd (20th Defendant) and others v Fili Shipping Company Ltd and others; Fiona Trust and Holding Corporation v Privalov: HL 17 Oct 2007

The owners of a ship sought to rescind charters saying that they had been procured by bribery.
Held: A claim to rescind a contract by reason of bribery fell within the scope of an arbitration clause under which the parties had agreed to refer to arbitration ‘any dispute arising under this charter’. The issue of bribery could be dealt with within that arbitration.
Lord Hoffmann said: ‘It depends upon the intention of the parties as expressed in their agreement. Only the agreement can tell you what kinds of disputes they intended to submit to arbitration. But the meaning which the parties intended to express by the words which they used will be affected by the commercial background and the readers’ understanding of the purpose for which the agreement was made. Businessmen in particular are assumed to have entered into agreements to achieve some rational commercial purpose and an understanding of this purpose will influence the way in which one interprets their language’.
and ‘the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator’s jurisdiction.’

Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood
[2007] ArbLR 24, [2007] UKHL 40, [2008] 1 Lloyd’s Rep 254, [2007] 4 All ER 951, [2007] Bus LR 1719, [2007] 114 Con LR 69, [2007] 2 CLC 553, [2007] 2 All ER (Comm) 1053, [2007] CILL 2528
Bailii
Arbitration Act 1996 7 9
England and Wales
Citing:
At first instance – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
See Also – 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. . .
Appeal from – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Cited – Overseas Union v AA Mutual International Insurance Co Ltd 1988
Evans J said that there was a broad distinction between clauses which referred ‘only those disputes which may arise regarding the rights and obligations which are created by the contract itself’ and those which ‘show an intention to refer some wider . .
Cited – Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Ltd CA 7-Apr-1993
An action was brought by re-insurers for a declaration that reinsurance policies were void for illegality, and that the plaintiffs were not liable under them. The illegality alleged was that the defendants were not registered or approved to carry on . .
Cited – Fillite (Runcorn) Ltd v Aqua-Lift CA 1989
The court considered whether claims arising from misrepresentation or breach of a collateral contrat were claims arising ‘under’ the contract so as to be governed by the disputes provisions in it.
Held: The disputes did not arise ‘under the . .
Cited – Union of India v Aaby’s Rederi A/S, The Evje HL 1975
Lord Dilhorne said of the words ‘to be settled in London’: ‘At first sight those words appear to me to mean no more and no less than that the contributions to be made have to be determined in London and paid there, and that implies determined in . .
Cited – Heyman v Darwins Limited HL 1942
An arbitration clause will survive a repudiatory breach: ‘I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of . .
Cited – Mackender v Feldia AG CA 1966
A clause provided that an insurance policy should be governed by Belgian law and that ‘any disputes arising thereunder shall be exclusively subject to Belgian jurisdiction.’ The underwriters avoided the contract for non-disclosure of material facts . .
Cited – Ashville Investments Ltd v Elmer Contractors Ltd CA 1987
A clause in the contract refered to arbitration: ‘any dispute or difference as to the construction of this contract or as to any matter or thing of whatsoever nature arising thereunder or in connection therewith.’
Held: The court should adopt . .
See Also – Fiona Trust Holding Corporation and others v Privalov and others ComC 19-Jan-2007
. .

Cited by:
See Also – Fiona Trust and Holding Corporation and others v Privalov and others ComC 22-Jul-2008
. .
Cited – Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd CA 2-Apr-2009
The appellant entered into two aircraft leasing agreements but were unable to maintain payments. They appealed against rejection of their argument that the agreements were not exempt from the controls under the 1977 Act by being international supply . .
Cited – S Ltd v C Ltd ComC 27-Feb-2009
Defamation allegation not subject to arbitration
The parties had an agreement referring disputes between them to arbitration. One party raised an allegation of defamation, but the arbitrator refused jurisdiction. The parties had chosen the London Metal Exchange for its expertise in metals trading, . .
Cited – Aspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .
Cited – Emmott v Michael Wilson and Partners Ltd ComC 12-Jan-2009
The claimant, a party to an arbitration, sought first an order requiring the defendant to comply with an order made by the arbitrator for the transfer of certain shares, and second an asset freezing order.
Held: The conditions for a peremptory . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.259907

Baybut v Eccle Riggs Country Park Ltd: ChD 2 Nov 2006

The purchaser of a caravan park purported to terminate the 10 year licences under which the owners of the various caravans occupied their respective pitches. The sale agreement of the caravan site had contained a covenant by the purchaser with the vendor to perform and observe the future obligations imposed by the licences. The claimant sought to assert that a term implied into her contract with the defendant was unfair under the 1999 Regulations.
Held: Under the sale agreement the purchaser took the benefit of the licences conditionally on accepting the burdens thereunder, and there is a principle that one who takes the benefit of a licence to occupy the land granted to another in the form of an income stream, presumably by receiving periodical payments, will be bound by the burden to permit the licence-holder to occupy his pitch.
Regulation 4(2) excluded terms which reflected mandatory statutory provisions, but clauses implied at common law were to reflect the unspoken but obvious intentions of the parties. It was highly unlikely that the 1999 Regulations could ever apply to such terms. This was supported by an examination of the indicative list of unfair terms in the Regulations.

Judge Pelling, QC
Times 13-Nov-2006, [2006] All ER (D) 161 (Nov), 2006 WL 3206169
Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999 No 2083)
England and Wales
Cited by:
Cited – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
Cited – Davies and Others v Jones and Another CA 9-Nov-2009
The parties contracted for the sale of land for development. The contract allowed for the costs of environmental remediation, but disputed the true figure set by the eventual builder and retained. The court now heard argument about whether the sum . .

Lists of cited by and citing cases may be incomplete.

Contract, Consumer

Updated: 01 November 2021; Ref: scu.247641

Massey v Crown Life Insurance Company: CA 4 Nov 1977

Massey worked as Crown Life’s manager under 2 contracts, one a contract of employment, the other a contract of general agency. Tax and other contributions were deducted from wages paid under the former, while commission was paid under the agency contract. Under the agency contract Massey could work for other insurance brokers. Later, with Crown Life’s agreement, Massey registered himself as Massey and Associates and, trading under such name, entered into a new contract as a self-employed person with Crown Life in 1973. Massey’s duties under the new contract remained the same, although tax and other contributions were no longer deducted from monies paid to him. The company said that he was an independent contractor, not an employee. He had in law been an employee, but at his own request had been treated as self employed. He failed at the tribunal.
Held: Massey’s appealwas dismissed. The deed prepared by the plaintiff and accepted by the company was entered into freely and was clear. He was not an employee and had no right not to be dismissed unfairly.
Lawton LJ said: ‘In the administration of justice the union of fairness, commonsense and the law is a highly desirable objective. If the law allows a man to claim that he is a self-employed person in order to obtain tax advantages for himself and then allows him to deny that he is a self-employed person so that he can claim compensation, then in my judgment the union between fairness, commonsense and the law is strained almost to breaking point. The applicant is asking this court to adjudge that he is entitled to make claims with two different voices.’
Lord Denning MR said: ‘The law, as I see it, is this: If the true relationship of the parties is that of master and servant under a contract of service, the parties cannot alter the truth of that relationship by putting a different label upon it. If they should put a different label upon it and use it as a dishonest device to deceive the Revenue, I should have thought it was illegal and could not be enforced by either party and they could not get any advantage out of it – at any rate not in any case where they had to rely upon it as the basis of a claim. See Alexander v. Rayson (1936) 1 King’s Bench 169. An arrangement between two parties to put forward a dishonest description of their relationship so as to deceive the Revenue would clearly be illegal and unenforceable.
On the other hand, if their relationship is ambiguous and is capable of being one or the other, then the parties can remove that ambiguity, by the very agreement itself which they make with one another. The agreement itself then becomes the best material from which to gather the true legal relationship between them.’

Lord Denning MR, Lawton LJ, Eveleigh LJ
[1977] EWCA Civ 12, [1978] 1 WLR 676, [1978] ICR 590
Bailii
Trade Union and Labour Relations Act 1974 30(1)
England and Wales
Citing:
Cited – Stevenson v MacDonald 1952
Denning J described the difference between a contract of service and a contract for services: ‘It is often easy to recognise a contract of service when you see it, but difficult to say wherein the difference lies. A ship’s master, a chauffeur, and a . .
Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Cited – Alexander v Rayson CA 1936
The action was for arrears of rent. The evidence at trial was that the plaintiff granted a lease to the defendant at a rent of andpound;1200 and contracted that certain services in connection with the flat would be performed. The plaintiff sent the . .
Cited – David v New England College of Arundel 1977
. .
Cited – Construction Industry Training Board v Labour Force QBD 1970
In this industrial training levy case there was an appeal on a point of law against the imposition of the levy on a company, Labour Force Limited, which was engaged in the supply of labour to contractors in the construction industry, but not as an . .
Cited – Maurice Graham Ltd v Brunswick 1974
It is impossible to draw up a complete list of criteria to be considered when deciding whether a contract is one of employment or one for services . .
Cited – Global Plant Ltd v Secretary of State for Social Services 1972
Lord Widgery said: ‘One must not overlook that the intention of the parties was that the relationship should be that of an independent contractor, and although the parties cannot by intention make a transaction into something which it is not, yet it . .
Cited – Inland Revenue Commissioners v Duke of Westminster HL 7-May-1935
The Duke’s gardener was paid weekly, but to reduce tax, his solicitors drew up a deed in which it was said that the earnings were not really wages, but were an annual payment payable by weekly instalments.
Held: To find out what the true . .
Cited – Ferguson v John Dawson and Partners (Contractors) Ltd CA 22-Jul-1976
The plaintiff had fallen from a roof whilst working for the defendants, and had claimed damages for breach of statutory duty. The parties disputed whether the plaintiff was an employee or a self-employed independent contractor.
Held: The real . .

Cited by:
Cited – Ansell Computer Services Ltd v HM Inspector of Taxes SCIT 29-Jul-2004
SCIT National insurance – earnings of workers supplied by service companies etc. – provision of services through intermediary – worker establishing information technology company – company contracting with agency . .
Cited – Lambden v Henley Rugby Football Club and Another EAT 29-May-2009
lambden_henlryrfcEAT2009
EAT CONTRACT OF EMPLOYMENT: Whether established
The Claimant was a part time Rugby Coach. The Employment Tribunal found that he had freely elected to be paid as an independent contractor though a limited . .
Cited – Young and Woods Ltd v West CA 11-Feb-1980
The applicant had complained of unfair dismissal.The employment contract had been dressed as a self employed service provider’s contract to privide him with tax, and was unlawfully so. The employer appealed, saying that as an unlawful contract, the . .

Lists of cited by and citing cases may be incomplete.

Contract, Employment

Leading Case

Updated: 01 November 2021; Ref: scu.250992

Bain v Fothergill: HL 1874

The defendants intended to sell to the plaintiffs their leasehold interests in mining royalties, but were under a covenant not to sell without the consent of the lessors. A condition of the sale provided for ‘ the usual covenant for our protection as standing between you and our lessors’. A deposit was paid, but the lessors refused consent. The plaintiffs sought return of their deposit, their costs and expenses of investigating title, and for loss of bargain.
Held: The case fell within Flureau -v- Thornhill, and damages were limited to the recovery of the deposit and expenses of investigating title. ‘It is recognised on all hands that the purchaser is not to be held entitled to recover any loss on the bargain he may have made, if in effect it should turn out that the vendor is incapable of completing his contract in consequence of his defective title.

Hatherley L
(1874) LR 7 HL 158, 43 LJ Ex 243, 31 LT 387, 39 JP 228, 23 WR 261
England and Wales
Citing:
Approved – Flureau v Thornhill 1746
A person who contracts to purchase land, but where the title is, without collusion, defective cannot claim for his loss of bargain. ‘These contracts are merely upon condition, frequently expressed, but always implied, that the vendor has good title. . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.183266

Leventis and Vafias v Malcon Navigation Co Ltd and another: ECJ 28 Jun 2017

Third Party not bound by jurisdiction clause

ECJ (Judicial Cooperation In Civil Matters Area of Freedom, Security and Justice : Judgment) Language of the case: Greek. for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation (EC) No 44/2001- Article 23 – Jurisdiction clause – Jurisdiction clause in a contract between two companies – Action for damages – Joint and several liability of representatives of one of those companies for tortious acts – Ability of the representatives to rely upon that clause

A Prechal P
ECLI:EU:C:2017:497, [2017] WLR(D) 428, [2017] EUECJ C-436/16
WLRD, Bailii
Council Regulation (EC) No 44/2001 23
European

Jurisdiction, Contract, Company

Updated: 01 November 2021; Ref: scu.588732

Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas): HL 9 Jul 2008

The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the owners’ new charter which was cancelled. In the meantime hire rates had fallen. The owners claimed damages. The House was asked ‘is the rule that a party may recover losses which were foreseeable (‘not unlikely’) an external rule of law, imposed upon the parties to every contract in default of express provision to the contrary, or is it a prima facie assumption about what the parties may be taken to have intended, no doubt applicable in the great majority of cases but capable of rebuttal in cases in which the context, surrounding circumstances or general understanding in the relevant market shows that a party would not reasonably have been regarded as assuming responsibility for such losses? ‘
Held: The charters were not liable for the owners losses in the absence of a clause making them so. The general understanding in the shipping industry was that damages were not recoverable for loss of a profitable following fixture.

Lord Hoffmann, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond
[2008] UKHL 48, Times 10-Jul-2008
Bailii, HL
England and Wales
Citing:
Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
At first instance – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Appeal from – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia (the ‘Achilleas’) CA 6-Sep-2007
The court considered damages for late redelivery of a time-chartered vessel. . .
Cited – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) HL 28-Oct-1994
In a continuing charter when it was clear that the time of the charter will be exceeded, the contract allows an action for an anticipatory breach. Any new redelivery order was to be obtained after after it first became impossible to meet the charter . .
Cited – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Cited – Alma Shipping Corpn of Monrovia v Mantovani (The Dione) CA 1974
Lord Denning MR said that, in relation to a charterparty for a stated period such as ‘three months’ or ‘six months’, without any express margin or allowance: ‘the court will imply a reasonable margin or allowance. The reason is because it is not . .
Cited – Liverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .
Cited – Hyundai Merchant Marine Co Ltd v Gesuri Chartering Co Ltd (The Peonia) CA 1991
If a legitimate last voyage under a charterparty nevertheless proves in the event to exceed the implied margin, the charterer will be bound to pay any increase in the market rate above the charter rate during the period of the excess. . .
Cited – Robinson v Harman 18-Jan-1848
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where . .
Cited – Arta Shipping Co Ltd v Thai Europe Tapioca Service Ltd (The Johnny) 1977
When claiming damages for the loss of a charter, the market rate for a substitute charter ‘must be ascertained by postulating a charter-party which corresponds as closely as possible with the actual charter-party.’ . .
Cited – Satef-Huttenes Albertus SpA v Paloma Tercera Shipping Co SA (The Pegase) 1981
Robert Goff J set out the limits of the kinds of losses for which a reasonable person would consider himself responsible: ‘The test appears to be: have the facts in question come to the defendant’s knowledge in such circumstances that a reasonable . .
Cited – Mulvenna v Royal Bank of Scotland Plc CA 25-Jul-2003
The court considered an an application to strike out a claim for damages for the loss of profits which the claimant said he would have made if the bank had complied with its agreement to provide him with funds for a property development.
Held: . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Monarch Steamship Co Ltd v Karlshamns Oljefabriker A/B HL 1949
Damages were sought for breach of contract.
Held: After reviewing the authorities on remoteness of damage, the court reaffirmed the broad general rule that a party injured by the other’s breach of contract is entitled to such money . .
Cited – Transworld Oil Ltd v North Bay Shipping Corpn (The Rio Claro) 1987
Staughton J said that for a loss arising from a breach of contract to be recoverable: ‘It must be such as the contract breaker should reasonably have contemplated as not unlikely to result. To that direction must be added the point that the precise . .
Cited – Victoria Laundry (Windsor) Ltd v Newman Industries CA 1949
The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses . .
Cited – Banco de Portugal v Waterlow and Sons Ltd HL 28-Apr-1932
Lord Macmillan said: ‘Where the sufferer from a breach of contract finds himself in consequence of that breach placed in position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in . .
Cited – The ‘Pegase’ 1981
The court considered the measure of damages for breach of contract in the light of the cases in the Heron II and Victoria Laundry: ‘the principle in Hadley v Baxendale is now no longer stated in terms of two rules, but rather in terms of a single . .
Cited – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) ChD 1991
The ship was returned late from a charter. The court was asked whether or not the legitimacy of the last voyage fell to be established at the date when the order was given or at the time when the last voyage began.
Held: It was the second: . .
Cited – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) CA 4-Jun-1993
The ship was returned by the charterer after the expiry of the time charter. The court was asked as to when the validity of the last order was to be tested.
Held: The legitimacy of the charterer’s final order was to be tested at the date it . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.270659

London and Northern Estates Company v Schlesinger: 1915

By a war-time order in council, an Austrian subject, who was an ‘alien enemy’, was prohibited from residing within certain specified areas, including the area where the leased premises were situated. He claimed that the tenancy contract was frustrated.
Held: Although he could not personally exercise a right of personal occupation, he could sub-let the premises and therefore there was no frustration. His personal occupation of the premises was not at the root of the contract.
Lush J said: ‘ As the contract could be performed without his personal residence, the fact that his personal residence was prohibited by the Order did not make the performance of the contract impossible. But there is, I think, a further answer to the contention. It is not correct to speak of this tenancy agreement as a contract and nothing more. A term of years was created by it and vested in the appellant, and I can see no reason for saying that because this Order disqualified him from personally residing in the flat it affected the chattel interest which was vested in him by virtue of the agreement.’

Lush J
[1916] 1 KB 20, [1914-15] All ER 593
England and Wales
Cited by:
Cited – Gamerco Sa v ICM Fair Warning (Agency) Ltd and Another QBD 31-Mar-1995
The plaintiff Spanish concert promoter, and the defendant rock group, Guns ‘n’ Roses, agreed to provide a concert at the stadium of Atetico Madrid, but shortly before it was due to take place, the stadium was deemed unfit, and its licence withdrawn. . .

Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Leading Case

Updated: 01 November 2021; Ref: scu.564155

Yeoman’s Row Management Ltd and Another v Cobbe: HL 30 Jul 2008

The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding that Mrs Lisle-Mainwaring’s behaviour in repudiating, and seeking an improvement on, the core financial terms of the second agreement was unconscionable and sufficient to justify the creation of a ‘proprietary estoppel equity’. . But to leap from there to a conclusion that a proprietary estoppel case was made out was not justified.
Even without attempting to vary the terms of the agreement, the company could not have been obliged to go ahead: ‘Proprietary estoppel requires, in my opinion, clarity as to what it is that the object of the estoppel is to be estopped from denying, or asserting, and clarity as to the interest in the property in question that that denial, or assertion, would otherwise defeat. If these requirements are not recognised, proprietary estoppel will lose contact with its roots and risk becoming unprincipled and therefore unpredictable, if it has not already become so. ‘ The claimant was entitled to a quantum meruit payment for his services, and te value of that should represent the extent of the unjust enrichment obtained by the plaintiff.

Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance
[2008] UKHL 55, [2008] 35 EG 142, [2008] 31 EG 88, [2008] WTLR 1461, [2008] 1 WLR 1752
Bailii, Times, HL
Law of Property (Miscellaneous Provisions) Act 19892
England and Wales
Citing:
Appeal from – Yeoman’s Row Management Ltd and Another v Cobbe CA 31-Jul-2006
The defendants orally agreed to sell the claimant a block of flats for andpound;12 million if he first obtained planning permission for it on terms as to a sharing of subsequent development profits. The claimant spent over andpound;100,000 and . .
At First Instance – Yeoman’s Row Management Ltd v London Rent Assessment Committee Chairman QBD 25-Feb-2005
The parties agreed in principle that there would be an application for planning permission, and that if granted the land would be bought and the profits shared. Considerable work was undertaken and permission achieved, but the seller then sought to . .
Cited – Laird v Birkenhead Railway Co 22-Nov-1859
The plaintiff applied to the defendant railway company for permission to construct and use a private branch line connecting with the railway company’s main line. Agreement was reached for the plaintiff to do so ‘on reasonable terms, which were to be . .
Cited – Attorney General of Hong Kong v Humphreys Estate (Queen’s Gardens) Ltd PC 1987
An agreement in principle was marked ‘subject to contract’. The Government would acquire some flats owned the plaintiff Group of companies in return for the Government granting, inter alia, a lease to the Group of some Crown lands. The Government . .
Cited – Muschinski v Dodds 1985
(High Court of Australia) The idea of conscience is too vague a notion to found the principles of equity, it would open the door to ‘idiosyncratic notions of fairness and justice’ and ‘That property was acquired, in pursuance of the consensual . .
Cited – Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD 1981
The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .
Cited – Ramsden v Dyson HL 1866
The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .
Cited – Plimmer v Mayor, Councillors and Citizens of the City of Wellington PC 1884
(New Zealand) Mr Plimmer had occupied land under a revocable licence from the Corporation’s predecessor-in-title and at their request had made extensive improvements to it. He sought compensation when the land was to be vested in the defendant. The . .
Cited – Inwards v Baker CA 13-Jan-1965
An indulgent father had encouraged his son to build a bungalow on his, the father’s, land. The son had done so in the expectation, encouraged by the father, that he would be permitted to remain in occupation.
Held: The court formulated the . .
Cited – Holiday Inns Inc v Broadhead 1974
The parties negotiated for a lease, but never signed a contract. The plaintiff expended considerable sums to try to get planning, and once acquired it sought to buy the land, and claimed that Mr Broadhead had taken an unconscionable advantage, . .
Cited – Crabb v Arun District Council CA 23-Jul-1975
The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked.
Held: His claim to have raised an equity was upheld. The plaintiff . .
Cited – British Steel Corporation v Cleveland Bridge and Engineering Co Ltd 1983
An ‘if contract’ is where one party makes an offer capable of acceptance on the basis that ‘if you do this for us, we will do that for you’. Often used in the construction industry.
Goff J said: ‘the question whether . . any contract has come . .
Cited – Pallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .
Cited – Time Products Ltd v Combined English Stores 2-Dec-1974
The plaintiff and the defendant were each interested in buying a property and had agreed that one of them would make an offer, the other refraining from doing so, and that if the offer were to be accepted the purchaser would deal with the property . .
Cited – Walton Stores (Interstate) Limited v Maher 1988
(High Court of Australia) It would be unconscionable for a party to stand by in silence when it must have known that the other party was proceeding on an assumption that they had a binding agreement. . .
Cited – Pridean Limited v Forest Taverns Limited; Hipwell and Marshall CA 28-Nov-1996
The claimant owned a public house. It set out with the defendant to to acquire the premises or to take a lease of them. The defendant went into occupation, and carried out works. Negotiations continued, but broke down over the form of protection to . .
Cited – London and Regional Investments Ltd v TBI Plc and Others CA 22-Mar-2002
TBI was a property investor and developer with several subsidiaries. It agreed to sell some to London and Regional. The agreement provided for the vendor and the purchaser to use reasonable endeavours to agree the terms of a joint venture agreement . .
Cited – Banner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd and Another CA 16-Nov-2005
The defendant had brought in the claimant in order to assist in satisfying its own obligations under a lease. The joint venture was not recorded in a formal agreement. The appellant asserted that a constructive trust had been created. The judge had . .
Cited – Dann v Spurrier 1802
The tenant had carried out improvements to the property. It was uncertain whether the length of the term (7, 14 or 21 years) was at the option of the lessee alone.
Held: The case was decided on construction of the lease. Lord Eldon made it . .
Cited – Rochdale Canal Company v King 1853
Sir John Romilly MR said: ‘The principle on which the Defendants rely is one often recognised by this Court, namely, that if one man stand by and encourage another, though but passively, to lay out money, under an erroneous opinion of title, or . .
Cited – Dillwyn v Llewelyn ChD 12-Jul-1862
The father thought he had given his younger son land in Wales, in signing a memorandum and presenting it to him ‘for the purpose of furnishing himself with a dwelling-house’. The memorandum was not by deed. The son built his home on the land. When . .
Cited – Regina (Reprotech (Pebsham) Ltd) v East Sussex County Council Reprotech (Pebsham) Ltd v Same HL 28-Feb-2002
The respondent company had asserted that the local authority had made a determination of the issue of whether electricity could be generated on a waste treatment site without further planning permission. The council said that without a formal . .
Cited – Willmott v Barber ChD 19-Jun-1880
In 1869 Barber granted a 99-year lease of three acres of land in east London, subject to a covenant against assignment or sub-letting without consent. In 1874, in breach of covenant, he sub-let one acre on an annual tenancy to Willmott (who owned a . .
Cited – Pascoe v Turner CA 1-Dec-1978
The defendant had been assured by the plaintiff that ‘the house is yours and everything in it.’ In reliance on that assurance she carried out improvements to the house. Although the improvements were modest, their cost represented a large part of . .
Cited – Grundy v Ottey CA 31-Jul-2003
The deceased left his estate within a discretionary trust. The claimant sought to assert an interest in it, claiming an estoppel and, under the 1975 Act, as his partner. They had lived together for four years. She had been dependent upon him . .
Cited – Lissimore v Downing ChD 31-Mar-2003
The claimant asserted an estoppel in land registered in the name of the defendant.
Held: Unspecific statements made by the defendant that ‘she would never want for anything’, or that ‘he would take care of her’, or that ‘he had looked after . .
Cited – Windeler v Whitehall 1990
The plaintiff and defendant lived together but were not married. The plaintiff spent some of a legacy she received on living expenses and supervised minor building works to the family home. She claimed an interest in it.
Held: Millett J said: . .
Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
Cited – Gillett v Holt and Another ChD 18-Jun-1998
To establish a proprietary estoppel against the testator’s promise to leave items in his will, some overt act over and above a promise, and reliance upon that promise, must be shown in order to displace the testator’s right to change his will. . .
Cited – Gillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
Cited – JT Developments v Quinn and Another CA 1990
The plaintiff told the defendant it was willing to grant a lease on the same terms as those contained in a new tenancy that the plaintiff had recently granted to the tenant of a nearby shop, also owned by the plaintiff. The defendant carried out . .
Cited – Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .

