Tag: Contract

IAC (Leasing) Ltd v Humphrey: 7 Jan 1972

High Court of Australia – Contract – Penalty – Hire of chattels for term – Liability of lessee on repossession and on return Before or at the end of term – Payment of deficiency where equipment sold or valued at amount less than appraisal value stated in lease and upon andwhich rent based – Credit for excess – Payment of present value of future instalments of rent – Whether issue of penalty and pre-estimate of damages arises.
Whether a term in a contract is a penalty, is a matter of substance rather than of mere form, and depends upon all the surrounding circumstances existing at the time of making the contract, as well as the terms of the contract itself:

Judges:

Barwick C.J.(1), McTiernan(2) and Walsh(3) JJ

Citations:

(1972) 126 CLR 131, [1972] HCA 1, 46 ALJR 106

Links:

Austlii

Jurisdiction:

Australia

Cited by:

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

Contract

Updated: 29 June 2022; Ref: scu.593103

Profile Software Ltd v Becogent Ltd: OHCS 16 Feb 2005

The pursuers claimed for breach of copyright and of a software licence. The defendants disputed the title or right of the pursuers to claim.
Held: The assignation of the rights in the software carried with it the rights to enforce intellectual property rights and rights in licences previously granted.

Judges:

Lord Kingarth

Citations:

[2005] ScotCS CSOH – 28, [2005] CSOH 28

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Saphena Computing Ltd v Allied Collection Agencies Ltd 1995
The court faced a claim as regards an undeveloped computer system which was sold with bugs ‘warts and all’.
Held: The court spoke of expert evidence that in a bespoke system, bugs were inevitable. . .
Cited – Kaisha v Green Cartridge Company (Hong Kong) Limited PC 30-Apr-1997
(Hong Kong) The claimants complained of the sale by the defendants of refilled cartridges for use with their printers.
Held: The spare cartridge manufacturer’s appeal failed: ‘repair is by definition something which does not amount to the . .
Cited – Bank of Scotland v Dunedin Property Investment Co Ltd IHCS 24-Sep-1998
Issue of loan stock supported by charge for ‘all costs charges and expenses incurred’ this included the breakage cost of the bank in setting up interest-rate swap arrangements to protect itself against swings in costs. . .
Cited – British Actors Film Company Limited and Co v Glover 1918
Under a written agreement the owners of the copyright in a dramatic and the musical work agreed to let to the defendant the right of professionally performing the work in the provinces of the United Kingdom, reserving to themselves full liberty to . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract

Updated: 29 June 2022; Ref: scu.222733

Tweddle v Atkinson, Executor of Guy, Deceased: QBD 7 Jun 1861

An agreement was made by the fathers of a bride and groom to pay the groom a sum of money. When the bride’s father failed to pay, the groom sued.
Held: The claim failed. Wightman J said that no stranger to the consideration could take advantage of a contract though made for his benefit.
Crompton J said that consideration must move from the promisee. The doctrine of privity means, and means only, that a person cannot acquire rights, or be subjected to liabilities, arising under a contract to which he is not a party.

Judges:

Wightman J, Crompton J

Citations:

(1861) 1 B and S 393, 121 ER 762, [1861] EWHC QB J7, [1861] EngR 690, (1861) 121 ER 762, [1861] EWHC QB J57

Links:

Bailii, Commonlii, Bailii

Jurisdiction:

England and Wales

Cited by:

Confirmed – Gandy v Gandy 1885
In spite of earlier cases to the contrary, Tweddle v Atkinson had laid down ‘the true common law doctrine’. . .
Affirmed – Midland Silicones Ltd v Scruttons Ltd HL 6-Dec-1961
The defendant stevedores, engaged by the carrier, negligently damaged a drum containing chemicals. When the cargo-owners sued in tort, the stevedores unsuccessfully attempted to rely on a limitation clause contained in the bill of lading between the . .
Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 29 June 2022; Ref: scu.221997

J and H Ritchie Ltd v Lloyd Ltd: SCS 11 Jan 2005

The buyers sought repayment of the sum paid by them for agricultural machinery purchased from the respondent. The machinery was bought after a repossession, but returned when a vibration was found. The defendants repaired the machine, but would not tell the claimants what had been repaired, and the claimants, fearing that other parts of the machine would have been damaged, rejected it. The defendant said that having had it repaired, they had lost the right of rejection. They appealed refusal of their claim.
Held: Lord Marnoch (dissenting) said that having acquired a right to reject the goods at the time of delivery, they could not have that right taken away from them simply by the renewed tendering of the goods in an allegedly repaired condition. Lord Hamilton and Lord Philip said that on repair the harrow was rendered fit for its purpose and, once re-associated with the power drill, the equipment was, as a whole, of satisfactory quality. At the stage when the appellants declined to receive the repaired harrow and sought to treat the contract as repudiated the respondents were not in breach of contract.

Judges:

Lords Marnoch, Hamilton and Philip, Lord Marnoch dissenting

Citations:

[2005] ScotCS CSIH – 3, 2005 SLT 64

Links:

Bailii

Statutes:

Sale of Goods Act 1979 27 35(6)(a), Sale and Supply of Goods Act 1994 2(1)

Jurisdiction:

Scotland

Cited by:

Appeal from – J and H Ritchie Ltd v Lloyd Ltd HL 7-Mar-2007
The appellants had bought a seed drill from the respondents. It had been repossessed but sold as near new. A fault was noticed after two days use, and it was returned. The defendants repaired it without agreeing this with the appellant, and then . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 28 June 2022; Ref: scu.221461

South Caribbean Trading Ltd v Trafigura Beheer Bv: ComC 22 Nov 2004

Judges:

Colman J

Citations:

[2004] EWHC 2676 (Comm), [2005] 1 Lloyd’s Rep 128

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Stilk v Myrick KBD 16-Dec-1809
No Obligation Incurred without Consideration
The plaintiff agreed to sail with the defendant on a voyage being paid pounds 5.00 a month. Two crew deserted and the captain asked the remainder to do their work sharing the wages saved. The plaintiff sought the additional sum above the articled . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 27 June 2022; Ref: scu.219705

Bryen and Langley Limited v Boston: TCC 4 Nov 2004

Judges:

His Honour Judge Richard Seymour

Citations:

[2004] EWHC 2450 (TCC)

Links:

Bailii

Cited by:

Appeal from – Bryen and Langley Ltd v Boston CA 29-Jul-2005
The special facts surrounding the agreement of the standard term at issue were such that the court held that it could not possibly say that there had been a breach of the principle of fair dealing and that rendered it unnecessary for the court to . .
Lists of cited by and citing cases may be incomplete.

Construction, Contract, Consumer

Updated: 27 June 2022; Ref: scu.219351

Morgan EST (Scotland) Ltd v Hanson Concrete Products Ltd: TCC 22 Jul 2004

Citations:

[2004] EWHC 1778 (TCC)

Links:

Bailii

Statutes:

Limitation Act 1980 35

Jurisdiction:

England and Wales

Citing:

Appealed to – Morgan Est (Scotland) Ltd v Hanson Concrete Products Ltd CA 17-Feb-2005
The defendant appealed an order adding two new claimants.
Held: Cases decided under the old RSC were not apposite for matters covered by the new Civil Procedure Rules. The court was not bound by the Sardinia Sulcis rules: ‘The Sardinia Sulcis . .

Cited by:

On appeal from – Morgan Est (Scotland) Ltd v Hanson Concrete Products Ltd CA 17-Feb-2005
The defendant appealed an order adding two new claimants.
Held: Cases decided under the old RSC were not apposite for matters covered by the new Civil Procedure Rules. The court was not bound by the Sardinia Sulcis rules: ‘The Sardinia Sulcis . .
Lists of cited by and citing cases may be incomplete.

