Cases Contract Law

Plea stage

Plea Stage If the defence want to make an application to dismiss the charges, they must do so before the plea is taken. At the plea stage, the indictment is put to D and they enter a plea of guilty or not guilty to each count on the indictment, this is known as arraignment. If D pleads guilty to the sole count on indictment or all counts, the case moves to sentence If D pleads not guilty to the sole count on indictment or all counts, the court proceeds to trial preparation Where D enters at least one guilty plea and one not guilty plea, prosecution will need to consider how it wishes to proceed, the result being either that the court moves to sentence or if tehre is to be a trial the trial preparation stage begins

Byrne v Van TienHoven (1880) and Henthorn v Fraser (1892)

Postal rule does not apply to letters revoking offers

PET

Potentially exempt transfers PET: lifetime transfers of value which could become chargeable to IHT depending on whether the transferor survives for 7 years after the transfer. Only failed PET's are chargeable

Thomas Witter Ltd v TbP Industries Ltd (1996)

Recklessness was defined in Thomas Witter Ltd v TBP Industries Ltd [1996] 2 All ER 573, where it was held that to find fraud it had to be shown that the level of recklessness required was a 'flagrant disregard for the truth'.

SDLT and LTT for leases

Stamp Duty Land Tax (SDLT) and Land Transaction Tax (LTT) For the grant of a residential long lease, the calculation is similar to that for purchasing freehold. The basis of calculation however is different for a commercial lease, with a market rent payable. Net Present Value With a freehold or long leasehold (say 999 years) where a premium is paid, it is quite simple to take that premium as the basis of the SDLT or LTT calculation. It is a little more complex with a short lease with market rent payable. The first step is to calculate a lump sum equivalent of the rent over the years it is payable, called the Net Present Value (NPV). This calculation uses a complicated formula, but both HM Revenue & Customs and the Welsh Revenue Authority offer an online calculator. SDLT is assessed on the NPV, and different percentage rates apply to the slices of the total purchase price: Up to £150k, there is no SDLT payable Over £150k up to £5 million, SDLT of 1% is payable Over £5 million, SDLT of 2% is payable SDLT is rounded to the nearest pound LTT is also assessed on the NPV, and different percentage rates apply. Up to £225k there is no LTT Over £225k up to £2 million, LTT of 1% is payable Over £2 million, LTT of 2% is payable It is not rounded to the nearest pound

Law Reform (Frustrated Contracts) Act 1943

The Act does not apply to future obligations. If a frustrating event occurs future obligations are automatically discharged by the common law. The Act deals with obligations arising prior to the frustrating event. s1(2)All sums paid or payable to any party in pursuance of the contract before the time when the parties were so discharged (in this Act referred to as "the time of discharge") shall, in the case of sums so paid, be recoverable from him as money received by him for the use of the party by whom the sums were paid, and, in the case of sums so payable, cease to be so payable: Provided that, if the party to whom the sums were so paid or payable incurred expenses before the time of discharge in, or for the purpose of, the performance of the contract, the court may, if it considers it just to do so having regard to all the circumstances of the case, allow him to retain or, as the case may be, recover the whole or any part of the sums so paid or payable, not being an amount in excess of the expenses so incurred. However, s 1(2) also gives the court a discretionary power to order such retention or recovery of money as it thinks just in all the circumstances to account for expenses incurred by the payee (normally the supplier). The expenses incurred by the payee must be directly related to an attempt to perform the contract. The court therefore has a 'broad discretion' when considering whether and how much to allow the payee to retain or recover to account for his expenses under s1(2) (provided it does not exceed the actual expenses incurred or the sums paid or payable in advance of the frustrating event). The amount retained or recovered is capped and cannot exceed (i) the actual expenses incurred and (ii) the amount paid or payable prior to the frustrating event (Section 1(2) of the Act extends the decision in Fibrosa by providing that money paid before the frustrating event (the time of discharge) can be recovered, even though the failure of consideration may only be partial) s1(3)Where any party to the contract has, by reason of anything done by any other party thereto in, or for the purpose of, the performance of the contract, obtained a valuable benefit (other than a payment of money to which the last foregoing subsection applies) before the time of discharge, there shall be recoverable from him by the said other party such sum (if any), not exceeding the value of the said benefit to the party obtaining it, as the court considers just, having regard to all the circumstances of the case and, in particular,— (a)the amount of any expenses incurred before the time of discharge by the benefited party in, or for the purpose of, the performance of the contract, including any sums paid or payable by him to any other party in pursuance of the contract and retained or recoverable by that party under the last foregoing subsection, and (b)the effect, in relation to the said benefit, of the circumstances giving rise to the frustration of the contract. s 2(3): Where the contract contains provisions dealing with the consequences of frustration, the Act will apply only to the extent that it is consistent with the contract (s 2(3)). It is therefore possible for contracting parties to exclude the operation of the Act by prior agreement. s 2(5): Certain types of contracts are not governed by the Act (s 2(5)), and would therefore still be subject to the common law.

Hochster v De la Tour (1853)

The defendant agreed to employ the claimant as a courier on foreign tours for a period of three months starting from 1 June. But on 11 May, the defendant wrote and told the claimant that his services were no longer required. The claimant immediately sued the defendant. The defendant argued that the claimant should not succeed in his action unless he could show that on 1 June, he was ready and able to perform his obligations. The court found in favour of the claimant. He had a choice as to whether to wait for the date of performance, in which case he would need to be ready to perform his obligations, or to treat the contract as immediately repudiated.

Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia, The Achilleas [2009]

The exact jurisprudential basis of the remoteness rules (ie their philosophical underpinning) is not addressed in this element. But most rationales point towards the remoteness rules limiting the recoverable losses to those losses that a contracting party would or should have been aware of as being likely to flow from the breach, because these are the risks that the contracting party could be said to have accepted upon entering into a contract. One example of such a rationale comes from Lord Hoffman in Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia, The Achilleas [2009] 1 AC 61: "It seems to me logical to found liability for damages upon the intention of the parties (objectively ascertained) because all contractual liability is voluntarily undertaken" Both limbs set out in Hadley v Baxendale fit with this rationale - the first limb helping to identify risks that a contracting party should / would have known about because they usually materialise, and the second limb pointing to risks that a contracting party should / would have known about due to particular information communicated to them. This might help you to understand and/or remember the two limbs. FACTS: Transfield chartered 'The Achilleas' from Mercator. Transfield were late in the redelivery of the vessel. Mercator had entered into a subsequent charterparty to follow immediately upon the return of The Achilleas. Due to extreme volatility in the shipping charter market, the price of charters had fallen quickly and due to Transfield's late return Mercator were forced to take a much lower price for The Achilleas for the subsequent charter than had previously been agreed. Mercator argued that they should be entitled to claim for the reduction in the rate of hire for the duration of the subsequent charter. Transfield argued that Mercator should be limited to the reduced rate of hire for the period of late delivery and that losses for the full period of the subsequent charter were too remote. Held: The initial arbitrator, High Court and the Court of Appeal all found that a claim for a reduced rate of hire during the duration of the subsequent charter fell within the first limb of Hadley v Baxendale (normal loss) and within the reasonable contemplation/imputed knowledge of the parties. However, the House of Lords found for Transfield. The precise basis on which the majority did so is a matter of some uncertainty. The principle described by Lord Hoffman was that a key question for remoteness in contract was whether in objective terms the defendant had 'assumed responsibility' for the loss in question (as opposed to whether the losses are 'normal' under Hadley v Baxendale). In this case the evidence was that it was not normal in the specific industry for a party to pay for losses for late redelivery for the full term of the subsequent charter, and therefore Transfield had not assumed the risk of liablity in relation to this sum and would not be liable for the reduction in the rate of hire for the full duration of the subsequent charter. The principle used in Transfield would mark a significant departure from the rule in Hadley v Baxendale. However, subsequent cases have shown that the courts remain committed to the rule in Hadley v Baxendale as the default or normal way of establishing 'remoteness'. Transfield should be seen in the context of specific industries (Supershield Ltd v Siemens Building Technologies FE Ltd [2010] EWCA Civ 7), where on examining the approach and the commercial background it becomes clear that the Hadley approach would not 'reflect the expectation or intention reasonably imputed to the parties' (John Grimes Partnership Ltd v Gubbins [2013] EWCA Civ 37). The normal test for remoteness therefore appears to remain the approach explained in Hadley v Baxendale.

Redgrave v Hurd (1881)

This case clarified that the key point in Attwood v Small is not that separate enquiries were made or could have been made -- the crucial point is that the separate enquiries showed that the vendor's statements were not relied upon. In other cases, separate enquiries might not be such as to show that the purchaser did not also rely on the vendor's statements - the separate enquiries do not automatically prevent a claim for misrepresentation. Redgrave also established that there is no general duty to check the misrepresentor's statement.

Henderson v Merrett Syndicates Ltd (1995)

Where a contracting party owes a duty of care to the other contracting party, a breach of contract may also constitute a breach of the duty of care in tort. Where this is the case, the aggrieved party may sue for damages in contract or tort. Sometimes, there will be an advantage to pleading the action as a breach of contract or as tort (for example, to benefit from a different statutory limitation period).

Planche v Colborn

Where one party performs part of the agreed obligation, and is then prevented from completing the rest by some fault of the other party, he will be entitled to payment despite not having completed the rest of the obligation (Planche v Colborn 131 ER 305). The innocent party has two options: (a) To sue for damages for breach of contract; or (b) To claim a quantum meruit.

non excepted estates

must complete a form for HMRC

referral order

"referral order" requires an offender to attend each of the meetings of a youth offender panel established for the offender by a youth offending team, and to comply, for a particular period, with a programme of behaviour to be agreed between the offender and the panel. Essentially, they are in the form of a contract. They may be regarded as orders which fall between community disposals and fines. The minimum term of a referral order is 3 months and the maximum term is 12 months. The length depends on the seriousness of the offence. A referral order is spent when it is discharged, which leaves the youth with a clean slate. A referral order is a mandatory if the 'compulsory' referral order conditions are satisfied. These are: where the young offender has not previously been convicted of an offence and the young offender pleads guilty to an imprisonable offence and any other offence being dealt with by the court at the same time (these other offences are called 'connected' offences). However, the compulsory referral order conditions do not apply if the sentence is fixed by law or the court proposes to impose a custodial sentence, hospital order, absolute or conditional discharge. In these circumstances the court cannot give a referral order. A referral order is discretionary in the following situations. An offender may receive a referral order: on their second (or later) conviction; and/or if the offender pleads guilty to the offence or a connected offence being dealt with by the court. The offence or related offences need not be imprisonable. A referral order cannot be given where: the sentence is fixed by law; or the court feels that an absolute or conditional discharge is justified; or the court is proposing to make a hospital order; or the court considers that custody is the only correct disposal. A referral order is a mandatory if the 'compulsory' referral order conditions are satisfied. These are: where the young offender has not previously been convicted of an offence and The young offender pleads guilty to an imprisonable offence and/or any other offence being dealt with by the court at the same time (these other offences are called 'connected' offences). However, the compulsory referral order co

R v Argent - adverse inferences

'argent factors': a number of cases have confirmed that the court should not draw inferences from silence where the suspects' condition, such as ill health, ill MH, confusion, intoxication or shock gives the lawyer cause for concern. Lawyer should check custody record to see if the forensic medical examiner has certified the suspect is fit for interview.

calculating the expiry term of the lease

A 10 year term will expire 10 years after the term commencement date, but on what day? 'from and including' a certain day of the year, then the term expires on the daybefore that day of the year (eg from and includign 24 March then up until 23 March the next year) If the term of the lease is 'from' a certain day, the term starts the day after that day, and expires on that day (eg from 24 March, and will start on 25 March and expire 24 March the year after)

Jervis v Harris Clause

A commercial lease will almost always contain a self-help clause (also known as a Jervis v Harris clause) that avoids the difficulties with other remedies. A Jervis v Harris clause will give the landlord the right to: enter the property carry out any repairs recover the cost of doing so from the tenant. There is no need for the landlord to serve a section 146 notice (and therefore no opportunity for the tenant to serve a counter-notice). The cost of carrying out the repairs is treated as a debt to the landlord, not damages, and therefore it can be recovered in full. Example: in the previous example given, the landlord would be able to enter the premises and carry out the repairs to the walls required. It would be able to recover the cost of £8,000 from the tenant, instead of the £1,000 damages it would have received through the courts.

Edington v Fitzmaurice (1885)

A company issued a prospectus inviting the public to purchase debentures in the company. The prospectus said that the money would be used to improve the company's premises and expand its business. This was a statement of intention. The money was not used in this way. The investors alleged that the directors of the company knew that the money would not be used in this way and therefore the directors had misrepresented their intention. The misrepresentation need not be the only reason the claimant entered into the contract. In this case, the plaintiff (representee) was induced to lend money to the company by a misrepresentation contained in the company's prospectus. However, he was also induced by his own mistaken belief that he would have a charge on the assets of the company in relation to the loan. Nevertheless, he was able to successfully claim for fraudulent misrepresentation even though he admitted that he would not have lent the money had he not held this mistaken belief. Addition: If the representor states that he intends to do something, then he is making a limited statement fact: he is stating that he does have that intention. So if, at that point in time, he knows he cannot do what he states, or he does not intend to do it, he misrepresents his existing intention. He is stating that he has an intention to do something (which is a statement of fact) and this is untrue. He has not only made a promise which is ultimately broken but one which he never intended to keep.

Pym v Campbell 1856

A condition precedent is a condition which must be satisfied before any rights come into existence. Where the coming into existence of a contract is subject to the occurrence of a specific event, the contract is said to be subject to a condition precedent. The contract is suspended until the condition is satisfied. Where a condition precedent is not fulfilled, there is no true discharge because the rights and obligations under the contract were contingent upon an event which did not occur, ie the rights and obligations never came into existence in the first place: Pym v Campbell (1856)

Head v Tattersall (1871)

A condition subsequent is a term providing for the termination of the contract and the discharge of obligations outstanding under the contract, in the event of a specified occurrence: Head v Tattersall (1871)

Detention and Training Order (DTO)

A custodial sentence should always be used as a last resort and only where an offence is 'so serious that neither a fine alone nor a community sentence can be justified.' They can only apply when a child or young person has been convicted of an offence which is punishable with imprisonment in the case of an adult; No DTO can be imposed by the Youth Court on any offender aged 10 or 11; No DTO can be imposed by the Youth Court on anyone aged 12-14, unless they are a persistent offender; The minimum length of a DTO is 4 months; The maximum length of a DTO is 24 months; A DTO may only be 4, 6, 8, 10, 12, 18 or 24 months long; Consecutive DTOs can be imposed up to an aggregate of 24 months. The court should take account of the circumstances, age and maturity of the child or young person. When considering the relevant offence guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15-17 and allow a greater reduction for those aged under 15. This is only a rough guide. A DTO can also be imposed by the Crown Court. The first half of the DTO is spent in secure youth detention and the second in the community under supervision. Such supervision is overseen by the YOT and the court is not involved in deciding what the supervision must entail. An intensive supervision and surveillance requirement and a fostering requirement are both community alternatives to custody. The offence must be punishable by imprisonment, cross the custody threshold and a custodial sentence must be merited before one of these requirements can be imposed. An order of this nature may only be imposed on a child or young person aged below 15 (at the time of the finding of guilt) if they are a persistent offender. The Overarching guideline - sentencing children and young people says: The term of a custodial sentence must be the shortest commensurate with the seriousness of the offence. Any case that warrants a DTO of less than four months must result in a noncustodial sentence.

defence statement

A defence statement is compulsory only in the Crown Court and must be served on the prosecution and the Court - CrimPR 15.4(2) within 28 days of the date when the prosecution complies with ist initial disclosures. This time limit can be extended but only if the applicaiton to extend is made within the time limit and only if the court is satisfied that it would not be reasonable to require D to give a defence statement within 28 days. In the magistrates court a defence statement is not compulsory, but if D choses to serve a defence statement in such a case standard directions in the MC provide that D must do so within 10 business days of P filing their initial disclosure. Failure to provide a defence statement means D will be unable to make an application for specific disclosure. Judicial Disclosure Protocol para 17: service of the defence statement is a most important stage in the disclosure process and timely service is necessary to facilitate proper consideration of the disclosure issues will in advance of the trial date. Judges expect a defence statement to contain a clear and detailed exposition of the issues of fact and law. Defence statements that merely rehearse the suggestion that D is innocent do not comply with the requirements of the CPIA.

Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949]

A good factual example of the application of the Hadley v Baxendale remoteness test can be found in the following case. FACTS: Victoria Laundry wished to expand their business, and they ordered a large boiler from the defendants, Newman Industries. Delivery was to take place on 5 June. The boiler was damaged before delivery, and delivery was delayed until 8 November. The claimant claimed for the profit that they would have earned with the boiler in the time between 5 June and 8 November. In particular, they claimed for the loss of, first, the extra laundry business that they could have taken on with immediate use of the new boiler, and, second, the loss of a number of highly lucrative dyeing contracts which they could have obtained with the Ministry of Supply. The Court of Appeal held that the claimant could recover for the ordinary extra laundry business that they would have taken on. As the defendant knew at the time of contracting that the claimant was a launderer and dyer and required the boiler for immediate use in its business, these were losses occurring in the 'usual course of things' and satisfied the first limb of the Hadley v Baxendale test. The defendant must be presumed to have anticipated that some loss of profits would occur by reason of its delay, and these ordinary business profits were therefore recoverable. The claimant's loss of the lucrative dyeing contracts was considered too unusual and far reaching to satisfy the first limb of the Hadley v Baxendale test. It was therefore necessary for the claimant to prove that the defendant had sufficient actual knowledge of the particular and special circumstances to be aware of the risk. No notice had been given of the possible, highly lucrative, dyeing contracts. Lord Justice Asquith held that, in the absence of special knowledge on its part, the defendant could not reasonably foresee the additional losses suffered by the claimant's inability to accept the highly lucrative dyeing contracts, and so these losses also failed to satisfy the second limb of the Hadley v Baxendale test and were therefore irrecoverable.

Wales v Wadham (1977)

A husband left his wife to live with another woman. Prior to and during divorce proceedings, the wife asserted that she would not remarry after divorce as she had a conscientious objection to remarriage. The divorce settlement was negotiated on the more generous basis that she would remain single. Prior to the conclusion of the settlement, the wife agreed to marry another and did not communicate this change of intention to the husband. The husband sought to rescind the agreement on the ground that his wife's non-disclosure of her intention to remarry. The court upheld the settlement and dismissed the husband's claim. The wife had not misrepresented her then current intention when she told her husband that she would not remarry. And she was under not duty to disclose her change of intention.

Action in debt to recover rent

A landlord can issue court proceedings to recover a debt, such as unpaid rent, service charge or insurance rent. An action for debt is limited to rent due in the six years before the issue of proceedings. Any earlier outstanding rent is irrecoverable. This is unlikely to be significant with a commercial rack rent lease (where the landlord is unlikely to allow six years of rent arrears to build up), but is relevant to long leases, where low ground rents often go unpaid. Again, the disadvantage is that court claims may be costly and time consuming. However an advantage is that the time taken to pursue the debt gives the tenant breathing space, and strangely may therefore help preserve the landlord/tenant relationship. If the current tenant is an assignee, another possibility is to pursue the former tenant, if it is an old lease or the former tenant gave an authorised guarantee agreement (see element on assignment). In certain instances, a former tenant who is paying the current tenant's debts may apply to the landlord to be granted a lease.

GROB

A lifetime gift will be treated as a GROB if: The donee does not assume "bona fide possession" of the property at or before the start of the "relevant period". At any time during the "relevant period" the property "is not enjoyed to the entire exclusion, or virtually to the entire exclusion, of the donor and of any benefit to him by contract or otherwise". The relevant period is the seven year period before the donor's death A gift can be caught by the GROB rules many years after it is made if the donor reacquires an interest in the property. Effect of reserving benefit The effect of a reserving a benefit depends on for how long the benefit is reserved: If the GROB subsists at the date of the donor's death, the property is treated as if it were part of the donor's estate for inheritance tax purposes. It is valued at the date of the donor's death. If the donor no longer retains the benefit at the date of their death, they are treated as having made a PET on the date the reservation ceased. This deemed PET is charged in the same way as any other PET on the donor's death but because it does not involve an actual transfer of value it will not benefit from the Annual Exemption ('AE').

Doyle v Olby (Ironmongers) Ltd [1969]

A party who has been deceived by a fraudulent misrepresentation may sue for damages. Fraudulent misrepresentation is part of the tort of deceit, and this is reflected in the way damages are calculated on the 'tortious' basis. The measure of damages is that which is necessary to place the innocent injured party in the position he would have been in had the misrepresentation not been made. It was held by CoA that in this case the claimant can recover "all the damage directly flowing from the tortious act of fraudulent inducement which was not rendered too remote by the plaintiff's own conduct, whether or not the defendant could have forseen the loss". To this have been added requirements that the claimant must mitigate as soon as the fraud is discovered and, second, that any damages awarded to the plaintiff will be reduced by the value of any benefit the plaintiff has acquired as a result of the contract.

formalities of identification

A record shall be made of the description of the suspect as first given by eye witness A copy of the record shall be given to the suspect or their solicitor before any identification procedures are carried out A notice must be given to the suspect and the following must be explained The purpose of the procedure Their entitlement to free legal advice The procedure for holding it, incl. Their right to have a solicitor or friend present That they do not have to consent to or cooperate in the procedure That if they do not consent or cooperate, their refusal may be given in evidence in any subsequent trial and police may proceed covertly without their consent The suspect shall be invited to participate in a video identification procedure first

Attwood v Small (1838)

A representor may seek to argue that the representee was not induced where the representee choses to test the validity of the representor's statement by making its own investigations. In this case, the vendor of a mine made wildly exaggerated statements about its earning capacity. The purchaser did not believe the glowing reports made by the vendor and, therefore, sent his own agent to make an independent report. The agent produced a similarly glowing report to that of the vendor. The mine then turned out to be virtually worthless and the purchaser brought a claim maintainig that the prospects of the mine had been misrepresented to him. The claim was dismissed. The purchased had not relied on the statement of the vendor but had been induced to purchase the mine on the strength of his own agent's report: a party cannot bring a claim in misrepresentation when it has relied not on the misrepresentation, but on its own investigation.

Bisset v Wilkinson (1927)

A statement of opinion is not a statement of fact. Usually, it cannot form the basis of a claim in misrepresentation. E.g. ths case, the claimant agreed to purchase land from the defendant for the purpose of sheep farming. The defendant made a statement that his 'idea was that the land would carry two thousand sheep'. The claimant was aware that neither the defendant nor anybody who had owned the land previously used it for sheep farming. The court held that the statement was merely an opinion that the defendant honestly held and accordingly the claim for misrepresentation failed

Tate v Williamson (1866)

A, who was a young man heavily in debt, sought the advice of B. B advised A to sell certain land in order to raise money to repay his debts. B then offered to buy the land for half its real value. Certain facts which were material to the value of the land were known to B and he did not disclose them to A. HELD: the contract could be set aside for constructive fraud. A confidential relationship between the contracting parties gives rise to a duty to disclose material facts. This rule is sometimes known as the equitable doctrine of constructive fraud. The duty encompasses similar types of relationships as undue influence (doctor patient, solicitor client, trustee beneficiary, but may be extended beyond usual boundaries).

Chappell & Co v Nestle Co Ltd [1960]

According to the doctrine of freedom of contract, the courts will not interfere with a bargain freely reached by the parties. It is not the court's duty to assess the relative value of each party's contribution to the bargain. There is no reason, for example, why a party should not be bound by a promise to sell a new Rolls Royce car for one penny. If the agreement is freely reached, the inadequacy of the price is immaterial. In Chappell & Co v Nestle Co Ltd [1960] AC 87. The Nestle company offered gramophone records of a particular tune to the public for 1s 6d, together with three chocolate bar wrappers. The wrappers were thrown away on receipt by the company. In relation to a claim for royalties, the question arose as to whether the wrappers were part of the consideration given for each record. The House of Lords held that the wrappers were part of the consideration even though they were of no further value once received by the company. Lord Somervell stated: "They (the chocolate wrappers) are, in my view, in law part of the consideration. It is said that when received the wrappers are of no value to Nestle. This I would have thought irrelevant. A contracting party can stipulate for what consideration he chooses. A peppercorn does not cease to be good consideration if it is established that the promisee does not like pepper and will throw away the corn. As the whole object of selling the record was to increase the sales of chocolate it seems to me wrong not to treat the stipulated evidence of such sales as part of the consideration"

adverse infrerences

Adverse inferences: are common sense conclusions that is adverse to the interests of a party in proceedings. Criminal Justice and Public Order Act 1984: Section 34: Allows for an inference to be drawn by the jury or magistrates in circumstances when the defendant later relies on a fact in their defence that was not offered at the time of questioning. The court does not have to draw any inference, but if it does, it must be 'proper'. MUST BE CAUTIONED FOR INFERENCES TO BE DRAWN Section 36: if there is a failure to account for a mark, object or substance. This is why careful consideration of the custody record is important so you are not ambushed in the interview Section 37: if there is a failure to account for presence at the scene. Where was the suspect arrested? Can this be linked to involvement? For s36 and s37: They require D to be given an 'ordinary language caution' known as a 'special warning'. The requirements of the special warning are in PACE COP C para 10.11 - they must be told: When the offence is being investigated What fact they are being asked to account for This fact may be due to them taking part in the commission of the offence A court may draw a proper inference if they fail or refuse to account for this fact A record is being made of the interview and it may be given in evidence if they are brought to trial the ability to draw inferences unser s 36 and 37 arise as soon as there is a failure by D to account for their possession of the object in question or presence. What is a special warning? Needs to be given because you are about to ask them to account for a particular thing Section 38: contains the safeguard that no defendant may be convicted solely based on adverse inferences Section 35: if the accused is silent at trial

alterations in a lease

Alterations are changes to the premises, such as reconfiguring the internal walls, opening up new windows, adding a mezzanine floor. If the lease is silent on alterations, then the tenant is free to carry out alterations. The only restriction imposed by law is the doctrine of 'waste', which means that the tenant cannot carry out alterations which reduce the value of the property. Restrictions on alterations: in an FRI lease The type of alterations (external, internal, structural, non-structural) If they are permitted, or consent is needed Whether they must be reinstated at the end of term check against absolute and qualified covenants on alterations

Innocent misreprsentation (Misrepresentation Act 1967)

An innocent misrepresentation is one which is not made fraudulently or negligently. The definition of innocent misrepresentation also derives from s2(1) of the MA 1967. an innocent misrep. is a statement made where the representor: (a) proves that he had reasonable grounds for belief in the truth of his statement; and (b) proves that he believed up to the time of the contract that what he was saying was true Burden of proof on representee! Innocent representations do not afford damages per se (although up to courts discretion), although damages in lieu of rescission may be available under s2(2). They can claim rescission and if applicable indemnity.

What approach does the court take when determining whether an agreement exists between the offeror and offeree?

An objective approach, by considering what the reasonable person would say was the intention of the parties having regard to all the circumstances (Storer v Manchester City Council)

Jackson v Horizon Holiday (1975)

Another example of recovery by a contracting party, apparently of loss suffered by a third party, is this case. the claimant booked a holiday for himself, his wife and his two children for 1200£. The defendants brochure described the holiday hotel as having excellent facilities. This proved not to be the case and the claimant brought an action for breach of contract. At first instance, the judge made an award of 1100£ damages, which was just less than the full cost of the family holiday, despite his assertion that he would only consider the mental distress of the claimant and not that of his wife and children. The defendant appealed against the amount of damages. The CoA upheld the award. As clarified by subsequent authorities (Woodar v Wimpey) the proper interpretation of the decision is probably that either a) Mr Jackson's own losses were 1100£. The basis for reaching that conclusion is not really explained clearly in any of the judgments that suggest it, or b) The case is an exceptional type of contract 'calling for special treatment' and example of one of the many situations which 'require some flexibility in the law of contract'.

Alec Lobb v Total Oil [1983]

Bad faith needs to be distinguished from driving a hard bargain. In Alec Lobb v Total Oil [1983] 1WLR 87 Alec Lobb was the owner of a petrol station. Lobb was in grave financial difficulty. He contacted Total Oil, and proposed to sell the station to them, and then lease it back from them. This would provide him with a lump sum payment (for the petrol station) which he could use to relieve his immediate financial problems, and he would then pay monthly lease payments to Total Oil instead. The lease was set to last 51 years, and for 21 years Lobb could only purchase the oil from Total Oil. These terms were very much in Total Oil's favour, and Total Oil had been able to negotiate such favourable terms because Lobb's credit history was very poor and he would have struggled to obtain financial help elsewhere. Lobb later sought to allege the contract had been entered into as a result of duress. The court disagreed. Hard bargaining did not amount to duress, and Lobb has chosen to enter into the agreement despite receiving legal advice not to do so.

The Moorcock (1889)

Business efficacy: A term may be implied to make the contract produce its intended objective (only if w/o the implied term the arrangement would be so unbusiness-like that sensible people could not be supposed to have entered into it. There was a contract between the defendants who owned a thames side wharf and a jetty, and the claimants that the claimant's vessel, The moorcock, should be unloaded and reloaded at the defendants wharf. The moorcock was moored alongside the wharf, but the tide fell, she took to the ground and sustained damage on account of the unevenness of the riverbed at that place. The claimants brought action for breach of contract. It was held that there was an implied term that the contract defendants would take reasonable care to see that the berth was safe, as both parties must have known at the time of the agreement that if the ground were not safe the ship would be endangered when the tide ebbed. There was a breach of this implied term.

who is a vulnerable suspect?