Cited by:
Cited – Brightlingsea Haven Ltd and Another v Morris and others QBD 30-Oct-2008
The caravan park operated under planning consents requiring the caravans to be occupied only during certain months. The defendants had bought their mobile homes from the claimants to occupy full time, and said that the claimants knew of this. The . .
Cited – St Pancras and Humanist Housing Association Ltd v Leonard CA 17-Dec-2008
The claimant sought possession of a garage. The defendant claimed adverse possession.
Held: The defendant’s appeal against an order for possession failed. The defendant had attended a meeting where his behaviour had allowed other parties to . .
Cited – Brighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
Cited – Clarke and Another v Corless and Another ChD 8-Jul-2009
The parties disputed whether one could retain for his own benefit land on an estate reserved for an estate road. A trust was claimed under Pallant saying that the parties had made an informal agreement before the property was purchased.
Held: . .
Cited – Thorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
Cited – Clarke and Another v Corless and Another CA 31-Mar-2010
The claimants appealed against refusal of a declaration that a neighbouring access road and land was held on a constructive trust. They said that an agreement bewteeen the parties should have been effective to impose a trust on the defendants. The . .
Cited – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Cited – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .

Lists of cited by and citing cases may be incomplete.

Contract, Land, Estoppel

Leading Case

Updated: 31 October 2021; Ref: scu.271281

Esso Petroleum Company Ltd v Mardon: CA 6 Feb 1976

Statements had been made by employees of Esso in the course of pre-contractual negotiations with Mr Mardon, the prospective tenant of a petrol station. The statements related to the potential throughput of the station. Mr Mardon was persuaded by the statements to enter into the tenancy; but he suffered serious loss when the actual throughput proved to be much lower than had been predicted. Mr Marden did his best but he lost his capital and incurred a large bank overdraft as a result of his trading losses.
Held: Mr. Mardon was entitled to recover damages from Esso, on the basis of either breach of warranty or (on this point affirming the decision of the judge below) negligent misrepresentation. A contractor is not free to carry on with a disastrous contract and then seek to recover any losses on the basis of fraud. A special relationship, giving rise to a duty of care, may arise between the parties negotiating a contract if information is given in connection with the contract.
Lord Denning MR held: ‘A professional man may give advice under a contract for reward; or without a contract, in pursuance of a voluntary assumption of responsibility, gratuitously without reward. In either case he is under one and the same duty to use reasonable care: see Cassidy v. Ministry of Health [1951] 2 K.B. 343, 359-360. In the one case it is by reason of a term implied by law. In the other, it is by reason of a duty imposed by law. For a breach of that duty he is liable in damages: and those damages should be, and are, the same, whether he is sued in contract or in tort.’ and: ‘He is only to be compensated for having been induced to enter into a contract which turned out to be disastrous for him. Whether it be called breach of warranty or negligent misrepresentation, its effect was not to warrant the throughput but only to induce him to enter the contract. So the damages in either case are to be measured by the loss he suffered. Just as in Doyle v Olby he can say: ‘I would not have entered into this contract at all but for your representation. Owing to it, I have lost all the capital I put into it. I also incurred a large overdraft. I have spent four years of my life in wasted endeavour without reward: and it will take sometime to re-establish myself.’ For all such loss he is entitled to recover damages.’
Ormrod and Shaw LJJ agreed that Mr. Mardon was entitled to recover damages either for breach of warranty or for negligent misrepresentation.

Lord Denning MR, Ormrod, Shaw LJJ
[1976] QB 801, [1976] EWCA Civ 4, [1976] 2 All ER 5
Bailii
England and Wales
Citing:
Cited – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .

Cited by:
Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
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 . .
Applied – Archer v Brown 1984
The defendant sold shares in his company to the plaintiff. He had however already sold them elsewhere. The plaintiff sought both rescission and damages. The defendant argued that he could not be entitled to both.
Held: The misrepresentation . .
Cited – Geldof Metaalconstructie Nv v Simon Carves Ltd CA 11-Jun-2010
The parties contracted for the supply and installation of pressure vessels by Geldof (G) for a building constructed by Simon Carves (SC). The contract contained a clause denying the remedy of set-off. G sued for the sale price, and SC now sought an . .
Cited – Downs and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Damages, Negligence, Contract

Leading Case

Updated: 31 October 2021; Ref: scu.185449

Maritime National Fish Ltd v Ocean Trawlers Ltd: PC 12 Apr 1935

(Nova Scotia En Banco) The parties contracted for a charter of a fishing ship. It then became unlawful for a ship to use otter trawl, the only equipment available to the ship, without a licence, but the number of licences was restricted and did not include this ship. The charterers claimed that the contract was frustrated. The Supreme Court of Canada had said that the contract remaned binding since the charterers had selected other ships to be licensed.
Held: The decision to opt to licence other ships determined the appeal in favour of the owners. The loss of the St. Cuthbert’s licence was correctly described, quoad the appellants as ‘a self induced frustration.’
Lord Wright, referred to criticism of Krell v. Henry and said: ‘The authority is certainly not one to be extended: it is particularly difficult to apply where, as in the present case, the possibility of the event relied on as constituting a frustration of the adventure (here the failure to obtain a licence) was known to both parties when the contract was made, but the contract entered into was absolute in terms so far as concerned that known possibility. It may be asked whether in such cases there is any reason to throw the loss on those who have undertaken to place the thing or service for which the contract provides at the other party’s disposal and are able and willing to do so.’

Atkin, Tomlin, MacMillan, Wright LL
[1935] UKPC 1, [1935] AC 524, [1935] UKPC 20
Bailii, Bailii
Citing:
Cited – Bank Line Ltd v Arthur Capel and Co HL 12-Dec-1918
The defendant ship-owners contracted to lease the ship on charter to the plaintiffs. Before the term, the ship was requisitioned for the war effort. The plaintiffs did not exercise the contractual right given to them to cancel the charterparty. The . .
Cited – Krell v Henry CA 1903
Mr Henry contracted to rent a flat located on Pall Mall from the plaintiff, Paul Krell for the daytime and on the days of the forthcoming cornation procession.. He was told that he would have an excellent view of, but this was not written down. He . .
Cited – Hirji Mulji v Cheong Yue Steamship Co PC 1926
Lord Sumner described the doctrine of frustration as ‘a device by which the rule as to absolute contracts are reconciled with a special exception which justice demands.’ . .
Cited – Bank Line Ltd v Arthur Capel and Co HL 12-Dec-1918
The defendant ship-owners contracted to lease the ship on charter to the plaintiffs. Before the term, the ship was requisitioned for the war effort. The plaintiffs did not exercise the contractual right given to them to cancel the charterparty. The . .

Cited by:
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
Cited – North Shore Ventures Ltd v Anstead Holdings Inc and Others ChD 21-Jun-2010
Claim was made under a substantial loan where payments had not been made after assets were sequestered and only released after four years. . .
Cited – Gamerco Sa v ICM Fair Warning (Agency) Ltd and Another QBD 31-Mar-1995
The plaintiff Spanish concert promoter, and the defendant rock group, Guns ‘n’ Roses, agreed to provide a concert at the stadium of Atetico Madrid, but shortly before it was due to take place, the stadium was deemed unfit, and its licence withdrawn. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract

Leading Case

Updated: 31 October 2021; Ref: scu.245727

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 exemption clause, the clearer is the notice required to be given before it will be regarded as having been incorporated into the contract.
Megaw LJ said: ‘When conditions sought to be attached all constitute . . the sort of restriction . . that is usual . . it may not be necessary for a defendant to prove more than that the intention to attach some conditions has been fairly brought to the notice of the other party. But at least where the particular condition relied on involves a sort of restriction that is not shown to be usual . . a defendant must show that his intention to attach an unusual condition of that particular nature was fairly brought to the notice of the other party. How much is required as being . . reasonably sufficient to give the plaintiff notice of the condition, depends on the circumstances.’ In relation to the particular condition restricting liability for personal injury as I have said to say – ‘In my view, however before it can be said that a condition of that sort, restrictive of statutory rights, has been fairly brought to the notice of a party to a contract there must be some clear indication which would lead an ordinary sensible person to realise, at or before the time of making the contract, that a term of that sort relating to personal injury, was sought to be included.’
Lord Denning MR said: ‘the customer is bound by the exempting condition if he knows that the ticket is issued subject to it; or if the company did what was reasonably sufficient to give him notice of it’, however ‘No customer in a thousand ever read the conditions [on the back of a parking lot ticket]. If he had stopped to do so, he would have missed the train or the boat.
None of those cases has any application to a ticket which is issued by an automatic machine. The customer pays his money and gets a ticket. He cannot refuse it. He cannot get his money back. He may protest to the machine, even swear at it; but it will remain unmoved.’

Lord Denning MR, Megaw LJ, Sir Gordon Willmer
[1971] 1 All ER 686, [1971] 2 WLR 585, [1971] 2 QB 163, [1970] EWCA Civ 2, [1971] 1 Lloyd’s Rep 289, [1971] RTR 79
Bailii
Occupiers Liability Act 1957
England and Wales
Cited by:
Cited – TICC Limited v Cosco (UK) Limited CA 5-Dec-2001
The claimants sought to have incorporated by notice into a contract of bill of lading, the terms of a freight surcharge. Notice had been given to the shipping agents in Hong Kong only. The shippers claimed the surcharge under the 1992 Act, saying . .
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 – Amiri Flight Authority v BAE Systems Plc CA 17-Oct-2003
The appellant had contracted to purchase maintenance from the defendant of aircraft it had also purchased from them. They sought damages for negligence, saying the defendants had failed to prevent a known risk of corrosion. The defendants argued . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Contract, Personal Injury

Leading Case

Updated: 31 October 2021; Ref: scu.182831

Wain and another v Warlters: 1804

Charge on Promise only with Consideration for it

A guarantee contained a promise to pay the debt of another, but made no mention of the consideration given for the guarantee. Lord Ellenborough CJ said: ‘the clause in question in the Statute of Frauds has the word agreement. And the question is, whether that word is to be understood in the loose incorrect sense in which it may sometimes be used, as synonymous to promise or undertaking, or in its more proper and correct sense, as signifying a mutual contract on consideration between two or more parties? The latter appears to me to be the true construction of the word, to which we are bound to give its proper effect; the more so when it is considered by whom that statute is said to have been drawn the person to be charged for the debt of another is to be charged, in the form of the proceeding against him, upon his special promise, but without a legal consideration to sustain it, that promise would be nudum pactum as to him. The statute never meant to enforce any promise which was before invalid merely because it was put in writing. The obligatory part is indeed the promise, which will account for the word promise being used in the first part of the clause, but still in order to charge the party making it, the statute proceeds to require that the agreement, by which must be understood the agreement in respect of which the promise was made, must be reduced into writing. And indeed it seems necessary for effectuating the object of the statute that the consideration should be set down in writing as well as the promise; for otherwise the consideration might be illegal, or the promise might have been made upon a condition precedent, which the party charged may not afterwards be able to prove, the omission of which would materially vary a promise, by turning that into an absolute promise which was only a conditional one: and then it would rest altogether on the conscience of the witness to assign another consideration in the one case, or to drop the condition in the other, and thus to introduce the very frauds and perjuries which it was the object of the Act to exclude, by requiring that the agreement should be reduced into writing, by which the consideration as well as the promise would be rendered certain. The authorities all show that the word agreement is not satisfied unless there be a consideration, which consideration forming part of the agreement ought therefore to have been shown; and the promise is not binding by the statute unless the consideration which forms part of the agreement be also stated in writing.’
Grose J said: ‘what is required to be in writing therefore, is the agreement (not the promise, as mentioned in the first part of the clause) or some note or memorandum of the agreement. Now the agreement is that which is to show what each party is to do or perform, and by which both parties are to be bound; and this is required to be in writing.’
Lawrence J said: ‘and as the consideration for the promise is part of the agreement, that ought also to be stated in writing.’

Grose J, Lord Ellenborough CJ, Lawrence J
[1804] KB 10, [1804] EngR 184, (1804) 5 East 10, (1804) 102 ER 972
Commonlii
England and Wales

Contract

Leading Case

Updated: 31 October 2021; Ref: scu.252315

Lumley v Gye: 1853

Inducing breach of contract is a Tort

An opera singer (Miss Wagner) and the defendant theatre owner were joint wrongdoers. They had a common design that the opera singer should break her contract with the plaintiff theatre owner, refuse to sing in the plaintiff’s theatre and instead sing in the defendant’s theatre. The plaintiff’s cause of action against the opera singer lay in contract, and the plaintiff’s cause of action against the defendant lay in tort.
Held: The opera singer and the defendant were joint wrongdoers participating in an unlawful common design. An actionable wrong is committed by a person deliberately inducing a party to a contract to breach it. A person who procures another to commit a wrong incurs liability as an accessory.
Erle J said: ‘It is clear that the procurement of the violation of a right is a cause of action in all instances where the violation is an actionable wrong, as in violations of a right to property, whether real or personal, or to personal security: he who procures the wrong is a joint wrongdoer, and may be sued, either alone or jointly with the agent, in the appropriate action for the wrong complained of. Where a right to the performance of a contract has been violated by a breach thereof, the remedy is upon the contract, against the contracting party; and, if he made to indemnify for such breach, no further recourse is allowed; and, as in a case of the procurement of a breach of contract, the action is for a wrong and cannot be joined with the action on the contract, and as the act itself is not likely to be of frequent occurrence nor easy of proof, therefore the action for this wrong, in respect of other contracts than those of hiring, are not numerous; but still they seem to me sufficient to show that the principle has been recognised.’ and ‘He who maliciously procures a damage to another by violation of his right ought to be made to indemnify; and that, whether he procures an actionable wrong or a breach of contract.’

Erle J
(1853) 2 E and B 216, [1853] EngR 15, (1853) 2 El and Bl 216, (1853) 118 ER 749, [1853] EWHC QB J73
Commonlii, Bailii
England and Wales
Citing:
See Also – Lumley v Wagner 1852
A girl (under age) and her father contracted for her to perform at a theatre abroad, and later not to use her talents without the consent of her manager. She contracted with a competing theatre. She resisted an action by the manager saying that the . .

Cited by:
Cited – Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credits Guarantee Department HL 19-Feb-1999
The wrong of the servant or agent for which the master or principal is liable is one committed in the case of a servant in the course of his employment, and in the case of an agent in the course of his authority. It is fundamental to the whole . .
Cited – CBS Songs Ltd v Amstrad Consumer Electronics Plc HL 12-May-1988
The plaintiffs as representatives sought to restrain Amstrad selling equipment with two cassette decks without taking precautions which would reasonably ensure that their copyrights would not be infringed by its users.
Held: Amstrad could only . .
Cited – OBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Extended – Torquay Hotel v Cousins CA 17-Dec-1968
The plaintiff contracted to buy oil for his hotel from Esso. Members of the defendant trades union blocked the deliveries of oil by Esso to the Hotel because of a trade dispute they had with the management of the hotel. The hotel sued for an . .
Distinguished – Allen v Flood HL 14-Dec-1898
Tort of Malicicious Inducement not Committed
Mr Flood had in the course of his duties as a trade union official told the employers of some ironworkers that the ironworkers would go on strike, unless the employers ceased employing some woodworkers, who the ironworkers believed had worked on . .
Cited – Belegging-en Exploitatiemaatschappij Lavender BV v Witten Industrial Diamonds Ltd 1979
The defendants sold diamond grit allegedly for the sole purpose of making grinding tools in which it was to be embedded in a resin bond as part of a grinding material patented by the plaintiffs.
Held: The defendants could not be infringers . .
Cited – MCA Records Inc and Another v Charly Records Ltd and others (No 5) CA 5-Oct-2001
The court discussed the personal liability of a director for torts committed by his company: ‘i) a director will not be treated as liable with the company as a joint tortfeasor if he does no more than carry out his constitutional role in the . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
See Also – Lumley v Gye (2) 14-Jan-1854
A commission, under stat. 1 W. 4, c. 22, S. 4, issued at the instance of the defendant, directed to an English barrister, to examine witnesses in Germany. The witness, a Prussian subject, being at Berlin, the commissiotier went thither, but learned . .
Cited – Vertical Leisure Ltd v Poleplus Ltd and Another IPEC 27-Mar-2015
Claims were made alleging infringement of domain name and trade mark rights in accessories for use with pole dancing kits. . .

Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Leading Case

Updated: 31 October 2021; Ref: scu.183576

Thomas Bates and Sons Ltd v Wyndham’s Lingerie Ltd: CA 21 Nov 1980

An application was made for rectification of a rent review clause in a lease. When executing the lease, the tenants’ officer, Mr Avon, noticed that the rent review clause in the lease drafted by the landlords was defective in not including a provision in default of agreement. The trial judge held that the conduct of Mr Avon, who had not given evidence, amounted to sharp practice.
Held: The tenants knew of the omission and of the landlords’ mistake. When establishing the right to rectification of a document, the claimant does not have to meet more than the civil standard of balance of probabilities, but convincing proof is required to counteract the cogent evidence of the parties’ intention displayed by the instrument.
Referring to Riverlake, Buckley LJ said: ‘Undoubtedly I think in any such case the conduct of the defendant must be such as to make it inequitable that he should be allowed to object to the rectification of the document. If this necessarily implies some measure of ‘sharp practice’, so be it; but for my part I think that the doctrine is one which depends more on the equity of the position. The graver the character of the conduct involved, no doubt the heavier the burden of proof may be; but, in my view, the conduct must be such as to affect the conscience of the party who has suppressed the fact that he has recognised the presence of a mistake.
For this doctrine – that is to say the doctrine of A Roberts v Leicestershire County Council – to apply I think it must be shown: first, that one party A erroneously believed that the document sought to be rectified contained a particular term or provision, or possibly did not contain a particular term or provision which, mistakenly, it did contain; secondly, that the other party B was aware of the omission or the inclusion and that it was due to a mistake on the part of A; thirdly, that B has omitted to draw the mistake to the notice of A. And I think there must be a fourth element involved, namely, that the mistake must be one calculated to benefit B. If these requirements are satisfied, the court may regard it as inequitable to allow B to resist rectification to give effect to A’s intention on the ground that the mistake was not, at the time of execution of the document, a mutual mistake.’
As to the burden of proof: ‘The standard of proof required in an action of rectification to establish the common intention of the parties is, in my view, the civil standard of balance of probability. But as the alleged common intention ex hypothesi contradicts the written instrument, convincing proof is required in order to counteract the cogent evidence of the parties’ intention displayed by the instrument itself. It is not, I think, the standard of proof which is high, so differing from the normal civil standard, but the evidential requirement needed to counteract the inherent probability that the written instrument truly represents the parties’ intention because it is a document signed by the parties. The standard of proof is no different in a case of so-called unilateral mistake such as the present.’

Buckley LJ, Brightman LJ
[1981] 1 WLR 505, [1980] EWCA Civ 3, [1981] 1 All ER 1077
Bailii
England and Wales
Citing:
Cited – A Roberts and Co Ltd v Leicestershire County Council ChD 1961
The court considered the circumstances required for rectification of a contract after a unilateral mistake. Pennycuick J said: ‘a party is entitled to rectification of a contract upon proof that he believed a particular term to be included in the . .
Cited – Riverlate Properties Ltd v Paul CA 1974
A lessor sought to have the lease rectified against the tenant, saying the tenant had sufficient knowledge of the error in the lease to permit that remedy.
Held: The tenant had no such knowledge as would have brought the doctrine into play. In . .

Cited by:
Cited – AMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
Approved – George Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
Cited – Littman, Young v Aspen Oil (Broking) Ltd ChD 1-Jul-2005
The tenant sought to exercise a break clause in the lease. The landlord said that the exercise of the right was subject to the tenant having first complied with the terms of the lease.
Held: There was an obvious mistake in the clause which . .
Cited – Littman and Another v Aspen Oil (Broking) Ltd CA 19-Dec-2005
A lease had been granted with a break clause, which the tenant exercised. The Landlord said it had not complied with its obligations and was not free to exercise that clause. The clause had included the word ‘landlord’ where it should have read . .
Cited – Connolly Ltd v Bellway Homes Ltd ChD 23-Apr-2007
connolly_bellwayChD2007
The claimant sought rectification of a contract for the sale of land, or damages in deceit. They said that it had been agreed that the price would be adjusted to reflect any change in values. The formula inserted made no great sense mathematically, . .
Cited – Daventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .

Lists of cited by and citing cases may be incomplete.