Contract, Limitation

Updated: 27 June 2022; Ref: scu.218883

ED and F Man Liquid Products Ltd v Patel and Another: CA 16 Oct 2002

Application for leave to appeal

Citations:

[2002] EWCA Civ 1550

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Application for leave – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 27 June 2022; Ref: scu.217664

BCT Software Solutions Lt v Arnold Laver and Co: CA 11 Jul 2002

Whether software licence was for indefinite term or determinate term.

Citations:

[2002] EWCA Civ 1033

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – L’Estrange v F Graucob Limited CA 1934
The company’s order form contained a clause providing them with complete exemption from liability: ‘Any express or implied, condition, statement of warranty, statutory or otherwise is expressly excluded’.
Held: If a party signs a written . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 June 2022; Ref: scu.217362

Otis Vehicle Rentals Ltd v Cicely Commercials Ltd: CA 30 Jan 2002

Leave to appeal

Citations:

[2002] EWCA Civ 154

Links:

Bailii

Jurisdiction:

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 . .
Leave – Otis Vehicle Rentals Ltd v Ciceley Commercials Ltd CA 12-Jul-2002
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 June 2022; Ref: scu.216731

National Provincial Bank v Jackson: CA 1886

Two sisters executed deeds relating to their property, but did not read them first or having them read out to them or explained. They said that they had relied on their brother, a solicitor.
Held: Cotton LJ said that they could not have been said to have been guilty of negligence in so doing, but their plea of non est factum failed as they knew that the deeds they signed dealt in some way with their houses.

Judges:

Cotton LJ

Citations:

[1886] 33 Ch D 1

Jurisdiction:

England and Wales

Cited by:

Cited – Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society HL 9-Nov-1970
The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 23 June 2022; Ref: scu.253152

Peregrine Systems Ltd v Steria Ltd: TCC 26 Feb 2004

Failed computer system

Citations:

[2004] EWHC 275 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Contract

Updated: 21 June 2022; Ref: scu.216010

Cavanagh and Others v Secretary of State for Work and Pensions: QBD 13 May 2016

Part 8 claim brought against the Defendant by two of its employees, Mr Cavanagh and Ms Williams, and by their trade union, the Public and Commercial Services Union. The main issues were whether, the Claimants having opted to have their subscriptions to the PCS deducted from their salary and paid by the Defendant to the PCS, had a contractual right to insist that the Defendant continue with that arrangement, and whether, if they had, the PCS, which was not a party to their contracts of employment, could enforce that right under the 1999 Act.

Judges:

Elisabeth Laing DBE J

Citations:

[2016] EWHC 1136 (QB)

Links:

Bailii

Statutes:

Contracts (Rights of Third Parties) Act 1999

Jurisdiction:

England and Wales

Contract, Employment

Updated: 19 June 2022; Ref: scu.564500

Montpelier Business Reorganisation Ltd v AJP One Llp and Others: QBD 5 Jul 2016

‘The parties in this action entered into various agreements including an Asset Purchase Agreement and a Management Services Agreement. This case requires determination of a claim and counterclaim arising out of alleged breaches of those agreements.’

Judges:

Saffman HHJ

Citations:

[2016] EWHC 977 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 18 June 2022; Ref: scu.566788

Manzanilla Limited v Corton Property and Investments Limited; John MacIver (Southport) Limited; Rootbrights Limited and Halliwell Landau (a Firm): CA 13 Nov 1996

Millett LJ set out the principles applicable to a deposit paid on a land transaction being held by a stakeholder: ”Where a stakeholder is involved, there are normally two separate contracts to be considered. There is first the bilateral contract between the two principals which contemplates two possible alternative future events and by which the parties agree to pay a sum of money to a stakeholder to abide the happening of one or other of them . . The second contract is the tripartite contract which results from the deposit of the money with the stakeholder on terms that he is to keep it until one or other of the relevant events happens and then pay it to one or other the parties accordingly. The stakeholder is a party to the second contract but not the first. His rights and obligations are not normally expressly spelled out. They are implicit in the transaction itself, and must be discovered not by implying terms, but by analysing the relationship of the parties which arises from the deposit of the money.
The following propositions emerge from the authorities:
(1) The relationship between the stakeholder and the depositors is contractual, not fiduciary. The money is not trust money; the stakeholder is not a trustee or agent; he is a principal who owes contractual obligations to the depositors: Potters v Loppert [1973] Ch. 399, 406; Hastingwood Ltd v Saunders Bearman [1991] Ch. 114, 123. The underlying relationship is that of debtor and creditor, and is closely analogous to the relationship between a banker and his customer.
(2) Until the specified event occurs, the stakeholder is entitled to retain the interest on the money. This is usually as his reward for holding the money: see Harington v Hoggart (1830), I BandAd 577. The right may be excluded by special arrangement, and was excluded in the present case.
(3) Until the event happens the stakeholder holds the money to the order of both depositors and is bound to pay it (strictly speaking an equivalent sum) to them or as they may jointly direct: Rockeagle v Alsop Wilkinson [1992] Ch. 47.
(4) Subject to the above, the stakeholder is bound to await the happening of the event and then to pay the money to one or other of the parties according to the event. The money is payable to the party entitled on demand, and if the stakeholder fails to pay in accordance with a proper demand he is liable for interest from the date of the demand: Lee v Munn [1817] EngR 769; (1817) 8 Taunt. 45; Gaby v Driver (1828) 2 YandJ 549.
(5) If the occurrence of the event is disputed, the stakeholder cannot safely pay either party, for if he mistakenly pays the party not entitled the payment will not discharge his liability to the other. In these circumstances he may (i) interplead and pay the money into Court; (ii) retain the money pending the resolution of the dispute; or (iii) take the risk of paying one party. The choice is entirely his.
(6) If he takes the second course, he may notify the parties that he is content to abide the outcome of the dispute. There is then no need to join him in any proceedings which are taken to resolve it. If he is not joined, the Court cannot order the money to be paid to the successful party. All it can do is to declare that the successful party is entitled to give a good receipt for the money: see Smith v Hamilton [1951] Ch. 175.
(7) If the stakeholder is not content to abide the outcome of the proceedings, he may be joined in order to bind him. This was done in the present case, albeit on the application of the stakeholder.’

Judges:

Millett LJ

Citations:

[1996] EWCA Civ 942

Jurisdiction:

England and Wales

Citing:

Cited – Rockeagle Ltd v Alsop Wilkinson CA 1991
The position of a stakeholder and the two potential claimants to a stake is the subject of a tripartite contract. The relationship between the stakeholder and the two potential claimants is contractual, not fiduciary. The money is not trust money. . .
Cited – Potters v Loppert ChD 1973
The court was asked as to the liability of an estate agent to account for interest earned upon a pre-contract deposit paid to him expressly as a stakeholder. No contract was made.
Held: A stakeholder is not a trustee or agent; he is a . .

Cited by:

Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
See Also – Manzanilla Limited v Corton Property and Investments Limited John Maciver (Southport) Limited Rootbrights Limited Halliwell Landau (a Firm) CA 23-Apr-1997
. .
See Also – Manzanilla Limited v Corton Property and Investments Limited; John Mciver (Southampton) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 7-Jul-1997
After settlement between parties of a wasted costs application, a note may be put to the judge where this was needed in order to clear the reputation of lawyer involved. . .
Lists of cited by and citing cases may be incomplete.