COP C 1.13(d) - states that 'vulnerable' applies to any person who, because of MH condition or mental disorder: May have difficulty understanding or communicating effectively about the full implications for them of any procedures and processes connected with: Their arrest and detention Their voluntary attendance at a police station, or their presence elsewhere for the purpose of a voluntary interview The exercise of their rights and entitlements Does not appear to understand the significance of whatthey are told, of questions they are asked or of their replies Appears to be particularly prone to: Becoming confused and unclear about their position Providing unreliable, misleading, or incriminating information without knowing or wishing to do so Accepting or acting on suggestions from others without consciously knowing or wishing to do so Readily agreeing to suggestions or proposals without any protest or question

New Zealand Shipping Co v AM Satterthwaite & Co (The Eurymedon) [1975]

Can a promise to do X also be consideration to a subsequent contract with Party C" In New Zealand Shipping Co v AM Satterthwaite & Co (The Eurymedon) [1975] AC 154 the claimant made an offer to the defendant that, if the defendant would unload the claimant's goods from a ship, then the claimant would treat the defendant as exempt from any liability for damage to the goods. In fact, the defendant was already bound to do this by a contract with a third party. Lord Wilberforce stated: "An agreement to do an act which the promisor is under an existing obligation to a third party to do, may quite well amount to valid consideration and does so in the present case: the promisee obtains the benefit of a direct obligation which he can enforce." Lord Wilberforce makes the point that a party offering this sort of consideration is offering to put itself at risk of double liability - if it fails to meet its obligations, it will face action from two parties. Pao On v Lau Yiu Long [1980] AC 614 approved and extended The Eurymedon by treating a promise by A to perform a pre-existing contractual duty owed to B (as opposed to the actual performance of that duty) as valid consideration for a promise made by C.

Carillion Construction Ltd v Felix (UK) (2001) STEPS FOR ED

Carillion was the main contractor employed to carry out the construction of an office building. Carillion subcontracted the supply of the cladding to Felix. Felix indicated that it might not be able to complete its work on time unless the contract was varied to provide for increased payments to Felix. Carillion agreed to these new terms, but later argued successfully that the revised contract was voidable on the basis of duress. The application of the test in DSND to Carillion is set out on the next page. (1) Lack of practical choice Carillion needed this work to be completed on time to allow other work in the property to proceed. If all the work was not completed on time, Carillion would incur heavy fees for late completion in relation to its contractor with the building owner. It would be impossible for Carillion to find an alternative supplier or pursue legal action against Felix in time. (2) Caused by pressure Felix refused to complete the work on time unless Carillion agreed to the new terms. (3) Pressure illegitimate - has there been a threatened breach of contract? The refusal to complete on time amounted to a threatened breach of contract (ie was unlawful). (4)Pressure illegitimate - was the pressure applied in good or bad faith? The threat was made in bad faith to extort money from Carillion. (5) Pressure illegitimate - did the victim protest? Before paying the money Carillion wrote a letter protesting against Felix's demand. (6)Pressure illegitimate - did the victim affirm? Carillion did nothing that would amount to affirming the contract. (7) But for the duress, the agreement would not have been entered into. The new terms were much worse for Carillion, and Carillion would not have entered into them had there been no duress.

Taylor v Caldwell (1863)

Case law shows that the doctrine of frustration may be invoked in circumstances where the contract becomes impossible to perform due to the total or partial destruction of some object necessary to the performance of the contract. Facts: Caldwell granted to Taylor the right to use the Surrey Gardens and Music Hall in Newington, Surrey 'for the purpose of giving a series of four grand concerts and day and night fêtes at the said Gardens and Hall' on four days in June and August 1861. Caldwell would provide the Hall, and Taylor would provide all necessary 'artistes'. The contract was entered into on 27 May 1861, but before the day of the first concert, the Hall was destroyed by fire. No provision was made for this risk in the contract. Held: the destruction of the hall was without the fault of either party, and was so complete that in consequence the concerts could not be given as intended. The contract should be construed as subject to an implied condition that the parties shall be excused if, before breach, performance becomes impossible because of the 'perishing' of the thing without default of the either side. Accordingly, Taylor would be excused from using the gardens and paying the money, Caldwell would be excused from their promise to give the use of the Hall and Gardens. In modern language, performing the impossible must be 'radically different' to performing the possible, and therefore in modern language, the contract was frustrated.

Caution

Caution Interviews must be carried out under caution, therefore a person must be cautioned before being asked any questions. 'You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do sa ymay be given in evidence'

duty to hold identification procedure

Code D para 3.12 states that an identification procedure shall be held where: An offence has been witnessed and an eye witness Has identified a suspect or purported to have identified them Is available who expresses an ability to identify the suspect Has a reasonable chance of being able to identify the suspect The suspect disputes being the person the eye witness claims to have seen An identification procedure does not need to be held if it is not practicable or it would serve no useful purpose in proving or disproving the suspect was involved, eg. Where the suspect is already known to the eye witness. If the suspects identity is known to the police and they are available, the identification procedures that may be used are: Video identification - eye witness is shown moving images of a known suspect, together with similar images of others Identification parade - the eye witness sees the suspect in a line of others Group identification - the eye witness sees the suspect in an informal group of people

Commercial rent arrears recovery (CRAR)

Commercial rent arrears recovery (CRAR) is a self-help remedy (similar to the old common law remedy of distress which it replaced on 6 April 2014). Self-help remedies have the advantage of being generally cheaper and quicker than court proceedings. CRAR may be used where: the premises are purely commercial (it cannot be used, for example, where the premises comprise a shop and residential flat) a minimum of seven days' principal rent is owed (it can't be used to recover service charge or any other sum reserved as 'rent' but does include VAT and interest) the lease has not been forfeited CRAR requirements As it is a self-help remedy, there are strict requirements to the way in which CRAR must be conducted: the landlord must appoint an enforcement agent who either has the required certificate from the court or is exempt from the requirement (eg, a police officer) Seven clear days' notice must be given of the intention to enter the tenant's premises (clear days exclude Sundays and bank holidays) The notice must include certain details, such as the amount of the debt and how to repay it, details of the power being used to enforce the debt, and contact details for the enforcement agent If the notice expires without repayment of the debt, the enforcement agent can enter the premises and take control of goods belonging to the tenant up to the value of the debt owed. The landlord must serve a further seven clear days' notice if it intends to sell any of the seized goods.

England v Davidson (1840)

Consideration / Duty already exists as a public duty: Carrying out a public duty imposed by the law will not amount to sufficient consideration. The issue of sufficiency of consideration has also arisen in respect of rewards claimed by police officers for giving information. Could it not be said that police officers, in giving information, are doing no more than their public duty? This point arose for discussion in the case of England v Davidson (1840) 11 A & E 856, where the defendant offered a reward for information leading to the conviction of a particular criminal. The plaintiff, a police officer, gave the relevant information, but the defendant refused to pay, alleging that the police officer, by supplying the information, was doing no more than the public duty imposed on him by law. It was held that the duty of a police officer is the prevention of crime and he is not under a duty to provide information to a private individual. In doing so he went beyond his public duty and thus provided consideration for the offer of reward.

Thomas v Thomas (1842)

Consideration must have some value 'in the eyes of the law'. It matters not how small that value is, so long as it is worth something. If a thing of value can be identified, then there will be sufficiency of consideration and, as seen above, the court will not enquire as to its adequacy. In the case of Thomas v Thomas (1842) 2 QB 851 the executor of an estate agreed to transfer a house to the deceased's widow in return for a payment from the widow of £1 per annum towards the ground rent for the property and the widow's agreement to keep the house in repair. The court made clear that it did not matter not whether the widow's obligations in any way matched the value of the property.

Hartley v Ponsonby (1857)

Consideration: If the sailors had agreed to exceed their existing obligations, then there would have been consideration. In Hartley v Ponsonby (1857) 7 E & B 872 the sailors were contractually obliged to take 'all reasonable endeavours' to get a ship home, but they went beyond these existing obligations when they agreed to make the journey in dangerous conditions and when the ship was seriously undermanned - this amounted to good consideration.

McGlinn v Waltham Contractors [2017]

Cost of Cure (Damages): It should be noted that the claimant must act reasonably in relation to the defective works. In McGlinn v Waltham Contractors [2017] EWHC 149 (TCC), the claimant was found to have acted unreasonably in demolishing and rebuilding an entire property to cure defective works for purely aesthetic reasons and limited the award to the costs which would have been incurred in remedying the defects in the original building.

Birse Construction Ltd v Eastern Telegraph Co Ltd [2004]

Cost of cure The usual method of calculating the expectation interest in contracts involving defective works (eg where a building is not built to the contract specification) is the cost of cure (Birse Construction Ltd v Eastern Telegraph Co Ltd [2004] EWHC 2512). The cost of cure represents the cost of substitute or remedial work required to put the claimant in the position he would have been in had the contract been properly performed.

Addis v Gramophone Co Ltd [1909]

Damages for mental distress The general rule is that damages will not be awarded in relation to mental distress, anguish or annoyance caused by breach of contract (Addis v Gramophone Co Ltd [1909] AC 488). In Addis, the House of Lords refused to uphold an award which had been made in relation to the 'harsh and humiliating' way in which the claimant had been dismissed from his job in breach of contract. Johnson v Unisys Ltd [2003] 1 AC 518 confirmed that damages for distress and injury to feelings resulting from the manner of dismissal are unavailable in the law of contract.

Tweddle v Atkinson (1861)

Definition of Privity: This case concerned an agreement rached between two fathers of a couple who were about to get married. The father of the bride agreed to pay 200£ to the groom, the claimant. The groom sought to enforce his father-in-law's promise. It was held that he could not. The judgments concentrated on the fact that the consideration for the promise was not provided by the claimant groom but by his father. However, the claimant could also have failed on ground that the groom was not a party to the contract. On CONSIDERATION: this case also illustrates the rule that consideration must move from the promisee.

Dunlop v Selfridge [1915]

Definition of consideration by Academic Frederick Pollock: "An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable"

Wilson (Paal) & Co A/S v Partenreederei Hannah Blumenthal, The Hannah Blumenthal [1983]

Discharge by subsequent binding contract The essence of this concept is the formation of a new contract, and this may occur in several ways. For instance, where both parties have obligations which remain unperformed, the contract may be discharged by mutual waiver. This is a new contract by which each party agrees to waive their rights under the old contract in consideration for being released from their obligations under the old contract. => For this discharge to be effective, two elements must be present, sometimes called 'accord and satisfaction': there must be agreement that the obligation will be released ('accord'), and there must be consideration for the promise to release a party from the obligation ('satisfaction'). (This type of arrangement is very common in commercial situations where parties wish to end an existing contract and achieve commercial certainty. They will often agree the terms of a termination agreement to release and settle any liabilities under the original contract so that they can be sure that they will have no further liabilities or obligations arising from it in the future.)

Harvela Investments Ltd v Royal Trust Co. of Canada (1985)

Displacement of the rule 'invitation to tender': where the invitation to tender expressly contains an undertaking to accept the highest or lowest bid. In such a case, the party requesting the tenders has made an offer to enter into a contract with the party submitting the highest/lowest bid, this is a form of unilateral contract: the required act is making the highest/lowest bid, and when this is carried out, the party is bound.

Occidental Worldwide Investment v Skibs A/S Avanti (The Sibeon & The Sibotre)) [1976]

Duress to goods A contract can also be avoided where there is a threat to seize the owner's property or to damage it (Occidental Worldwide Investment v Skibs A/S Avanti (The Sibeon & The Sibotre)) [1976] 1 Lloyds Rep 293. To succeed in establishing duress to goods it seems likely that it must be shown that the agreement would not have been entered into if there had not been the duress. Unlike duress to the person, it is unlikely to be sufficient to show that duress will be one factor (but not a decisive factor) influencing the wronged party's behaviour.

Duty to retain and record relevant material

Duty to retain and record relevant material Every investigation will have (1) an officer in charge of investigation, responsible for directing the investigation and ensuring that proper procedures are in place for recording informaiton, (2) an investigator, ie a police officer conducting the investigation, and (3) a discosure officer who is responsible for examining material retained and revealing material to the prosecutor and defence at prosecutor's request. In routine cases, all these may be carried out by the same person. But in complex cases, the roles will be individually assigned.

Leaf v International Galleries (1950)

Example of 'mistake about the quality of goods does not void the contract': Both the buyer and seller thought that the were buying /selling a painting of Salisbury Cathedral by the famous painter Constable. The court suggested (obiter) that even a mistake like this would not lead to the contract being void on the grounds of mistake as to quality. It has been suggested that there is a limited category of cases where the mistake is so severe that the contract will be void for mistake as to quality. The tests to be applied to engage this exception is unclear. It could be a question of whether the mistake is such that the subject matter is 'essentially different' from that intended (Bell v Lever Brothers (1932)).

Grogan v Robin Meredith Plant Hire (1996)

Exception to L'estrange v Gaucob: If the document signed was not one which was intended to have any contractual effect (e.g. it was a document simply acknowledging receipt of goods) then the terms within it will not form part of the contract) This is because signing such a document does not indicate an intention to be bound by its terms, precisely because it was not intended that the document would have any contractual effect. In this regard, timing is also important: the document in Grogan was described by Auld LJ as 'post contractual document' making it much less likely it would have contractual effect.

Contracts uberrimae fidei (utmost good faith)

Exception to silence (misrepresentation). There is a duty to disclose material facts in some types of contracts in which one party is in a particularly strong position to know the material facts which form the basis of the contract. Such contracts are known as contracts uberrimae fidei. The most common example of this type of contract is a contract of insurance where (at common law). disclosure of all material facts must be made to the insurer. A fact is material if it would affect the judgment of a prudent insurer in deciding whether to accept the risk or in deciding the premium to be paid. Where there has been a material non-disclosure, the insurer may avoid the contract. Note that this is a specialist area and legislation has modified the law in this area in some regards. (Concept also relates to area of law on the contracts for the sale of land).

C & P Haulage v Middleton [1983]

FACTS: C & P Haulage contracted to allow Mr Middleton to use their premises for a vehicle repair business. Under the terms of the agreement (i) Mr Middleton's licence was renewable every six months, and could be cancelled with one month's notice, and (ii) any fixtures put into the premises by Mr Middleton were to be left on the premises. Mr Middleton carried out substantial work on the premises to make them suitable for use as a garage. The parties fell out and, on 5 October 1979, Mr Middleton was ejected from the premises and had to carry on his business from the garage at his house. Mr Middleton claimed £1,767.51 damages, to cover the money spent on putting the premises in a fit state to use as a garage (ie damages based on his reliance interest). It was accepted by Mr Middleton that, under the contract, he was not entitled to take out any of the fixtures he had installed, and that he would not have been entitled to payment for the work he had done in relation to the premises. He also accepted that the agreement could have been lawfully terminated ten weeks after it was actually ended. Should Mr Middleton have been able to recover the sum of £1,767.51? Was this a sum he spent in preparing for / performing the contract? Does it matter that he could have been evicted after 10 weeks and that he would then have lost the benefit of that work anyway? Would it be fair to award him £0? "The present case seems to me to be quite different both from Anglia Television Ltd. v. Reed [...] in that while it is true that the expenditure could in a sense be said to be wasted in consequence of the breach of contract, it was equally likely to be wasted if there had been no breach, because the plaintiffs wanted to get the defendant out and could terminate the licence at quite short notice. A high risk of waste was from the very first inherent in the nature of the contract itself, breach or no breach. The reality of the matter is that the waste resulted from what was, on the defendant's side, a very unsatisfactory and dangerous bargain. [...] an aggrieved party cannot recover for expenses that would have been wasted whether or not the breach of contract occurred. The losses must flow from the breach, not from making a bad bargain. [...] Mr Middleton had made a bad deal - he spent a great deal of money improving premises that he had only a limited right to occupy. Mr Middleton was only entitled to stay for six months at a time, and had no right under the contract for compensation for the money he spent improving the premises as [...] all fixtures and fittings were to be left on the premises. Mr Middleton's loss therefore came from making a bad bargain, not from the breach. [...]no award of damages can put the claimant in a better position than he would have been in had the contract been performed. " This case shows that it will only be possible for the claimant to claim his reliance interest if the contract would have enabled him to recoup those expenses had it been properly performed.