Equity, Landlord and Tenant, Contract

Leading Case

Updated: 31 October 2021; Ref: scu.184572

Jordan v Jordan: 1594

C gave a warrant to B to arrest A for an alleged debt. A promised B that, in return for not arresting him, he would pay the debt.
Held: C failed in his action, on the ground, inter alia, that the promise had been made to B.
78 ER 616, (1594) Cro Eliz 369
England and Wales

Updated: 19 October 2021; Ref: scu.222005

Castle v Playford: Cexc 1872

The contract for the sale of ice was for cash on delivery at the rate of 20s a ton as weighed on arrival and delivery in the United Kingdom, but it was agreed that the buyer should ‘take upon himself all risks and dangers of the seas’. The vessel was lost.
Held: The true construction of the contract was from the buyer’s viewpoint, as set out by Cockburn CJ’s: ‘I will engage, when it arrives, to pay you according to what may be its value; and if, in the meantime, while it is upon the seas, it shall perish through the perils of the seas, I will undertake to pay you for it according to what may be estimated to have been its fair value at the time of going down.’
Lord Blackburn said: ‘Now here the ship and the cargo have gone to the bottom of the sea, but in the case of Alexander v. Gardner and Fragano v. Long ( 4 B. and C. 219) it was held that if the property did perish before the time for payment came, the time being dependent upon delivery, and if the delivery was prevented by the destruction of the property, the purchaser was to pay an equivalent sum.’
Cockburn CJ, Willes, Blackburn, Mellor, Brett and Grove JJ
(1872) LR 7 Ex 98
England and Wales
Cited by:
Cited – Martineau v Kitching QBD 3-May-1872
Sugar was agreed to be sold, with the price payable ‘Prompt at one month; goods at seller’s risk for two months’, to be kept at the seller’s premises and drawn down by the buyers as wanted. After two months and after only some of the sugar had been . .
Cited – PST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.618137

Philips (Hong Kong) Ltd v The Attorney General of Hong Kong: PC 9 Feb 1993

After referring to two Australian cases on penalty clauses in contracts: ‘These statements assist by making it clear that the court should not adopt an approach to provisions as to liquidated damages which could, as indicated earlier, defeat their purpose. Except possibly in the case of situations where one of the parties to the contract is able to dominate the other as to the choice of the terms of a contract, it will normally be insufficient to establish that a provision is objectionably penal to identify situations where the application of the provision could result in a larger sum being recovered by the injured party than his actual loss. Even in such situations so long as the sum payable in the event of non-compliance with the contract is not extravagant, having regard to the range of losses that it could reasonably be anticipated it would have to cover at the time the contract was made, it can still be a genuine pre-estimate of the loss that would be suffered and so a perfectly valid liquidated damage provision.’ but ‘A difficulty can arise where the range of possible loss is broad. Where it should be obvious that, in relation to part of the range, the liquidated damages are totally out of proportion to certain of the losses which may be incurred, the failure to make special provision for those losses may result in the ‘liquidated damages’ not being recoverable.’
The Board considered the nature of penalty clauses. The ‘court should not be astute to descry a ‘penalty clause” and emphasised that it would ‘normally be insufficient . . to identify situations where the application of the provision could result in a larger sum being recovered by the injured party than his actual loss’. However ‘A difficulty can arise where the range of possible loss is broad. Where it should be obvious that, in relation to part of the range, the liquidated damages are totally out of proportion to certain of the losses which may be incurred, the failure to make special provision for those losses may result in the ‘liquidated damages’ not being recoverable. (See the decision of the Court of Appeal on very special facts in Ariston SRL v Charly Records Ltd (1990) The Independent 13 April 1990.) However, the court has to be careful not to set too stringent a standard and bear in mind that what the parties have agreed should normally be upheld. Any other approach will lead to undesirable uncertainty especially in commercial contracts.’
Lord Woolf said: ‘the court has to be careful not to set too stringent a standard and bear in mind that what the parties have agreed should normally be upheld’, not least because ‘[a]ny other approach will lead to undesirable uncertainty especially in commercial contracts’.
Lord Woolf
(1993) 61 BLR 49, [1993] UKPC 3, (1993) 9 Const LJ 202
Bailii
Commonwealth
Citing:
Affirmed – Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
Cited – AMEV-UDC Finance Ltd v Austin 1986
High Court of Australia – Contract – Damages – Penalty – Agreement for hire of chattel – Failure to pay instalments of hire – Termination by owner pursuant to contractual power – Damages – Instalments due but unpaid – Damages for loss of . .
Cited – Esanda Finance Corporation Ltd v Plessnig 1989
(Australia) . .
Cited – Ariston SRL v Charly Records Ltd 13-Apr-1990
Penalty Clauses . .

Cited by:
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 . .
Cited – Cine Bes Filmcilik Ve Yapimcilik and Another v United International Pictures and Others CA 21-Nov-2003
The parties entered into agreements licensing the exclusive distribution of encrypted television channels within Turkey. A clause provided a calculation of damages for a breach amounting to the balance of licence fees due, and other penalties, . .
Cited – Jeancharm Ltd (T/A Beaver International) v Barnet Football Club Ltd CA 16-Jan-2002
The claimant contracted to supply football shirts to the defendant, but claimed that clauses in the contract with regards to late delivery and payment operated as penalties and so were void at common law.
Held: The sums set out were immodest . .
Cited – Tullett Prebon Group Ltd v El-Hajjali QBD 31-Jul-2008
The defendant signed an employment contract to join the claimants as a senior broker. He changed his mind and decided to stay in his existing job. The new employers sued for breach of contract. The defendant said that the claimants had refused to . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Cited – Wright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd ChD 6-Mar-2018
IVA is a special form of contract
Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.197033

P and S Platt Ltd v Crouch and Another: CA 25 Jul 2003

The claimant sought a declaration that certain easements had been included by implication in a conveyance of part of land to him.
Held: Since the easements were capable of subsisting at law, and existed as quasi-easements at the time, and did not interfere to an unacceptable extent with the servient owner’s enjoyment of his land, the judge’s finding of what was in practice a question of fact would not be disturbed.
Peter Gibson, Dyson, Longmore LJJ
[2003] EWCA Civ 1110, Times 27-Aug-2003, [2004] 1 Pand CR 18
Bailii
Law of Property Act 1925 62
England and Wales
Citing:
Cited – Wheeldon v Burrows CA 17-Jun-1879
Quasi-Easements granted on sale of part of Estate
S owned a workshop and an adjoining plot of land. The workshop had three windows looking out over the plot. The property was sold in separate lots at auction. The land was sold with no express reservation of any easements, and then similarly the . .
Cited – Birmingham, Dudley and District Banking Co v Ross CA 1888
Birmingham Corporation secured development of a large area by building agreements which granted leases on completion of the buildings to their builders. One builder, Daniell, erected a building to a height of 48 feet, and assigned his interest under . .
Cited – Wright v Macadam KBD 1949
The court considered the exceptions to the rule that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into the conveyance by virtue of section 62. One exception was if the right was . .
Cited – Hair v Gillman 2000
. .
Cited – Selby District Council v Samuel Smith Old Brewery Ltd CA 15-Jun-2000
The council conveyed land to the brewery, with an option to re-purchase it. On exercising the option, the brewery asserted rights over the land, by way of easement acquired during its ownership. These were rejected by the court. The intention of the . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Copeland v Greenhalf ChD 1952
If a right claimed by way of an easement would effectively deprive the servient owner of any reasonable user of the area of land over which it is exercisable, than that right is not capable of being an easement. The rights asserted here were both . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society and Others CA 1-Nov-1996
Public policy rendered an assignment of a remedy void, where the assignment was an attempt to split it from another remedy. For the purpose of construing a contract the law excludes from the admissible factual background the previous negotiations of . .
Cited – London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd ChD 29-Jul-1992
A right to park was claimed as an easement.
Held: The question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree: ‘A small coal shed in a large property is one thing. The exclusive . .
Cited – Batchelor v Marlow and Another ChD 25-May-2000
The applicant claimed parking rights as an easement. If an easement was capable of arising by virtue of a deed of grant, it could also be acquired by prescription. This was such an easement. Use in the absence of planning permission did not vitiate . .

Cited by:
Cited – Campbell and Another v Banks and Others CA 1-Feb-2011
The court considered the creation by section 62 of the 1925 Act automatically of easements when land was divided. The claimants owned land bounded on either side by properties beloinging to the respondents. The properties had once been in common . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.184830

Times Travel (UK) Ltd Nottingham Travel (UK) Ltd v Pakistan International Airlines Corporation: ChD 14 Jun 2017

The claimants alleged undue pressure on them by the defendants to enter into contracts to compromise earlier disputes.
Warren J
[2017] EWHC 1367 (Ch)
Bailii
England and Wales
Cited by:
Judgment – Times Travel UK Ltd and Another v Pakistan International Airline Corporation ChD 17-Jul-2018
The court considered, post judgment, directions for the taking of accounts and an application for a variation of the costs order. . .
Appeal from – Times Travel (UK) Ltd v Pakistan International Airlines Corporation CA 14-May-2019
This appeal concerns the area of lawful act duress, where a contract results from a threat of a lawful act or omission. Does lawful act duress exist at all and, if so, in what circumstances may it be invoked? . .
See Also – Times Travel UK Ltd and Another v Pakistan Internation Airlines Corporation ChD 11-Aug-2020
. .
At First Instance – Pakistan International Airline Corporation v Times Travel (UK) Ltd SC 18-Aug-2021
Whether, and if so in what circumstances, a party can set aside a contract on the ground that it was entered into as a result of the other party threatening to do a lawful act. . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 October 2021; Ref: scu.588218

Blue v Ashley (Judgment): ComC 26 Jul 2017

The parties disputed the existence of an oral agreement by a businessman to pay a sum of millions of pounds in certain circumstances to a business acquaintance with whom he was then drinking in a public house.
Held: The claim failed: ‘no reasonable person present in the Horse and Groom on 24 January 2013 would have thought that the offer to pay Mr Blue pounds 15 million was serious and was intended to create a contract, and no one who was actually present in the Horse and Groom that evening – including Mr Blue – did in fact think so at the time. They all thought it was a joke. The fact that Mr Blue has since convinced himself that the offer was a serious one, and that a legally binding agreement was made, shows only that the human capacity for wishful thinking knows few bounds.’
Legatt J
[2017] EWHC 1928 (Comm)
Bailii
England and Wales
Citing:
See Also – Blue v Ashley ComC 26-Jun-2017
A newspaper sought disclosure of witness statements and other papers lodged at the court in the course of proceedings but not yet used in court.
Held: The application was refused.
Leggatt J said: ‘When a witness statement forms part of . .
Cited – Gestmin SGPS Sa v Credit Suisse (UK) Ltd and Another ComC 15-Nov-2013
The claimant sought damages alleging negligence by the defendants in advice given on an investment in an initial public offering of shares.
Leggatt J considered the reliability of the memories of witnesses: ‘An obvious difficulty which affects . .

Cited by:
Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.593143

Quadrant Visual Communications Ltd and Another v Hutchison Telephone (UK) Ltd: CA 22 Jan 1992

Specific performance of a contract was refused despite a contractual exclusion of the rules of equity. A contract was not able to exclude the right of a court to consider the actions of a party when considering the grant of specific performance.
Gazette 22-Jan-1992
England and Wales

Updated: 17 September 2021; Ref: scu.85090

Dowling and Rutter and Others v Abacus Frozen Foods Ltd: OHCS 26 Apr 2000

In the case of a lawfully constructed contract which was fulfilled by unlawful means, the contract itself can still be enforceable. In each case it is for the court to assess the nature and quality of the illegality involved.
Lord Wheatley
Times 26-Apr-2000, [2000] ScotCS 69
Bailii
Scotland
Cited by:
Appeal from – Messrs Dowling and Rutter &C v Abacus Frozen Foods Limited SCS 12-Dec-2000
. .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.80107

Pantelli Associates Ltd v Corporate City Developments Number Two Ltd: TCC 2 Dec 2010

Claim by quantity surveyors for payment of fees after compromise agreement settling dispute between the parties.
Coulson J
[2010] EWHC 3189 (TCC)
Bailii
England and Wales

Updated: 05 September 2021; Ref: scu.427229

Campbell v The Commercial Banking Company of Sydney: PC 1879

The Court held a notice to not be a valid demand because of the overstatement of the debt: ‘where a demand is made for a larger amount than that which is really due, such demand does not do away with the necessity of tendering what is actually due, unless there is at the same time refusal to receive less’
(1879) 40 LT 137
Australia
Cited by:
Cited – Spreadex Ltd v Dr Vijay Ram Battu CA 11-Jul-2005
The appellant traded in financial indices through the respondent spread betting company. The company took two forms of security, an initial payment by way of security, and a sum covering any current trading positions. The trader made losses, and the . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.228417

Bowerman and Another v Association of British Travel Agents Ltd: CA 21 Nov 1995

The claimant was to take part in a school skiing trip. The first operator was a member of the defendant association, and ceased trading through insolvency.
Held: The ABTA notice displayed in the travel agent’s offices created a contract between ABTA and the client. The advert ‘ABTA arranges re-imbursement’ constituted a unilateral offer to contract in this context. The notice would be seen to create legal relations, and satisfied the criterion in Carlill. The promises covered ABTA tour operators against any failure of ABTA travel agents who had taken money from the public and not passed it on to the tour operator.
Times 24-Nov-1995, Independent 23-Nov-1995, [1996] CLC 451
England and Wales
Citing:
Cited – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Carlill_CarbolicCA1893
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘andpound;100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .

Cited by:
Cited – Dresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.78517

Colley v Overseas Exporters: 1921

Sellers brought an action for the price of goods sold on terms fob Liverpool. The buyers made five successive nominations of vessels to take delivery of the cargo but in each case the vessel was eventually unable to take the goods. No effective nomination was made, the goods remained at the dock awaiting shipment, and the sellers brought an action for the price. The argument advanced on behalf of the sellers was that because it was the buyers’ own fault which had prevented the goods being put on board, the buyers were disabled from saying that the price, which would have been payable if and when the goods had actually been put on board, was not now due to the sellers.
Held: The argument was rejected. Judgment was given for the buyers, there being no alternative claim for damages. Having found that s. 49(1) did not apply because property would not pass until the goods were loaded on board under standard fob terms, and that s. 49(2) did not apply because there was no agreement as to payment of the price on a day certain, he held at p. 310 that those findings were fatal to an action on the price because s. 49 was exclusive:
‘The existing condition of the law is put in Benjamin on Sale, 6th ed., p. 946, where it is rightly stated that the old principles ‘are by implication preserved by s. 49 of the code’. And the learned editor adds: ‘Where property has not passed, the seller’s claim must, as a general rule, be damages for non-acceptance.’ An exception to the general rule is to be found in the cases provided for by s. 49, sub-s. 2, of the code. In my opinion (subject to what I say hereafter as to estoppel), no action will lie for the price of goods until the property has passed, save only in the special cases provided for by s. 49, sub-s. 2. This seems plain both on the code and on common law principle. I have searched in vain for authority to the contrary.’
McCardie J
[1921] 3 KB 302, [1921] All ER 596
England and Wales
Cited by:
Cited – PST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2021; Ref: scu.618133

United Dominions Trust (Commercial) Ltd v Eagle Aircraft Services Ltd Ltd; United Dominions Trust (Commercial) Ltd v Eagle Aviation Ltd: CA 1968

An aircraft manufacturer was obliged under contract to buy back an aircraft from a hire purchase company on three conditions. (1) when the hire purchase company foreclosed on the purchasers, (2) where the manufacturer had been given notice of the purchasers’ defaults and (3) (implied by the Court of Appeal) where the buyback was called within a reasonable time. It was held that due to non-compliance with (2) and (3) the hire purchase company could not enforce the option.
Held: Lord Denning MR said: ‘In point of legal analysis, the grant of an option in such cases is an irrevocable offer (being supported by consideration so that it cannot be revoked). In order to be turned into a binding contract, the offer must be accepted in exact compliance with its terms. The acceptance must correspond with the offer.’ Diplock LJ: ‘Accordingly, the event giving rise to Eagle’s unilateral obligation to buy the aircraft has not occurred and can never occur. There is no obligation: there can be no breach. The action must fail.’ A unilateral offer capable of acceptance so as to create a binding obligation was referred to as an ‘if’ contract: I will do or refrain from doing x if you will do or refrain from doing y. It can be ‘accepted’ and so become binding by the promisee doing or refraining from doing y. An offer by the defendant was open to acceptance by the claimant only if the acceptance was in exact compliance with the terms of the offer.
Denning MR, Diplock LJJ
[1968] 1 All ER 194, [1968] 1 WLR 74
England and Wales
Citing:
Cited – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Carlill_CarbolicCA1893
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘andpound;100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .

Cited by:
Cited – Haugland Tankers As v RMK Marine Gemi Yapim Sanayii Ve Deniz Tasimaciligi Isletmesi As ComC 9-Mar-2005
An option agreement was granted for the sale of a ship hull. The option was excercised but the defendant claimed the commitment fee required was not paid.
Held: The exercise of an option had to be in the precise terms set out in the contract. . .
Cited – United Scientific Holdings v Burnley Borough Council HL 1978
The House was asked whether a failure by a lessor to keep strictly to the timetable laid down in a rent review clause in a lease necessarily deprived the lessor of the benefit of the rent review.
Held: A stipulation as to time in an option . .
Cited – Carmarthen Developments Ltd v Pennington SCS 24-Sep-2008
carmarthen_penningtonSCS2008
Contracts had been entered into for the sale of plots of land, which were conditional on planning permissions being approved by the purchaser. The buyer could waive the conditions to remove the sellers’ rights to resile. The buyer obtained the . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.183119

Phonogram Ltd v Lane: CA 1982

A collateral contract was entered into with a company which had not then been incorporated under which an advance by Phonogram to support an intended new pop group was repayable by the company if a recording contract was not entered into within one month. The collateral contract was signed ‘for and on behalf of’ the company by Mr. Lane. Both parties knew, at the time of the collateral contract, that the company had not yet been incorporated.
Held: Lane’s appeal failed. The Court expressly rejected the argument that section 9(2) should be construed solely by reference to the Directive.
Lord Denning MR said:
‘Section 9(2) is in accordance with the spirit and intent of the directive. We should go by our own statute and not by the directive . .’ #and ‘This is the first time the section has come before us. It will have much impact on the common law. I am afraid that before 1972 the common law had adopted some fine distinctions. As I understand Kelner v. Baxter (1866) L.R. 2 C.P. 174 it decided that, if a person contracted on behalf of a company which was nonexistent, he himself would be liable on the contract. Just as, if a man signs a contract for and on behalf ‘of his horses,’ he is personally liable. But, since that case was decided, a number of distinctions have been introduced by Hollman v. Pullin (1884) Cab. and Ell. 254; Newborne v. Sensolid (Great Britain) Ltd. [1954] 1 Q.B. 45 and Black v. Smallwood (1965) 117 C.L.R. 52 in the High Court of Australia. Those three cases seem to suggest that there is a distinction to be drawn according to the way in which an agent signs a contract. If he signs it as ‘agent for ‘X’ company’ – or ‘for and on behalf of ‘X’ company’ – and there is no such body as ‘X’ company, then he himself can be sued upon it. On the other hand, if he signs it as ‘X’ company per pro himself the managing director, then the position may be different: because he is not contracting personally as an agent. It is the company which is contracting.
That distinction was disliked by Windeyer J. in Black v. Smallwood. It has been criticised by Professor Treitel in The Law of Contract, 5th ed. (1979), p.559. In my opinion, the distinction has been obliterated by section 9(2) of the European Communities Act 1972. We now have the clear words, ‘Where a contract purports to be made by a company, or by a person as agent for a company, at a time when the company has not been formed…’ That applies whatever formula is adopted. The person who purports to contract for the company is personally liable.’
Oliver LJ said:
‘any such subtle distinctions which might have been raised are rendered now irrelevant by section 9(2) of the European Communities Act 1972 in a case where a contract is either with a company or with the agent of a company. It has been suggested that an agreement to the contrary may still be inferred by the fact that the contract was signed by a person acting as agent so as to exclude the section. That I am bound to say seems to me to be wholly unarguable when the section itself in terms provides ‘Where a contract purports to be made … by a person as agent for a company,’ and to interpret it in the way suggested would defeat the whole purpose of the section.’
Oliver LJ, Lord Denning MR, Shaw LJ
[1982] 1 QB 938, [1982] QB 938
European Communities Act 1972 9(2)
England and Wales
Citing:
Cited – Newborne v Sensolid (Great Britain) Ltd 1954
A written contract purported to sell goods by a company described as Leopold Newborne (London) Ltd. The document was subscribed by the name of the company with Mr Leopold Newborne’s signature under it. At that time it had not yet been incorporated. . .

Cited by:
Cited – Braymist Limited and Others v Wise Finance Company Limited CA 20-Feb-2002
The claimant company set out to sell land whilst it was still only in the process of incorporation. Its solicitors had signed as agents, and now sought an order for the purchaser to complete the contract. The respondent had not known of the . .
Cited – Royal Mail Estates Limited v Maple Teesdale Borzou Chaharsough Shirazi ChD 2-Jul-2015
A contract had been made but one of the parties was not yet incorporated. The court was asked whether it was deemed to have been made with the signatory.
Held: For section 36C(1), a ‘contrary agreement’ would be established if the parties, . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 August 2021; Ref: scu.619035

West Coast Air Limited v Gambia Civil Aviation Authority and others: PC 15 Sep 1998

(the Gambia)
[1998] UKPC 39
Bailii
England and Wales

Updated: 10 August 2021; Ref: scu.159320

BP Exploration Co (Libya) Ltd v Hunt (No 2): 1979

The contract between the parties relating to an oil concession in Libya had been frustrated by the nationalisation of the field.
Held: The court considered the setting of damages where the plaintiff had delayed in notifying the defendant of the claim. Interest is awarded not as a punishment but to compensate a claimant for having been deprived of the money which was due to him, though: ‘The basic principle, is, however, that interest will be awarded from the date of loss.’
are (a) receipt by the defendant of a benefit (b) at the plaintiff’s expense, (c) in such circumstances that would be unjust to allow the defendant to retain the benefit.’
In a claim for unjust enrichment, the formulation of the requirements of the cause of action are: (a) receipt by the defendant of a benefit (b) at the plaintiff’s expense, (c) in such circumstances that would be unjust to allow the defendant to retain the benefit.
Rober Goff J discussed the calculation of damages under the 1943 Act: ‘A crucial question, on which the Act is surprisingly silent, is this: what bearing do the terms of the contract, under which the plaintiff has acted, have on the assessment of the just sum? First, the terms on which the work was done may serve to indicate the full scope of the work done, and so be relevant to the sum awarded in respect of such work. For example, if I do work under a contract under which I am to receive a substantial prize if successful, and nothing if I fail, and the contract is frustrated before the work is complete but not before a substantial benefit has been obtained by the defendant, the element of risk taken by the plaintiff may be held to have the effect of enhancing the amount of any sum to be awarded. Secondly, the contract consideration is always relevant as providing some evidence of what will be a reasonable sum to be awarded in respect of the plaintiff’s work. Thus if a prospector, employed for a fee, discovers a gold-mine before the contract under which he is employed is frustrated (for example, by illegality or by his illness or disablement) at a time when his work was incomplete, the court may think it just to make an award in the nature of a reasonable fee for what he has done (though of course the benefit obtained by the defendant will be far greater), and a rateable part of the contract fee may provide useful evidence of the level of sum to be awarded. If, however, the contract had provided that he was to receive a stake in the concession, then the just sum might be enhanced on the basis that, in all the circumstances, a reasonable sum should take account of such a factor: cf Way v Latilla [1937] 3 All ER 759. Thirdly, however, the contract consideration, or a rateable part of it, may provide a limit to the sum to be awarded. To take a fairly extreme example, a poor householder or a small businessman may obtain a contract for building work to be done to his premises at considerably less than the market price, on the basis that he cannot afford to pay more. In such a case, the court may consider it just to limit the award to a rateable part of the contract price, on the ground that it was the understanding of the parties that in no circumstances (including the circumstances of the contract being frustrated) should the plaintiff recover more than the contract price or a rateable part of it. Such a limit may properly be said to arise by virtue of the operation of s 2(3) of the Act. But it must not be forgotten that, unlike money, services can never be restored, nor usually can goods, since they are likely to have been either consumed or disposed of, or to have depreciated in value; and since, ex hypothesi, the defendant will only have been prepared to contract for the goods or services on the basis that he paid no more than the contract consideration, it may be unjust to compel him, by an award under the Act, to pay more than that consideration, or a rateable part of it, in respect of the services or goods he has received. It is unnecessary for me to decide whether this will always be so; but it is likely that in most cases this will impose an important limit on the sum to be awarded: indeed it may well be the most relevant limit to an award under s 1(3) of the Act. ‘
. . And, as to the award of statutory interest under the 1838 Act: ‘Another matter which is generally ignored is the financial situation of the plaintiff; it should generally make no difference even if, for example, it could be shown that a plaintiff in a personal injury action was a person who would simply have paid the damages, if received earlier, into his current account at the bank which was permanently in credit.’
Robert Goff J
[1979] 1 WLR 783
Law Reform (Frustrated Contracts) Act 1943, Judgments Act 1838
England and Wales
Citing:
See Also – BP Exploration Co (Libya) Ltd v Hunt 1976
The fact that the contract was governed by English law was the predominating factor to be borne in mind when deciding jurisdiction.
The court should be careful before describing as non-disclosure as material not included in an affidavit in . .
Cited – General Tire v Firestone Tyre and Rubber Company Limited HL 1975
The object of damages is to compensate for loss or injury. The general rule for ‘economic’ torts is that the measure is that sum of money which will put the injured party in the same position as he would have been in if he had not sustained the . .