Contract, Legal Professions

Updated: 18 June 2022; Ref: scu.140809

Manzanilla Limited v Corton Property and Investments Limited John Maciver (Southport) Limited Rootbrights Limited Halliwell Landau (a Firm): CA 23 Apr 1997

Citations:

[1997] EWCA Civ 1492

Jurisdiction:

England and Wales

Citing:

See Also – Manzanilla Limited v Corton Property and Investments Limited; John MacIver (Southport) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 13-Nov-1996
Millett LJ set out the principles applicable to a deposit paid on a land transaction being held by a stakeholder: ”Where a stakeholder is involved, there are normally two separate contracts to be considered. There is first the bilateral contract . .

Cited by:

See Also – Manzanilla Limited v Corton Property and Investments Limited; John Mciver (Southampton) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 7-Jul-1997
After settlement between parties of a wasted costs application, a note may be put to the judge where this was needed in order to clear the reputation of lawyer involved. . .
Lists of cited by and citing cases may be incomplete.

Contract, Legal Professions

Updated: 18 June 2022; Ref: scu.141888

Charter Reinsurance Co Ltd v Fagan and Others: HL 24 May 1996

The re-insurers appealed against a finding that they were liable to make payment under a contract which required them to pay ‘sums actually paid.’ They said that the company having become insolvent, no payment would in fact be made.
Held: The contract had to be construed as a whole. Under the contract, the sum became payable when the insurance claim itself became payable and not only when it was actually paid out. The complex layering arrangements envisaged by the contract required this interpretation.
Lord Hoffmann said: ‘I think that in some cases the notion of words having a natural meaning is not a very helpful one. Because the meaning of words is so sensitive to syntax and context, the natural meaning of words in one sentence may be quite unnatural in another. Thus a statement that words have a particular natural meaning may mean no more that that in many contexts they will have that meaning. In other contexts their meaning will be different but no less natural.’
Lord Mustill said: ‘If . . the words ‘actually paid’ can only as a matter of language and context mean what the syndicates maintain, I would hesitate long before giving them any other meaning, just because the result would be extraordinary’ and ‘Subject to [the use of a specialist vocabulary] the inquiry will start, and usually finish, by asking what is the ordinary meaning of the words used.’ and ‘This is . . an occasion when a first impression and simple answer no longer seem the best, for I recognise that the focus of the argument is too narrow. The words must be set in the landscape of the instrument as a whole. Once this is done the shape of the policy and the purpose of the terms become quite clear.’
and: ‘There comes a point at which the court should remind itself that . . to force upon the words a meaning which they cannot fairly bear is to substitute for the bargain actually made one which the court believes could better have been made. This is an illegitimate role for a court.’

Judges:

Lord Mustill, Lord Hoffmann

Citations:

Times 24-May-1996, [1996] 1 All ER 406, [1996] 3 All ER 46, [1996] 2 WLR 726, [1996] 2 Lloyds Rep 113, [1997] AC 313

Jurisdiction:

England and Wales

Citing:

Appeal from – Charter Reinsurance Co Ltd v Fagan and Others CA 6-Nov-1995
Liability of re-insurers arises on insurers becoming liable to pay, not payment. . .
Considered – In re Eddystone Marine Insurance Co, ex parte Western Insurance 1892
. .
Cited – Arbuthnott v Fagan CA 30-Jul-1993
The court considered the proper approach to construction of the terms in a contract. Sir Thomas Bingham MR said: ‘Courts will never construe words in a vacuum. To a greater or lesser extent, depending on the subject matter, they will wish to be . .

Cited by:

Cited – Yorkshire Water Services Ltd v Sun Alliance and London Insurance Plc and Others (1) CA 20-Aug-1996
The court was asked whether the costs of flood alleviation works were recoverable under public liability insurance policies.
Held: A claim for the costs of remedial action taken to mitigate future losses were not covered by the terms of the . .
Cited – Pilkington United Kingdom Limited v CGU Insurance Plc QBD 28-Jan-2004
The claimants had installed glass tiles in a roof. They fractured, and facing a claim for damages, they sought payment from their insurers. The claimants argued that the risk of fracture meant that the damage occurred upon installation, the insurers . .
Cited – Yorkshire Water Services Ltd v Taylor Woodrow Construction Northern Ltd TCC 8-Jul-2004
The claim arose from works at a sewage plant carried out by the defendants and their sub-contractors. The plant failed to meet performance standards. It was suggested that the form of standard contract restricted the claimant’s ability to pursue a . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
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 – Bedfordshire Police Authority v Constable and others ComC 20-Jun-2008
The authority insured its primary liability for compensation under the 1886 Act through the claimants and the excess of liability through re-insurers. The parties sought clarification from the court of the respective liabilities of the insurance . .
Cited – Trygort (Number 2) Ltd v UK Home Finance Ltd and Another SCS 29-Oct-2008
The landlords claimed that the tenants remained bound under the lease to occupy and use the premises and pay rent. The tenant said that it had exercised a break option. The landlord said that the break was not exercisable because it had otherwise . .
Cited – Pratt v Aigaion Insurance Company SA (‘the Resolute’) CA 27-Nov-2008
The court considered the interpretation of a term in a contract of insurance to the effect that ‘Warranted Owner and/or Owner’s experienced skipper on board and in charge at all times and one experienced crew member.’, asking whether ‘at all times’ . .
Cited – Lexington Insurance Co v AGF Insurance Ltd HL 30-Jul-2009
The respondent insurers had been held liable in Washington, and had been granted indemnity against the appellants by the Court of Appeal. The insurance contract had been under the law of Pennsylvania, but that of the re-insurance under the law of . .
Cited – Sigma Finance Corporation, Re; (in administrative receivership) SC 29-Oct-2009
The court considered how the losses of the insolvent company were to be distributed as between secured creditors and preferential creditors, given the terms of the applicable trust deed.
Held: The court considered the interpretations of the . .
Cited – Bloomsbury International Ltd v Sea Fish Industry Authority and Department for Environment, Food and Rural Affairs SC 15-Jun-2011
The 1995 Regulations imposed a levy on fish both caught and first landed in the UK and also on imported fish products. The claimants, importers challenged the validity of the latter charges, saying that they went beyond the power given by the 1981 . .
Cited – Employers’ Liability Insurance ‘Trigger’ Litigation: BAI (Run Off) Ltd v Durham and Others SC 28-Mar-2012
The court considered the liability of insurers of companies now wound up for mesothelioma injuries suffered by former employees of those companies, and in particular whether the 1930 Act could be used to impose liability. The insurers now appealed . .
Cited – Lloyds TSB Foundation for Scotland v Lloyds Banking Group Plc SC 23-Jan-2013
A predecessor bank had created a trust into which it paid a small proportion of its profits. The parties now disputed the calculation of profits when the Bank declared a loss which allowed for an unrealised gain on the acquisition of HBOS. . .
Cited – Teal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .
Cited – The Financial Conduct Authority and Others v Arch Insurance (UK) Ltd and Others SC 15-Jan-2021
Many businesses, having been ordered to suspend business during the Covid-19 epidemic, sought to claim under business interruption insurance. The claims were rejected by the insurers and the insurers now appealed from a finding that they had been . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 17 June 2022; Ref: scu.78995

International Finance Corporation v Utexafrica SPRL: ComC 9 May 2001

The defendant applied to have set aside judgement entered against him in default of acknowledgment of service.
Held: The authorities make it plain that, in order to satisfy the test for resisting a summary claim for for wrongful repudiation and/or breach of contract, a defendant has to demonstrate a defence which is not ‘false, fanciful or imaginary’, and is better than merely arguable.