Plantation Holdings (FZ) LLC v Dubai Islamic Bank PJSC (2017)

FACTS: The claimant was a property developer which was developing land in Dubai using money borrowed from the bank. The bank took possession of the land following various defaults by the developer, such as failure to provide certain documentation to the bank. The developer argued that there had been no such default, and the bank was therefore not entitled to possession, and sought damages of $2bn, the sum the developer alleged it would have made had the development run its intended course. The bank alleged that even if it had not been entitled to possession at the time it took possession and therefore had been in breach of contract, it could lawfully have taken possession later because the developer would inevitably have defaulted on repayments to the bank, and under the contract, this also gave rise to a right to possession. Accordingly, the developer had suffered no loss as a result of any breach and was not entitled to any damages. HELD: The court accepted the bank's argument - even if there had been no breach by the bank, the development would not have run its intended course. The bank could and would have taken possession soon after, and the developer would not have made any substantial profits. Accordingly, to compensate the developer other than in nominal damages would have put the developer in a better position than it would have expected to have been in had the contract been performed. The developer was therefore only awarded nominal damages - £1.

Anglia Television Ltd v Reed [1972]

FACTS:The claimants engaged the defendant to star in a film which they were making. At the last moment, in breach of contract, the defendant refused to perform in the film, and the claimants had to abandon the film because they were unable to find a replacement actor. The claimants did not claim on the basis of the expectation measure (ie for the profit they would have made if the defendant had performed in the film) because they simply could not say that would be - it was too speculative, too hard to predict. Instead, they claimed and obtained damages in respect of expenses of £2,750 in fees incurred for a director, a stage manager and others, which had been wasted by reason of the defendant's refusal to perform, even though these expenses had been incurred before the contract was made. HELD: The claimants were entitled to these damages on the basis of the 'reliance measure'

Central London Property Trust Limited v High Trees House Limited [1947]

FORMULATION OF PROMISORY ESTOPPEL: In 1937, the plaintiff landlord let a block of flats to the defendant tenant on a 99 year lease at a ground rent of £2,500 a year. When war commenced in 1939, only about one third of the flats had been let and the tenant was having difficulty paying the rent. Consequently, in 1940, the landlord agreed in writing to reduce the ground rent to £1,250. The parties did not specify how long the reduced rent would operate for and there was no consideration for the reduction. By 1945, the flats were fully let. In September 1945, the landlord requested that the full ground rent be paid and he requested payment of the arrears for the last two quarters of 1945 ie the quarter ending 29 September 1945, and the quarter ending 25 December 1945. The tenant argued that the reduced rent was payable for the whole 99 year term or alternatively up until September 1945 on the grounds that the landlord was estopped from claiming the additional rent. Although, the landlord was not seeking to obtain the full rent from 1940, Denning J commented obiter, on his ability to do so. The court held that where a promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made and which was in fact so acted on, then the promise would be binding. Accordingly, the landlord could recover the rent for the last two quarters of 1945 and going forward. Denning J stated (obiter) that if the landlord had sought to recover the full rent from 1940 to 1945 period he would have been estopped from doing so. It is an essential element of the doctrine of promissory estoppel that the promisee (usually a debtor) should have relied upon the promise or representation, ie it must have influenced the conduct of the party to whom it was made (High Trees). (a) An act which takes place before the promise cannot be in reliance on the promise; (b) Although the promise need not be the only reason for the promisee's change in position, it must have influenced the promisee's conduct in some way; and (c) Where the promisee has, after the promise, conducted himself in the way intended by the promisor, it will be up to the promisor to establish that the conduct was not induced by the promise.

Krell v Henry [1903]

Facts: By a written contract, the defendant agreed to hire a third-floor flat on Pall Mall from the plaintiff for 26 and 27 June 1902. The purpose in hiring the room was to view the coronation procession that was to pass along the street below on those dates. However, no express mention was made of this in the contract. King Edward VII fell ill and processions did not take place on the days appointed. The defendant refused to pay the balance of the agreement, denied liability and counter-claimed the money paid as a deposit. Held: The Court of Appeal held that the contract was frustrated. There was a necessary inference from the circumstances, recognised by both parties, that the coronation procession, and the relative position of the rooms, was the foundation of the contract which was frustrated by the King's illness. Vaughan Williams LJ stated: "Each case must be judged by its own circumstances. In each case one must ask oneself, first, what, having regard to all the circumstances, was the foundation of the contract? Secondly, was the performance of the contract prevented? Thirdly, was the event which prevented the performance of the contract of such a character that it cannot reasonably be said to have been in the contemplation of the parties at the date of the contract? If all these questions are answered in the affirmative (as I think they should be in this case), I think both parties are discharged from further performance of the contract."

Davis Contractors v Fareham Urban District Council [1956]

Facts: Davis Contractors agreed to build 78 houses within eight months for Fareham Council. The work took three times as long as it was supposed to, due to a lack of skilled labour, occasional stoppages due to a shortage of materials including bricks, timber and plumbers' goods, and an exceptionally long frost followed by excessively muddy conditions. Davis Contractors incurred an additional cost of £17,600 in this time, on top of the £92,400 contract price, and they sought to claim this additional cost from Fareham. As the law stood at that time, if the contract had been frustrated, they would have been entitled to do so. Do you think the contract was frustrated? "[W]here, without the default of either party, there has been an unexpected turn of events, which renders the contract more onerous than the parties had contemplated, that is [not] by itself a ground for relieving a party of the obligation he has undertaken" Applying that to the facts of the case, the court held that the contract was not frustrated.

Hoenig v Isaacs [1952]

Facts: Hoenig agreed to redecorate completely and refurnish Isaacs' one bedroom flat. Hoenig finished the work, but the job had some defects which would require further attention eg the wardrobe he fitted needed a new door, and the built in bookcase was slightly too short for the space. The total value of the work was around £750 and the repairs would cost around £55. Hoenig sued for payment but admitted that Isaacs was entitled to reduce the payment to reflect the cost of repairs. Isaacs said that entire performance was a condition precedent to any payment, and therefore, following Sumpter, he only had to pay a quantum meruit (in return for taking the benefit of the work). Held: in this case, the contract had been substantially performed, and all that was left were 'defects and omissions'. These did not go to the root of the contract. Hoenig was therefore entitled to the contract price, less a deduction for the defects (probably calculated as the cost of remedying the defects).

BP Exploration Co (Libya) Ltd v Hunt (No.2) [1982]

Facts: Hunt owned the right to oil from a Libyan oil field. He could not afford to develop the oil field on his own, so he entered an agreement with BP whereby they would pay the development costs in return for (i) a half stake in the oil field, and (ii) reimbursement of some of the costs out of Hunt's half, once the oil started pumping. In other words, Hunt would not have to contribute to the high costs of finding and extracting the oil in the field. Large sums were spent by BP and they found and extracted some oil. Libya expropriated BP's half of the concession after Gaddafi's 1969 revolution. The Libyan government allowed Hunt to take oil for about two more years before his half was also expropriated. BP brought a claim against Hunt on the basis that their agreement had been frustrated, and therefore they were entitled to a just sum to reflect the non-money benefits accrued to Hunt, for example the oil he received, but also the benefit of BP's expertise in finding and extracting the oil for him. A key question was whether the valuable benefit gained by Hunt was the value of the work carried out by BP (ie the value of finding and developing the oilfield) or the value of the end benefit received by Hunt (significantly less, because the oil field was significantly devalued by having been expropriated by the Libyan Government). Held: on the wording of the legislation it was clear that 'benefit' meant the end product of the claimant's services, not the services themselves. So in this case, the lesser of the two options. The practical impact of this is that where the value of the benefit has been reduced to nil by the frustrating event, the provider of the 'benefit' has no claim. The defendant's benefit under s1(3) is clearly not necessarily the value of the claimant's performance.

Sumpter v Hedges (1898)

Facts: In Sumpter v Hedges (1898) 1 QB 673 Sumpter had agreed to build two houses with stables on Hedges' land, in return for 565l. After completing work worth around 333l, Sumpter told Hedges that he did not have enough money to finish the job, so Hedges did it for himself. Sumpter only provided partial performance in this case. Held: The court held that there had not been a voluntary acceptance of partial performance. For such acceptance to have occurred, the innocent party must have had the option to take or not to take the benefit of the work done. In Sumpter v Hedges, because the work had been done on the innocent party's land, the court felt that the innocent party had no choice but to complete the work. He was in possession of what he could not fail to keep. If the court had found otherwise, however, the builder would have been entitled to a quantum meruit to compensate him for the value of the work done. In the event, he was entitled to compensation for the value of the materials which he had left on site which had not been incorporated into the building which the innocent party used to complete the work. This was because the innocent party had the choice as to whether or not to use these, as they could have been returned.

Bolton v Mahadeva [1972]

Facts: by a contract with the defendant, the claimant undertook to install a central heating system in the defendant's house at a cost of £560. The system did not work and the defendant refused to pay any money. The cost of remedying the defects would have been £174. The court had to determine whether the claimant was entitled to recover any payment under the contract. Held: whether or not the contract had been substantially performed should be viewed with regard to the purpose of the contract and the circumstances as a whole. The purpose of the contract in this case was to install a central heating system to heat a house. If that system did not function adequately and moreover produced harmful fumes, then it was not possible to say that the contract had been substantially performed. Accordingly, the claimant was not entitled to recover any of the contract price but, had he offered to remedy the defects, and had then done so, he would be justified in claiming the contract price.

White and Carter (Councils) Ltd v McGregor [1962]

Facts: the appellant company's business was the supply of litter bins to local authorities in urban areas. It was the company's practice to attach advertisement plates to the bins, for which the advertisers would pay according to the terms of a standard form of contract. The respondent, who carried on a garage business, entered into a contract through his sales manager by which the appellant company undertook to prepare and exhibit plates advertising McGregor's business for a period of three years. Almost immediately after entering into the contract, the respondent indicated it would not be proceeding with the contract (it renounced the contract). The appellant company did not accept the attempted cancellation and displayed the advertisements during the ensuing three years. The respondents refused to pay and the appellant company sought to recover the sum due under the contract. Held: (House of Lords) the contract remained unaffected by the unaccepted repudiation and the appellant company was entitled to recover the sums due under the contract. A party who chooses to affirm the contract is not required to mitigate their loss. This was illustrated in the case of White & Carter (Councils) Ltd v McGregor The decision in White v McGregor has been heavily criticised as it encourages wasteful performance and may cause undue hardship to the repudiating party. This is because when a party is deciding whether to affirm a contract, it does not need to consider whether affirmation is better for the parties overall, or unduly harsh on the repudiating party, or might lead to a waste of resources. So in White v McGregor the affirming party was not required to relet the advertising space despite the fact that this might have been a better use of resources and might have generated some income to alleviate the situation. They were able to simply complete their performance obligations and then claim the whole contract price. In contrast, in White v McGregor, had the appellant company accepted the breach as terminating the contract and sued for damages immediately, they would have been required to try to relet the advertising space (ie take reasonable steps to mitigate their loss - this will be explained in a later element). In this context, it is important to realise that in the case, Lord Reid qualified his decision by stating that a claimant would not be entitled to affirm and would be confined to a claim in damages for the repudiatory breach if: (a) The co-operation of the breaching party is required for continued performance of the contract; or (b) The innocent party has no 'legitimate interest, financial or otherwise' in affirming the contract and continuing with performance.

Galoo Ltd v Bright Grahame Murray [1994]

Factual causation In contract the courts have treated the determination of factual causation in a broad way, advocating a 'common sense approach' (Galoo Ltd v Bright Grahame Murray [1994] 1 WLR 1360). The court in Galoo suggested that the defendant's breach should be a 'dominant' or 'effective' cause of the loss if that loss it to be recoverable.

Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943]

Frustration may also occur where a change in the law or state intervention renders performance illegal. 1. Change in the law A classic example is where war breaks out, and to continue performance would mean trading with the enemy. Key case: Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 Facts: a contract for the sale of machinery provided for it to be shipped to a port in Poland. That port was then occupied by the enemy during the Second World War. Held: the contract was frustrated - the parties could not be obliged to perform a contract when to do so would be illegal. A crucial issue which often arises in a frustration situation is what happens to the obligations in situations where there has been an advanced payment such that a customer has either paid money to a supplier for services which it had not yet performed or the supplier has invoiced for the advanced payment but it has not yet been paid. In Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, court held that where there had been a total failure of consideration, then money already paid could be recovered and money due and payable (but not yet paid) need not be paid.

Dick Kerr and Co v Metropolitan Water Board [1918]

Frustration may also occur where a change in the law or state intervention renders performance illegal. 2. Government intervention In Dick Kerr and Co v Metropolitan Water Board [1918] AC 119, contractors agreed to construct a reservoir in six years. The contract provided that, in the event of delay, 'whatsoever and howsoever occasioned', the contractors were to apply to the engineer for an extension of time. When the contractors were required by a government order to stop the work and sell their plant, it was held that the contract was frustrated because the delay clause was not intended to apply to such a fundamental change of circumstances. It was held that the clause was intended to cover only temporary difficulties and did not cover fundamental changes in the nature of the contract.

Herne Bay Steamboat Co Ltd v Hutton [1903]

Frustration of purpose However, there must be an absolute non‑occurrence of the event which is the common purpose or foundation of the contract. If some part of the contract remains possible to perform, then the contract will not be frustrated. In Herne Bay Steamboat Co Ltd v Hutton [1903] 2 KB 683, the plaintiff steamboat company contracted to place their steamboat the 'Cynthia' at the disposal of the defendant on 28 June 1902, 'for the purpose of viewing the Naval Review and for a day's cruise round the fleet; also on Sunday 29 June 1902, for a similar purpose.' The Cynthia was fitted out for the trip but, on 25 June, the postponement of the Review was announced. The plaintiff telegraphed the defendant: 'What about Cynthia? She is ready to start at six tomorrow. Waiting cash.' There was no reply from the defendant. The plaintiff brought an action for damages for breach of contract. The Court of Appeal held that the defendant was not discharged from his obligations under the contract by the postponement of the Naval Review because: (a) the object in hiring the vessel was the defendant's alone and of no concern to the plaintiff; and, (b) the viewing of the Naval Review was not the foundation of the contract as they could still have cruised around the fleet.