Cited by:
Cited – Stocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
Cited – Sycamore Bidco Ltd v Breslin and Another ChD 14-Feb-2013
The court considered whether it was correct to award interest on the sum of damages for the period before as well as after judgment, and if so, from what date and at what rate of interest.. . .
Cited – Jones and Others v Secretary of State for Energy and Climate Change and Another QBD 3-May-2013
The claimants sought an order for pre-judgment interest on the disbursements incurred in this group litigation. The clients were liable for payment of the disbursements under the conditional fee agreements, and in this case these amounted to over . .
Cited – Sabic UK Petrochemicals Ltd v Punj Lloyd Ltd TCC 10-Oct-2013
Dispute as to the approach applicable on calculation of statutory interest on judgment.
Held: Interest was awarded at the normal commercial rate. The correct question was how the Claimant ‘could have put itself in possession of the funds that . .
Cited – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .
Cited – Gamerco Sa v ICM Fair Warning (Agency) Ltd and Another QBD 31-Mar-1995
The plaintiff Spanish concert promoter, and the defendant rock group, Guns ‘n’ Roses, agreed to provide a concert at the stadium of Atetico Madrid, but shortly before it was due to take place, the stadium was deemed unfit, and its licence withdrawn. . .
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.238540

Gibson v Manchester City Council: CA 1978

The parties disputed which terms of a contract applied.
Held: Lord Denning MR rejected the conventional approach of looking to see whether upon the true construction of the documents relied upon there can be discerned an offer and acceptance: ‘I do not like detailed analysis on such a point. To my mind it is a mistake to think that all contracts can be analysed into the form of offer and acceptance. I know in some of the textbooks it has been the custom to do so: but, as I understand the law, there is no need to look for a strict offer and acceptance. You should look at the correspondence as a whole and at the conduct of the parties and see therefrom whether the parties have come to an agreement on everything that was material. If by their correspondence and their conduct you can see an agreement on all material terms – which was intended thenceforward to be binding – then there is a binding contract in law even though all the formalities have not been gone through.’
Lord Denning MR, Ormrod LJ, Geoffrey Lane LJ
[1978] 1 WLR 520, [1978] 2 All ER 583
England and Wales
Citing:
Applied – Storer v Manchester City Council CA 1974
Whether a contract has been made
A newly elected city Council refused to proceed with the sale of a dwelling and premises to a sitting tenant, the plaintiff. The sale had been arranged by the previous Council. The plaintiff had signed the form sent to him by the council, and only . .

Cited by:
Appeal from – Gibson v Manchester City Council HL 8-Mar-1979
The plaintiff sought specific performance of what he said was a contract for the sale of land.
Held: The appeal succeeded. In a case where a contract is alleged to have been made by an exchange of correspondence between the parties, in which . .
Cited – Tekdata Interconnections Ltd v Amphenol Ltd CA 19-Nov-2009
The court considered which of two sets of contractual terms applied. The parties had dealt with each other over a long period. Under standard offer and acceptance the seller’s terms would apply. The buyer appealed, saying the court should look to . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.380338

Evans v Hoare: 1892

A defendant sought to deny liability under a document relying on the 1677 Statute. the relevant document had been drawn up by a duly authorised agent of the Defendants. The document was a letter from the Plaintiff and the words ‘Messrs Hoare, Marr and Co, 26,29 Budge Row, London EC’ appeared after the Plaintiff’s address at the head of the letter. The question was whether these words constituted a signature of ‘some person . . thereunto lawfully authorised’ by the Defendants. The plaintiff argued that the the appearance of the Defendant’s name in the letter tendered to the Plaintiff for signature on behalf of the Defendant was sufficiently signed on behalf of the Defendant because the Defendant’s name had been ‘written . . with the defendant’s authority, with the intention of designating the party to be charged, and for the purpose of making a contract which should be binding on the Plaintiff’.
Held: The effect of the words in the statute is that ‘there must be a memorandum of a contract, not merely a memorandum of a proposal’ and ‘I am of opinion that the principle to be derived from the decisions is this. In the first place, there must be a memorandum of a contract, not merely a memorandum of a proposal; and secondly, there must be in the memorandum, somewhere or other, the name of the party to be charged, signed by him or by his authorized agent. Whether the name occurs in the body of the memorandum, or at the beginning, or at the end, if it is intended for a signature there is a memorandum of the agreement within the meaning of the statute.’ .
Cave J
[1892] 1 QB 593
Statute of Frauds 1677 4
England and Wales
Cited by:
Cited – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
Cited – Elpis Maritime Company Limited v Marti Chartering Company Limited (The Maria D) HL 1991
Brokers (Marti) were to guarantee a charter on the Gencon form, which contained, as one of the additional typed clauses a provision (Clause 24) in the following terms: ‘Demurrage guaranteed and payable directly by charterers to owners. However Marti . .
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 . .
Applied – Leeman v Stocks 1951
The plaintiff’s was the highest bid for premises at an auction. The auctioneer used a borrowed form for sale by private treaty, though some clauses were inappropriate. A solicitor present edited the document and put in the date for completion. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.241706

Dunlop And Others v Grote And Booker: 23 Aug 1845

The plaintiffs declared on a contract by the defendants to purchase certain iron of the plaintiff alleging a promise by the defendants, ‘that, if the delivery of the said iron should riot be required by the defendants on or before the 30th day of April, 1845, the said iron was to be paid for by the defendants on the day and year last aforesaid’ , and averring that the plaintiffs had always been ready and willing to deliver the said iron in terms of the contract, that the 30th of April was past before the commencement of the suit, but that the defendants had not paid for the iron :-Held, first, that, under the averment of readiness and willingness to deliver the iron, the plaintiffs were not bound to shew that any specific iron had been appropriated by them for that purpose, and, secondly, that the plaintiffs were entitled to recover on the above contract the full price of the iron, and not merely the damages which they had sustained by the defendants’ breach of contract.
[1845] EngR 1196 (B), (1845) 2 Car and K 153
Commonlii
England and Wales
Cited by:
Cited – PST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.304338

Criterion Properties Plc v Stratford UK Properties Llc and others: ChD 27 Mar 2002

Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to prevent such a takeover. It was asserted that the agreement constituted dishonest assistance by the defendant in entering into an agreement in excess of the board’s powers.
Held: There was a triable issue that the put option created was in excess of the power of the board. However, the agreement was ‘motivated not by a desire to advance or protect the commercial interests of Criterion but from a desire contingently to cripple those interests so as to deter an unwanted predator. ‘ and so was unenforceable.
The Hon Mr Justice Hart
[2002] EWHC 496 (Ch)
Bailii
Limited Partnership Act 1907
England and Wales
Citing:
Appealed to – Criterion Properties Plc v Stratford UK Properties Llc and others ChD 27-Mar-2002
Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to . .
Cited – Savoy Corp Ltd v Development Underwriting Ltd 1963
(Australia) The court discussed the extent of the director’s powers to arrange the company to prevent a take over: ‘It would seem to me to be unreal in the light of the structure of modern companies and of modern business life to take the view that . .
Cited – Mills v Mills 1938
(High Court of Australia) Where the main purpose of the directors’ resolution (in this case to increase the share base) is to benefit the company it matters not that it incidentally also benefits a director.
Dixon J pointed out the difficulties . .
Cited – Howard Smith Limited v Ampol Petroleum Limited PC 14-Feb-1974
(New South Wales) The court considered the use by directors of their fiduciary power of allotment of shares for a different purpose than that for which it was granted, and so as to dilute the voting power of the majority shareholding of issued . .
Cited – Teck Corporation Ltd v Millar 1972
The court discussed the validity of steps which might be taken by a company director to resist a take-over. Berger J said: ‘So how wide a latitude ought the directors to have? If a group is seeking to obtain control, must the directors ignore them? . .
Cited – Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .
Cited – Rolled Steel Products (Holdings) Ltd v British Steel Corporation and Others CA 1986
The plaintiff company had guaranteed borrowings, using powers within the memorandum of association, but for purposes which were held to be improper, because they were not in the interests of the plaintiff company itself. One issue was whether the . .
Cited – Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .
Cited – Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele ChD 1999
Chief Akindele agreed in 1985 with ICIC Overseas to invest US$10m in the purchase of 250,000 shares of BCCI Holdings, and to hold the shares for two years. If he wanted to sell the shares after the expiry of two years and up to five years from the . .
Cited – In re Montagu’s Settlement Trusts 1987
In the context of knowing receipt, a categorisation of knowledge is used to determine whether a person is bound by notice.
Sir Robert Megarry V-C said: ‘The cold calculus of constructive and imputed notice does not seem to me to be an . .
Cited – Eagle Trust Plc v SBC Securities Ltd; Same v Sbci Bank Corporation Investment Banking Ltd ChD 28-Sep-1994
A financial adviser was not liable in negligence for the allegedly negligent selection of sub-underwriters. On the issue of knowing receipt in a claim for restitution, ‘What the decision in Belmont (No 2) . . shows most clearly is that in a . .

Cited by:
Appeal from – Criterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
Appealed to – Criterion Properties Plc v Stratford UK Properties Llc and others ChD 27-Mar-2002
Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.170060

X v Kuoni Travel Ltd: CA 26 Apr 2018

The claimant sought damages after being sexually assaulted by a hotel worker on her holiday in Sri Lanka. She said that the incident was an improper performance of the contract and in breach of the 1992 Regulations. She appealed from rejection of her claim.
Held: The appeal failed (Longmore LJ dissenting). On their proper interpretation, the words ‘holiday arrangements’ in clause 5.10(b) did not include a member of the hotel’s maintenance team, known to be such to the hotel guest, conducting the guest to the hotel’s reception. This was no part of the functions for which the employee was employed. The 1992 Regulations were not designed to facilitate a claim against a tour operator for wrongful conduct by an employee of a supplier where that conduct was ‘not part of the role in which he was employed’ and where the supplier would not have been vicariously liable under either the consumer’s domestic law or the foreign law applicable to the supplier.
Obiter, Kuoni was not liable under either the express terms of clause 5.10(b) or regulation 15 since N was not a ‘supplier’ within the meaning of those provisions. The hotel and not N was the supplier of any services performed by N. The booking conditions referred to ‘our agents or suppliers’, which denoted a need for a direct contractual or promissory relationship between Kuoni and whoever was to be regarded as a supplier. Furthermore, this reading was supported by regulation 15. Nothing in regulation 15 suggested some other meaning of the word ‘supplier’ in clause 5.10(b) or the expression ‘supplier of services’ in regulation 15 itself. The express reservation in regulation 15(1) of ‘any remedy or right of action which [the package holiday operator] may have against [the] suppliers of services’ was consistent with a direct relationship between the operator and the supplier and may be indicative of an assumption that there would be such a relationship. In a situation where one contracting party assumes primary and personal liability for the provision of services by agents or suppliers to a reasonable standard to the other contracting party, the natural meaning of ‘supplier’ is the person who assumes a direct contractual or promissory obligation to provide such services and not an employee of such a person. There were no discernible policy reasons for imposing liability on a tour operator when neither it nor the hotel were ‘at fault’ and the express exclusion of liability under regulation 15(2)(c)(ii) pointed clearly to the contrary. Furthermore, in such circumstances it was not realistic to suppose that the tour operator could protect itself via an indemnity from the employee or the hotel or by way of insurance.
Sir Terence Etherton MR, Longmore, Asplin LJJ
[2018] EWCA Civ 938, [2018] WLR(D) 262, [2018] 1 WLR 3777, [2018] 1 WLR 3777
Bailii, WLRD
Package Travel, Package Holidays and Package Tours Regulations 1992 15
England and Wales
Citing:
Appeal from – X v Kuoni Travel Ltd QBD 30-Nov-2016
The Claimant, Mrs X, sought damages for personal injury and other losses arising out of a sexual assault (including rape), on 17th July 2010 during a 14 day all-inclusive package holiday which the Claimant had purchased from the Defendant, Kuoni . .

Cited by:
Appeal from – X v Kuoni Travel Ltd SC 24-Jul-2019
The claimant had been raped by a member of staff at the hotel in Sri Lanka booked through the respondent travel company. She now appealed from dismissal of the claim. . .
Appeal from – X v Kuoni Travel Ltd SC 30-Jul-2021
. .

Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2021; Ref: scu.614912

Rock Advertising Ltd v MWB Business Exchange Centres Ltd: SC 16 May 2018

The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a legitimate purpose. Though there is no common law rule against an oral variation, contract law should not normally frustrate the uses of businessmen.
‘the law should and does give effect to a contractual provision requiring specified formalities to be observed for a variation.’
‘What the parties to such a clause have agreed is not that oral variations are forbidden, but that they will be invalid. The mere fact of agreeing to an oral variation is not therefore a contravention of the clause. It is simply the situation to which the clause applies. It is not difficult to record a variation in writing, except perhaps in cases where the variation is so complex that no sensible businessman would do anything else. The natural inference from the parties’ failure to observe the formal requirements of a No Oral Modification clause is not that they intended to dispense with it but that they overlooked it. If, on the other hand, they had it in mind, then they were courting invalidity with their eyes open.’
Lady Hale, President, Lord Wilson, Lord Sumption, Lord Lloyd-Jones, Lord Briggs
[2018] UKSC 24, [2018] WLR(D) 301, UKSC 2016/0152
Bailii, WLRD, Bailii Summary
England and Wales
Citing:
Appeal from – MWB Business Exchange Centres Ltd v Rock Advertising Ltd CA 21-Jun-2016
The parties had contracted to provide and occupy office space, but later purported to agree an oral variation of the written payment schedule. The supplier then sought to enforce the written agreement saying that the contract contained a clause to . .
Cited – Liebe v Molloy 29-Oct-1906
A building contract and a specification provided that no extras should be allowed or paid for unless ordered in writing by both architect and employer. When the building had been completed disputes arose upon claims made by the builder for extras. . .
Cited – Shelanu Inc v Print Three Franchising Corp 20-May-2003
(Court of Appeal for Ontario) . .
Cited – Beatty v Guggenheim Exploration Co 1919
Cardozo J said: ‘Those who make a contract, may unmake it. The clause which forbids a change, may be changed like any other. The prohibition of oral waiver, may itself be waived. ‘Every such agreement is ended by the new one which contradicts it’ . .
Cited – Re Commonwealth of Australia v Crothall Hospital Services (Aust) Limited (Formerly) Crothall and Co (Nsw) Pty Ltd 17-Aug-1981
(Federal Court of Australia) . .
Cited – Colautti Construction Ltd v City of Ottawa 22-May-1984
(Ontario Court of Appeal) The plaintiff contracted to install a new sewer line for the defendant city. The line marked for excavation was too close to a water-main and, after some work had been done, had to be relocated causing additional cost. The . .
Cited – United Bank Ltd v Asif CA 11-Feb-2000
Sedley LJ refused leave to appeal from a summary judgment on the ground that it was ‘incontestably right’ that in the face of a No Oral Modification clause ‘no oral variation of the written terms could have any legal effect.’ . .
Cited – World Online Telecom Ltd v I-Way Ltd CA 8-Mar-2002
A contract provided against it variation save in writing and signed. A claim was made relying upon an oral variation.
Held: It was a sufficient reason for refusing summary judgment that ‘the law on the topic is not settled.’ . .
Cited – Energy Venture Partners Ltd v Malabu Oil and Gas Ltd ComC 17-Jul-2013
Gloster LJ declined to decide the point but ‘incline[d] to the view’ that clauses not permitting variation of a contract without the variation being in writing were ineffective. . .
Cited – Globe Motors, Inc and Others v TRW Lucas Varity Electric Steering Ltd and Another CA 20-Apr-2016
Globe, component manufacturers had a contract to supply TRW. The contract was exclusive. It contained a clause disallowing any amendment.
Held: (Obiter) Beatson LJ thought such clauses unenforceable. . .
Cited – Evans and Son (Portsmouth) Ltd v Andrea Merzario Ltd CA 1976
The defendants had carried previously goods aboard ship for the plaintiffs. This time, they were asked for and gave an oral re-assurance to the plaintiffs that the goods would be carried below deck. This did not happen and the goods were swept . .
Doubted – Brikom Investments v Carr 1979
A reversioner can grant rights in respect of covenants in the lease which bind reversioners by way of a collateral contract. When a person makes a representation intending that another should act on it: ‘It is no answer for the maker to say: ‘You . .
Cited – Inntrepreneur Pub Co v East Crown Ltd 2000
The ‘entire agreement’ clause contained in a lease not only had the effect of rendering evidence of an alleged collateral warranty inadmissible, but also deprived the warranty of all legal effect. It did not collapse the lease in on itself. Lightman . .
Cited – Business Environment Bow Lane Ltd v Deanwater Estates Ltd CA 27-Jun-2007
Enforcement of repairing obligations in lease after assignments, and the use of collateral contracts. Sir Andrew Morritt C said: ‘The law relating to collateral contracts is well-established but in connection with sales or leases of land needs to be . .
Cited – Ryanair Ltd v SR Technics Ireland Ltd QBD 20-Dec-2007
. .
Cited – North Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
Cited – McGrath v Shah ChD 22-Oct-1987
John Chadwick QC said of a clause restricting a contract variation not in writing: ‘One can see why such a provision is included in a contract for the sale and purchase of land. All material terms of a contract for the sale of land must be evidenced . .
Cited – Deepak Fertilisers and Petrochemicals Corporation v ICI Chemicals and Polymers Ltd and Another ComC 30-Sep-1997
Trial of preliminary issue – Negligent Misrepresentation – Breach of Collateral Warranties – Breach of duty of care – Breach of contract (Davy Mckee only). . .
Cited – Deepak Fertilisers and Petrochemical Corporation v Davy McKee (London) Ltd; ICI Chemicals and Polymers Ltd CA 12-Nov-1998
Deepak’s plant was built with know-how derived from ICI via one of ICI’s licensees, Davy. The contract between Davy and Deepak contained (it was assumed) a promise by Deepak to indemnify ICI. The plant was severely damaged by an explosion and Deepak . .
Cited – Matchbet Ltd v Openbet Retail Ltd ChD 11-Oct-2013
Claim for damages for alleged breaches of a software licensing and development agreement – variation of contract in breach of entire agreement clause . .
Cited – ZCCM Investments Holdings Plc v Konkola Copper Mines Plc ComC 14-Dec-2017
. .
Cited – Triple Point Technology, Inc v PTT Public Company Ltd TCC 23-Aug-2017
. .
Cited – Adibe v National Westminster Bank Plc ChD 16-Mar-2017
. .
Cited – Mileform Ltd v Interserve Security Ltd QBD 5-Nov-2013
This case concerns the terms and formation of a contract for the provision of warehousing, packaging, distribution and storage services. The critical question for the Court’s determination is whether the agreement reached between the parties, on or . .
For Examination later – Foakes v Beer HL 16-May-1884
Mrs Beer had obtained judgment against Dr Foakes for andpound;2,090 19s. He asked for time to pay and they agreed with him, acknowledging the debt, and paying part immediately and undertaking to pay the balance over a period of time. In . .
Cited – Williams v Roffey Brothers and Nicholls (Contractors) Ltd CA 23-Nov-1989
The defendant subcontracted some of its work under a building contract to the plaintiff at a price which left him in financial difficulty and there was a risk that the work would not be completed by the plaintiff. The defendant agreed to make . .
Cited – Moran Yacht and Ship Inc v Pisarev and Another CA 11-Feb-2016
. .
Cited – In Re Selectmove Ltd CA 21-Dec-1993
Promisse to Pay Tax due is not Consideration
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
Cited – Moran Yacht and Ship Inc v Pisarev and Another Re 4You ComC 10-Apr-2014
Claim by brokers for commission on the sale of a superyacht. . .
Cited – Actionstrength Limited v International Glass Engineering In Gl En SpA and others HL 3-Apr-2003
Actionstrength agreed with Inglen to provide construction staff to build a factory for St-Gobain. Inglen failed to pay. Actionstrength claimed against for the amount due. Inglen went into liquidation. The claim was now against St-Gobain. The claim . .
Cited – Tevanon v Norman Brett (Builders) Ltd 1972
Brightman J said: ‘parties could get rid of the qualification of ‘subject to contract’ only if they both expressly agreed that it should be expunged or if such an agreement was to be necessarily implied . . ‘ [W]hen parties started their . .
Cited – Sherbrooke v Dipple 1980
Parties to a conveyancing context can get rid of the qualification ‘subject to contract’ only if either they both expressly agree that it should be expunged or if such an agreement can be necessarily implied. . .
Cited – Cohen v Nessdale Ltd CA 1982
Once negotiations are begun ‘subject to contract’, that label governs all subsequent communications between the parties unless the label is expunged by express agreement or by necessary implication. . .