Judges:

Moore-Bick J

Citations:

[2001] EWHC 508 (Comm), [2001] CLC 1361, [2001] All ER (D) 101 (May)

Links:

Bailii

Statutes:

Civil Procedure Rules 13.3.(1)

Jurisdiction:

England and Wales

Cited by:

Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
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 . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Contract

Updated: 13 June 2022; Ref: scu.201703

Grossman v Hooper: CA 11 Apr 2001

The parties had lived together in the house, each contributing but held in the name of one only. The parties disputed the effect under the 1989 Act of a letter signed by each of them setting out their agreement as to the basis on which it was held. He argued that it did not include a relevant term, and was therefore not effective.
Held: The appeal failed. The court should be wary of artificially dividing up what is in truth a composite transaction. Sir Christopher Staughton doubted the observation in Tootal saying: ‘I am by no means sure of that. If the parties are allowed by a simple device to avoid the effects of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, what was the point of Parliament enacting it?’

Judges:

Chadwick LJ, Sir Christopher Staughton doubted the observation in

Citations:

[2001] EWCA Civ 615, [2001] 2 EGLR 82, [2001] 3 FCR 662, [2001] 27 EG 135

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2(1)

Jurisdiction:

England and Wales

Citing:

Cited – Tootal Clothing Ltd v Guinea Properties Ltd CA 1992
By a single commercial transaction the parties agreed to the grant of a lease, on terms that Tootal (the intending lessee), would carry out shop-fitting works, have the benefit of a three months rent-free period during the which the works were to be . .

Cited by:

Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Cited – Oun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
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 – Keay and Another v Morris Homes (West Midlands) Ltd CA 11-Jul-2012
The claimants sought damages alleging breach of contract. The defendants argued that the contract related to land, and since it was an oral agreement it was unenforceable under the 1989 Act.
Held: It was not possible that a contract which was . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 11 June 2022; Ref: scu.200973

Petromec Inc v Petroleo Brasileiro SA Petrobrasbraspetro Oil Services etc: ComC 20 May 2004

Judges:

Mr Justice Moore-Bick

Citations:

[2004] EWHC 1180 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Petromec Inc v Petroleo Brasileiro S A Petrobras and others ComC 18-Feb-2003
. .
See Also – Petromec Inc and Petroleo Brasileiro S A Petrobras, Braspetro Oil Services Company v Petromec Inc, Petro-Deep Inc, Maritima Petroleo E Engenharia Ltda QBD 2-Feb-2004
The parties entered into a complex group of inter-related contracts for the purpose of purchasing and upgrading an oil production platform for use by Petrobras in the South Marlim oilfield. At a very early stage it was agreed that the upgrade . .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras, Braspetro Oil Services Company, Societa Armamento Navi Appoggio Spa, Den Norske Bank Asa CA 17-Feb-2004
. .

Cited by:

See Also – Petromec Inc Petro-Deep Inc and others v Petroleo Brasileiro Sa and others CA 15-Jul-2005
. .
See Also – Petroleo Brasileiro SA and Another v Petromec Inc and others ComC 3-Nov-2005
. .
See Also – Petromec Inc v Petroleo Brasiliero Sa Petrobras and Another ComC 16-Jun-2006
. .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras CA 19-Jul-2006
A Mr Efremovich, a third party to the action was ordered to pay the costs of Petrobras and Brasoil which on the failure of its claim against them had been ordered to be paid by Petromec. The judge found that Mr Efromovich controlled the proceedings . .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras and others ComC 7-Dec-2006
. .
See Also – Petromec Inc v Petrobras ComC 11-May-2007
Defendant’s application for security for costs. . .
See Also – Petromec Inc v Etroleo Brasileiro Sa Petrobras and others ComC 6-Jul-2007
. .
See Also – Petromec Inc v Petroleo Brasileiro SA Petrobras and others CA 21-Dec-2007
. .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras and others CA 23-Jan-2008
Short order. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 June 2022; Ref: scu.197734

Wiltshire v Powell and others: CA 7 May 2004

The claimant sought a declaration as to the ownership of an aircraft. Saying he had bought it in good faith from E H and S, who in turn similarly claimed to have bought it from Ebbs. The defendant had obtained a judgment that he was owner as against Mr Ebbs after the sale to E H and S, but before the sale to the claimant.
Held: Since the issue of ownership had been determined before his purchase and against one through whom he claimed to derive title, the claim failed. The doctrine of privity applies in the same manner to a judgment determining the ownership of goods as it does to one determining the ownership of land.
Latham LJ expressed his conclusion: ‘where title to goods is in dispute . . a person claiming title is privy to the interests of those through whom he claims that title for the purposes of the operation of the doctrine of estoppel per rem judicatam but only if the title he claims was acquired after the date of the judgment.’
Arden LJ said ‘Res judicata promotes the important public policy of finality in legal proceedings and thus legal certainty . . If there was no estoppel per rem judicatam in this situation the result would always be that a defendant to an action about the ownership of property could always avoid the result of an adverse judgment by disposing of the property before the judgment was enforced. That would clearly be an intolerable state of affair . . ‘
Holman J said: ‘If after A has obtained a final judgment establishing that a chattel belongs to A rather than B, A wishes to sell it, it is essential that a purchaser can rely on the judgment as against B for otherwise A cannot really benefit from his judgment. Any alternative view would lead to uncertainty and commercial chaos.’

Judges:

Lord Justice Latham Lady Justice Arden Mr Justice Holman

Citations:

[2004] EWCA Civ 534, Times 03-Jun-2004, [2004] 3 All ER 235, [2004] 3 WLR 666, [2005] QB 117

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Wiltshire v Powell and others (Costs) CA 7-May-2004
. .
Cited – Gleeson v J Wippell and Co Ltd ChD 1977
The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. ‘Second, it seems to me that the sub-stratum of the doctrine is that a man ought . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Doe v The Earl of Derby 1834
For a plea of res judicata to arise as between claimants to the title to goods, the same title must have come into question in both actions, because there must be an identity of interest between the party to the first action and the party to the . .
Cited – Wytcherley v Andrews 1871
Lord Penzance said: ‘There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held, . .
Cited – Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) HL 1966
An agency had to be proved in a search to identify an entity which the law recognised (a) existed and (b) was legally responsible for the acts in issue in the proceedings. The House was asked whether the fact that an issue had already been . .
Cited – Westland Helicopters Ltd v Sheikh Al-Hejailan QBD 13-Jul-2004
. .
Cited – Hodson v Walker CEC 1872
Premises known as the Red Lion Inn, Grasmere and certain outbuildings were let. In February 1852, Walker allowed one Usher, who owned the Red Lion Inn, to build a shed on his (Walker’s) adjoining land in return for a rent of 1s. a year. In November . .
Cited – House of Spring Gardens v Waite CA 1991
The principle of abuse of process is capable of applying where the relevant earlier proceedings have taken place before a foreign court (Ireland). In this case the defendants argued that the judgment obtained in Ireland had been obtained . .
Cited – Pople v Evans ChD 1969
The court discussed the doctrine of res judicata: ‘ . . the title relied on to establish such privity must arise after the judgment on which the res judicata is based, or at any rate after the commencement of the proceedings in which that judgment . .
Cited – Mercantile Investment and General Trust Company v River Plate Trust, Loan and Agency Company 1894
Romer J said: ‘A prior purchaser of land cannot be estopped as being privy in estate by a judgment obtained in an action against the vendor commenced after purchase.’ . .
Cited – Re de Burgho’s Estate 1896
The court considered the necessary elements of issue estoppel: ‘According to the clear principles of the law of estoppel, it is necessary, in order to estop the objector, to show that he derives title under Dwyer by act or operation of law . .
Cited – Nana Ofori Atta (II) v Nana Abu Bonsra (II) PC 1958
(West Africa) Care must be taken in respect of the notion that merely standing by and waiting to see the outcome of a case in which the non-party has an interest, without more, involves an abuse of process. The parties now disputed title to land, . .
Cited – Brotherton and others v Aseguradora Colseguros S A and Another ComC 26-Feb-2003
. .
Cited – Hornsby v Greece ECHR 19-Mar-1997
Hudoc Violation of Art. 6-1; Preliminary objection rejected; Just satisfaction reserved – Judgment (Just satisfaction) Pecuniary damage – financial award; Non-pecuniary damage – financial award
The rights . .
Cited – Wenman v McKenzie 1855
Coleridge J, quoting Lord Chief Baron Gilbert: ‘nobody can take benefit by a verdict that had not been prejudiced by it, had it gone contrary’. . .