FRI Lease

Full Repairing and Insuring Lease where any costs are met by tenant FRI leases are generally for a fixed term. Rent is usually expressed as a yearly figure (eg 80k per annum) but payable quarterly The year is divided into approx. Quarters, which may run from the traditional quarter days - 25 Dec to 24 March, 25 March to 23 June, 24 June to 28 Sept, 29 Sept to 24 Dec Some leases adopt the modern quarter - 1 Jan, 1 April 1 July and 1 Oct. Rent is usually due in advance on the quarter day, but the lease needs to state if the rent is payable in advance If a lease is part way through a quarter, it will be apportioned, so the tenant will pay the appropriate portion of rent Features of an FRI Lease Rent and Rent review Payable quarterly by standing order Reviewed to open market rent upwards only Assumptions and disregards to achieve fairness Insurance: landlord insures property and (for lease of part, common parts) Revocers insurance premium from the tenants If property is damaged, then landlord to use insurance money to repair, rent is suspended - tenant cannot use it Repair: Tenant responsible for repairing the property at ist own expense Tenant not responsible for repairing damage caused by an insured risk, unless insurance payout has been witheld or reduced and ist the tenant's fault Services and service charge Not tested in SQE1 Landlord provides services, recovering cost from tenant Typically includes cleaning and manitaining common parts, may be others providing security guards, reception staff, ...

Beattie v Ebury (1872)

General Rule: A representation is an assertion of the truth that a fact exists or did not exist. It is a statement of fact. It can, therefore, have no reference to future events or promises. There is a clear difference between a representation of fact and a representation that something will be done in the future. A representation that something will be done in the future cannot be true or false at the moment it is made; and although you may call it a representation, if anything it is a contract or promise. Consequently, it is not a misrepresentation if the representor makes a promise regarding a future intention, but is prevented from following that course of conduct if circumstances alter so that he changes his mind about that intention.

Malik v Bank of Credit and Commerce International [1998]

General Rule: Damages will not be awarded for loss of reputation, however in this case, in Malik v Bank of Credit and Commerce International [1998] AC 20, an employee had worked for the Bank of Credit and Commerce International (BCCI), which collapsed in 1991, amidst allegations that the bank had operated in a corrupt and dishonest manner. The employee claimed that having worked for BCCI had adversely affected his employment prospects. The House of Lords found that the employee did have the basis for a cause of action against his former employer for the loss caused by the way it was alleged that its business had been run. This was based on the fact that contracts of employment contain an implied term of trust and confidence such that the employer is under an obligation to carry out its work in an honest way. Damages were awarded but were limited to the claimant's financial loss, which was suffered due to an inability to obtain alternative employment resulting from breach of this implied term.

General anti-abuse rule ('GAAR')

HMRC guidance on the GAAR indicates that it is intended to catch arrangements which are contrary to the spirit or policy of tax law, seek to exploit perceived loopholes in the law or involve artificial arrangements aimed at avoiding tax. The following conditions must be satisfied for the GAAR to apply: There is an arrangement which gives rise to a tax advantage: This can include a reduction, deferral or complete avoidance of tax. HMRC will usually compare the result with the tax consequences of the hypothetical transaction the taxpayer would have most likely entered into in the absence of the arrangements. The tax advantage relates to a tax to which the GAAR applies: This includes IHT. The arrangement satisfies the 'main purpose' test: This applies where it is reasonable in all the circumstances to conclude that obtaining a tax advantage is the main or one of the main purposes of the arrangement. The arrangement is abusive: The test requires HMRC to show that entering into the arrangement "cannot reasonably be regarded as a reasonable course of action in relation to the relevant tax provisions, having regard to all the circumstances". This is known as the 'double reasonableness test'.

Nottingham Patent Brick and Tile Co Butler (1866)

Half truth: exception to silence (misrepresentation): An excpetion to the rule that silence does not amount to misrepresentation occurs where there is a half-truth. I.e. it is a misrepresentation (a false statement of fact) to make statements which are technically true but misleading. To describe a property which is subject of negotiations for sale as 'fully let' without disclosing that, although the property is indeed fully let at that time, the tenants have given notice to quit, is a misrepresentation (Dimmock v Hallett (1866)

Liverpool City Council v Irwin (1976)

HoL decision, Lord Willberforce said that the implication of terms simply because such terms would be 'reasonable' would be 'to extend a long, and undesirable, way beyond sound authority'. In my opinion such obligation should be read into the contract as the nature of the contract itself implicitly requires, no more, no less: a test in other words of necessity. The relationship accepted by the corporation is that of landlord and tenant; the tenant accepts obligations accordingly in relation inter alia to the stairs, the lifts and the rubbish chutes. All these are not just facilities or conveniences provided at discretion, but essentials of the tenancy without which live in the dwellings as a tenant is not possible. the subject matter of the lease and the relationship created by the tenancy demands, of its nature, some contractual obligation on the landlord. Since there was no obligation to maintain and repair stairs lifts chutes by tenants, then the nature of the contract and the circumstances required that the obligation be placed on the landlord. An obligation to keep in reasonable repair and usability.

Yukong Line Ltd of Korea v Rendsburg Investments Corp of Liberia [1996]

How a contract is affirmed There must be evidence of a very clear and unequivocal commitment to continuing with the contract

guilty plea

If D indicates a guilty plea the court will treat that as a formal plea of guilty and proceed to sentence. As an either-way offence can be sentenced at either magistrates' court of crown court, the magistrates' must consider whether its sentencing powers would be sufficient in the circumstances It does not have the power to impose more than 6 months imprisonment of any summary only offence - s224 Sentencing Act 2020 Does not have the power to impose more than 12 months imprisonment in respect of any either way offence - s224 Sentencing Act 2020 If the court decides that its powers are insufficient, then sentence may be passed immediately or adjourned for the preparation of a pre-sentence report (PSR). Where the court adjourns sentence for the preparation of a PSR, it must be careful not to create an expectation that the offender will be sentenced in a magistrates' court if there is a possibility for sentence. The court should make it clear that all sentencing options, including committal to the Crown Court for sentence, should remain open. Which Court will it be allocated to? MC or CC? - Usually MC will deal with it unless they decline jurisdiction. In general, either way offences should be tried summarily. Unless Outcome would clearly be a sentence in excess of the court's powers For reasons of unusual legal or procedural, factual complexity They can send to CC for sentencing also D still has right to elect CC

registering a lease

If a lease is registerable then an OS1 or OS2 search should have been carried out. The tenant applies to register the lease using form AP1, or FR1 (if landlord title is unregistered). Form SDLT 5 that Land Registry sends back when STLD has been paid If the landlord's freehold title is charged, then a letter of consent from the lender will also be needed. On completion of the application, the tenant's solicitor will receive two official copies.

Stilk v Myrick (1809)

If a party is already contractually bound to Party A to do something, then agreeing with Party A again to do that thing is not generally good consideration for a new contract The captain of a ship promised his crew that, if they shared between them the work of two seamen who had deserted, the wages of the deserters would be shared out between them. The court held that the promise was not binding because the seamen gave no consideration: they were already contractually bound to do any extra work to complete the voyage.

right to an appropriate adult

If a person appears under 18, or where a person is mentally disordered, mentally vulnerable, Who can act as an appropriate adult? Parent Guardian In cases of LAC's - a representative of the LA, SW Failing these, any person aged 18 over who is not a polic eofficer or police employee In cases of disordered/mentally vunlerable: Parent Guardian Relative Someone who has experience dealing with such persons Solicitors cannot act as 'appropriate adult'. They also cannot act if they are Suspecteed of involvement in the offence Victim, witness of offence Involved in investigation A person who has received admissions form the person detained before acting as appropriate adult Of low IQ, unable to appreciate gravity of situation Estranged parent, Role of appropriate adult Ensure that the detained person understands whats happening and why, support, advise, assist, observe the police are acting properly and fairly, and intervene if necessary, assist with communication, ensure detainee understands rights. Proceeding without an appropriate adult They should not be asked to be interviewed or write a statement without an appropriate adult present. Unless the delay would lead to Interference with/harm to evidence connected with indicatble offence Interference/harm to others Alerting other people suspected of commiting an indictable offence not yet arrested Hinder the recovery of property obtained in consequence of the comission of such an offence Serious loss or damage to property

With v O'Flanagan (1936)

If at the beginning of negotiations a statement is made which is true but which prior to entering into the contract becomes false, the representor is under an obligation to correct the representation. If he fails to do so and allows the other party to enter into the contract still believing that the representation is true, then he will be liable for misrepresentation. This is the principle of 'continuing representations'. In this case, a professional man was selling his medical practice. At the beginning of negotiations, he stated that the income of the practice was at a certain level but during the course of negotiations he became ill and the income had fallen to virtually nothing by the time of the sale. He did not reveal this fact. HELD: by remaining silent, he had made a continuing representation, holding out his original statement as still being true. There was a duty to disclose the change in circumstances and the consequent change in income. CONTRAST With Wales v Wadham: With v O'Flanagan is concerned with a representation relating to an existing fact, whereas Wales v Wadham relates to a statement of future intention. In other words, the statement in With v O'flanagan was actionable because it related to an existing fact which was true at the time but later became false. Consequently, the statement maker was required to disclose change in circumstances. This can be contrasted with Wadham, which concerned a statement of future intention. The wife was not obliged to disclose her change of intention. her statement was not actionable. Difficulties can arise in trying to categorise a misrepresentation based on change of circumstances. It might be thought that failure to disclose a change in circumstances will be easy to argue as being fraudulent, simply on the basis that the representor has the new information and does not disclose it. However, in With v O'Flanagan, Lord Wright MR noted that: "...the Court is more reluctant to use the word "fraud" and would not generally use the word "fraud" in that connection because the failure to disclose, though wrong and a breach of duty, may be due to inadvertence or a failure to realise that the duty rests upon the party who has made the representation not to leave the other party under an error when the representation has become falsified by a change of circumstances"

pre sentencing report

If the court decides that ist powers are insufficient either because the sentence exceeds their maximum, or because D should be made subject to a sentence of a kind that they cannot pass, then D will be committed for sentence to the CC. A magistrates' court should order a PST for use by the CC if it considers There is a realistic alternative to a custodial sentence D may be a dangerous offender There is some other appropriate reason for doing so D will make their next appearance in the CC to be sentenced by a CC Judge who will be able to pass a sentence of anything up to the CC limit for the offence.

Yates Building Co. Ltd v Pulleyn & Sons (York) Ltd (1975)

If the method of acceptance was prescribed for the benefit of the offeree, the offeree can waive a stipulation for this benefit and use an alternative mode; provided the alternative method chosen does not disadvantage the offeror. In this case, acceptance was 'to be sent registered or recorded delivery', this was for the benefit of the offeree (as it ensured that they had proof of their acceptance). The offeree was therefore able to waive this requirement and take the risk of the ordinary post.

breach of a referral order by a youth

If the young offender breaches a referral order, or is convicted of another offence while subject to a referral order, he may be referred back to the youth court. The youth court may then revoke the referral order and deal with the youth in any manner in which he could have been dealt with for that offence. Alternatively, the court may order the young offender to pay a fine or extend the length of the contract period. Where a child or young person is in breach of a YRO the following options are available to the court: take no action and allow the order to continue in its original form; impose a fine (up to £2,500) (and allow the order to continue in its original form); amend the terms of the order; or revoke the order and re-sentence the child or young person.

converting covenants to fully qualified - s19(2) LTA 1927

Improvements: if the lease contains a qualified covenant against alterations, s19(2) LTA 1927 converts it to a fully qualified covenant insofar as the tenant's proposed alterations are improvements from the point of view of the tenant. The conversion from qualified to fully qualified covenants - it will be rare that a tenant will propose alterations that do not constitute an improvement from their point of view. Change of use: as with alterations, the lease may prohibit changes of user. Or allow changes with consent. Unlike qualified alteration covenants regarding improvements, statute does not convert a qualified user clause to a fully qualified user clause. S19(3) of the LTA 1927 does mean that if the landlord decides to give consent to a change of use, the landlord may not charge a lump sum or increase rent for giving consent unless the change also requires structural alterations.

Canary Wharf (BP4) T1 Ltd v European Medicines Agency [2019]

In Canary Wharf (BP4) T1 Ltd v European Medicines Agency [2019] EWHC 335 (Ch) the European Medicines Agency (EMA) argued that its lease of its headquarters premises in Canary Wharf had become frustrated due to the common purpose being frustrated. It argued that once Brexit happened, it would have to move its headquarters to Amsterdam. Mr Justice Smith found that there was no common purpose and that the parties had divergent purposes when they entered into the bargain set out in the lease. The EMA wanted premises which suited its purposes but with flexibility as to exit and a low rent. The landlord in contrast wanted a secure long term cash flow opportunity and a balance on its obligations as to the condition of the premises. They had bargained for the possibility that the EMA might not fulfil the full term for some reason (albeit not due to Brexit) when they entered into the contract. Putting it another way, had Brexit been a possibility then the parties could have taken it into account and still agreed an adjusted commercial arrangement. The nature of the bargain had therefore not fundamentally changed for both parties. In contrast in Krell v Henry the purpose of the arrangement for both parties was a 'room with a view' and the bargain became wholly valueless when this could not be provided. However, in Canary Wharf (BP4) T1 Ltd v European Medicines Agency Mr Justice Smith found that the key test is whether the event would have informed the manner in which the parties assessed the risk of entering into the contract. Highly theoretical risks which the parties would not have taken into account would not be relevant: "There will, no doubt, be many cases where something can be foreseen as a theoretical possibility, but where neither party can be criticised for failing to take it into account."

Condor v The Barron Knights Ltd [1966]

In Condor v The Barron Knights Ltd [1966] 1 WLR 87, the drummer in a music group was taken ill and only capable of working three or four nights a week, whereas the group had engagements for seven nights a week, such that the contract was frustrated because the drummer was not capable of performing the contract in the way intended. (Impossibility might be extended to situations of death or illness of one of the parties in a personal contract, especially where a specified individual is engaged to render a particular service. Clearly death renders performance impossible, but what about unavailability because of illness or other reasons?)

Edwinton Commercial Corporation v Tsavliris Russ (Worldwide Salvage & Towage) Ltd, The Sea Angel [2007]

In Edwinton Commercial Corporation v Tsavliris Russ (Worldwide Salvage & Towage) Ltd, The Sea Angel [2007] EWCA Civ 547 the court made clear that the amount of time left to run in the contract is the starting point only in establishing frustration. A multifactorial approach should be adopted when assessing whether unavailability was sufficient to amount to frustration. The factors to be considered included: "'the terms of the contract itself, its matrix or context, the parties' knowledge, expectations, assumptions and contemplations, in particular as to risk, as at the time of contract, at any rate so far as these can be ascribed mutually and objectively, and then the nature of the supervening event, and the parties' reasonable and objectively ascertainable calculations as to the possibilities of future performance in the new circumstances'. " The doctrine of frustration is a means of allocating unforeseen risks. In Edwinton Commercial Corporation v Tsavliris Russ (Worldwide Salvage & Towage) Ltd, The Sea Angel [2007] EWCA Civ 547, [2007] 2 All ER (Comm) 634, Rix LJ summarised the relationship of foreseeability to the doctrine of frustration: "In a sense, most events are to a greater or lesser degree foreseeable. That does not mean that they cannot lead to frustration. Even events which are not merely foreseen but made the subject of express contractual provision may lead to frustration: as occurs when an event such as a strike, or a restraint of princes, lasts for so long as to go beyond the risk assumed under the contract and to render performance radically different from that contracted for. However, ... the less that an event, in its type and its impact, is foreseeable, the more likely it is to be a factor which, depending on other factors in the case, may lead on to frustration."