Cited by:
Cited – Pimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 July 2021; Ref: scu.615572

Manufacturing Excellence Ltd v Hemming (T/A Hemming-Mann Ltd) and Others: QBD 18 Sep 2013

Saffman HHJ
[2013] EWHC 2825 (QB)
Bailii
England and Wales

Updated: 22 July 2021; Ref: scu.535719

ZCCM Investments Holdings Plc v Konkola Copper Mines Plc: ComC 14 Dec 2017

Lionel Persey QC
[2017] EWHC 3288 (Comm)
Bailii
England and Wales
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.601480

Sumukan Ltd v The Commonwealth Secretariat: CA 21 Mar 2007

The appellants sought to challenge a finding that they had by their contract with the defendants excluded the right to appeal to a court on a point of law. The defendants replied that the appeal court had no jurisdiction to hear such an appeal.
Held: The Court of Appeal did have jurisdiction. The argument that it did not was in practice circular, and ‘although there might be a temptation (in the interest of speed and saving expense) to construe any part of the language of the 1996 Act in a way that renders all decisions under the various sections where permission of the court is required as final, if the first instance court so rules, there is a distinction between those cases where the court is assisting or overseeing the arbitration process and the cases where the question is whether the jurisdiction of the court has been excluded. ‘
Waller LJ, Clarke MR, Sedley LJ
[2007] EWCA Civ 243, Times 13-Apr-2007, [2007] 2 All ER (Comm) 23, [2007] 3 All ER 342, [2007] 2 Lloyd’s Rep 87, [2007] Bus LR 1075, [2007] 1 CLC 282, [2007] ArbLR 56
Bailii
Arbitration Act 1979
England and Wales
Citing:
Cited – Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited CA 25-May-2000
Where a party appealed against an arbitration to the County or High Court, the court which gave judgment was the sole body able to give permission to enter an appeal under the Act. An appellate court did not have jurisdiction to give leave to . .
Appeal from – Sumukan Ltd v Commonwealth Secretariat ComC 14-Feb-2007
The claimant had created a web-site for the defendant. The claimant sought to appeal an arbitration award. . .
Cited – Athletic Union of Constantinople v National Basketball Association and Others CA 28-May-2002
A party had been refused leave to appeal against an arbitration under the Act by the judge, but later obtained leave to appeal.
Held: Such leave could only be granted by the trial judge, and the Court of Appeal could set aside the leave . .
Cited – ASM Shipping Ltd of India v TTMI Ltd of England CA 16-Oct-2006
The court at first instance had dismissed the ship-owner’s application to set aside the arbitration award, and then refused leave to appeal. The court of appeal had to consider whether it had jurisdiction itself to hear an application for leave.
Cited – Cetelem Sa v Roust Holdings Ltd CA 24-May-2005
The parties were engaged in arbitration proceedings. The claimant had sought and obtained an interim mandatory order intended to prevent the defendant dissipating its assets in anticipation of an adverse ruling. The defendant sought leave to appeal. . .
Cited – Arab African v Olieprodukten 1983
By section 3(1) of the 1979 Act, the High Court was precluded from granting permission to appeal on a point of law from an award ‘if the parties to the reference in question have entered into an agreement in writing (in this section referred to as . .
Cited – Circle Freight International Ltd v Medeast Gulf Imports Ltd CA 1988
The court considered the effect of a driver’s behaviour on the ability to claim under his insurance policy, on the basis that his behaviour would constitute ‘wilful misconduct’. Taylor LJ: ‘Mr Malins has sought to argue that although Huggins (the . .
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 – Czarnikow v Roth Schmidt and Co 1922
It is aganst public policy to allow the parties to seek to oust the jurisdiction of the court. An agreement to submit disputes to arbitration does not, apart from statute, take from a party the power to invoke the jurisdiction of the courts to . .
Cited – Stretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.250453

Bunge Sa v Nidera Bv: SC 1 Jul 2015

The court considered the effect of the default clause in a standard form of contract which is widely used in the grain trade. On 10 June 2010 the respondents, Nidera BV, whom I shall call ‘the buyers’, entered into a contract with the appellants, Bunge SA (‘the sellers’), to buy 25,000 metric tonnes (+/- 10% in buyer’s option) of Russian milling wheat crop 2010, FOB Novorossiysk. The shipment period was August 2010, but there were provisions for narrowing that period by notice. In the event it was narrowed to 23-30 August 2010. The contract incorporated GAFTA Form 49 (as in effect from 1 January 2006), which is the standard form of FOB sale contract of the Grain and Feed Trade Association, for goods delivered from central or Eastern Europe in bulk or bags.
Held: The compensatory principle established in The Golden Victory is not limited to instalment contracts, and the GAFTA Appeal Board was in error in thinking that it was.
Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Toulson
[2015] UKSC 43, [2015] WLR(D) 283, [2015] 3 All ER 1082, [2015] BUS LR 987, UKSC 2014/0019
Bailii, Bailii Summary, SC, SC Summary, WLRD
Sale of Goods Act 1979 51
England and Wales
Citing:
Cited – Maredelanto Compania Naviera SA v BergbauHandel GmbH (The Mihalis Angelos) CA 1-Jul-1970
mihalisCA1970
The parties had agreed a charterparty. The ship was to sail to Haiphong to load a cargo for delivery in Europe. The charterer had a right to cancel if the vessel was not ready on a certain date, but a few days earlier they repudiated the charter. . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishika Kaisha; ‘the Golden Victory’ CA 18-Oct-2005
Measurement of damages for repudiatory breach.
The parties had entered into a charter which was intended to last seven years. The charterers broke the charterparty. A war later occurred which would have cut the contract short in any event.
At First Instance – Bunge Sa v Nidera Bv ComC 29-Jan-2013
The Court was asked: ‘2.1 Is the application of the GAFTA prohibition clause limited to a case where it can be seen after the event that performance of the contract has in fact been prevented by the prohibition in question?
2.2. Does the GAFTA . .
Appeal from – Bunge Sa v Nidera Bv CA 12-Dec-2013
The court heard an appeal from an order upholding an award made by the Board of Appeal of the Grain and Feed Trade Association concerning the effect of the Prohibition clause in the GAFTA standard form of contract for delivery on f.o.b. terms of . .
Cited – Howie v Anderson 1848
The court considered the approach of the Scots courts to anticipatory breach of contract, or renunciation. . .
Cited – Robinson v Harman 18-Jan-1848
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where . .
Cited – Hochster v De La Tour QBD 25-Jun-1853
The plaintiff said that the defendant had given him a contract to travel with him and to act as the defendant’s courier, but then changed his mind. The plaintiff obtained another engagement to start before the proposed term. The defendant said there . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Garnac Grain Co Inc v HMF Faure and Fairclough PC 1967
The Board was asked what was necessary to establish the raltionship of principal and agent.
Held: In the essence of agency is the element of consent.
Where there is an available market for the goods, the market price is determined as at . .
Cited – Jamal v Moolla Dawood, Sons and Co PC 3-Nov-1915
The plaintiff claimed damages from the buyer for his failure to accept shares contracted to be taken on a particular date. Two months after that date the sellers began to re-sell the shares on a rising market.
Held: Damages for breach of . .
Cited – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .
Cited – Modern Engineering (Bristol) Ltd v Gilbert Ash (Northern) Ltd HL 1974
The court considered how to construe a clause in a contract which excluded a remedy provided by law. Lord Diplock said: ‘It is, of course, open to parties to a contract . . to exclude by express agreement a remedy for its breach which would . .
Cited – Tai Hing Cotton Mill Limited v Kamsing Knitting Factory (A Firm) PC 27-Jul-1977
(Hong Kong) The buyer brought an action for damages for breach of a contract for the sale of goods. The measure of damages was the difference between the contract price and the market value of the goods at the relevant date. The evidence called at . .
Cited – Koch Marine Inc v D’Amica Societa Di Navigazione ARL (The Elena d’Amico) QBD 1980
The ship owners wrongfully repudiated a charterparty in March 1973, 14 months after its inception. The charterers did not hire a substitute but claimed damages for the loss of profits they would have made between January and April 1974, during which . .
Cited – Bem Dis A Turk Ticaret S/A Tr v International Agri Co Ltd; ‘SELDA’ ComC 31-Oct-1997
The seller had repudiated a CandF contract containing a GAFTA default clause, which did not include any provision allowing the recovery of expenses occasioned by the breach. The buyers made no claim for damages based on the difference between the . .
Cited – Novasen Sa v Alimenta Sa ComC 27-Feb-2013
Arbitration appeal raising issues concerning the construction and application of the FOSFA Prohibition and Default Clauses, and the relevance of subsequent events to the assessment of damages in accordance with common law principles. . .

Cited by:
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.549904

WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc: CA 2 Apr 2007

The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the agreement, challenging whether damages under Wrotham Park could properly be awarded for conduct ended by an injunction.
Held: ‘on a claim by a covenantee for an injunction and damages against a covenantor who has acted in breach of a restrictive covenant, the court may, in addition to granting an injunction to restrain further breaches, award damages in respect of past breaches notwithstanding that the covenantee cannot establish actual financial loss. In such a case the damages in respect of past breaches may be in an amount assessed as the sum which the court considers it would have been reasonable for the covenantor to pay and the covenantee to accept for the hypothetical release of the covenant. ‘ and (obiter) ‘in a case where a covenantor has acted in breach of a restrictive covenant, the court may award damages on the Wrotham Park basis, notwithstanding that there is no claim for an injunction – and notwithstanding that there could be no claim for an injunction. ‘
Chadwick LJ, Maurice Kay LJ, Wilson LJ
[2007] EWCA Civ 286, [2008] 1 All ER 74, [2008] 1 All ER (Comm) 129, [2008] 1 WLR 445, [2007] Bus LR 1252
Bailii
England and Wales
Citing:
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
First Instance – Liability – WWF -World Wide Fund for Nature (Formerly World Wildlife Fund), World Wildlife Fund Inc v World Wrestling Federation Entertainment Inc ChD 1-Oct-2001
The Fund sought summary relief against the use of the sign ‘WWF’ by the defendants, in breach of a contract. The defendants urged that the contract operated in restraint of trade. There had been long running and widespread trade mark disputes, . .
Cited – Experience Hendrix LLC v PPX Enterprises Inc and Another CA 20-Mar-2003
The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form . .
Appeal from – WWF-World Wide Fund for Nature and Another v World Wrestling Federation Entertainment Inc ChD 16-Feb-2006
. .
Cited – Tilling v Whiteman HL 1980
Lord Scarman said: ‘Preliminary points of law are too often treacherous short cuts. Their price can be, as here, delay, anxiety and expense.’
Lord Wilberforce said: ‘The judge took what has turned out to be an unfortunate course. Instead of . .
Cited – Surrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Gafford v A H Graham and Grandco Securities Limited CA 8-Apr-1998
A land owner who was aware of his rights under a restrictive covenant, and who stood by whilst a riding school was erected in breach of the covenant, was not later to be allowed injunctive mandatory relief to enforce the covenant, by virtue of his . .
Cited – Amec Developments Limited v Jury’s Hotel Management (UK) Limited 2001
A hotel had been built so as to encroach across a building line in breach of covenant, allowing the hotel to have 25 more rooms than it would otherwise have enjoyed. The court considered conflicting evidence as to the capital value of the additional . .
Cited – Shaw v Applegate CA 1977
There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and . .
Cited – Combe v Combe CA 1951
The defendant husband had promised his wife to allow her andpound;100 a year free of tax, without his wife furnishing any consideration for the promise. On his failing to pay, she sued on the promise.
Held: Her claim failed. The court declined . .
Cited – Tool Metal Manufactuing Company Ltd v Tungsten Electric Company Ltd HL 16-Jun-1955
The principle in Hughes v Metropolitan Railway could apply to a reduction by concession in payments due to a creditor and a concession could be terminated by giving reasonable notice. . .
Cited – Director of Public Prosecutions v Beard HL 1920
The accused raped a girl aged thirteen whilst he was drunk. He placed his hand over her mouth to stop her screaming, but without any intention of injuring her. He caused her death by suffocation, and was convicted of murder. It was argued on his . .
Cited – Foley v Classique Coaches Ltd CA 1934
The sellers had sold to the buyers a piece of land to use in the latter’s business as coach proprietors, and also contracted with them to supply all the petrol required for that business ‘at a price to be agreed by the parties in writing and from . .
Cited – Bracewell v Appleby ChD 1975
The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .
Cited – Surrey County Council and Mole District Council v Bredero Homes Ltd ChD 1992
Land was agreed to be sold for development in accordance with an existing planning permission. Instead a later permission was obtained, and more houses were built. The plaintiff had not sought to restrain or prevent the breach, but now sought . .
Cited – Jaggard v Sawyer CC 1993
(Weymouth County Court) The court refused an injunction to a land owner who complained that a neighbour had erected a building over a right of way. The court awarded damages of andpound;694.44, being a proportionate part of the the sum he might be . .
See Also – WWF – World Wide Fund for Nature (Formerly World Wildlife Fund); World Wildlife Fund Inc v World Wrestling Federation Entertainment Inc CA 27-Feb-2002
The claimant sought enforcement of a contract restricting the use by the appellant defendant of the initials ‘WWF’ in their trading. The agreement had been reached in settlement of an action for breach of the claimant’s trade mark rights. The . .
See Also – World Wide Fund for Nature (Formerly World Wildlife Fund), World Wildlife Fund Incorporated v World Wrestling Federation Entertainment Incorporated – Intervener Jakks Pacific Llc CA 27-Mar-2003
. .

Cited by:
Cited – Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.250684

Vercoe and Others v Rutland Fund Management Ltd and Others: ChD 5 Mar 2010

Claim in respect of a management buy-in transaction in relation to a company which carried on business as a pawnbroker.
Sales J
[2010] EWHC 424 (Ch), [2010] WLR (D) 68, [2010] Bus LR D141
Bailii, WLRD
England and Wales
Cited by:
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.402543

Bunge Sa v Nidera Bv: CA 12 Dec 2013

The court heard an appeal from an order upholding an award made by the Board of Appeal of the Grain and Feed Trade Association concerning the effect of the Prohibition clause in the GAFTA standard form of contract for delivery on f.o.b. terms of goods from Central and Eastern Europe in bulk or bags, generally known as Gafta 49.
Held: The sellers abandoned their arguments on mitigation. On the remaining issues, the Court affirmed the decision below.
Moore-Bick, Floyd, Chrisopher Clarke LJJ
[2013] EWCA Civ 1628, [2014] 1 Lloyd’s Rep 404
Bailii
England and Wales
Citing:
Appeal from – Bunge Sa v Nidera Bv ComC 29-Jan-2013
The Court was asked: ‘2.1 Is the application of the GAFTA prohibition clause limited to a case where it can be seen after the event that performance of the contract has in fact been prevented by the prohibition in question?
2.2. Does the GAFTA . .

Cited by:
Appeal from – Bunge Sa v Nidera Bv SC 1-Jul-2015
The court considered the effect of the default clause in a standard form of contract which is widely used in the grain trade. On 10 June 2010 the respondents, Nidera BV, whom I shall call ‘the buyers’, entered into a contract with the appellants, . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.518934

Clough Mill Ltd v Martin: CA 1984

The plaintiff had supplied yarn to a company H on terms that the goods were to remain its property until paid for in full, although H was granted the power to sell the goods or use them for the purpose of manufacturing products. The terms also provided that if any payment were overdue the plaintiff could recover or resell the goods and enter H’s premises for that purpose. When the defendant was appointed receiver of H the plaintiff informed him that it wished to repossess the unused yarn and asked to be allowed to collect it. The defendant refused on the grounds that the retention of title clause amounted to a charge to secure payment and was void for non-registration.
Held: Property in the yarn had not passed to H, which could not therefore have created a charge in favour of the plaintiff. Robert Goff LJ, and to a lesser extent Oliver LJ, assumed that the contract under which the yarn had been supplied was a contract for the sale of goods to which the Sale of Goods Act applied.
Sir John Donaldson MR, Oliver and Robert Goff LJJ
[1985] 1 WLR 111, (1984) 128 SJ 850, [1984] 3 All ER 962, (1985) 82 LS Gaz 116
England and Wales
Citing:
Appeal from – Clough Mill Ltd v Martin 1984
. .

Cited by:
Cited – PST Energy 7 Shipping Llc Product Shipping and Trading SA v OW Bunker Malta Ltd and Others CA 22-Oct-2015
The oil owners had contracted for its transport with OWBM aboard Res Cogitans under standard terms which would allow the captain to use the oil for navigation before transfer of the title in the oil. The court was now asked whether the agreement . .

These lists may be incomplete.
Updated: 14 July 2021; Ref: scu.617854

Hick v Raymond and Reid: HL 1893

The House was asked whether the consignee of a cargo was in breach of a contractual obligation to discharge the relevant vessel within a reasonable time, that is to say, a single obligation to do something within a reasonable time, rather than an obligation to do a number of things, where there was a single cause of delay, namely a strike of dockworkers, over which the consignee had no control and the effect of which, while it lasted, was to prevent totally performance of the obligation.
Held: Lord Herschell: ‘The bills of lading in the present case contained no such stipulation [as to time for performance], and, therefore, in accordance with ordinary and well-known principles the obligation of the respondents was that they should take discharge of the cargo within a reasonable time. The question is, has the appellant proved that this reasonable time has been exceeded? This depends upon what circumstances may be taken into consideration in determining whether more than a reasonable time was occupied . . The appellant’s contention is, that inasmuch as the obligation to take discharge of the cargo, and to provide the necessary labour for that purpose, rested upon the respondents, the test is what time would have been required for the discharge of the vessel under ordinary circumstances, and that, inasmuch as they have to provide the labour, they must be responsible if the discharge is delayed beyond that period. The respondents on the other hand contend that the question is not what time would have been necessary or what time would have been reasonable under ordinary circumstances, but what time was reasonable under existing circumstances, assuming that, in so far as the existing circumstances were extraordinary, they were not due to any act or default on the part of the respondents. My Lords, there appears to me to be no direct authority upon the point, although there are judgments bearing on the subject to which I will presently call attention. I would observe, in the first place, that there is of course no such thing as a reasonable time in the abstract. It must always depend upon circumstances. Upon ‘the ordinary circumstances’ say the learned counsel for the appellant. But what may without impropriety be termed the ordinary circumstances differ in particular ports at different times of the year. As regards the practicability of discharging a vessel they may differ in summer and winter. Again, weather increasing the difficulty of, though not preventing, the discharge of a vessel may continue for so long a period that it may justly be termed extraordinary. Could it be contended that in so far as it lasted beyond the ordinary period the delay caused by it was to be excluded in determining whether the cargo had been discharged within a reasonable time? It appears to me that the appellant’s contention would involve constant difficulty and dispute, and that the only sound principle is that the ‘reasonable time’ should depend on the circumstances which actually exist. If the cargo has been taken with all reasonable despatch under those circumstances I think the obligation of the consignee has been fulfilled. When I say the circumstances which actually exist, I, of course, imply that those circumstances, in so far as they involve delay, have not been caused or contributed to by the consignee. I think the balance of authority, both as regards the cases which relate to contracts by a consignee to take discharge, and those in which the question what is a reasonable time has had to be answered when analogous obligations were under consideration, is distinctly in favour of the view taken by the Court below.’ Lord Watson: ‘When the language of a contract does not expressly, or by necessary implication, fix any time for the performance of the contractual obligation, the law implies that it shall be performed within a reasonable time. The rule is of general application, and is not confined to contracts for the carriage of goods by sea. In the case of other contracts the condition of reasonable time has been frequently interpreted; and has invariably been held to mean that the party upon whom it is incumbent duly fulfils his obligation, notwithstanding protracted delay, so long as such delay is attributable to causes beyond his control, and he has neither acted negligently nor unreasonably.’
Lord Watson said: ‘When the language of a contract does not expressly, or by necessary implication, fix any time for the performance of a contractual obligation, the law implies that it shall be performed within a reasonable time. The rule is of general application, and is not confined to contracts for the carriage of goods by sea. In the case of other contracts the condition of reasonable time has been frequently interpreted; and has invariably been held to mean that the party upon whom it is incumbent duly fulfils his obligation, notwithstanding protracted delay, so long as such delay is attributable to causes beyond his control, and he has neither acted negligently nor unreasonably.’
Lord Herschell LC
[1893] AC 22
England and Wales
Cited by:
Cited – Astea (UK) Ltd v Time Group Ltd TCC 9-Apr-2003
The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
Cited – Peregrine Systems Ltd v Steria Ltd CA 14-Mar-2005
The claimant provided computer software to the defendants. The defendants appealed dismissal of their defences arguing that the system had failed.
Held: No repudiatory breach was established, and moreover Steria had elected to affirm the . .
Cited – Shawton Engineering Ltd v Dgp International Ltd (T/A Design Group Partnership) and Another CA 18-Nov-2005
There had been a very substantial construction project, in which certain facets of design were sub-contracted and sub-contracted again to the parties. There were substantial delays and a sub-contractor purported to terminate the contract for failing . .
Cited – Coulson v Newsgroup Newspapers Ltd QBD 21-Dec-2011
coulson_NIQBD2011
The claimant had been employed by the defendant as editor of a newspaper. On leaving they entered into an agreement which the claimant said required the defendant to pay his legal costs in any action arising regarding his editorship. The defendant . .

These lists may be incomplete.
Updated: 12 July 2021; Ref: scu.223517

M and C Energy Group Ltd v St Cuthbert’s Mill: Admn 14 Mar 2013

Sir Raymond Jack
[2013] EWHC 571 (Admin)
Bailii
England and Wales

Updated: 09 July 2021; Ref: scu.471740

Britan v Rossiter: 1879

A contract which fails to meet the standards required under the Act is not not void, but is merely unenforceable.
References: (1879) 11 QBD 123
Statutes: Statute of Frauds 1677 3
Jurisdiction: England and Wales
This case is cited by:

Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
(Gazette 14-Jul-99, Times 08-Jul-99, , [1999] EWCA Civ 1680, [1999] 1 WLR 1217, [2000] Ch 162, [1999] EGCS 92, , [1999] EWCA Civ 3006, [2000] 1 All ER 711)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193606

A Roberts and Co Ltd v Leicestershire County Council: ChD 1961

The court considered the circumstances required for rectification of a contract after a unilateral mistake. Pennycuick J said: ‘a party is entitled to rectification of a contract upon proof that he believed a particular term to be included in the contract, and that the other party concluded the contract with the omission or a variation of that term in the knowledge that the first party believed the term to be included. . . The principle is stated in Snell on Equity, 25th edition (1960), p 569 as follows: ‘By what appears to be a species of equitable estoppel, if one party to a transaction knows that the instrument contains a mistake in his favour but does nothing to correct it, he (and those claiming under him) will be precluded from resisting rectification on the ground that the mistake is unilateral and not common.”
References: [1961] Ch 555, [1961] 2 All ER 545
Judges: Pennycuick J
Jurisdiction: England and Wales
This case is cited by:

Approved – Riverlate Properties Ltd v Paul CA 1974 ([1975] Ch 133, [1974] 2 All ER 656)
A lessor sought to have the lease rectified against the tenant, saying the tenant had sufficient knowledge of the error in the lease to permit that remedy.
Held: The tenant had no such knowledge as would have brought the doctrine into play. In . .
Cited – George Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005 (, [2005] EWCA Civ 77, Times 16-Feb-05, [2005] BLR 135)
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
Cited – Thomas Bates and Sons Ltd v Wyndham’s Lingerie Ltd CA 21-Nov-1980 ([1981] 1 WLR 505, , [1980] EWCA Civ 3, [1981] 1 All ER 1077)
An application was made for rectification of a rent review clause in a lease. When executing the lease, the tenants’ officer, Mr Avon, noticed that the rent review clause in the lease drafted by the landlords was defective in not including a . .
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019 (, [2019] EWCA Civ 1361)
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.222559

Triple Point Technology, Inc v PTT Public Company Ltd: TCC 17 Jan 2018

References: [2018] EWHC 45 (TCC)
Links: Bailii
Coram: Jefford J
Ratio:
Jurisdiction: England and Wales

Last Update: 26 February 2019
Ref: 602980

Berezovsky v Hine and Others: ComC 7 Jul 2011

References: [2011] EWHC 1718 (Comm)
Links: Bailii
Coram: Mann, GlosterJJ
Ratio: Order on defendant’s application for strike out of parts of the claim against them
Jurisdiction: England and Wales

Last Update: 17 February 2019
Ref: 578050

Parsons Corporation and others v CV Scheepvaartonderneming Happy Ranger”: ComC 9 Feb 2006″

References: [2006] EWHC 122 (Comm)
Links: Bailii
Coram: Mrs Justice Gloster DBE
Ratio: A large cylinder part was damaged as it was being loaded on board the Happy Ranger in Italy. A hook on the crane was brittle and did not meet the approriate specification. It had not been tested as required.
This case cites:

Cited – W. Angliss v Peninsular and Oriental Steam Navigation Co ([1927] 1 KB 456)
Wright J held: ‘The Carriage of Goods by Sea Acts have introduced a new and obligatory code of responsibilities and immunities as affecting carriers under bills of lading in place of the former rule that carriers by sea, while generally under the . .
Cited – Northern Shipping Company v Deutsche Seereederei Gmbh and others (‘The Kapitan Sakharov’) CA (Bailii, [2000] EWCA Civ 400, [2000] 2 Lloyd’s Law Rep 255)
A carrier: (a) should not be exposed to an infinite liability in time; and (b) is not, without more, liable for latent defects in a vessel before it acquired it. The relevant failure to exercise due diligence must relate to the performance of a . .
Cited – Riverstone Meat Co Pty Ltd v Lancashire Shipping Co (‘The Muncaster Castle’) HL ([1961] AC 807)
Persons employed by a carrier in the work of keeping or making a vessel seaworthy are the carrier’s agents whose diligence or lack of it is attributable to the carrier. A shipowner’s or carrier’s duty under Article III, Rule 1 would not start and he . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 14-Apr-17
Ref: 238654

Perrymans case: 1599

References: (1599) 5 Co Rep 846
Ratio: As between grantor and grantee, a deed delivered in escrow is to be regarded as a valid transaction which was effective to pass the title to the grantee as at the date of the escrow.
This case cites:

See Also – Perryman’s Case (Commonlii, [1572] EngR 284, (1572-1616) 5 Co Rep 84, (1572) 77 ER 181)
. .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 30-Nov-16
Ref: 252346

Hollierv Rambler Motors (AMC) Ltd: 1972

References: [1972] 2 QB 71
Coram: Salmon LJ
Ratio: When construing a clause: ‘in the end you are driven back to construing the clause in question to see what it means’
This case cites:

Restricted – Canada Steamship Lines Ltd v The King PC ([1952] AC 192)
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .

(This list may be incomplete)
This case is cited by:

Cited – Stent Foundations Ltd v M J Gleeson Group Plc TCC (Bailii, [2000] EWHC Technology 66)
The defendant company sought to rely upon an exemption clause.
Held: Applying standard rules for contract interpretation, the exemption clause was to be construed against the one proposing it. At best the clause was ambiguous, and the . .
Dicta approved – Smith v South Wales Switchgear HL ([1978] 1 WLR 165)
The principles set out in Canada Steamship apply to ‘clauses which purport to exempt one party to a contract from liability’. The principles should be applied without ‘mechanistic construction’. Lord Keith of Kinkel: The tests were guidelines, but . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL (House of Lords, Bailii, [2003] UKHL 6, [2003] 1 All ER Comm 349, [2003] 2 Lloyd’s Law Reports 61, [2004] ICR 1708, [2003] Lloyds Rep IR 230, [2003] 1 CLC 358)
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 . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 17-Nov-16
Ref: 195686

Rushforth And Others, Assignees of Rushforth, v Hadfield And Others; 8 Feb 1806

References: [1806] EngR 70, (1806) 7 East 224, (1806) 103 ER 86
Links: Commonlii
Ratio: A general lien is regarded in law as an exception, rather than the rule, because it advantages one creditor, otherwise unsecured, over the general body of unsecured creditors.
Where no lien exists at common law, it can arise by contract with the particular party, either express or implied: it may be implied either from previos dealings between the same parties upon the footing of such a lien, or even from a usage of the trade so general as that the jury must reasonably presume that the parties knew of and adopted it in their dealing. But where as in the case of a common carrier claiming a lien for his general balance, such a lien is against the policy of the common law and the custom of the realm, which only gives him a lien for the carriage price of the particular goods, there ought to be very trong evidence of a general usage for suh a lien to induce a jury to infer the knowlede and adoption of it by the particular parties in their contract ; and the jury having negatived such a general usage, though proved to have been frequently exercised by the defenants and various other common carriers throghout the north for 10 or years before, and in one instance so far back as 30 years, though not opposed by other evidence, the Court refused to grant a new trial.
This case cites:

See Also – Rushforth And Another, Assignees of B And W Rushforth v Hadfield And Others (Commonlii, [1805] EngR 204, (1805) 6 East 519, (1805) 102 ER 1386)
The lien of a common carrier for his general balance, however it may arise in point of law from an implied agreement to be inferred from a general usage of trade, proved by clear and satisfactory instances sufficiently numerous and general to . .

(This list may be incomplete)

Last Update: 28-Sep-16
Ref: 340858

Rushforth And Another, Assignees of B And W Rushforth v Hadfield And Others; 20 Jun 1805

References: [1805] EngR 204, (1805) 6 East 519, (1805) 102 ER 1386
Links: Commonlii
Ratio: The lien of a common carrier for his general balance, however it may arise in point of law from an implied agreement to be inferred from a general usage of trade, proved by clear and satisfactory instances sufficiently numerous and general to warrant so extensive a conclusion affecting the custom of the realm, yet is not to be favoured, nor can be supported by a few recent instances of detention of goods by four or five carriers for their general balance. But such a lien may be inferred from evidence of the particular mode of dealing between the respective parties.
This case is cited by:

See Also – Rushforth And Others, Assignees of Rushforth, v Hadfield And Others (Commonlii, [1806] EngR 70, (1806) 7 East 224, (1806) 103 ER 86)
A general lien is regarded in law as an exception, rather than the rule, because it advantages one creditor, otherwise unsecured, over the general body of unsecured creditors.
Where no lien exists at common law, it can arise by contract with . .

(This list may be incomplete)

Last Update: 28-Sep-16
Ref: 343277

Cambridge Antibody Technology v Abbott Biotechnology Ltd and Another; Patc 20 Dec 2004

References: [2004] EWHC 2974 (Pat), [2005] FSR 590
Links: Bailii
Coram: Laddie J
Ratio: Rectification of an agreement was sought.
Held: Laddie J rejected a submission that evidence of the subjective state of mind of one of the parties contained in statements which had not been communicated to the other party (‘crossed the line’) was inadmissible. I
This case is cited by:

Principal Judgment – Cambridge Antibody Technology v Abbott Biotechnology Ltd and Another ([2005] EWHC 357 (Ch))
. .
Cited – Daventry District Council v Daventry & District Housing Ltd CA (Bailii, [2011] EWCA Civ 1153, [2012] 2 All ER (Comm) 142, [2012] Pens LR 57, [2012] 1 P & CR 5, [2011] 42 EG 120, [2012] 1 WLR 1333, [2012] Bus LR 485)
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents.
Held: . .

(This list may be incomplete)

Last Update: 02-Sep-16
Ref: 227185

Smart And Another v Sandars And Others; 6 Jul 1846

References: [1846] EngR 865, (1846) 3 CB 380, (1846) 136 ER 152
Links: Commonlii
Ratio: The mere relation of principal and factor confers, ordinarily, an authourity to sell at such times and for such prices as the factor may, in the exercise of his discretion, think best for his employer: but, if he receive the goods subject to any special instructions, he is bound to obey them. The authority, whether general or special, is revocable. Quaere, whether the factor’s authority to sell can be revoked after he has made advances upon the credit of the goods consigned to him, his authority then being coupled with an interest? In assumpsit, the declaration stated that the plaintiffs had consigned wheat to the defendants, who were corn factors, for sale on account of the plaintiffs ; that the defendants then promised the plaintiffs to obey and observe the lawful orders and directions of the plaintiffs to be given by them to the defendants in regard to the sale and disposal of the wheat, and that, although the plaintiffs ordered the defendants not to sell below a certain price, and although the same was a lawful order and direction in that behalf, yet the defendants, not regarding their promise, sold at a less price. Plea, that, after the delivery of the wheat to the defendants, they became and were under advances to the plaintiffs in respect thereof ; that they gave the plaintiffs notice that they required to be repaid such advances, and that in default they should sell the wheat and repay themselves; and that, although a reasonable time had elapsed, the plaintiffs did not repay them such advances ; whereupon the defendants, for the purpose of reimbursing themselves, sold the wheat for the best prices that could then be obtained for the same, &c. Held, that the plea was bad in substance, there being nothing in the transaction disclosed upon the record, from which it could be inferred that it was part of the contract that at any time the wheat should be forfeited, or the defendant’s authority to sell enlarged, so as to enable them to sell for repayment of advances, without reference to its being for the interest of the principals to sell at that particular time, and for that price.
This case is cited by:

Appeal from – Smart & another v Sandars & Others CCP ((1848) 5 CB 895, [1848] EngR 499, Commonlii, (1848) 136 ER 1132)
A factor to whom goods have been consigned generally for sale, and who has subsequently made advances to his principal on the credit of the goods, has no right to sell them, contrary to the orders of his principal, on the latter neglecting, on . .

(This list may be incomplete)

Last Update: 31-Aug-16
Ref: 302760

Laythoarp v Bryant; 30 Apr 1936

References: [1836] 3 Scott 238, [1836] EngR 652, (1836) 2 Bing NC 735, (1836) 132 ER 283
Links: Commonlii
Coram: Tindal CJ
Ratio: The Defendant purchased certain leasehold premises at an auction, and signed a memorandum of the purchase on the back of a paper containing the particulars of the premises, the name of the owner, and the conditions of sale: Held, that the Defendant was bound by his contract, notwithstanding it was not signed by the vendor.
Tindal CJ defined ‘consideration’: ‘Any act of the plaintiff from which the defendant derives a benefit or advantage, or any labour, detriment, or inconvenience sustained by the plaintiff,provided such act is performed or such inconvenience suffered by the plaintiff, with the consent, either express or implied, of the defendant.’
This case cites:

Appeal from – Laythoarp v Bryant (, Commonlii, [1835] EngR 383, (1835) 1 Bing NC 421, (1835) 131 ER 1179)
Plaintiff put up to sale by auction a lease of premises, which he occupied as assignee of the lease, stipulation not to produce any title prior to the lease. In an action against a purchaser for not completing his purchase, in which action Plaintiff . .

(This list may be incomplete)
This case is cited by:

Cited – Carlill v Carbolic Smoke Ball Co CA ([1893] 1 QB 256, [1892] 4 All ER Rep 127, [1892] 62 LJ QB 257, [1892] 67 LT 837, [1892] 57 JP 325, [1892] 41 WR 210, [1892] 9 TLR 124, [1892] 4 R 176, lip, Hamlyn, Justis, Bailii, [1892] EWCA Civ 1)
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘£100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .

(This list may be incomplete)

Last Update: 29-Aug-16
Ref: 267731

Turner v Bladin; 20 Apr 1951

References: (1951) 82 CLR 463, [1951] HCA 13
Links: Austlii
Coram: Williams, Fullagar, and Kitto JJ
Ratio: Austlii (High Court of Australia) Contract – Specific performance – Outstanding obligations on either side – Contract of sale completely performed by vendor – Decree of specific performance against purchaser to enforce payment of purchase price.
Statute of Frauds – Action – Debt – Sale of interest in land – Contract not evidenced by writing – Consideration fully executed by vendor – Action by vendor in indebitatus assumpsit to recover purchase price or instalments thereof – Instruments Act 1928-1936 (No. 3706 – No. 4370) (Vict.), s. 128.

Last Update: 29-Aug-16
Ref: 395052

Alati v Kruger; 29 Nov 1955

References: (1955) 94 CLR 216, [1955] HCA 64, [1955] ALR 1047
Links: Austlii
Coram: Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ
Ratio: (High Court of Australia) The remedy of rescission is only available if the parties can be returned to their respective positions before the contract was made. Dixon CJ said: ‘It is not that equity asserts a power by its decree to avoid a contract which the defrauded party himself has no right to disaffirm, and to revest property the title to which the party cannot affect. Rescission from misrepresentation is always the act of the party himself . . The function of a court in which proceedings for rescission are taken is to adjudicate upon the validity of a purported disaffirmance as an act avoiding the transaction ab inito, and, if it is valid, to give effect to it and make appropriate consequential orders . . The difference between the legal and the equitable rules on the subject simply was that equity, having means which the common law lacked to ascertain and provide for the adjustments necessary to be made between the parties in cases where a simple handing back of property or repayment of money would not put them in as good a position as before they entered into their transaction, was able to see the possibility of restitutio in integrum, and therefore to concede the right of a defrauded party to rescind, in a much wider variety of cases than those which the common law could recognize as admitting of rescission.’ and
‘When a contract is rescinded by reason of a recognised vitiating factor, the contract, as just noted, is set aside from the beginning. In such a case there can be no claim for damages for breach of contract, because in such situations there is no contract. Equally, if a claim is made by the victim for damages for breach of contract, there can be no rescission of the contract as the victim has by suing for breach clearly elected not to rescind.’
This case is cited by:

Approved – O’Sullivan v Management Agency and Music Limited CA ([1985] QB 428, (1984) 2 IPR 499, [1984] 3 WLR 448, [1985] 3 All ER 351)
The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the . .

(This list may be incomplete)

Last Update: 29-Aug-16
Ref: 470685

Birmingham v Renfrew; 11 Jun 1937

References: (1937) 57 CLR 666, [1937] HCA 52
Links: Austlii
Coram: Dixon J, Latham CJ
Ratio: (High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as ‘a trust which is declared by the law to affect the conscience of [the survivor’s] executor and of the volunteers who are devisees or legatees under his will.’
Dixon J set down the principles for mutual wills: ‘It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will he undertook would be his last will . . The purpose of an arrangement for corresponding wills must often be, as in this case, to enable the survivor during his life to deal as absolute owner with the property passing under the will of the party first dying. That is to say, the object of the transaction is to put the survivor in a position to enjoy for his own benefit the full ownership so that, for instance, he may convert it and expend the proceeds if he choose. But when he dies he is to bequeath what is left in the manner agreed upon. It is only by the special doctrines of equity that such a floating obligation, suspended, so to speak, during the lifetime of the survivor can descend upon the assets at his death and crystallize into a trust. No doubt gifts and settlements, inter vivos, if calculated to defeat the intention of the compact, could not be made by the survivor and his right of disposition, inter vivos, is, therefore, not unqualified. But, substantially, the purpose of the arrangement will often be to allow full enjoyment for the survivor’s own benefit and advantage upon condition that at his death the residue shall pass as arranged.’
This case cites:

Cited – Dufour v Pereira ((1769) 1 Dick 419, (1769) 2 Harg Jurid Arg 304, Commonlii, [1769] EngR 63, (1769) Dick 419, (1769) 21 ER 332)
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
Cited – Re Oldham ([1925] Ch 75)
The court was asked whether an agreement for mutual wills should be inferred. . .

(This list may be incomplete)
This case is cited by:

Cited – Goodchild and Another v Goodchild CA (Times 12-May-97, Bailii, [1997] EWCA Civ 1611, [1997] 3 All ER 63, [1997] 1 WLR 1216)
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – In re Cleaver dec’d, Cleaver v Insley ChD ([1981] 1 WLR 939, [1981] 2 All ER 1018)
Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
Nourse J said: ‘The principle of all these cases is that a court of . .
Cited – Goodchild v Goodchild ChD (Times 22-Dec-95, Ind Summary 08-Jan-96, [1996] 1 WLR 694)
The husband and wife had made mirror wills. They divorced, and the husband made a new will. After his death, the child and the third wife of the deceased made a claim against the second wife.
Held: The wills were in identical terms, but . .
Cited – The Thomas and Agnes Carvel Foundation v Carvel and Another ChD (Bailii, [2007] EWHC 1314 (Ch), [2007] 4 All ER 81)
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
Cited – Walters v Olins CA (Bailii, [2008] EWCA Civ 782, [2009] Ch 212, [2009] 2 WLR 1, [2008] WTLR 1449)
The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
Cited – Healey v Brown ChD ([2002] 19 EG 147, Bailii, [2002] EWHC Ch 1405)
The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: . .

(This list may be incomplete)

Last Update: 28-Aug-16
Ref: 183791

Eckstein and Another v Reynolds; 30 May 1837

References: , [1837] EngR 770, (1837) 7 Ad & E 80, (1837) 112 ER 401
Links: Commonlii
Ratio: Defendant’s agent told plaintiff that he had called to tender £8 in settlement of defendant’s account ; plaiiitiff answered that he would take nothing leas than the bill, which defendant’s agent produced at the time, amourttirig to £19. Held, that the question whether this tender was conditional or unconditional, was proper to be Ieft to the jury.

Last Update: 08-Aug-16
Ref: 313887

Reilly v Brodie; SCsf 6 May 2016

References: [2016] ScotSC 36
Links: Bailii
Ratio:

Last Update: 31-Jul-16
Ref: 567230

Lee v Showmen’s Guild of Great Britain: CA 1952

References: [1952] 2 QB 329, [1952] 1 All ER 1175
Coram: Denning LJ, Somervell LJ, Romer LJ
Ratio: Decisions of inferior tribunals, including arbitrators, were reviewable on the basis of general error of law on record for which certiorari might issue. A decision may be reviewable where there was no evidence supporting particular conclusions.
Denning LJ said: ‘The jurisdiction of a domestic tribunal, such as the committee of the Showmen’s Guild, must be founded on a contract, express or implied. Outside the regular courts of this country, no set of men can sit in judgment on their fellows except so far as Parliament authorises it or the parties agree to it.’ and
‘I see no reason why the powers of the court to intervene should be any less in the case of domestic tribunals. In each case it is a question of interpretation. In one of a statute, in the other of the rules, to see whether the Tribunal has observed the law. In the case of statutory tribunals, the injured party has a remedy by certiorari, and also a remedy by declaration and injunction. The remedy by certiorari does not lie to a domestic tribunal but the remedy by declaration and injunction does lie; and it can be as effective as, if not more effective than certiorari. It is, indeed, more effective, because it is not subject to the limitation that the error must appear on the face of the record.’ and
‘The committee cannot extend their jurisdiction by giving a wrong construction to the contract . . no matter how honest they may be. They have only such jurisdiction as the contract on its true interpretation confers on them, not what they think it confers. The scope of their jurisdiction is a matter of the courts.’ and
People have a right, unless expressly or impliedly debarred, to insist for free access to the courts of general jurisdiction of the state: ‘If parties should seek, by agreement, to take the law out of the hands of the courts and put it into the hands of a private tribunal, without any recourse at all to the courts in case of error of law, then the agreement is to that extent contrary to public policy and void.’
Romer LJ said: ‘The proper tribunals for the determination of legal disputes in this country are the courts, and they are the only tribunals which, by training and experience, and assisted by properly qualified advocates, are fitted for the task’
This case is cited by:

Approved – Faramus v Film Artistes’ Association HL ([1964] AC 925, [1964] 1 All ER 25)
Parties to a contract may be bound to act in it according to the rules of natural justice. . .
Cited – Koeller and Another v Coleg Elidyr (Camphill Communities Wales) Ltd CA (Bailii, [2005] EWCA Civ 856, [2005] BCLC 379)
The applicants occupied a house as licensees. An order for possession was made against them. The company was a charitable company set up to provide accomodation in communities for handicapped adults. The workers in the communities were not formally . .
Cited – Regina v The Imam of Bury Park Mosque, Luton and others ex parte Sualiman Ali CA (Times 15-May-93, Independent 13-Sep-93, Bailii, [1993] EWCA Civ 36)
The court had been asked to intervene in an internal dispute as to the role of an Imam in a mosque community.
Held: The request was denied. The case was not one of public law: ‘ the particular function which the Imam was performing affected . .
Cited – Foster v McNicol and Another QBD (Bailii, [2016] EWHC 1966 (QB))
The claimant challenged a decision of the National executice Committee of the Labour Party to allow its present Leader to stand in the election challenging his position without the need for him to submit first the otherwise standard nominations from . .

(This list may be incomplete)

Last Update: 30-Jul-16
Ref: 228474

Peebles and Peebles v Rembrand Builders Merchants Ltd; SCsf 14 Apr 2016

References: [2016] ScotSC 31
Links: Bailii
Ratio:

Last Update: 30-Jul-16
Ref: 567218

Politakis v Spencely and James Scott Ltd; SCsf 6 Apr 2016

References: [2016] ScotSC 27
Links: Bailii
Ratio:

Last Update: 29-Jul-16
Ref: 567215

Simpson v Eggington; 9 Feb 1855

References: (1855) 10 Exch 845, [1855] EngR 220, (1855) 10 Exch 845, (1855) 156 ER 683
Links: Commonlii
Coram: Parke B
Ratio:It is a good answer to a plea of set-off, that the amount has heen paid by a person professing to act as agent for and on account of the plaintiff, though without his authority, and that the latter ratified the act at the time of the trial. The treasurer of a corporation paid their clerk (the defendant) the amount of his year’s salary, both parties believing at the time that the treasurer had the authority of the corporation to make such payment, but the treasurer had no such authority, and the corporation afterwards repudiated the payment and dismissed the defendant from their service. In an action against the deferidatit for the recovery of certain monies paid to him on account of the corporation — Held, that the corporation was entitled, at the trial, to ratify the act of their treasurer, and, consequently, that the defendant could not set off the amount of his salary as due to him from the corporation.
The court found no evidence that as between himself and the landlord, or between himself and the plaintiff, the defendant had acted or purported to act or regarded himself as acting as agent for the plaintiff when making payments of what the tenant claimed had been his rent.
Held: Parke B said: ‘The general rule as to payment or satisfaction by a third person, not himself liable as a co-contractor . . appears to be, that it is not sufficient to discharge a debtor unless it is made by the third person, as agent, for and on account of the debtor and with his prior authority or subsequent ratification.’
This case is cited by:

Applied – Smith v Cox ([1942] 2 KB 558)
The tenant, Mr Smith, refused to pay rent to the elderly landlady, Ms Rolf, because she had not repaired the property. The defendant agent paid the rent from his own pocket, expecting to recover it when the rent was eventually paid. When he failed . .
Cited – Treasure & Son Ltd v Dawes TCC (Bailii, [2008] EWHC 2181 (TCC))
The defendant had been ordered to pay substantial fees to the claimant by the adjudicator. The defendant claimed that payment had been made on his behalf. . .
Cited – Park v Cho and Others ChD (Bailii, [2014] EWHC 55 (Ch), [2014] PTSR 769, [2014] WLR(D) 27, WLRD)
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .

(This list may be incomplete)

Last Update: 21-Jul-16
Ref: 276500

Simpson v Eggington: 1855

References: (1855) 10 Exch 845
Coram: Parke B
Ratio:The court found no evidence that as between himself and the landlord, or between himself and the plaintiff, the defendant had acted or purported to act or regarded himself as acting as agent for the plaintiff when making payments of what the tenant claimed had been his rent.
Held: Parke B said: ‘The general rule as to payment or satisfaction by a third person, not himself liable as a co-contractor . . appears to be, that it is not sufficient to discharge a debtor unless it is made by the third person, as agent, for and on account of the debtor and with his prior authority or subsequent ratification.’
This case is cited by:

Applied – Smith v Cox ([1942] 2 KB 558)
The tenant, Mr Smith, refused to pay rent to the elderly landlady, Ms Rolf, because she had not repaired the property. The defendant agent paid the rent from his own pocket, expecting to recover it when the rent was eventually paid. When he failed . .
Cited – Treasure & Son Ltd v Dawes TCC (Bailii, [2008] EWHC 2181 (TCC))
The defendant had been ordered to pay substantial fees to the claimant by the adjudicator. The defendant claimed that payment had been made on his behalf. . .
Cited – Park v Cho and Others ChD (Bailii, [2014] EWHC 55 (Ch), [2014] PTSR 769, [2014] WLR(D) 27, WLRD)
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .

(This list may be incomplete)

Last Update: 20-Jul-16
Ref: 276500

Celestial Aviation Trading 71 Ltd v Paramount Airways Private Ltd; Comc 11 Feb 2010

References: [2010] EWHC 185 (Comm), [2010] 1 CLC 165
Links: Bailii
Coram: Hamblen J
Ratio:

Last Update: 03-Jul-16
Ref: 396722

Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’): HL 1976

References: [1976] 1 WLR 989, [1976] 2 Lloyd’s Rep 621, [1976] 3 All ER 570
Coram: Lord Wilberforce
Ratio:In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. The real issue is what evidence of surrounding circumstances may ultimately be allowed to influence the question of interpretation. That depends on what meanings the language read against the objective contextual scene will let in. Thirdly, the enquiry is objective: the question is what reasonable persons, circumstanced as the actual parties were, would have had in mind.
Lord Wilberforce commented on the Wooler case saying: ‘I think that all of their Lordships are saying, in different words, the same thing — what the court must do must be to place itself in thought in the same factual matrix as that in which the parties were’.
Lord Wilberforce said: ‘No contracts are made in a vacuum: there is always a setting in which they have to be placed. The nature of what is legitimate to have regard to is usually described as ‘the surrounding circumstances’ but this phrase is imprecise: it can be illustrated but hardly defined. In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.’
This case cites:

Explained – Charrington & Co Ltd -v- Wooler HL ([1914] AC 71)
The court is entitled to know the surrounding circumstances which prevailed when the contract was made. A contract is not to be construed in a vacuum. The term ‘market’ did not have a ‘fixed legal significance’ .
Lord Dunedin said: ‘in order to . .