Cited by:

See also – Wiltshire v Powell and others (Costs) CA 7-May-2004
. .
Cited – Michael Wilson and Partners Ltd v Sinclair and Others ComC 21-Sep-2012
The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 10 June 2022; Ref: scu.196776

Morgan Grenfell Development Capital Syndications Ltd etc) v Arrows Autossports Ltd: ChD 11 May 2004

Liability under indemnity

Judges:

Lindsay The Honourable Mr Justice Lindsay

Citations:

[2004] EWHC 1015 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Burnand v Rodocanachi HL 1882
The respondents took valued insurance, including war risks, on a cargo which was later destroyed by the Confederate cruiser Alabama. The underwriters paid to the respondents as on an actual total loss the valued amounts, which were less than the . .
Lists of cited by and citing cases may be incomplete.

Contract, Insurance

Updated: 10 June 2022; Ref: scu.196707

Co-Operative Group (CWS) Ltd v International Computers Ltd: CA 19 Dec 2003

The judge at first instance had expressed the opinion that the claimant had little prospect of succeeding.
Held: The statement gave the impression that he had lost the ability to hear the ability to hear the case impartially.

Citations:

[2003] EWCA Civ 1955, Times 19-Jan-2004

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Co-Operative Group (Cws) Ltd (Formerly Co-Operative Wholesale Society Ltd) v International Computers Ltd TCC 13-Jan-2003
. .

Cited by:

Appealed to – Co-Operative Group (Cws) Ltd (Formerly Co-Operative Wholesale Society Ltd) v International Computers Ltd TCC 13-Jan-2003
. .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Contract

Updated: 10 June 2022; Ref: scu.193656

Royal Bank of Canada v Cooperative Centrale Raiffeisen-Boorenleenbank Binding Authority: ComC 2 Dec 2003

Judges:

Andrew Smith J

Citations:

[2003] EWHC 2913 (Comm)

Links:

Bailii, Bailii

Cited by:

Appeal from – Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank Ba CA 23-Jan-2004
The claimant sought an order to restrain proceedings in New York. The parties were based in Canada and the Netherlands, with places of business in New York and London also. The swap agreement underlying the claim provide for it to be governed . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 10 June 2022; Ref: scu.193728

Munro and Another v Premier Associates Ltd: ChD 16 Mar 2000

Property was agreed to be sold, but the land certificate was lost. A condition was added to the contract fixing the completion date as three days after notification of receipt of the new certificate. The parties agreed a date in anticipation of the certificate being received, but the purchaser did not wish to proceed for other reasons. A completion notice was served which he challenged, saying the notice had not been given. It was held that parties to such transactions were as much bound by estoppel and waiver as otherwise. The behaviour of the parties created such and the notice was effective.

Citations:

Gazette 16-Mar-2000

Jurisdiction:

England and Wales

Land, Contract

Updated: 10 June 2022; Ref: scu.84126

21st Century Logistic Solutions Limited (In Liquidation) v Madysen Limited: QBD 17 Feb 2004

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.
Held: The fraud did not make the contract unenforcable by the liquidator. The fraudulent intent was too far removed from the substance of the contract to taint it. Money received by a seller would not be held in trust for the Commissioners, and use of the money for other purposes did not conflict wit the tax payers duty later to account for an equivalent sum. The contract itself was lawful.

Judges:

Mr Justice Field

Citations:

[2004] EWHC 231 (QB), Times 27-Feb-2004, Gazette 25-Mar-2004, [2004] BVC 779, [2004] 2 Lloyds Rep 92, [2004] STC 1535, [2004] STI 497, [2004] BTC 5720

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
Cited – Tinsley v Milligan HL 28-Jun-1993
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 – Hall v Woolston Hall Leisure Limited CA 23-May-2000
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 – Skilton v Sullivan CA 18-Mar-1994
The seller of a quantity of Koi carp sent the buyer an invoice for trout. The supply of Koi carp is chargeable to VAT but the supply of trout is not. When the seller sued for the price, he was met with a plea that the contract was illegal as being a . .
Cited – Miller v Karlinski CA 1945
It was too plain for argument that a contract of employment under which the employee was paid a salary and also ‘expenses’ that included the income tax payable on the salary was against public policy and therefore unenforceable. . .
Cited – Napier v National Business Agency Ltd CA 1951
The plaintiff sought to sue for wrongful dismissal on a contract of employment under which he was paid andpound;13 salary per week and andpound;6 ‘expenses’, when his expenses could never exceed andpound;1 per week.
Held: The parties had made . .
Cited – St John Shipping Corporation v Joseph Rank Limited 1956
The defendants held a bill of lading for part of the cargo carried on the plaintiffs’ vessel from Mobile, Alabama, to Birkenhead. The vessel was over laden and the plaintiffs were guilty of an offence under the 1932 Act. The defendants relied on the . .
Cited – Pearce v Brooks 1866
The contract was for the hire of an ornamental brougham to a prostitute which was supplied with knowledge that it would be used ‘as part of her display’. She returned it in a damaged condition, and refused to make any payments under the contract as . .
Cited – Scott v Brown, Doering, McNab and Co 1892
The plaintiff sought rescission of a contract for the purchase of shares, but failed because the contract had been entered into with the sole object of rigging the market by inducing the public to believe that there was a real market for the shares . .
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 – Kearley v Thompson 1890
The plaintiff could claim a locus poenitentiae on the grounds of repentance because its confession to the fraud was the result of the frustration by others of its fraudulent purpose. Recovery under a contract performed unlawfully was barred once it . .

Cited by:

Cited – SQ v RQ and Another FD 31-Jul-2008
The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
Lists of cited by and citing cases may be incomplete.

Contract, VAT

Updated: 09 June 2022; Ref: scu.193579

Bottin (International) Investments Limited v Venson Group Plc Grant Scriven Clive Lawson Smith: ChD 3 Feb 2004

Judges:

The Honourable Mr Justice Peter Smith

Citations:

[2004] EWHC 135 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Thomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .

Cited by:

Appeal from – Bottin (International) Investments Ltd v Venson Group Plcgrant Scriven Clive Lawson Smith CA 22-Oct-2004
Under a share purchase agreement, ‘notice of the claim had to be made in writing ‘specifying such details of the event or circumstances giving rise to such claim as are available to the investor and an estimate (if capable of preparation by the . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 09 June 2022; Ref: scu.192611

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

Alleged repudiation of exclusive distribution agreement.
Held: The claim succeeded in part.