Flying Music Company Limited v Theater Entertainment SA [2017]

In Flying Music Company Limited v Theater Entertainment SA [2017] EWHC 3192 (QB), the negative effect on a contract in Greece of civil unrest and the economic crisis could not amount to frustration because at the time the contract concluded there were already signs of unrest. Although Theater Entertainment had hoped matters would improve there was a risk that they might not and the parties were deemed to have had the opportunity to deal with this risk and allocate responsibility for it in the terms of the contract that was eventually concluded. The Court refused to re-allocate the risks by intervening in the contract and deeming it frustrated.

Appleby v Myers (1867)

In Taylor v Caldwell the subject matter of the contract, ie the music hall, was destroyed, making performance impossible. Impossibility can also apply where the frustrating event destroys an asset that does not form the subject matter of the contract in question, but rather is essential for the performance of the contract. For example, in Appleby v Myers (1867) LR 2 CP 651 a contract to install and maintain machinery in a factory was frustrated when the factory was destroyed by fire. The factory was not the subject matter of the contract, but was nevertheless essential to its performance.

Krell v Henry

In contrast in Krell v Henry the purpose of the arrangement for both parties was a 'room with a view' and the bargain became wholly valueless when this could not be provided. Compare with Canary Wharf case.

Harrison & Jones v Bunten & Lancaster (1953)

In the absence of contractual misdescription, the general proposition is that mistake about the quality of goods does not void the contract. This is the case even if the mistake as to quality affects the utility of the goods to the buyer, or, alternatively, affects the value of goods in question so that the seller obtains less than the value of the goods or the buyer pays more. Example: Leaf v International Galleries (1950).

MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2016]

In this case a landlord agreed orally to reschedule rental payments under a licence agreement to give a tenant longer to pay, thereby varying the licence. The Court of Appeal considered whether there had been valid consideration for the variation. The court acknowledged that part payment of a sum already due is not normally good consideration. However, the judges agreed that there was sufficient consideration. Their justification was that the landlord obtained a practical benefit by keeping the tenant in the property (compared to leaving the property vacant). This benefit went beyond the advantage of receiving prompt payment of a part of the arrears and a promise that it would be paid the balance over the coming months. The court also considered the fact that the landlord was not under economic duress from the tenant. It can be seen that in reaching this decision, the court applied the terminology of 'practical benefit' and absence of duress from Williams v Roffey. This decision appeared to blur the dividing line between a promise to accept less and a promise to pay more. On appeal to the Supreme Court the appeal was allowed on the basis that the oral variation was invalid for reasons unconnected to consideration. Disappointingly, therefore, that made it unnecessary for the court to deal with the issue of consideration. The question of whether providing a practical benefit in the absence of duress is sufficient to make a promise to accept less binding went unanswered. Whilst Lord Sumption considered that Foakes v Beer was 'ripe for re-examination', he stated that if were to be overruled: "It should be before an enlarged panel of the court and in a case where the decision would be more than obiter dictum."

Scruttons Ltd v Midland Silicones Ltd (1962)

In this case, an attempt was made to rely on the principle of agency in order to allow a third party to rely on an exemption clause in a contract to which he was not a party. A drum of chemicals was shipped from the US to England. The contract of carriage was between the shipper and the carrier and it contained a clause limiting the liability of the carrier to 500$ (179£ per package). The carriers contracted with Scruttons, the stevedores, to unload the ship. A drum was damaged and its contents (valued at 593£) lost as a result of negligence of the stevedores. The stevedores were sued by the shippers in the tort of negligence. It was held by HoL that the stevedores could not rely on the limitation clause in the contract of carriage (between shipper and carrier) because they were not party to that contract. The HoL considered the argument that the carriers were acting as the stevedore's agents, but ultimately rejected it. However, the case left open the possibility for the agency argument to succeed in future cases provided the exemption clause was suitably drafted. Lord Reid stipulated four condition as necessary prerequisites to the success of such an argument: (1) The contract of carriage makes it clear that the stevedore is intended to be protected, (2) the contract of carriage makes it clear that the carrier is contracting not only on his own behalf but also as agent for the stevedore, (3) the carrier has authority from stevedore so to contract, (4) Consideration moves from the stevedore. By explicitly detailing how such a clause may then succeed, the HoL appeared to be giving judicial recognition to the fact that such clauses are commercially effective in allocating risks and the burden of insurance of carriage.

Williams v Roffey Bros & Nichol (Contractors) Ltd [1991]

In this case, the defendants, Roffey Bros, had been contracted to build a block of flats and they sub-contracted the plaintiff, Lester Williams, to carry out the carpentry work in 27 of the flats for an agreed price of £20,000. Before the work was completed, Williams got into financial difficulty and it was clear that, without additional money, he would be unable to finish and would, therefore, be in breach of contract. Had the work not been finished on time, Roffey Bros would have been liable for substantial penalties to the main contractors under their contract to build the flats. Consequently, they promised Williams an additional £575 per completed flat. Roffey Bros did not stick to their promise and Williams sued for the additional sum. The following extract is from the judgment of Lord Justice Russell. ...The present state of the law on this subject can be expressed in the following proposition: (i) if A has entered into a contract with B to do work for, or to supply goods or services to, B in return for payment by B; and (ii) at some stage before A has completely performed his obligations under the contract B has reason to doubt whether A will, or will be able to, complete his side of the bargain; and (iii) B thereupon promises A an additional payment in return for A's promise to perform his contractual obligations on time; and (iv) as a result of giving his promise, B obtains in practice a benefit, or obviates a disbenefit; and (v) B's promise is not given as a result of economic duress or fraud on the part of A; then (vi) the benefit to B is capable of being consideration for B's promise, so that the promise will be legally binding. As I have said, [counsel for the defendants] accepts that in the present case by promising to pay the extra £10,300 his client secured benefits. There is no finding, and no suggestion, that in this case the promise was given as a result of fraud or duress. [...] the judge was entitled to hold, as he did, that the defendants' promise to pay the extra £10,300 was supported by valuable consideration, and thus constituted an enforceable agreement. ote that the court found 'factual' rather than 'legal' consideration in Williams v Roffey. The definition of consideration was extended to encompass more than the strict legal benefit that hitherto had been required. Now, in certain circumstances, a factual or practical benefit may be sufficient to constitute good consideration even if the promisee is simply performing his existing contractual duties. The practical benefit (which amounted to factual consideration) in Williams v Roffey was the avoidance of the late completion payment, a more efficient working arrangement and avoiding the need to find an alternative contractor to do the work. Applies ONLY to a promise to increase price!

Whittington v Seale-Hayne (1900)

Indemnity (on remedies for misrepresentation): It is possible that, as part of the equitable process of rescission, an indemnity may be awarded to cover expenses for obligations assumed as a direct result of the contract. For example, if a representee is induced into buying a leasehold property by a misrepresentation, obligations arising from the purchase such as council tax, service charge and so forth would be covered by an indemnity. The obligations must have been created by the contract. Generally, where an action for misrepresentation will give a right to damages (i.e. an action for fraudulent or negligent misrep.), an indemnity will not be awarded. However, not damages as of right are available for an innocent misrep. and in this type of action an indemnity is more likely to be awarded. It is important to appreciate the distincion between an indemnity and the common law right to damages. (See this case)

Disclosure of Tax Avoidance Scheme ('DOTAS')

It is a reporting regime which is intended to make HMRC aware of potentially unacceptable tax avoidance arrangements at an early stage. It applies to a range of taxes, including IHT. DOTAS places duties primarily on 'promoters' of arrangements to inform HMRC about notifiable arrangements or proposals. Crucially, this can include legal advisers. Once informed, HMRC may allocate a scheme reference number to notifiable arrangements or proposals. Promoters (and their clients) are then required to provide this number to parties to the arrangements. Promoters must provide information to HMRC about any clients to whom they provide services connected to the notifiable arrangements. Parties to notifiable arrangements must also provide information to HMRC. HMRC has investigation and enforcement powers under DOTAS. Penalties apply for failure to comply (but non-compliance is not a criminal offence).

Pre-owned assets charge ('POAC')

It is an annual income tax charge imposed upon individuals who give away certain types of property during their lifetime but subsequently obtain a benefit from that property. The POAC was introduced to prevent individuals exploiting loopholes in the GROB rules that allowed them to remove the value of their homes from their estates for IHT purposes, while continuing to live in them rent-free. The POAC does not apply to property which remains within the individual's estate for inheritance tax purposes. This means that property cannot be taxed under both the GROB rules and as a POAC. It is, however, possible to make an election for property to be taxed as a GROB instead of a POAC. POAC applies to 3 types of property: Land Chattels Intangible property held in a settlor-interested trust. (For these purposes 'intangible property' means any property other than land or chattels. Examples include cash, credits in a bank account and shares.) Land: Two conditions must be satisfied for land to be subject to the POAC: An individual occupies land (either individually or with others). This condition is not always easy to assess as there is no statutory definition of occupation but HMRC's guidance indicates that it should be construed widely, with each case determined on its own particular facts. Either the 'disposal condition' or 'contribution condition' is met. You do not need to know how to apply these in detail but, broadly, they apply to situations where the individual has either disposed of the occupied land or has contributed (directly or indirectly) towards the acquisition of that land without obtaining a beneficial interest in it.

Eastwood v Kenyon (1840)

It is not generally possible to use as consideration some act which has taken place prior to the promise to pay: Established legal principle that past consideration is no consideration. A later promise to compensate for services already performed is unenforceable. Eastwood became legal guardian of Sarah and borrowed money to pay for her education. Sarah promised to pay the money back once she came of age. Sarah then married Kenyon who also promised to pay Eastwood back. Kenyon failed to do so and Eastwood sued him. Court found that Eastwood had not given consideration for the promise and so the promise was unenforceable (because the act of bringing up sarah was in the past)

VIPER

It takes the form of VIPER (Video Identification Parade Electronic Recording) Officers film the suspect asking them to face the camera and be filmed from the right, left and centre. The identification officer, suspect and legal representative select lookalikes from over 10k video clips on the viper system A video clip is then produced with the suspect placed amongst at least 8 other individuals. If the suspect has unusual physical features, facial scars, tattoo, etc. Steps may be taken to: Conceal the location of the feature on the images of the suspect and other people Replicate that feature on the images of other people The suspect, their solicitor, friend or appropriate adult must be given reasonable opportunity to see the complete set of images before it is shown to any eye witness If the suspect has a reasonable objection to the images, the suspect shall be asked to state the reasons for the objection. Immediately before the images are shown, the eye witness shall be told that the person they saw on a specified occasion may or may not appear in the images. The video clip is then shown to the witnesses. The suspect's soilcitor may only be present at the video identification procedure on request and with the prior agreement of the identification officer. The video identification procedure must be recorded in video with sound. The recording must show All presons present within the sight or hearing of the eye witness whilst the images are being viewed What the eye witness ays What is said to the eye witness by the identification officer and by any other person present

Manchester Diocesan Council for Education v Commercial and General Investments (1979)

J Buckley explained that it is open to the offeror to prescribe a mode of acceptance 'in terms insisting that only acceptance in that mode shall be binding'. Buckley J made it clear that particularly clear words would be required of the offeror to make his chosen mode mandatory. "If an offeror intends that he shall be bound only if his offer is accepted in some particular manner, it must be for him to make this clear."

Derry v Peek (1889)

Key Case in Fraudulent misrepresentation: Derry v Peek (1889): a tramway company was empowered by a special Act of Parliament to operate certain tramways by using animal power. The Act further provided that, with the consent of the Board of Trade, mechanical power might be used. The directors of the company, wishing to raise more capital, included the following statement in a prospectus: "the company has the right to use steam or mechanical motive power instead of horses, and it is fully expected that by means of this a considerable saving will result...." P, relying on this representation, bought shares. The company was later wound up because the Board of Trade refused to allow the use of mechanical power over the whole of the company's tramway. P contended that there was fraud. After a review of the authorities, Lord Herschell said: "First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shown that a false representation has been made (a) knowingly, or (b) without belief in its truth, or (c) recklessly, careless whether it be true or false. Although I treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states...Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made." The claimant had failed to show knowledge that the statement was false or an absence of belief in its truth, and therefore the false statement in the prospectus was not fraudulent. Burden of proof for fraudulent misrep is on representee! Heavy burden.

Authorised guarantee agreement (AGA)

Landlords of old leases were used to being able to rely on privity of contract to treat the original tenant as an effective guarantor. This stopped with new leases. However, the statute provides a mechanism whereby the original tenant can agree to guarantee the obligations of the incoming tenant. This is done by a document called an authorised guarantee agreement (often abbreviated to AGA). Many commercial leases will make it a condition of assignment that the outgoing tenant enters into an authorised guarantee agreement. If the lease is silent, then the landlord can only insist on an AGA if it is reasonable to do so (eg, if the tenant's ability to pay the rent is in doubt). Whereas an original tenant's liability under an old lease extended for the whole of the lease term, an outgoing tenant only guarantees the next tenant under an AGA. If there is a subsequent assignment, then the outgoing tenant's liability under the AGA ends.

Donoghue v Stevenson (1932)

Landmark case in Duty of care owed to a third party: The majority of the HoL (led by Lord Atkin) held that, in principle, a claim of this kind was available. In fact, Donoghue, the plaintiff (C), was not only a third party in relation to the contract of sale between the manufacturer of the bottle of ginger beer and the retailer (the contract between A and B), but was also a third party in relation to the contract of sale between the retailer and the purchasers of the bottle of ginger beer (contract between B and Y). Nevertheless, it was held that the plaintiff, as the ultimate consumer of the goods, could bring a claim in the tort of negligence directly against the manufacturer (A). In effect, this seminal decision held that the privity principle restricted the range of claims for breach of contract did not also restrict the range of claims in tort. In so doing, it opened up the possibility of a far more extensive liability regime for negligence. A (manufacturer of drink) contracts to sale with B (retailer of drink. B contracts to sale with Customer (Y), Y bought it for friend (C). C brings claim against A, which succeeded in tort, even though C has no claim against A in breach of contract.

Beswick v Beswick [1968]

Law of Property Act 1925 ('LPA') Section 56(1) of the LPA provides that: "A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant or agreement over or respecting land or other property, although he may not be named as a party to the conveyance or other instrument." The effect of this provision is limited to real property (land). The expression 'or other property' in s56(1) viewed in the context of the legislation as a whole, is still limited to real property. An unsuccessful attempt to argue that it related to rights accruing under a contract, and thereby circumvent the doctrine of privity was rejected in Beswick v Beswick [1968] AC 58.