(This list may be incomplete)
This case is cited by:

Cited – Wilson -v- Secretary of State for Trade and Industry; Wilson -v- First County Trust Ltd (No 2) HL (House of Lords, Gazette 18-Sep-03, Times 11-Jul-03, Bailii, [2003] UKHL 40, [2003] 3 WLR 568, [2004] 1 AC 816, [2003] 2 All ER (Comm) 491, [2003] HRLR 33, [2003] UKHRR 1085, [2003] 4 All ER 97)
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Mannai Investment Co Ltd -v- Eagle Star Assurance HL (Times 26-May-97, House of Lords, Bailii, [1997] 2 WLR 945, [1997] UKHL 19, [1997] AC 749, [1997] 3 All ER 352, [1997] 24 EG 122)
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – Westminster City Council -v- National Asylum Support Service HL (House of Lords, Times 18-Oct-02, Bailii, [2002] UKHL 38, [2002] 1 WLR 2956, [2002] 4 All ER 654, [2002] HLR 58, (2002) 5 CCL Rep 511, [2003] BLGR 23)
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
Cited – Investors Compensation Scheme Ltd -v- West Bromwich Building Society HL (Times 24-Jun-97, House of Lords, Bailii, [1997] UKHL 28, [1998] 1 All ER 98, [1998] 1 WLR 896, [1998] AC 896)
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Youell and Others -v- Bland Welch & Co Ltd and Others CA ([1992] 2 Lloyd’s Rep 127)
The court considered whether an underwiter’s slip was admissible when construing the policy which followed.
Held: Staughton LJ: ‘It is now, in my view, somewhat old-fashioned to approach such a problem armed with the parol evidence rule, that . .
Cited – Bruton -v- London and Quadrant Housing Trust HL (Gazette 14-Jul-99, Times 25-Jun-99, Gazette 21-Jul-99, House of Lords, Bailii, [1999] 3 All ER 481, [2000] 1 AC 406, [1999] UKHL 26, [1999] 2 EGLR 59, [1999] 3 WLR 150, [1999] EG 90, [1999] L & TR 469, (1999) 31 HLR 902, [1999] NPC 73, [1999] 30 EG 91, (1999) 78 P & CR D21)
The claimant sought to oblige the respondent to repair his flat under the 1988 Act. The respondent replied that the arrangement was a licence only, and not protected under the Act.
Held: The housing association had a temporary licence to . .
Cited – Catnic Components Ltd & Another -v- Hill & Smith Ltd HL ([1983] FSR 512, [1982] RPC 183)
The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The defendants had not been in business in this field at all, . .
Cited – Kirin-Amgen Inc and others -v- Hoechst Marion Roussel Limited and others etc HL (House of Lords, [2004] UKHL 46, Bailii, [2005] RPC 169, (2005) 28(7) IPD 28049, [2005] 1 All ER 667)
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Cited – McDowall -v- Inland Revenue SCIT (Bailii, [2003] UKSC SPC00382)
Gifts had been made from an estate, purportedly under a power of attorney. During his lifetime, the deceased had made various gifts to his children. As he begand to suffer Alzheimers, he gave a power of attorney. He had substantial assets, well . .
Cited – Barclays Bank Plc -v- Weeks Legg & Dean (a Firm); Barclays Bank Plc -v- Lougher and Others; Barclays Bank Plc -v- Hopkin John & Co CA (Gazette 28-May-98, Gazette 24-Jun-98, Times 15-Jun-98, Bailii, [1998] EWCA Civ 868, [1998] 3 All ER 213, [1999] QB 309)
The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because . .
Cited – Crancour Ltd -v- Da Silvaesa and Another CA (Bailii, [1986] EWCA Civ 1, [1986] 1 EGLR 80, [1986] 52 P&CR 204, [1986] 18 HLR 265, [1986] 278 EG 618)
The plaintiff sought possession of two rooms in a house occupied by the defendants separately. The agreements stated that they were licences. The agreements excluded the occupiers between 10:30am and noon on each day. The occupiers claimed to be . .
Cited – Persimmon Homes (South Coast) Ltd -v- Hall Aggregates (South Coast) Ltd and Another TCC (Bailii, [2008] EWHC 2379 (TCC))
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
Cited – Islam, Regina -v- HL (Bailii, [2009] UKHL 30, Times, [2009] 3 WLR 1)
The defendant appealed against a confiscation order saying that it should not have been set at values which reflected the black market value of the drugs he had imported.
Held: The appeal failed. The court could take account of the illegal . .
Cited – Berrisford -v- Mexfield Housing Co-Operative Ltd SC ([2011] NPC 115, [2011] 46 EG 105, [2011] 3 WLR 1091, Bailii, [2011] UKSC 32, Bailii Summary, UKSC 2010/0167, SC Summary, SC)
The tenant appealed against an order granting possession. The tenancy, being of a mutual housing co-operative did not have security but was in a form restricting the landlord’s right to recover possession, and the tenant resisted saying that it was . .
Cited – Marley -v- Rawlings and Another SC (Bailii, [2014] UKSC 2, [2014] 2 WLR 213, [2014] WTLR 299, 16 ITELR 642, [2014] 1 All ER 807, [2014] WLR(D) 18, [2014] Fam Law 466, Bailii Summary, WLRD, UKSC 2012/0057, SC Summary, SC)
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Cited – Arnold -v- Britton and Others SC (Bailii, [2015] UKSC 36, [2015] HLR 31, [2016] 1 All ER 1, [2015] WLR(D) 247, [2015] 2 WLR 1593, [2015] AC 1619, Bailii Summary, WLRD, UKSC 2013/0193, SC, SC Summary, SC Video)
A standard lease of plots on a caravan park, contained a probision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: When interpreting a written . .
Cited – Arnold -v- Britton and Others SC (Bailii, [2015] UKSC 36, [2015] HLR 31, [2016] 1 All ER 1, [2015] WLR(D) 247, [2015] 2 WLR 1593, [2015] AC 1619, Bailii Summary, WLRD, UKSC 2013/0193, SC, SC Summary, SC Video)
A standard lease of plots on a caravan park, contained a probision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: When interpreting a written . .

(This list may be incomplete)

Last Update: 02-Jul-16
Ref: 184430

Bromage And Another v Prosser; 2 Jun 1825

References: [1825] EngR 609, (1825) 1 Car & P 673, (1825) 171 ER 1362 (B)
Links: Commonlii
Ratio:Thls case having been again argued, by J L Adolphus, for the plaintiffs, and Campbell, for the defendants, the Court now gave Judgment on the motion for a new trial.
Abbot CJ (after stating the nature of the case) — On the general question, whether on a sale of goods for a specific purpose, a warranty is to be implied that they are resonably fit and proper for that purpose, I continue to be of the same opinion that was expressed by me at the trial, although some of my Brother Judges are as strongly of a contrary opinion We do not, however, feel ourselves called upon to decide that question , for, allowing that a person who sells a commodity fora specific shall be taken, by law, to undertake that it was reasonably fit and proper for that purpose, yet the plaintiffs have not, in this case, declared on that implied warranty, as the declaration states, in general terms, that the defendants undertaok that the copper in question should be good, substantial, and serviceable. Now we are all of opinion, that a warranty to that extent, and in those unqualified terms, could not be implied by law out of the circumstances attending the sale of an article like this, of which the defects were equally unknown to both parties at the time of the sale. The rule must therefore be made absolute.
Rule absolute for a new trial.
This case cites:

See Also – Bromage and Another -v- Prosser (Commonlii, [1824] EngR 822, (1824) 1 Car & P 475, (1824) 171 ER 1280)
Semble, that malice is necessary to ground an action for words ; and that if words be proved to be spoken bona fide and without malice, no action lies for the speaking of them, though they be false and actionable in themselves; and though injury . .
See Also – Bromage And Another -v- Prosser (Commonlii, [1825] EngR 42, (1825) 4 B & C 247, (1825) 107 ER 1051)
Bayley J distinguished ‘malice in law’, inferred from the defendant’s intentional interference with the plaintiff’s rights, from ‘malice in fact’ and Malice in common acceptation of the term means ill-will against a person, but in its legal sense it . .

(This list may be incomplete)

Last Update: 30-Jun-16
Ref: 326700

Bromage and Another v Prosser; 20 Aug 1824

References: [1824] EngR 822, (1824) 1 Car & P 475, (1824) 171 ER 1280
Links: Commonlii
Ratio:Semble, that malice is necessary to ground an action for words ; and that if words be proved to be spoken bona fide and without malice, no action lies for the speaking of them, though they be false and actionable in themselves; and though injury result to the party from the speaking of them – and, semble, that the defendant may, under the general issue, go into evidence to shew that he spoke the words bona fide and without rnalice
This case is cited by:

See Also – Bromage And Another -v- Prosser (Commonlii, [1825] EngR 42, (1825) 4 B & C 247, (1825) 107 ER 1051)
Bayley J distinguished ‘malice in law’, inferred from the defendant’s intentional interference with the plaintiff’s rights, from ‘malice in fact’ and Malice in common acceptation of the term means ill-will against a person, but in its legal sense it . .
See Also – Bromage And Another -v- Prosser (Commonlii, [1825] EngR 609, (1825) 1 Car & P 673, (1825) 171 ER 1362 (B))
Thls case having been again argued, by J L Adolphus, for the plaintiffs, and Campbell, for the defendants, the Court now gave Judgment on the motion for a new trial.
Abbot CJ (after stating the nature of the case) — On the general question, . .

(This list may be incomplete)

Last Update: 30-Jun-16
Ref: 327813

Holman v Johnson; 5 Jul 1775

References: (1775) 1 Cowp 341, [1775] EngR 58, (1775) 98 ER 1120
Links: Commonlii, Commonlii
Coram: Mansfield LCJ
Ratio:Mansfield LCJ set out the principle of ex turpi causa non oritur actio: ‘The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but is founded on general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is on that ground the court goes: not for the sake of the Defendant, but because they will not lend their aid to such a Plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.
The question therefore is, ‘Whether, in this case, the plaintiff’s demand is founded upon the ground of any immoral act or contract, or upon the ground of his being guilty of any thing which is prohibited by a positive law of this country.’
This case is cited by:

Cited – Hall -v- Woolston Hall Leisure Limited CA (Times 31-May-00, Gazette 15-Jun-00, Bailii, [2000] EWCA Civ 170, [2001] ICR 99, [2001] 1 WLR 225, [2000] 4 All ER 787)
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . .
Cited – Colen and Another -v- Cebrian (UK) Limited CA ([2003] EWCA Civ 1676, Bailii, Times 27-Nov-03, Gazette 15-Jan-04, [2004] ICR 568)
The company paid the claimant sales commission. Part was diverted and paid to his wife to reduce the tax payable. The employer had appealed a finding of unfair disamissal, the company arguing that the contract was illegal.
Held: The contract . .
Cited – 21st Century Logistic Solutions Limited (In Liquidation) -v- Madysen Limited QBD ([2004] EWHC 231 (QB), Bailii, Times 27-Feb-04, Gazette 25-Mar-04, [2004] BVC 779, [2004] 2 Lloyds Rep 92, [2004] STC 1535, [2004] STI 497, [2004] BTC 5720)
The vendor sold computers to the defendant, intending not to account to the commissioners for the VAT. The seller went into liquidation, and the liquidator sought payment. The purchaser had been unaware of the intended fraud and resisted payment. . .
Cited – Tinsley -v- Milligan HL (Independent 06-Jul-93, Times 28-Jun-93, [1994] 1 AC 340, Bailii, [1993] UKHL 3, [1993] 3 WLR 126, [1993] 3 All ER 65)
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – Abner Soleimany -v- Sion Soleimany CA (Times 04-Mar-98, Bailii, [1998] EWCA Civ 285)
The parties were Iranian Jews, father and son. The son arranged to export carpets from Iran in contravention of Iranian law. The father and son fell into dispute about their contracts and arranged for the issues to be resolved by the Beth Din . .
Cited – Hyde Park Residence Ltd -v- Yelland, News Group Newspapers Ltd, News International Ltd, Murrell CA (Times 16-Feb-00, Gazette 24-Feb-00, Bailii, [2000] EWCA Civ 37, [2001] Ch 143)
The court considered a dispute about ownership and confidence in and copyright of of video tapes taken by Princess Diana before her death.
Held: The courts have an inherent discretion to refuse to enforce of copyright. When assessing whether . .
Cited – J -v- S T (Formerly J) CA (Bailii, [1996] EWCA Civ 1016, [1998] Fam 103)
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – Chettiar -v- Chettiar PC ([1962] AC 294, Bailii, [1962] UKPC 1, Bailii, [1962] UKPC 4, [1962] 2 WLR 548, [1962] 2 All ER 238)
(Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .
Mentioned – Collier -v- Collier CA (Bailii, [2002] EWCA Civ 1095, [2002] BPIR 1057, [2002] 6 ITELR 270)
The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been . .
Cited – Vellino -v- Chief Constable of Greater Manchester Police CA (Times 09-Aug-01, Bailii, [2001] EWCA Civ 1249, [2002] 1 WLR 218, [2002] PIQR P10, [2002] 3 All ER 78)
The police were not under any duty to protect someone who had been arrested from injuring himself in an attempt to escape. The claimant had a history of seeking to avoid capture by jumping from his flat window. On this occasion he injured himself in . .
Cited – Gray -v- Thames Trains Ltd and Another CA (Bailii, [2008] EWCA Civ 713, Times 09-Jul-08, [2009] 2 WLR 351)
The claimant was a victim of the Ladbroke Grove rail crash. He later committed and was convicted of a manslaughter and detained under the 1983 Act. He said that the accident had caused a major personality change. The defendant relied on the defence . .
Cited – Enfield Technical Services Ltd -v- Payne and Another CA (Bailii, [2008] EWCA Civ 393, Times 02-Jun-08, [2008] IRLR 500, [2008] ICR 1423)
The appellant company appealed dismissal of their defence to a claim for unfair dismissal that the employment contract was tainted with illegality. The EAT had heard two cases with raised the question of the effect on unfair dismissal claims of . .
Cited – Gray -v- Thames Trains and Others HL (Bailii, [2009] UKHL 33, Times, [2009] PIQR P22, (2009) 108 BMLR 205, [2009] 4 All ER 81, [2009] 3 WLR 167)
The claimant had been severely injured in a rail crash caused by the defendant’s negligence. Under this condition, the claimant had gone on to kill another person, and he had been detained under section 41. He now sought damages for his loss of . .
Cited – Les Laboratoires Servier and Another -v- Apotex Inc and Others SC (Bailii, [2014] UKSC 55, [2015] 1 AC 430, [2014] WLR(D) 452, [2014] BUS LR 1217, [2015] 1 AC 430, [2014] 3 WLR 1257, Bailii Summary, WLRD, UKSC 2012/0158, SC, SC Summary, SC Video)
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
Cited – Hounga -v- Allen and Another SC (Bailii, [2014] UKSC 47, [2014] ICR 847, [2014] Eq LR 559, [2014] 4 All ER 595, [2014] 1 WLR 2889, [2014] IRLR 811, [2014] WLR(D) 353, Bailii Summary, WLRD, UKSC 2012/0188, SC Summary, SC)
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Cited – Jetivia Sa and Another -v- Bilta (UK) Ltd and Others CA (Bailii, [2013] EWCA Civ 968, [2013] WLR(D) 333, [2014] 1 All ER (Comm) 176, [2013] 3 WLR 1167, [2014] 1 All ER 168, [2014] Ch 52, [2013] STI 2677, [2013] BCC 655, [2014] 1 BCLC 302, [2014] 1 Lloyd’s Rep 113, [2013] Lloyd’s Rep FC 620, [2013] STC 2298)
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .

(This list may be incomplete)

Last Update: 22-Jun-16
Ref: 189937

Gamer’s Motor Centre (Newcastle) Proprietary Limited v Natwest Wholesale Australia Proprietary Limited; 24 Jul 1987

References: (1987) 163 CLR 236, [1987] HCA 30
Links: Austlii
Coram: Mason CJ
Ratio: Austlii (High Court of Australia) Sale of Goods – Sale by buyer obtaining possession with sellers consent – Delivery under sale, pledge or other disposition to third party receiving goods or documents of title in good faith – Delivery – Whether physical delivery required – Sale of Goods Act 1923 (NSW), ss. 5(1) ‘delivery’,28 – Factors (Mercantile Agents) Act 1923 (N.S.W.), s. 5(1).
This case is cited by:

Applied – Forsythe International (UK) Limited -v- Silver Shipping Co Limited and Others ([1994] 1 WLR 1334, [1993] 2 Lloyds Rep 268, [1994] 1 All ER 851)
Delivery under section 24 requires a voluntary act by the person in possession because by section 61(1) of the 1979 Act, unless the context or subject matter otherwise requires, `delivery’ means `voluntary transfer from one person to another’. . .

(This list may be incomplete)

Last Update: 19-Jun-16
Ref: 470091

Attwood v Small etc; 22 Mar 1838

References: , [1838] EngR 515, (1835-40) 6 Cl & Fin 232, (1838) 7 ER 684
Links: Commonlii
Ratio:
This case cites:

See Also – Attwood -v- Small And Others (Commonlii, [1827] EngR 729, (1827) 7 B & C 390, (1827) 108 ER 768 (B))
. .
See Also – Attwood -v- Small And Others (Commonlii, [1827] EngR 659, (1827) 3 Car & P 208, (1827) 172 ER 389)
An agreement, contained by itself less than 1080 words, but there was in it a stipulation that a clause in a previous agreement, which was duly stamped, should be taken as part of the new agreement.
Held: That although with the clause referred . .
See Also – Attwood -v- Small (Commonlii, [1827] EngR 853, (1827) 2 Y & J 72, (1827) 148 ER 837 (A))
Where a great number of exceptions were taken to an answer, and shortly before the argument the defendant submitted to answer them, in consequence of which, it was urged, that the answer was clearly evasive, and that the ordinary costs were greatly . .
See Also – Small And Others -v- Attwood And Others (Commonlii, [1828] EngR 545, (1828) 2 Y & J 512, (1828) 148 ER 1021 (B))
Amendment of pleadings . .
See Also – Small And Others -v- Attwood And Others (, Commonlii, [1832] EngR 776, (1831-1832) You 407, (1832) 159 ER 1051)
Where a contract is entered into for the purchase of an estate by certain persons in their own names, but in fact on their own account, and also as agents for other parties, a bill to rescind the contract may be filed in the names of the agents and . .
At HL – Attwood -v- Small and Others HL (Bailii, [1838] UKHL J14, 7 ER 684, Bailii, [1838] UKHL J60)
The plaintiffs had bought land including iron mines from the defendants. They sought and were given explicit re-assurances about the mine’s capacity, but these proved false after the plaintiffs had begun to work the mine themselves.
Held: . .

(This list may be incomplete)
This case is cited by:

See Also – Attwood -v- Small (, Commonlii, [1840] EngR 125, (1840) 1 Man & G 279, (1840) 133 ER 340)
. .

(This list may be incomplete)

Last Update: 11-Jun-16
Ref: 312521

George Avery v Samuel Wilson Bowden; 26 Nov 1855

References: (1855) 5 E&B 714, [1855] EngR 842, (1855) 5 El & Bl 714, (1855) 119 ER 647
Links: Commonlii
Ratio:The parties agreed a charterparty involving the ship arriving at a port and taking 45 days to unload and load up before leaving. The defendant ordered the boat to leave early and without the cargo. He pleaded that, war having been declared between Britain and Russia, it would have been unlawful to load up. This would have counted as trading with the enemy.
Held: No cause of action for breach of contract had arisen before the performance of the contract would have become unlawful. A frustrating event (the Crimean War) could excuse further performance of a contract even if the relevant party was already in breach.
This case is cited by:

Cited – Okta Crude Oil Refinery A D -v- Mamidoil-Jetoil Greek Petroleum Company S A and Another CA (Bailii, [2003] EWCA Civ 1031, [2003] 2 All ER (Comm) 640, [2003] 2 Lloyd’s Rep 635)
The parties had contracted to allow an exclusive right to deliver oil by tanker and to sell into Macedonia. The defendants claimed they were overborn, and claimed exemption under a force majeure clause.
Held: The acts which had made the . .
See Also – Avery -v- Bowden ([1856] EngR 3, Commonlii, (1856) 6 El & Bl 962, (1856) 119 ER 1122)
. .
See Also – Avery -v- Bowden ([1856] EngR 2 (B), Commonlii, (1856) 6 El & Bl 972)
. .

(This list may be incomplete)

Last Update: 10-Jun-16
Ref: 184745

Small v Attwood; 1 Jun 1838

References: , [1838] EngR 690, (1838) 3 Y & C Ex 105, (1838) 160 ER 633
Links: Commonlii
Ratio:The purchasers of certain mines having paid part of their purchase money, and having been let into possession, agreed to pay the residue of the purchase money by instalments, and in the meantime to pay to the vendor half-yearly interest on what should remain due. Having paid one half-year’s interest, but no portion of the remaining purchase money, they filed their bill to set aside the contract.

Last Update: 10-Jun-16
Ref: 312696

Lyde v Barnard; CExC 1836

References: [1836] 1 M & W 101, [1836] EngR 146, (1836) 150 ER 363
Links: Commonlii
Coram: Gurney B, Parke B, Alderson B, Lord Abinger CB
Ratio:The question before the court was whether a misrepresentation, that a particular fund in which Lord Edward Thynne had a life interest was charged with only three annuities, was a representation relating to Lord Edward’s credit or ability within the statute. Gurney B explained the mischief to which Lord Tenterden’s Act of 1828 was aimed: ‘But a series of cases, commencing with the case of Pasley v Freeman (3 TR 51), had occurred, in which defendants were charged, not strictly and specifically as guarantees for the solvency of others, but on alleged representations and assurances respecting them and their credit or ability, averred to be false and fraudulent.
There is no doubt that there have been many cases in which false and fraudulent representations of the ability of others have been made, in order to obtain credit for them, by which honest men have suffered. On the other hand, there has been but too much reason to fear that innocent persons have been the victims, not merely of intentionally false, but of unintentionally exaggerated statements of conversations.
If inquiry were made and information given respecting the credit or ability of the person whom the inquirer was called upon to trust either with money or with goods, the inquiry would be private, the communication would be private, and, if the inquirer was a competent witness, on his evidence alone, without the possibility of contradiction or explanation, the case must rest.
It has been a subject of complaint that these cases had trenched upon the security intended to be afforded by the Statute of Frauds, and it was considered by the legislature that a person so circumstanced was entitled to the same protection as the Statute of Frauds had given to the person whom a plaintiff sought to charge for the debt or miscarriage of another. To afford this protection, among other purposes, the statute of 9 Geo.4, c. 14 was passed.
That act is intituled, ‘An Act for rendering written Instrument necessary to the Validity of certain Promises and Engagements.”
Alderson B said: ‘According to the view which I take of the act, the representation, in order to be within it, must, therefore, be of the third person’s trustworthiness, as evidenced by his character, conduct, ability, credit, trade, or dealings, and must be one whereby, if true, that trustworthiness is increased. If indeed the real clause as drawn by Lord Tenterden stood thus, ‘To the intent that such third person might obtain money or goods upon credit,’ which is highly probable, this conclusion would be strengthened. But I do not rely on that which is, after all, only matter of probable conjecture from the ungrammatical state of the sentence as it now stands.’
Parke B said: ‘The words of the clause in question are, it is to be observed, clearly inaccurate, probably from a mistake in the transcriber into the Parliamentary roll. We must make an alteration in order to complete the sense, and must either transpose some words, and read the sentence as if it were ‘to the intent or purpose that some other person may obtain money or goods upon credit,’ or interpolate others, and read it as if it were ‘to the intent or purpose to obtain credit, money, or goods on such representation.’ If we assume Lord Tenterden’s object to have been merely to prevent evasion of the Statute of Frauds, as we think it was, and use this a key for the construction of the clause, it would induce one to prefer the former alteration, by which the clause is made clearly to apply only to cases where the purpose of the representation is to obtain personal credit for the third person: but then, it would not apply to all cases of such credit, for it would include money and goods only, not work and labour done for the third person, or houses or land let to him, on the faith of such representation; which, however, are cases by no means of so frequent occurrence as transactions in money and goods. On the other hand, if we make the latter alteration, using the same key to the construction of the clause, we must reject the words ‘money or goods’ as surplusage, as they would be included in the general term credit. I think it highly probable that the first correction would make the clause such as Lord Tenterden originally wrote it; . .’
Lord Abinger CB said: ‘With regard to the remarks which have been made upon the introduction into the statute of the word ‘upon’, without any grammatical relation to the other words of the sentence, I must observe, that I am decidedly of the opinion that this word must be rejected as nonsensical, and that we cannot admit a conjectural transposition of it in order to interpret that statute. Neither do I think that either of the conjectures offered gives the most probable account for the introduction of the word. The manuscript of this clause most probably contained the word ‘thereupon’; on revising it, the author considered that the word was superfluous to express his meaning, and that it might possibly, if it had any effect, rather narrow the construction. He has therefore meant to strike it out, but has not carried his erasure with sufficient force through the latter part of the word. The word upon has, therefore, found its way into the print, and has escaped notice afterwards when the bill was in committee. The printers of bills for the two houses seldom commit an error on the side of omission. Every thing which is not beyond doubt erased in MS. is sure to be served up in print, and, if it should afterwards escape detection in committee, finds its way upon the rolls of Parliament, and into the Statute Book.’
Statutes: Statute of Frauds (Amendment) Act 1828
This case cites:

Cited – Pasley -v- Freeman ((1789) 3 Durn & E 51, (1789) 3 Term Rep 5F, Commonlii, [1789] EngR 1703, (1789) 3 TR 51, (1789) 100 ER 450)
The court considered the tort of deceit. A representation by one person that another person was creditworthy was actionable if made fraudulently. A false affirmation made by the defendant with intent to defraud the plaintiff, whereby the plaintiff . .