Judges:

The Honourable Mr Justice Langley

Citations:

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

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Contract, Agency, European

Updated: 09 June 2022; Ref: scu.192285

Giad Hamdo Pipes Complex Company Limited v Wilson Byard Limited (In Receivership) MacLennan for Interdict and Interdict Ad Interim: OHCS 30 Dec 2003

Judges:

Lord Brodie

Citations:

[2003] ScotCS 348

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Pagnan SpA v Feed Products Ltd ChD 1987
An agreement can be enforceable as an agreement on main terms only, with the detailed terms to be agreed later. Bingham J said: ‘The Court’s task is to review what the parties said and did and from that material to infer whether the parties’ . .
Cited – Pagnan SpA v Feed Products Ltd CA 2-Jan-1987
Contractually Bound – but Further Terms to Agree
The parties had gone ahead with performance of the arrangement between them, but without a formal agreement being in place.
Held: Parties may intend to be bound forthwith even though there are further terms still to be agreed. If they then . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 June 2022; Ref: scu.190782

Commissioner of Public Works v Hills: PC 24 May 1906

(Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable for work done as a guarantee fund to answer for defective work and also certain security money deposited with the Government. The amount of that retained money depended on the progress of contracts other than the one in suit.
Held: The clause was a penalty. The principle to be deduced from the Clydebank case was that the criterion of whether a sum was a penalty or damages was to be found in whether the sum in question ‘can or cannot be regarded as a ‘genuine pre-estimate of the creditor’s probable or possible interest in the due performance of the principal obligation.’ The question of whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not as at the time of breach.
The Clydebank case was decided according to ‘the rules of a system of law where contract law was based directly on the civil law and no complications in the matter of pleading had ever been introduced by the separation of common law and equity.’
Lord Dunedin formulated the test: ‘The general principle to be deduced from that judgment seems to be this, that the criterion of whether a sum – be it called penalty or damages – is truly liquidated damages, and as such not to be interfered with by the Court, or is truly a penalty which covers the damage if proved, but does not assess it, is to be found in whether the sum stipulated for can or can not be regarded as a ‘genuine pre-estimate of the creditor’s probable or possible interest in the due performance of the principal obligation’. The indicia of this question will vary according to circumstances. Enormous disparity of the sum to any conceivable loss will point one way, while the fact of the payment being in terms proportionate to the loss will point the other. But the circumstances must be taken as a whole, and must be viewed as at the time the bargain was made.’

Judges:

Lord Dunedin

Citations:

, (1906) 22 TLR 589, [1906] UKPC 35, [1906] AC 368

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

Cited – Commissioner of Public Works v Hills PC 24-May-1906
(Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable . .
Explained – Clydebank Engineering Co v Castaneda HL 19-Nov-1904
The House considered a contract for the construction by a Scottish shipbuilder of four torpedo boats for the Spanish government. The contract provided that: ‘The penalty for late delivery shall be at the rate of andpound;500 per week for each . .

Cited by:

Cited – Workers Trust and Merchant Bank Ltd v Dojap Investments Ltd PC 22-Feb-1993
(Jamaica) The purchaser at an auction had been obliged under the terms of the auction contract to pay a deposit of 25%. He failed to complete, and the vendor took the deposit by way of forfeit. The standard deposit payable would be 10%. The Court of . .
Cited – Commissioner of Public Works v Hills PC 24-May-1906
(Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable . .
Cited – 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 – 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, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 June 2022; Ref: scu.187690

Cyprotex Discovery Ltd v University of Sheffield: TCC 21 Feb 2003

Copyright in a Java-based software program partly adapted and derived from an earlier MathCAD-based program. Interpretation of uncertain and potentially nonsensical terms of a commercial contract and effect of ICS v West Bromwich Building Society and United Camp Chemicals Limited v ACE Insurance; retrospective effect of a contract and effect of Trollope and Colls v Atomic Power Station and Northern and Shell Plc v John Laing Construction Limited; retention of copyright and Warwick Film Production Ltd v Eisinger; joint authorship and Fylde Microsystems Ltd v Key Radio Systems Ltd and implication of terms governing copyright and Ray v Classic FM.

Citations:

[2003] EWHC 760 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property, Contract

Updated: 08 June 2022; Ref: scu.187336

Butts Park Ventures (Coventry) Limited v Bryant Homes Central Limited: ChD 29 Oct 2003

Judges:

The Vice-Chancellor

Citations:

[2003] EWHC 2487 Ch

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Tiffany Investments Ltd and Another v Bircham and Co Nominees (No 2) Limited and others CA 4-Dec-2003
The tenancy was a long lease at a low rent under the 1954 Act, and so had continuing protection under the 1977 Act whilst occupied by the original tenant. The lease was assigned and registered. It had been conditional upon an application to purchase . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 08 June 2022; Ref: scu.187282

Canada Steamship Lines Ltd v The King: PC 21 Jan 1952

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 torch by an employee led to a fire which destroyed the shed and contents. The question was whether the lessee could claim against the lessor for the loss of its goods that had been in the shed.
Held: The courts should not ordinarily infer that a contracting party has given up rights which the law confers upon him to an extent greater than the contract terms indicate he has chosen to do; and if the contract terms can take legal and practical effect without denying him the rights he would ordinarily enjoy if the other party is negligent, they will be read as not denying him those rights unless they are so expressed as to make clear that they do. An exclusion clause to be effective must satisfy these three tests ‘(1) If the clause contains language which expressly exempts the person in whose favour it is made (hereafter called the `the proferens’) from the consequences of his own servants, effect must be given to that provision (2) If there is no express reference to negligence, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence on the part of the servants of the proferens (3) If the words used are wide enough for the above purpose, the court must then consider whether `the head of damage may be based on some ground other than negligence’ . . . The `other ground’ must not be so fanciful or remote that the proferens cannot be supposed to have desired protection against it; but subject to this qualification, . . . the existence of a possible head of damage other then that of negligence is fatal to the proferens even if the words used are prima facie wide enough to cover negligence on the part of his servants.’

Judges:

Lord Morton of Henryton

Citations:

[1952] AC 192, [1952] UKPC 1, [1952] 1 TLR 261, [1952] 1 All ER 305, [1952] 1 Lloyd’s Rep 1

Links:

Bailii

Jurisdiction:

Canada

Cited by:

Approved – Smith v UMB Chrysler (Scotland) Ltd HL 9-Nov-1977
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 said: The tests were . .
Cited – National Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
Restricted – Hollier v Rambler Motors (AMC) Ltd CA 19-Nov-1971
The plaintiff left his car with the defendant garage for repair. Whilst there it was substantially damaged by fire. The defendant sought to rely upon their terms which would negative liability, saying that the terms had been incorporated by . .
Explained – Lamport and Holt Lines v Coubro and Scrutton (M and I) Ltd, (The Raphael) 1982
. .
Limited – Stent Foundations Ltd v M J Gleeson Group Plc TCC 9-Aug-2000
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 . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – Gillespie Bros and Co Ltd v Roy Bowles Transport Ltd CA 1973
The court looked at how it should construe the Canada Steamship guidelines with regard to an exemption clause absolving one party of responsibility for negligence. There was a express reference to negligence by the words ‘save harmless and keep . . . .
Cited – Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd HL 26-Nov-1981
Even though a shipowner who had carried cargo on deck was not entitled to rely on the exceptions to liability in his contract, a limitation clause was different and should not be construed by reference to the specially exacting standards applicable . .
Applied – Toomey v Eagle Star Insurance Co Ltd (No 2) QBD 1995
Applying Canada Steamship Lines Ltd v The King, Colman J said: ‘Notwithstanding the commercial purpose of this transaction, the correct approach, as a matter of construction, is to conclude that in fact the effect of cl (a) is only to exclude the . .
Cited – Barclays Bank Plc v Kufner ComC 10-Oct-2008
barclays_kufnerComC2008
The bank sought summary judgment under a guarantee to secure a loan to purchase a luxury yacht which was to be hired out in business. The loan had been charged against the yacht, but when the yacht was re-registered, the bank failed to re-establish . .
Cited – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 June 2022; Ref: scu.185978

Hammersmith Hospitals NHS Trust and Others v Troup Bywaters and Anders (A Firm): TCC 12 Nov 1999

Contract – professional negligence – duty of care – general consulting engineers – advice to NHS trust whether negligent – expert evidence – admissibility of evidence in the same profession with specialist professional expertise.