Shogun Finance Ltd v Hudson (2004)

Leading case on unilateral mistake of identity is NOW this case. Facts: In this case a fraudster visited the showrooms of a car dealer and agreed to buy a car on hire-purchase terms. The fraudster signed a draft finance agreement in the name of Mr Patel. As proof of identity the fraudster produced a genuine but unlawfully obtained driving licence in the name of a Mr Patel. The car dealer sent the signed document and a copy of the licence to the finance company, Shogun Finance Ltd. The finance company checked the credit rating of Mr Patel and approved for sale. The fraudster paid a minimal deposit and drove the car away with its accompanying paper work. The fraudster immediately sold the car on to an innocent third party, Mr Hudson. The finance company traced the car to Mr Hudson and sued him for the return of the car, or its value. HELD: Shogun Finance Ltd was entitled to the return of the car as the contract was void for mistake. The HoL considered both face-to-face situations as in Lewis v Averay, and distance-selling situations as in Cundy v Lindsay. The majority ultimately decided that Shogun was a distance-selling situation, and decided to keep the distinction, reaffirming the principles to be considered in each situation as set out in this element.

Monarch Steamship Co Ltd v A/B Karlshamns Oljefabriker [1949]

Legal causation Even if factual causation is established, the claim will follow if legal causation is not established, in particular if there is a novus actus interveniens - a particular category of intervening event which will be treated as having broken the chain of causation. If the intervening event was 'likely to happen' (Monarch Steamship Co Ltd v A/B Karlshamns Oljefabriker [1949] AC 196), it generally will not be held to break the chain of causation.

Lambert v Lewis [1982]

Legal causation Even if factual causation is established, the claim will follow if legal causation is not established, in particular if there is a novus actus interveniens - a particular category of intervening event which will be treated as having broken the chain of causation. In Lambert v Lewis [1982] AC 255 a dealer supplied a defective trailer coupling to a customer who went on using it, after it was obviously broken, until there was an accident. The defect in the trailer coupling was an effective cause of the accident (so factual causation was established). But the question was whether, in terms of legal causation, the chain of causation was broken by the 'intervening act' of the customer's use of an obviously broken coupling. It was held that the customer's use of the coupling was not something which objectively one would deem 'likely to happen'. It therefore was treated as breaking the chain of causation and the dealer was held not liable for the accident.

Short Summary of UCTA

Limit/Exclusion of Death or personal injury resulting from negligence --> void s2(1) Limit/Exclusion of breaching statutory implied terms about title to goods --> void s6(1)(1) Loss (other than death or personal injury) resulting from negligence --> valid if reasonable s2(2) Breach of statutory implied terms under ss 13-15 SGA --> valid if reasonable s6(1A)(a).

Scancarriers v Aotearoa International (1985)

Lloyd's Rep 419 Privy Council made it clear that the process of implication is available only where a binding contract has been made. The process of implication is not relevant until the formation of a contract has been completed.

Ocean Marine Navigation Ltd v Koch Carbon Inc (The Dynamic) [2003

Lord Reid qualified his decision by stating that a claimant would not be entitled to affirm and would be confined to a claim in damages for the repudiatory breach if: (a) The co-operation of the breaching party is required for continued performance of the contract; or (b) The innocent party has no 'legitimate interest, financial or otherwise' in affirming the contract and continuing with performance. In relation to (b), the application of the 'legitimate interest' exception has proved to be problematic and it remains unclear what will constitute a legitimate interest in affirming the contract. The most recent authority discussing this criterion is Ocean Marine Navigation Ltd v Koch Carbon Inc (The Dynamic) [2003] EWHC 1936 (Comm); [2003] 2 Lloyd's Rep. 693, in which Simon J said that it will only be in extreme cases that the innocent party will not have a legitimate interest in affirmation. He stated: (a) The burden is on the contract breaker to show that the innocent party has no legitimate interest in performing the contract rather than claiming damages; (b) This burden is not discharged merely by showing that the benefit to the other party is small in comparison to the loss to the contract breaker; and (c) The exception to the general rule applies only in extreme cases, where damages would be an adequate remedy and where an election to keep the contract alive would be unreasonable.

Hounslow London Borough Council v Twickenham Garden Developments Ltd[1970]

Lord Reid qualified his decision by stating that a claimant would not be entitled to affirm and would be confined to a claim in damages for the repudiatory breach if: (a) The co-operation of the breaching party is required for continued performance of the contract; or (b) The innocent party has no 'legitimate interest, financial or otherwise' in affirming the contract and continuing with performance. In relation to (a), this qualification should be uncontroversial - if the innocent party requires the co-operation of the other contracting party in order to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price. Indeed, it has been confirmed by Megarry J that co-operation in this context means passive as well as active co-operation: Hounslow London Borough Council v Twickenham Garden Developments Ltd[1970] 3 WLR 538.

National Carriers Limited v Panalpina (Northern) Limited [1981]

Lord Simon in National Carriers Limited v Panalpina (Northern) Limited [1981] AC 651 described frustration in the following terms: "Frustration of a contract takes place when there supervenes an event (without default of either party and for which the contract makes no sufficient provision) which so significantly changes the nature (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulations in the new circumstances; in such case the laws declares both parties to be discharged from further performance. [emphasis added]" From this we can understand that a frustrating event is not something: (a) Caused by the default of a party; (b) Provided for in the contract; (c) Which is merely an increase in expense / onerousness; nor (d) Which the parties could reasonably have contemplated.

Esso v Mardon (1976)

Mardon took a lease of a petrol station after being assured by an Esso representative that the annual throughput would be 200'000 gallons of petrol per year. This estimate was not accurate in the light of the planning permission situation at the time the contract was entered into. The estimated gallonage was never reached and, as a result, the petrol station was uneconomic. Mardon alleged misrepresentation. Esso agrued that, as there had not previously been a petrol station on that site, the estimated throughput was merely a statement of opinion. It was held by the CoA that the statement as to the maximum sales contained within it a statement that on a careful assessment Esso had estimated the througput at 200'000 gallons per year. In fact, the assessment had not been carried out carefully. Esso had substantial skill and expertise in estimating the potential sales of a petrol station in that specific location. Esso can be distinguished from Bissed v Wilkinson, where the land had never been used as a sheep farm, and both parties were equally able to form an opinion as to its carrying capacity. The second factual matter that is involved is an expression of opinion is that the representor believes the opinion that he expresses. Such a representation will be a misrepresentation if in fact the opinion expressed is not one which the representor held.

unused material

Material must be retained until a decision is taken whether to initiate proceedings. Where D is convicted, material must be retained until accused is acquitted or convicted. Where D is convicted, it must be kept until released from custody, or for non-custodial sentences, until six months from date of conviction. Provision of unused material to prosecutor Prosecutor to be notified by the disclosure officer of every item of Unused Material Crown Court cases the disclosure officer prepares a schedule known as an MG6C which individually lists the items of unused material In magistrates court cases where a not guilty plea is anticipated the unused material is listed on a streamlined disclosure certificate Disclosure officers must certify that to the best of their knowledge and belief they have complied with their duties under the disclosure code of practice. This will include ensuring that all relevant unused material is clearly listed and brough tto the attention of the prosecutor so that full and proper disclosure can be made in accordance with the test Material which is supportive of the prosecution's case or which is neutral in its effect need not be disclosed as unused material because it does not satisfy the disclosure test.

means test crown court - funding

Means Test - Crown Court The applicant is assessed on their income and capital, including any equity in properties owned by the applicant. After a combined capital and equity allowance of £30,000 applicants can be required to contribute to any balance towards their defence costs. The outcome of the assessment may require D to pay all, some or none of the costs. Eligible for public funding without contribution - if below the threshold £3,398 or less Ineligible for publig funding, if above eligibility threshold of £37,500 or more Eligible but with a contribution - if in between the thresholds, ie £3,399 and £37,499. The income based contribution is 90% of disposable income for a maximum of six months in instalments and subject to a maximum based on the type of offence.

means test magistrates court - funding

Means Test - Magistrates Court An initial assessment works out their weighted gross annual income. A weighting is applied to take into account the number of people living in the household. Eligible if below the lower threhsold, ie at present if the weighted gross annual income is £12,475 or less Ineligible if above the upper threshold, if the weighted gross anual income is £22,325 Be required to undertake a full means test (form CRM15) if in between the lower and upper thresholds, ie more than £12,475 and less than £22,325. The full means test will establish the applicant's annual household disposable income. If it is below the threshold the applicant will be funded (annual household disposable income threhsold is £3,398 or less)

Ruxley Electronics and Construction Ltd v Forsyth [1996]

Mr Forsyth employs Ruxley Electronics to build a swimming pool in his garden at a cost of £17,797.40. The contract provides that the pool should be 7 feet 6 inches deep. Ruxley Electronics builds it only to a depth of 6 feet. The pool is still perfectly safe for swimming and diving. What sum of money is needed to put Mr Forsyth in the position as if the contract had been performed? To the public at large, the pool is worth the same whether 6 or 7 ½ feet deep. So perhaps Mr Forsyth has suffered no loss, so should receive no damages. Does that seem fair? Or should he receive enough damages to allow him to rebuild the pool to the contract depth? - this would mean completely demolishing the existing pool and starting again, at a cost of £21,560. Does that seem fair? If Mr Forsyth receives £21,560 but doesn't actually spend the damages on rebuilding the pool, then he has a fully functioning (6 foot deep) pool and £21,560 in his pocket. But should it matter how he spends his damages? Can you think of an alternative way of measuring the damages? In the case of Ruxley, the cost of cure was the cost of rebuilding the pool - £21,560. But the court refused to award this, for reasons we will encounter later. Diminution in value Alternatively, the claimant's expectation interest may be calculated by reference to the difference in value between the performance received and that promised in the contract. In Ruxley the diminution in value was £0 - the pool had the same value whether 6 or 7 ½ feet deep. But the court did not use this approach to valuation either. HELD: Their Lordships were of the opinion that it would be unreasonable for the claimant to insist on cost of cure because the expense of the work involved would be out of all proportion to the benefit to be obtained. Furthermore, the claimant's lack of intention to carry out the remedial works was relevant to the extent of the loss which was sustained since, if the claimant did not intend to cure the defect, he had lost nothing except the difference in value, if any. Where the diminution in value caused by the breach was nil, it was not correct automatically to award the cost of cure as an alternative to the difference in value, since it could not be right to remedy the injustice of awarding too little by unjustly awarding too much. Their Lordships went on to state that diminution in value and cost of cure were not the only available measures for recovery for breach of contract and considered an alternative - loss of amenity. In Ruxley, their Lordships stated that the cost of cure and diminution in value were not the only available mechanisms of assessing the expectation interest, and the court was not confined to opting for one or the other. Where there had been a breach of performance resulting in loss of expectation of performance, satisfaction of a personal preference or a pleasurable amenity, but there had been no diminution in value, the court could award modest damages to compensate the claimant. Therefore, the judge's finding that the owner's loss did not extend to the cost of reinstatement, as it would be unreasonable to incur the cost of demolishing the existing pool and building a new and deeper one, would be upheld. Instead, the award of £2,500 was made for loss of amenity.

Gamerco SA v ICM/Fair Warning (Agency) Ltd [1995]

Mr Justice Garland's held that burden or proof is on the payee (the party seeking to retain or recover their expenses from the sum of money paid or payable in advance) to show that it is 'just' for him so to do. As to how much, he held that the court has a 'broad discretion' and: "It is self-evident that any rigid rule is liable to produce injustice. The words, 'if it considers it just to do so having regard to all the circumstances of the case' clearly confer a very broad discretion. Obviously the court must not take into account anything which is not 'a circumstance of the case' or fail to take into account anything that is and then exercise its discretion rationally. I see no indication... that the court is obliged to incline towards either total retention or equal division. Its task is to do justice in a situation which the parties had neither contemplated nor provided for, and to mitigate the possible harshness of allowing all loss to lie where it has fallen."

right to consult with solicitor s58 PACE

Must be told of the right to free legal advice immediately before commencement/recommencement of an interview, being asked to provide an intimate sample, intimate drug search, identification parade or video identification procedure If legal advice is declined, this must be noted in custody record Where legal advice is sought, it must be provided as soon as practicable Nothing to dissuade suspect from obtaining legal advice If a person changes their mind in an interview, the interview must cease. Power to delay right: Must be justified by the police, as it can have major implications for any evidence obtained against the suspect as a result. It can be delayed in accordance with s58 and COP C Annex B. It can only be delayed up to 36 hours. The grounds must be authorised and recorded, and suspect must be informed. To delay the right: Person must be in detention for an indictable offence Authority to delay is granted by superintendent Superintendent must have grounds to believe that exercising the right will lead to Interference with/harm to evidence connected with indicatble offence Interference/harm to others Alerting other people suspected of commiting an indictable offence not yet arrested Hinder the recovery of property obtained in consequence of the comission of such an offence

New leases (Covenants and Assignment)

New leases The Landlord and Tenant (Covenants) Act 1995 changed the liability of the assignor and assignee to reflect better the commercial reality of the situation. The Act applies to leases granted on or after 1 January 1996, which are referred to as new leases. When a new lease is assigned, the original tenant is released from liability, and all of the tenant covenants are passed to the new tenant.

excepted estate

No IHT due. low value excepted estate: Gross value below NRB (below 325k - or if married couple, below 650k). for an exempt excepted estate: gross estate value not above 3m OR net value of estate below NRB once exceptions and deductions made if excepted, it means no form IHT 100 needed to send to HMRC

Globalia Business Travel S.A.U. (formerly TravelPlan S.A.U.) of Spain (Respondent) v Fulton Shipping Inc of Panama (the New Flamenco) [2015]

Note that sometimes the claimant might take steps to avoid the loss, but the court might hold that those mitigating steps should be disregarded such that the defendant is still held responsible for the loss. This illustrated in the case on the following slide. FACTS: A charterer of a ship was found to have returned it two years (October 2007 rather than October 2009) early in repudiatory breach of contract. The owner brought a claim against the charterer for the profit it had lost on hire charges it would have been paid across the remaining two-year period. The charterer disputed the quantum of damages because soon after the vessel had been returned the owner had sold it. A change in market conditions meant that by selling the vessel in October 2007 instead of October 2009 the owner was better off in terms of the capital sale value of the vessel by the sum of $17m. Accordingly it was argued by the charterer that the sale of the vessel by the owner was an act of mitigation which meant it had suffered no loss as a matter of fact, the owner being better off overall from the fact of the sale at a more advantageous time. HELD: The Supreme Court disagreed. It held that whilst the action taken by the owner to sell the vessel had been provoked by the breach, it had not been caused by it or an act of mitigation. The appropriate act of mitigation on the return of the vessel was to find an alternative income stream (ie to find someone else to rent the vessel) and if this was successful then that benefit would need to be accounted for in calculating damages. The realisation of the capital value of the ship was an entirely different matter. The owner could have in fact sold the vessel at any time subject to the term of the charter even had the contract continued. Similarly had the contract been fully performed then the future intentions of the owner in terms of the retaining ownership of the vessel or not would have been none of the charterers' concern. Accordingly, the fact that the owner decided to take a business risk and sell the vessel immediately on the return of the vessel was not something that the charterer could legally ask to be taken into account as an act of mitigation. The sale was an independent speculative decision for which the owner would retain both the risk and benefit. In summary, this case confirms that a claimant is not obliged to account for benefits which arise from business decisions which are made independently from any act of mitigation even where those benefits mean that it has not in fact suffered a loss.