(This list may be incomplete)
This case is cited by:

Cited – Contex Drouzhba Ltd -v- Wiseman and Another CA (Bailii, [2007] EWCA Civ 1201, Times 08-Jan-08, [2008] BCC 301)
The defendant was a director of a company. He signed a letter for the company promising to pay for goods ordered. The representation was found to have been made fraudulently because he knew the company was insolvent, and unable to pay. He now . .
Cited – Lindsay -v- O’Loughnane QBD (Bailii, [2010] EWHC 529 (QB), [2012] BCC 153)
The claimant had purchased Euros through a foreign exchange dealer. The dealer company became insolvent, causing losses to the claimant, who sought to recover from the company’s managing director, the defendant, saying that he was aware of the . .
Cited – Roder UK Ltd -v- West and Another CA (Bailii, [2011] EWCA Civ 1126, [2012] QB 752, [2012] 3 WLR 469, [2012] 1 All ER (Comm) 659, [2012] 1 All ER 1305, [2011] NPC 101)
The claimant sought to allege that the defendant company director was personally liable after misrepresentations as to the company’s creditworthiness in ordering goods when the defendant was really insolvent.
Held: The defendant’s appeal . .

(This list may be incomplete)

Last Update: 04-Jun-16
Ref: 263275

Petrie And Another, Executors of Page Keeble, v Hannay, Baronet; 13 Nov 1789

References: [1789] EngR 2589, (1789) 3 TR 418, (1789) 100 ER 652
Links: Commonlii
Ratio If two persons jointly engage in a stock-jobbing transaction, and incur losses, and employ a broker to pay the differences, and one of them repay the broker with the privity atid consent of the other the whole sum, he may recover a moiety from that other in an action for money paid to his use; notwithstanding the 7 Qeo. 2, e. 8.

Last Update: 28-May-16
Ref: 368220

Alex Irvine of Drum, Esq, and His Guardians v The Right Hon George, Earl of Aberdeen, Mrs Margaret Duff of Coulter, Formerly Widow of Patrick Duff, Esq, Now Wife of Alexander Udny, Esq, and Him for His Interest: HL 2 Apr 1770

References: [1770] UKHL 2_Paton_249
Links: Bailii
Ratio Decret of Sale – Exclusive Title.-
When a decree of sale is impugned, as having been fraudulently obtained, held that production of such decree is not a sufficient title to exclude exhibition of other writs specially called for, as the grounds and warrants on which it proceeded, nor a bar to the action raised for restoration of an entailed estate sold for the entailer’s debts; reversing the judgment of the Court of Session.

Last Update: 14-Apr-16
Ref: 561677

Ingram v Little; 27 Jul 1960

References: [1961] 1 QB 31, [1960] EWCA Civ 1
Links: Bailii
Coram: Pearce LJ and Devlin LJ
Two ladies had a car for sale. A buyer came along. He fooled them into believing him to be someone else, and they sold him the car, after checking the name in the telephone directory. Before the cheque bounced, the rogue sold the car to the defendant from whom the ladies now sought the return of the car.
Held: Applying the rule nemo debt quod non habet, the car remained the property of original owners. Phillips v Brooke differed in that property had passed before the misrepresentation (majority). Devlin LJ dissenting: ‘The true spirit of the common law is to override theoretical distinctions when they stand in the way of doing practical justice. For the doing of justice, the relevant question in this sort of case is not whether the contract was void or voidable, but which of two innocent parties shall suffer for the fraud of a third. The plain answer is that the loss should be divided between them in such proportion as is just in all the circumstances. If it be pure misfortune, the loss should be borne equally; of the fault or imprudence of either party has caused or contributed to the loss, it should be borne by that party in the whole or in the greater part.’
This case cites:

Distinguished – Phillips -v- Brooks Ltd ([1919] 2 KB 243)
A jeweller had a ring for sale. The buyer pretended to be somebody else: ‘I am Sir George Bullough of 11 St. James’s Square.’ The jeweller had heard of Sir George Bullough and checked he lived at the address given. He released the jewellry against . .

(This list may be incomplete)
This case is cited by:

Followed – Lewis -v- Averay CA ([1972] 1 QB 198, [1971] 3 All ER 907, Bailii, [1971] EWCA Civ 4)
A private seller had parted with his car in return for a worthless cheque to a rogue who persuaded him that he was the well-known actor who played Robin Hood on television, and who sold it on to the defendant.
Held: ‘When two parties have come . .
Cited – Norman Hudson -v- Shogun Finance Ltd CA (Times 04-Jul-01, [2001] EWCA Civ 1000)
A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
Held: The dealer had not taken all the steps he might have done to check the identity of the . .
Cited – Shogun Finance Limited -v- Hudson HL (House of Lords, [2003] UKHL 62, Bailii, Times 20-Nov-03, [2003] 3 WLR 1627, [2004] 1 LLR 532, [2004] 1 All ER 215, [2004] 1 AC 1101, [2004] 1 Lloyd’s Rep 532, [2004] RTR 12, [2004] PIQR P20, [2004] ELR 11, [2004] 1 All ER (Comm) 332)
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Cited – Adelson and Another -v- Associated Newspapers Ltd CA (Bailii, [2007] EWCA Civ 701, Times 18-Jul-07, [2007] 4 All ER 330)
The claimant sought to add the name of a further claimant. The defendant objected, saying that it was after the expiry of the limitation period.
Held: The claimant was seeking to use the rules for substitution of parties to add a party. In . .

(This list may be incomplete)
Last Update: 03-Mar-16 Ref: 188418

Alba Management Consultants Ltd v Carillon Plc and Another; ScS 20 Apr 2005

References: [2005] ScotCS CSOH_53
Links: Bailii
Last Update: 16-Feb-16 Ref: 224320

Seashell Shipping Corporation v Mutualidad de Seguros del Instituto Nacional de Industria (‘The Magnum’ ex ‘Tarraco Augusta’): CA 1989

References: [1989] 1 Lloyds Rep 47
Coram: Parker LJ
Where the decision as to forum depends upon the construction of the document or documents in one language and the rival courts are, on the one hand, courts whose native language is that of the document and on the other hand, courts whose native language is not that of the document, it is in the interests of the parties and the ends of justice that the true meaning should be ascertained and be decided by the courts whose native language is that of the document.
Parker LJ said: ‘In my view it would be unjust to the plaintiff to prevent him from proceeding in Courts where the result of his bargain would be to produce success and to force him to proceed in Courts where the result would or might be that the defendants escaped from their bargain.’
This case is cited by:

Cited – Sawyer -v- Atari Interactive Inc ChD (Bailii, [2005] EWHC 2351 (Ch), [2006] ILPr 8)
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
Cited – Amin Rasheed Shipping Corp -v- Kuwait Insurance Co HL ([1984] AC 50, [1983] 2 All ER 884, [1983] 2 Lloyds Rep 365, [1983] 3 WLR 241)
A claimant must show good reason why service on a foreign defendant should be permitted. This head of jurisdiction was an exorbitant jurisdiction, one which, under general English conflict rules, an English court would not recognise as possessed by . .

(This list may be incomplete)
Last Update: 05-Feb-16 Ref: 237272

Forth v Simpson; 23 May 1849

References: [1849] EngR 641, (1849) 13 QB 680, (1849) 116 ER 1423
Links: Commonlii
A racehorse trainer cannot exercise a lien over a racehorse for his fees if the contract reserves to the owner (expressly or by implication) the right to decide the places at which and the jockeys by whom it is to be raced.
This case is cited by:

Cited – Your Response Ltd -v- Datateam Business Media Ltd CA (Bailii, [2014] EWCA Civ 281, [2014] CP Rep 31, [2015] 1 QB 41, [2014] 4 All ER 928, [2014] WLR(D) 131, [2014] 2 All ER (Comm) 899, [2014] 3 WLR 887, WLRD)
The claimants employed the defendants to manage subscription lists for the claimants’ magazines. The claimant came to seek damages, and the defendant for non-payment of its invoices. The court was now asked whether it was possible to assert a common . .

(This list may be incomplete)
Last Update: 01-Feb-16 Ref: 298946

The Ship ‘Marlborough Hill’ v Alex Cowan and Sons Limited: PC 1921

References: [1921] AC 444
Coram: Lord Phillimore
The question was whether a document, describing itself as a bill of lading but written in the form of a receipt of goods for (rather than of) shipment, was a bill of lading for the purposes of the Act, which set out the jurisdiction of the admiralty court for an action in rem. The claim had been brought by consignees which provided for delivery to the shipper’s order.
Held: It was a bill of lading within the Act. The court noted that it purported to be negotiable. If this document is a bill of lading, it is a negotiable instrument. Other incidents of the document were standard for a bill of lading, such as detailed terms and conditions in familiar form; the fact that the document was called a bill of lading many times in the course of such provisions and that it was made subject to the US Charter Act; the fact that it provides that ‘If required by the shipowner, one signed bill of lading, duly endorsed, must be surrendered on delivery of the goods’; and that it ‘ends in the time honoured form’, viz ‘In witness whereof the master or agent of said vessel has signed three bills of lading, all of this tenor and date, of which if one is accomplished, the others shall be void’ The court emphasised that the document would work as merchants would expect a bill of lading to work. It accorded wit hstandard commercial practiceand the parties agreed to call it a bill of lading, and entered into obligations and acquired rights proper to a bill of lading. All the other incidents in its very detailed language are such as are proper to such a document.
Statutes: Admiralty Court Act 1861
This case is cited by:

Cited – J I MacWilliam Co Inc -v- Mediterranean Shipping Company S A, ‘The Rafaela S’ CA (Bailii, [2003] EWCA Civ 556, Times 05-May-03, Gazette 03-Jul-03, [2004] QB 702, [2003] 2 Lloyd’s Rep 113)
Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A . .
Cited – J I MacWilliam Company Inc -v- Mediterranean Shipping Company SA; The ‘Rafaela S’ HL (Times 21-Feb-05, House of Lords, Bailii, [2005] UKHL 11, [2005] 2 All ER 86)
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .

(This list may be incomplete)
Last Update: 31-Jan-16 Ref: 181886

Chase And Others, Assignees of William And Thomas Hurst (Bankrupts), v James And David Westmore; 21 May 1816

References: [1816] EngR 501, (1816) 5 M & S 180, (1816) 105 ER 1016
Links: Commonlii
A workman haviag bestowed his labour upon a chattel in consderation of a price fixed in amount by hts agreement with the owner, may detain the chattel until the
price be paid; and this, though the chattel be delivered to the workman in different parcels, and at different times, if the work to be done under the agreement be entire. Semble, that where the parties contract for a particular time or mode of payment, the workman has not a right to set up a claim to the possession
inconsistent with the terms of the contract.
This case is cited by:

Cited – Your Response Ltd -v- Datateam Business Media Ltd CA (Bailii, [2014] EWCA Civ 281, [2014] CP Rep 31, [2015] 1 QB 41, [2014] 4 All ER 928, [2014] WLR(D) 131, [2014] 2 All ER (Comm) 899, [2014] 3 WLR 887, WLRD)
The claimants employed the defendants to manage subscription lists for the claimants’ magazines. The claimant came to seek damages, and the defendant for non-payment of its invoices. The court was now asked whether it was possible to assert a common . .

(This list may be incomplete)
Last Update: 29-Jan-16 Ref: 334194

Re De Leeuw, Jakens v Central Advance and Discount Corporation; Chd 1922

References: [1922] 2 Ch 540
Coram: Peterson J
A deed which bears a false signature is a forgery and creates no rights whatever.
This case is cited by:

Cited – Norman Hudson -v- Shogun Finance Ltd CA (Times 04-Jul-01, [2001] EWCA Civ 1000)
A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
Held: The dealer had not taken all the steps he might have done to check the identity of the . .

(This list may be incomplete)
Last Update: 21-Jan-16 Ref: 188410

Servus Credit Union Ltd v Parlee; 5 Nov 2015

References: 2015 ABQB 700
Links: Canlii
Coram: W.S. Schlosser, Master in Chambers
Court of Queen’s Bench of Alberta. The court considered a dispute between four parties who had in their several ways suffered at the hands of a pseudo-legal scam.
Last Update: 07-Jan-16 Ref: 557235

Re Boisjoli; 8 Oct 2015

References: 2015 ABQB 629
Links: Canlii
Coram: Rooke ACJ
Court of Queen’s Bench of Alberta
Last Update: 29-Dec-15 Ref: 557236

Bunn, Executor of Bunn v Guy; 7 Nov 1803

References: [1803] EngR 697, (1803) 4 East 190, (1803) 102 ER 803
Links: Commonlii
A contract entered into by a practising attorney to relinquish his business and recommend his clients t0 two other attornies for a valuable consideration, and that he would not himself practise in such business within certain limits, and would permit them to make use of his name in their firm for a certain time, but without his interference, &c was holden to be valid in law.
Last Update: 12-Dec-15 Ref: 344738

Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd; Comc 17 Jul 2008

References: [2008] EWHC 1686 (Comm), [2009] 1 All ER (Comm) 16
Links: Bailii
Coram: Aikens J
Trident entered into Aircraft Operating Lease Agreements in identical terms with First Flight in respect of two ATP model aircraft. The leases represented the culmination of negotiations between a representative of the manufacturer, BAE Systems Regional Aircraft Limited (‘BAE’), and representatives of First Flight and were signed by a representative of BAE on behalf of Trident. Each provided for delivery to take place at Southend airport. Application for summary judgment under aircraft leasing agreements – no payment of rent. The defendant argued that the clause disallowing them from alleging any misrepresentation failed to satisfy the reasonableness requirement under the 1977 Act.
Held: The leases fell within section 26 and the agreements were exempt. Judgement was given for the claimant.
Statutes: Unfair Contract Terms Act 1977 26
This case is cited by:

Appeal From – Trident Turboprop (Dublin) Ltd -v- First Flight Couriers Ltd CA (Bailii, [2009] EWCA Civ 290, Times)
The appellant entered into two aircraft leasing agreements but were unable to maintain payments. They appealed against rejection of their argument that the agreements were not exempt from the controls under the 1977 Act by being international supply . .

(This list may be incomplete)
Last Update: 30-Nov-15 Ref: 271150

No 27 Mackenzie and Co v The ‘St Andrew’ And v Ogilvy, Intervening For His Interest: 1774

References: [1774] EngR 23, (1774) Burrell 124, (1774) 167 ER 503
Links: Commonlii
Whether a prior or posterior bottomree bond shall have preference for payment.
Last Update: 19-Nov-15 Ref: 373879

AMCHEM Products Incorporated v British Columbia (Workers’ Compensation Board); 24 Mar 1993

References: [1993] 1 SCR 897, (1993) 102 DLR (4th) 96, [1993] 3 WWR 441, 77 BCLR (2d) 62, 150 NR 321, 23 BCAC 1, [1993] CarswellBC 47, JE 93-674
Links: Canlii
Coram: La Forest, Sopinka, Gonthier, Cory and McLachlin JJ
Supreme Court of Canada – Courts – Appropriate forum – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Principles governing the determination of appropriate forum and governing comity between courts – Whether or not an injunction appropriate.
Prerogative writs – Injunctions – Appropriate forum for bringing action – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Whether or not an injunction appropriate.
Conflict of laws – Courts – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Principles governing the determination of appropriate forum and governing comity between courts – Whether or not an injunction appropriate.
Sopinka J discussed the importance of comity considerations in anti-suit injunction applications and held: ‘the domestic court as a matter of comity must take cognisance of the fact that the foreign court has assumed jurisdiction. If, applying the principles relating to forum non conveniens . . the foreign court could reasonably have concluded that there was no alternative forum that was clearly More appropriate, the domestic court should respect that decision and the application [for an anti-suit injunction] should be dismissed.’
This case is cited by:

Approved – Airbus Industrie G I E -v- Patel and Others HL (Times 06-Apr-98, House of Lords, Gazette 07-May-98, Bailii, [1998] UKHL 12, [1999] 1 AC 119, [1998] 2 All ER 257, [1998] 2 WLR 686)
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
Cited – OT Africa Line Ltd -v- Magic Sportswear Corporation and others CA (Bailii, [2005] EWCA Civ 710, Times 21-Jun-05)
The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .

(This list may be incomplete)
Last Update: 10-Nov-15 Ref: 228197

Hodgkinson v Simms; 30 Sep 1994

References: [1994] 3 SCR 377, 117 DLR (4th) 161, [1994] 9 WWR 609, 97 BCLR (2d) 1, 16 BLR (2d) 1, 171 NR 245, 22 CCLT (2d) 1, 49 BCAC 1, 57 CPR (3d) 1, 5 ETR (2d) 1, [1994] CarswellBC 438, AZ-94111096, JE 94-1560, [1994] SCJ No 84 (QL), [1994] ACS no 84, 50 ACWS (3d) 469, 80 WAC 1, 95 DTC 5135
Links: Canlii
Coram: La Forest, L’Heureux-Dube, Sopinka, Gonthier, McLachlin, Iacobucci and Major JJ
Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by adviser — Ultimate decision as to whether or not to invest that of client — Substantial losses incurred during period of economic downturn — Whether or not fiduciary duty on part of adviser — If so, calculation of damages.
Contracts — Contract for independent services — Breach by failure to disclose — Calculation of damages.
La Forest J, giving the judgment of the majority, drew the distinction between fiduciary relationships and commercial interactions governed by the common law, the former being characterised by one party’s duty to act in the other’s best interests, and often by power on the one hand and dependency on the other, whereas the common law generally respected the pursuit of self-interest. The proper approach to damages for breach of a fiduciary duty was said to be restitutionary. On that basis, the majority of the court concluded that the claimant was entitled to be compensated for the loss sustained on investments which he had made on the advice of a fiduciary who had failed to disclose a conflict of interest, notwithstanding that the loss had resulted from an unforeseen general economic downturn.
This case is cited by:

Cited – Cadbury Schweppes -v- FBI Foods ([1999] 1 SCR 142, Canlii, 1999 CanLII 705 (SCC), 85 ACWS (3d) 166, 191 WAC 161, [1999] SCJ No 6 (QL), JE 99-317, AZ-99111005, 83 CPR (3d) 289, 235 NR 30, 117 BCAC 161, 42 BLR (2d) 159, 59 BCLR (3d) 1, 167 DLR (4th) 577)
Supreme Court of Canada – Commercial law – Confidential information – Breach of confidence – -Remedies – Manufacturer using confidential information obtained under licensing agreement to manufacture competing product – Whether permanent injunction . .
Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
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 . .
Approved – Pilmer -v- Duke Group Ltd ((2001) 207 CLR 165, [2001] HCA 31, Austlii)
High Court of Australia – Trusts – Express trust – Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of express trust – Liability of firm as . .

(This list may be incomplete)
Last Update: 05-Nov-15 Ref: 554204

Shackell v Rosier; 22 Apr 1836

References: , [1836] EngR 613, (1836) 2 Bing NC 635, (1836) 132 ER 245
Links: Commonlii
Coram: Tindall CJ
In consideration that Plaintiff had published a libel at Defendant’s request, and had at the like request consented to defend an action brought against Plaintiff for such publication, Defendant promised to indemnify Plaintiff from the costs of the action : Held, that the promise was void.
This case is cited by:

Cited – Les Laboratoires Servier and Another -v- Apotex Inc and Others SC (Bailii, [2014] UKSC 55, [2015] 1 AC 430, [2014] WLR(D) 452, [2014] BUS LR 1217, [2015] 1 AC 430, [2014] 3 WLR 1257, Bailii Summary, WLRD, UKSC 2012/0158, SC, SC Summary, SC Video)
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .

(This list may be incomplete)
Last Update: 01-Nov-15 Ref: 314945

Hardwick Game Farm v Suffolk Agricultural and Poultry Producers Association Ltd: HL 8 May 1968

References: [1968] UKHL 3, [1969] 2 AC 31
Links: Bailii
Coram: Lord Reid, Lord Morris of Borth-y-Gest, Lord Guest, Lord Pearce, Lord Wilberforce
The plaintiff had purchased quantities of turkey feed from the defendant. It contained a poisonous element, spores of a fungus aspergillus flavus, which killed its flock. The House was asked as to the effect of section 14 of the 1893 Act on the contract.
Statutes: Sale of Goods Act 1893 14
Last Update: 28-Oct-15 Ref: 248572

Surtees v Lister; 29 May 1861

References: [1861] EngR 638, (1861) 7 H & N 1, (1861) 158 ER 367
Links: Commonlii
A declaration stated that B and the defendant, joint owners of a horse and mare, agreed that the defendant should sell them, and pay one moiety of the proceeds to the plaintiff as the agent of B , who was abroad that the defendant sold the horse to C. for 600l, and the mare for 300l. and did not receive the price of the horse, but took from the purchaser of the mare a promissory note for 300l. which the defendant indorsed and delivered to the plaintiff as the agent of B, and the amount of which was received by the plaintiff as such agent that the defendant afterwards requested the plaintiff, upon his own responsibility, to pay the defendant one moiety of the 300l in the plaintiff’s hands as such agent, and the plaintiff paid the defendant 50l. That the defendant again requested the plaintiff, on his own responsibility, to pay the defendant 100l, the residue of the moiety of the 300l, which the plaintiff was willing to do provided the defendant, in consideration of the said sum of 50l. so paid and the further sum of 100l when paid, would undertake either to deliver to the plaintiff a bill of exchange for 233l 3s (being B.’s moiety of the proceeds of the sale of the horse, less the forfeits in respect of the same), drawn by the defendant upon and accepted by C at two months date, or pay the plaintiff 233l 3s in cash within two weeks , and thereupon the defendarit wrote and delivered to the plaintiff the following undertaking. ‘In consideration of your having paid me the sum of 150l. On account of my share of the mare, I hereby undertake to deliver to you a bill for 233l 3s. drawn by me upon and to be accepted by C at two months, or the above sum in cash within two weeks from this date.’ On demurrer : Held, that the declaration disclosed a sufficient consideration for the defendant’s promise.
Last Update: 26-Oct-15 Ref: 284399