Judges:

His Honour Judge John Toulmin Cmg Qc

Citations:

[1999] EWHC Technology 273

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Professional Negligence, Evidence

Updated: 08 June 2022; Ref: scu.185886

Government of Newfoundland v Newfoundland Railway: PC 7 Feb 1888

A railway company and its assignees brought action the Government. Under the contract the company was to build a railway subsidised by the government. The railway was not completed. The parties disputed whether the contract was ‘entire’ and no part of the subsidy was payable unless the railway as a whole was completed. The company succeeded on that. The government counterclaimed for the non-completion, and sought a set off from the subsidies.
Held: The Board emphasised the intertwined nature of the obligations, and said that it ‘had no hesitation in saying that in this contract the claims for subsidy and for non-construction ought to be set against one another.’ The set-off could not be made as against the assignees: that once notice of the assignment of the debt had been given, ‘the debt or claim is so severed from the rest of the contract that the assignee may hold it free from any counter-claim in respect of other terms of the same contract.’ However it distinguished between a set-off properly allowable under the contract itself, which bound an assignee of a debt due under that contract, and a cross-claim which might ‘arise from any fresh transaction freely entered into by [the government] after notice of assignment by the company.’ In the first case, ‘It would be a lamentable thing if it were found to be the law that a party to a contract may assign a portion of it, perhaps a beneficial portion, so that the assignee shall take the benefit, wholly discharged of any counter-claim by the other party in respect of the rest of the contract, which may be burdensome. There is no universal rule that claims arising out of the same contract may be set against one another in all circumstances . . Unliquidated damages may be set off as between the original parties, and also against an assignee if flowing out of and inseparably connected with dealings and transactions which also give rise to the subject of the assignment.’

Judges:

Lord Hobhouse

Citations:

(1888) 13 App Cas 199, [1888] UKPC 7

Links:

Bailii

Jurisdiction:

Canada

Cited by:

Cited – Smith v Muscat CA 10-Jul-2003
The tenant was sued by his landlord for arrears of rent, but sought an equitable set-off for damages for disrepair accruing under the previous landlord.
Held: If the entitlement to recover arrears of rent passes from assignor to assignee, and . .
Cited – Edlington Properties Limited v J H Fenner and Co Limited CA 22-Mar-2006
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in . .
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 – Dole Dried Fruit and Nut Co v Trustin Kerwood Ltd CA 1990
The defendant had an exclusive distributorship agency for the plaintiff in England. Under that agreement, the plaintiff sold its prunes and raisins to the defendant under separate contracts of sale. The plaintiff claimed the price of goods sold . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 08 June 2022; Ref: scu.185867

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

The claimant asserted that the defendant had agreed in the course of a telephone conversation, to provide sponsorship, and sought to enforce that agreement. There were considerable conflicts of evidence.
Held: Evidence given on behalf of the claimant was inconsistent and incredible. No contract was made, the person dealing for Vodaphone did not have authority to make any final agreement, and this was known to the claimant. The claim failed entirely.

Judges:

The Honourable Mr Justice Langley

Citations:

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

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – First Energy (UK) Ltd v Hungarian International Bank Ltd CA 16-Apr-1993
A manager, though he lacked actual authority to authorise and offer a particular loan facility to the plaintiff, still did so by sending him a letter of offer which was accepted.
Held: Albeit the manager lacked actual authority to make the . .

Cited by:

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

Contract, Agency

Updated: 07 June 2022; Ref: scu.185226

Dunblane Property Limited Anthony Richard Rand, v Motorcare Holdings Limited Motorcare Services Limited,: CA 29 Jul 2003

The claimants sought damages for breach of a share sale agreement. The decision concerned the particular terms of this agreement.

Judges:

Lord Justice Clarke Lord Justice Sedley The President

Citations:

[2003] EWCA Civ 1033

Links:

Bailii

Jurisdiction:

England and Wales

Company, Contract

Updated: 07 June 2022; Ref: scu.184855

Vogon International Ltd v The Serious Fraud Office: TCC 15 Jul 2003

The claimant sought payment of invoices for work carried out in recovering data from computers. The contract required payment for investigation ‘per database’ The defendant argued that the term database should be taken to refer to what was intended at the time of the contract, and that the claimant was making an opportunistic attempt to overcharge.

Judges:

His Honour Judge Richard Seymour Q.C.

Citations:

[2003] EWHC 1739 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Vogon International Ltd v Serious Fraud Office CA 4-Feb-2004
The defendant appealed a finding in which the judge had inferred against it serious imputations where neither party had made such an allegation, and the defendant had not been given forewarning of such a finding.
Held: The judge had correctly . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 June 2022; Ref: scu.184656

Merer v Fisher and Another: CA 13 May 2003

A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered right of pre-emption was, under the Act, only void as against a purchaser for value. The defendant sought to challenge the finding as to consideration.
Held: The question on appeal is whether the evidence on which the judge did not make findings, expressly or by implication, demonstrates that the judge’s conclusion on the question as to the existence of the arrangement was plainly wrong. That was not established, and that part of the judgement stood. The claimant sought specific performance, the judge had refused it, but Sudbrook was to be distinguished and an order for specific performance granted.

Judges:

Lord Justice Potter, Lord Justice Mummery And Lady Justice Arden

Citations:

[2003] EWCA Civ 747

Links:

Bailii

Statutes:

Land Charges Act 1925 4(6)

Jurisdiction:

England and Wales

Citing:

Distinguished – Pritchard v Briggs CA 1980
A conveyance of part in 1944 gave a right of pre-emption over retained land. The vendor’s successors the let the retained land to the plaintiff with an option to buy the freehold reversion. The retained land was sold to the defendants in purported . .
Cited – Todd v Adams and Chope (Trading as Trelawney Fishing Co) (The ‘Margaretha Maria’) CA 2002
Where the correctness of a finding of primary fact or of inference is in issue (on appeal), it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – SS Hontestroom v SS Sagaporack HL 1927
The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – In Re Duomatic Ltd ChD 1969
Payments were made by a company by way of remuneration to directors without complying with the company’s articles of association in that no resolution authorising the directors to receive remuneration had ever been passed in a general meeting of the . .
Distinguished – Sudbrook Trading Estate Ltd v Eggleton HL 1982
The grantors of an option, which contained a machinery for fixing the price, had refused to appoint a valuer and that made it impossible for the contractual machinery for the valuation of the option price to work. The House of Lords held that the . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Litigation Practice

Updated: 07 June 2022; Ref: scu.182592

Islam v Ali: CA 26 Mar 2003

For a costs appeal to succeed it must be established that the judge has exceeded the limits of his proper discretion by the order made. Auld LJ said that the Court should only intervene: ‘the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that [the exercise of] his discretion is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.’

Judges:

Auld LJ

Citations:

[2003] EWCA Civ 612

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Jones and Another v Ruth and Another CA 12-Jul-2011
The parties were neighbours. The claimants succeeded in their assertion of trespass and nuisance in building works carried out by the defendant. The claimant appealed against the judge’s failure to award damages for harassment, saying that though . .
Lists of cited by and citing cases may be incomplete.

Contract, Costs

Updated: 07 June 2022; Ref: scu.181930

Davis Turner and Co Ltd v Granville Oil and Chemicals Ltd: CA 15 Apr 2003

The time bar provision, now found in cl. 28(B) of BIFA, satisfied the requirements of reasonableness under UCTA.

Judges:

Lord Justice Potter Lord Justice Tuckey Mr Justice Hart

Citations:

[2003] EWCA Civ 570, [2003] 1All ER (Comm) 819, [2003] 2 Lloyd’s Rep 356

Links:

Bailii

Statutes:

Unfair Contract Terms Act 1977

Jurisdiction:

England and Wales

Cited by:

Cited – Frans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .
Cited – Regus (UK) Ltd v Epcot Solutions Ltd CA 15-Apr-2008
The appellant had contracted to provide office accomodation to the defendant. The air conditioning did not work and there were other defects. The appellant now challenged a finding of liability and that its contract terms which were said to totally . .
Lists of cited by and citing cases may be incomplete.

Contract, Commercial

Updated: 07 June 2022; Ref: scu.181392

A L Barnes Ltd v Time Talk (UK) Ltd: CA 26 Mar 2003

The claimant appealed a costs order which had denied him the substantial part of his costs despite feeling that he had won the case. The court had said that no order should be made for payment of the expert witness’ costs of either party.
Held: The judge had erred. He should first have asked which was the successful party, before then exercising his discretion, rather than first separating out one issue, and then making that judgment. The claimant was entitled in the circumstances of this case to recover 25% of his costs.

Citations:

[2003] EWCA Civ 402, Times 09-Apr-2003, [2003] BLR 331

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Pearce v Brooks 1866
The contract was for the hire of an ornamental brougham to a prostitute which was supplied with knowledge that it would be used ‘as part of her display’. She returned it in a damaged condition, and refused to make any payments under the contract as . .
Lists of cited by and citing cases may be incomplete.

Costs, Contract

Updated: 07 June 2022; Ref: scu.180435

Tavoulareas v Tsavliris and others: ComC 21 Mar 2003

Judges:

Tomlinson J

Citations:

[2003] EWHC 550 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Tavoulareas v Tsavliris CA 5-Feb-2004
The court held that Greek proceedings required service for the purposes of establishing seisin, and therefore priority of jurisdiction. Mance LJ said: ‘Professor Antapassis says that, as a matter of Greek domestic law, the effect of art. 221 is that . .
See Also – Tavoulareas v Tsavliris and Another ComC 12-Oct-2005
. .
See Also – Tavoulareas v Alexander G Tsavliris and Sons Maritime Company ComC 24-Nov-2005
. .
See Also – Tavoulareas v Tsavliris and others ComC 9-Mar-2006
Formal recognition of judgment from Greek court. . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 07 June 2022; Ref: scu.180448

Staines v Walsh, Howard: ChD 14 Mar 2003

The claimant sought an account from the defendant share broker for the proceeds of share transactions. The defendant said the matter should be tried in Hong Kong.
Held: The claimant must show a good arguable case. Here there was evidence to support the claimant’s assertion of the use of an address in England, and a case was therefore shown. There were clear English connections, and the contract was asserted to have been made in England. England was the forum conveniens.

Judges:

The Hon Mr Justice Goldring

Citations:

[2003] EWHC 458 (Ch)

Links:

Bailii

Statutes:

Civil Procedure Rules 6.20, Contracts (Applicable Law) Act 1990, Rome Convention 3

Jurisdiction:

England and Wales

Citing:

Cited – Canada Trust Company and others v Stolzenberg and others (2) CA 29-Oct-1997
The court looked at questions relating to domicile and jurisdiction; standard of proof, date to be determined and duties before service.
Held: The court is endeavouring to find an imprecise concept which reflects that the plaintiff must . .
Cited – Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Civil Procedure Rules, Contract

Updated: 07 June 2022; Ref: scu.179918

Sun Life Assurance Company of Canada (A Company Established Pursuant To the Laws of Canada) v CX Reinsurance Company Limited (Formerly CNA Reinsurance Company Ltd): CA 6 Mar 2003

The claimant appealed a refusal to order that a dispute between insurer and re-insurer be referred to arbitration. One party sought to avoid liability under the policy, alleging misrepresentation. Discussions had been undertaking settling a revised form of agreement, but the forms had not been signed. The judge had held that the new document formal and was not intended to take effect until signed.
Held: In the insurance and reinsurance market the concern is usually upon the terms agreed and the necessity for signature at the outset when the insurance contract is made (usually by slip), rather than on any subsequent additional treaty terms which are regarded as a relative formality. Here the parties intended to be bound by the document signed unless and until replaced by any formal and signed addendum. Appeal dismissed.

Judges:

Lord Justice Potter Mr Justice Lawrence Collins Lord Justice Carnwath

Citations:

[2003] EWCA Civ 283

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – The Zephyr 1984
Whilst it is possible to make a contract which is partly oral and partly written, that is not the practice of the marine insurance market. The policy is the formal contractual document issued to the assured and unequivocally contains the terms of . .
Cited – New England Reinsurance Corporation v Messoghios Insurance Co 1992
Where, on the face of the documents the parties contemplate that, before being bound by a contract, they will execute a written contract the terms of which require careful negotiation, there is a distinction between a party who indicates his . .
Cited – First Energy (UK) Ltd v Hungarian International Bank Ltd CA 16-Apr-1993
A manager, though he lacked actual authority to authorise and offer a particular loan facility to the plaintiff, still did so by sending him a letter of offer which was accepted.
Held: Albeit the manager lacked actual authority to make the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 07 June 2022; Ref: scu.179549

Hemp v Garland, Administrator and Co: 1843

The Defendant gave a warrant of attorney to secure a debt payable by instalments, the plaintiff to be at liberty, in case of any default, to have judgment and execution for the whole, as if all the periods for payment had expired. Held that, in an action of assumpsit on the implied promise to pay according to the terms of the defeazance, defendant might shew, urider a plea of the Statute of Limitations, that the first default was made more than six years before action; and that this was a complete defence, not only as to instalments due more than six years ago, but also as to those due within that period.
The court found that ‘the cause of action accrued upon the first default for all that then remained owing of the whole debt.’
Lord Denman CJ continued: ‘(t)here was no other contract for forbearance or giving time than that which is expressed in or to be implied from the terms of the warrant of attorney.’

Judges:

Lord Denman CJ

Citations:

[1843] EngR 33, (1843) 4 QB 519, (1843) 114 ER 994, 12 LJQB 134, 3 Gal and Dav 402

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Approved – Reeves v Butcher CA 1891
A five-year loan was granted by the plaintiff to the defendant under a written agreement, providing for a ‘power to call in the same at an earlier period in the events hereinafter mentioned’. The plaintiff agreed not to call in the money for the . .
Cited – BMW Financial Service (GB) Ltd v Hart CA 10-Oct-2012
This appeal is concerned with a point of limitation arising out of a standard hire purchase contract concerning a car. The respondent had failed to maintain his payments, and theappelleants issued a termination notice. He was abroad fr a while, and . .
Lists of cited by and citing cases may be incomplete.

Limitation, Contract

Updated: 06 June 2022; Ref: scu.305727

Otis Vehicle Rentals Ltd v Ciceley Commercials Ltd: CA 12 Jul 2002

Judges:

Peter Gibson, Potter LJJ< Sir Murray Stuart-Smith

Citations:

[2002] EWCA Civ 1064

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Leave – Otis Vehicle Rentals Ltd v Cicely Commercials Ltd CA 30-Jan-2002
Leave to appeal . .

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.

Contract

Updated: 06 June 2022; Ref: scu.175185