Howard Marine and Dredging Co. Ltd. v A. Ogden & Sons (Excavations) Ltd. [1978]

Ogden hired two barges from Howards. Howards told Ogden that the barges' capacity was 1600 tonnes when in fact it was 1055 tonnes. The figure had been derived from Lloyd's Register which was wrong. The Court of Appeal held that it was a negligent misrepresentation under MA 67 s 2(1). The true figures were in the ships' documents and Howards had failed to show any 'objectively reasonable ground' for disregarding the figure in the documents and relying instead on the Register. Bridge LJ stated that: "Howards must be liable unless they proved that Mr. O'Loughlin [of Howards] had reasonable ground to believe what he said about the barges' capacity. It is unfortunate that the judge never directed his mind to the question whether Mr. O'Loughlin had any reasonable ground for his belief [...] If the representee proves a misrepresentation which, if fraudulent, would have sounded in damages, the onus passes immediately to the representor to prove that he had reasonable ground to believe the facts represented. In other words the liability of the representor does not depend upon his being under a duty of care the extent of which may vary according to the circumstances in which the representation is made. In the course of negotiations leading to a contract the statute imposes an absolute obligation not to state facts which the representor cannot prove he had reasonable ground to believe. Mr. O'Loughlin looked at the documents of the ships he was in charge of including HB2 and HB3's German documents. He is not a master of maritime German. He saw, but did not register, the deadweight figure of 1,055.135 tonnes. Being in the London office he went to the City and looked up Lloyd's Register. There he noted that the summer loading deadweight figure for B41 and B45, described as TM sand carriers, was 1,800 tonnes. This figure stayed in his mind. But it was one of Lloyd's Register's rare mistakes. ...The question remains whether his [Mr O'Loughlin's] evidence, however benevolently viewed, is sufficient to show that he had an objectively reasonable ground to disregard the figure in the ship's documents and to prefer the Lloyd's Register figure. I think it is not [...] Accordingly I conclude that Howards failed to prove that Mr. O'Loughlin had reasonable ground to believe the truth of his misrepresentation to Mr. Redpath."

Imperial Loan Co v Stone (1982)

On Capacity to contract: In any other case of incapacity, the position is that the contract is binding unless the person claiming incapacity can establish, first, that he did not understand what he was doing and, secondly, that the other party knew that to be the case. If that can be established, the contract will be voidable.

Associated Japanese Bank v Credit du Nord (1989)

On Common Mistake as to existence of subject matter: What if, at the time of the contract and unbeknown to both parties, the subject-matter of the contract is not in existence (res extincta), for example, because it has been destroyed? The approach to take in such circumstances was explained by Steyn J in this case. He stated: 1) One must first determine whether the contract itself, expressly or impliedly, stipulates who should bear the risk of this mistake. If the contract deals with this, then there is no need to turn to the law in relation to mistake. 2) If the contract is silent on this point, and neither has accepted the risk, then contract can be declared void. (Example: A seller agrees to sell to the buyer some corn which is being transported on a particular ship. Without either party knowing, that corn has in fact been destroyed. Unless the contract is interpreted as providing for this possibility, then the contract is void).

Barton v Armstrong [1976]

On Duress: Duress to the person Duress can vitiate a contract when it amounts to actual or threatened violence. Duress to the person is the least controversial and most long established category of duress. The leading case on duress to the person is Barton v Armstrong [1976] AC 104. The Privy Council concluded in this case that once it is established that the physical threats contributed to the decision to enter into the contract, duress will be found, so long as the threats were one of the reasons for contracting. They further stated that the burden of proof was on the party who exerted the pressure to show the threats and unlawful pressure contributed nothing to the victim's decision to contract. Consequently, it can be seen that the causation test for duress to the person is not a difficult one to overcome - the duress need be only one factor influencing the wronged party's behaviour.

Carillion Construction Ltd v Felix (UK) [2001]

On Economic Duress / lack of practical choice: Carillion was the main contractor employed to carry out the construction of an office building. Carillion subcontracted the supply of the cladding to Felix. Felix's work was delayed, and there was no certainty as to when it would be completed. Although Felix's liability to Carillion for this delay was potentially substantial, Felix was in a strong position to renegotiate with Carillion. Felix knew that a number of trades were dependent upon it completing the work in order to ensure the building was watertight. Moreover, Felix knew that it would be impossible for Carillion to find an alternative supplier in time to meet the main contract completion date. Felix got Carillion to agree to pay substantially more money to Felix in return for Felix delivering the cladding by the original deadline in the contract. Before paying the money, Carillion wrote a letter protesting against Felix's demand. The court accepted that Carillion had paid this sum under duress. If Carillion were to complete the main project on time, and so avoid the heavy fees for late completion, they had no viable alternative but to agree to Felix's demands. It was held that it would be unrealistic to expect the other party to seek a mandatory injunction because of the delay of six weeks caused if Carillion had sought such an injunction. Following the test set out in DSND Subsea Ltd v Petroleum Geo Services, Mr Justice Dyson held that there was illegitimate pressure or a threat, the practical effect of which was that Carillion had no practical choice but to enter into the agreement. Lack of practical choice Carillion needed this work to be completed on time to allow other work in the property to proceed. If all the work was not completed on time, Carillion would incur heavy fees for late completion in relation to its contract with the building owner. It would be impossible for Carillion to find an alternative supplier or pursue legal action against Felix in time. Caused by pressure Felix refused to complete the work on time unless Carillion agreed to the new terms. Which was illegitimate This pressure was illegitimate - the refusal to complete on time amounted to a threatened breach of contract (ie was unlawful), and the threat was made in order to extort money from the other contracting party. But for the duress, the agreement would not have been entered into The new terms were much worse for Carillion, and Carillion would not have entered into them had there been no duress.

Matthews v Baxter (1873)

On capacity to contract: Similar rules apply to contracts entered into by drunken persons. The individual who becomes so intoxicated that he does not understand what he is doing will have to pay reasonable price for necessaries but will not be bound by any other contract he makes. This position should logically extend to those incapacitated by other intoxicating substances.

North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd and Another (The Atlantic Baron) [1979]

On economic duress - illegitimate pressure - did the victim protest? Hyundai (shipbuilders) agreed to build a tanker for North Ocean (a shipping company), but refused to deliver the ship unless North Ocean agreed to pay 10% more than the contract price. The court readily concluded that this threat to breach a contract was illegitimate but ultimately North Ocean Shipping's claim failed because they failed to protest at the threatened breach (in addition, as explained further below, it was not until some eight months later that they claimed the return of the extra 10 per cent). did the victim affirm? One of the principal reasons the claimants in North Ocean Shipping Co were unable to get relief for the alleged duress was that they delayed in taking action to set aside the contract. It was not until some eight months later that the owners claimed the return of the extra 10 per cent. It was suggested that they did not seek the return of the money sooner because they were concerned about the delivery of a sister ship also being built for them. However, the arbitrators found that this fear was groundless. It was held that, although the agreement to pay the extra money might initially have been voidable for economic duress, the fact that the shipping company waited eight months before taking steps to avoid the contract meant they lost their right to have the new contract for the increased payments set aside. They had, in effect, affirmed a variation to the contract.

Huyton SA v Peter Cremer GmbH & Co [1999]

On economic duress / significant cause: To succeed in establishing economic duress it must be shown that the agreement would not have been entered into if there had not been the duress. After reviewing the authorities, Mance J (as he then was) stated in the case of Huyton SA v Peter Cremer GmbH & Co [1999] 1 Lloyd's Rep 620: "The minimum basic test of subjective causation in economic duress ought, it appears to me, to be a "but for" test. The illegitimate pressure must have been such as actually caused the making of the agreement, in the sense that it would not otherwise have been made either at all or, at least, in the terms in which it was made. In that sense, the pressure must have been decisive or clinching (at p. 636)" This 'causation' aspect can be contrasted with the situation in relation to duress to the person, where duress will be established if the duress is one factor influencing the wronged party's behaviour (it need not be a decisive factor).

Universe Tankships Inc of Monrovia v International Transport Workers' Federation (The Universe Sentinel) [1983]

On economic duress: Illegitimate pressure - was pressure applied in good or bad faith? a threat to breach a contract is an unlawful threat. If this unlawful threat is made for illegitimate ends, then this threat is made in bad faith and will almost inevitably lead to a finding of duress. In Universe Tankships Inc of Monrovia v International Transport Workers' Federation (The Universe Sentinel) [1983] 1 AC 366, the claimant's ship was 'blacked' by ITWF, a trade union, meaning that ITWF withdrew the support of workers required in order for the ship to leave port. In order effectively to secure its release, the claimant paid, inter alia, the sum of $6,480 to ITWF's welfare fund. The House of Lords held that the agreement was brought about by economic duress. Lord Diplock found that the shipowners had no practical alternative but to agree (fulfilling 'lack of practical choice') and further the workers' threat to breach their contracts was exerted in bad faith as the workers had no legal basis to demand a payment into the union's welfare fund. The court allowed the agreement to be set aside, and the money returned. The above cases illustrate when a demand will be found to be in bad faith. Bad faith needs to be distinguished from driving a hard bargain

Atlas Express v Kafco Ltd [1989]

On economic duress:/ lack of practical choice: In Atlas Express v Kafco Ltd [1989] 1 All ER 641, the claimant, a firm of road hauliers, contracted with the defendants to deliver cartons of basket ware to various branches of a particular store throughout the UK. A manager of the claimant's firm fixed the contract price at a rate of £1.10 per carton, based on an estimate that each load would consist of between 400 and 600 cartons. The first load fell significantly below his estimates, comprising only 200 cartons. The manager then refused to take any further loads unless the defendant agreed to renegotiate the contract price to a minimum of £440 per load. The defendant, a small organisation, was heavily reliant on the contract with the store and unable to find another carrier, so reluctantly agreed to pay the imposed minimum charge. At a later stage, the defendant refused to pay the minimum charge and, when sued for the transport charges, lodged a claim of economic duress as a defence. It was held that, where a party has no alternative but to accept revised terms that were detrimental to its interest, this amounted to economic duress.

Experience Hendrix LLC v PPX Enterprises Inc (2003)

On efficient breach: it is a breach that puts the breaching party in a better position than if there had been no breach. It is therefore efficient for the breaching party to breach the contract. However, as stated above, this alone will not justify the award of damages on a restitutionary measure. Subsequent case law is so far equivocal as to the circumstances in which courts will find situations sufficiently 'exceptional' to justify using the Blake approach. An example which fell short of the requirements is Experience Hendrix LLC v PPX Enterprises Inc (2003) EWCA Civ 323 in which the dispute concerned improper granting of licences in relation to recordings made by the guitarist Jimi Hendrix. The court decided that it was not an 'exceptional' case within the meaning of Blake, and the court therefore refused to order an account of profits (ie a claim based on the restitution interest to take away the profit made by the party in breach). In particular, Mance LJ pointed out that: "We are not concerned with a subject anything like as special or sensitive as national security. The State's special interest in preventing a spy benefiting by breaches of his contractual duty of secrecy, and so removing at least part of the financial attraction of such breaches, has no parallel in this case."

Licences Insurance Corporation v Lawson (1896)

On intention to create legal relations: Contractual intention may be 'negatived' if, on an objective view, the apparent contractual statement was made in jest or in anger. In Licences Insurance Corporation v Lawson (1896) 12 T.L.R. 501, at an angry meeting, the defendant made a statement in the heat of the moment which could have been regarded as creating a contract. It was held that it did not because, on an objective view, a person at the meeting would not reasonably take it to have been intended as such.

Balfour v Balfour [1919]

On intention to create legal relations: In cases of social, family or other domestic agreements, the usual presumption is that there is no intention to create legal relations. "It is necessary to remember that there are agreements between parties which do not result in contracts within the meaning of that term in our law. The ordinary example is where two parties agree to take a walk together, or where there is an offer and an acceptance of hospitality. Nobody would suggest in ordinary circumstances that those agreements result in what we know as a contract, and one of the most usual forms of agreement which does not constitute a contract appears to me to be the arrangements which are made between husband and wife." However, again the presumption can be rebutted and certain social and domestic agreements may be legally enforceable. The question of whether the presumption is rebutted will be resolved by examining the circumstances of each case and the language used by the parties. In this case the husband worked overseas in Sri Lanka and his wife, for health reasons, was unable to continue to live there and returned to England. At that time, the husband agreed to pay his wife £30 per month for her living expenses. The couple subsequently became estranged and the wife sued to enforce the promise of financial support. It was held by the Court of Appeal that the promise was not legally binding as there had been no intention to create legal relations. The wife here had failed to rebut the presumption usually applied to such family agreements. Lord Atkin gave the judgment of which an extract is included two pages before this one. He also pointed to relevant policy considerations: "The small Courts of this country would have to be multiplied one hundred fold if these arrangements were held to result in legal obligations...The common law does not regulate the form of agreements between spouses. Their promises are not sealed with seals and sealing wax. The consideration that really obtains for them is that natural love and affection which counts for so little in these cold Courts."

Esso Petroleum Co. v Commissioners of Customs and Excise [1976]

On intention to create legal relations: In some circumstances, it is difficult to ascertain whether a particular promise is intended to have legal effect. In Esso Petroleum Co. v Commissioners of Customs and Excise [1976] 1 WLR 1, specially produced 'World Cup coins' were distributed by Esso to their dealers, who offered their customers a free coin with the purchase of four gallons of petrol. The House of Lords were divided in their opinion as to whether the offer of the free coin could amount to a 'sale' and, if so, whether there was any contract with regard to the coins. One argument put forward was that the coins could only be for sale if there was an intention to create legal relations in respect of the transfer of the coins between garage proprietors and motorists. The majority felt that there was such an intention, relying on the business context and the large commercial advantage Esso expected to derive from the promotion by attracting extra customers. This is not a completely satisfactory analysis as, although it could justify attributing an intention to create legal relations to Esso, it could not be applied equally to the other contracting parties. Conversely, the minority found no intention to create legal relations relying on the language used in the offer, the trivial value of the coins and the unlikelihood that any motorist denied a coin would believe that a legal remedy was available to rectify the default. However, the trivial nature of the transaction and an unwillingness to litigate are not relevant tests in establishing an intention to create legal relations and could therefore not be utilised to demonstrate a lack of the relevant intention on behalf of the motorists.

Edwards v Skyways [1964]

On intention to create legal relations: It is open to the parties to include wording within the agreement that indicates that the parties do not intend to create legal relations. However, clear words will need to be used, as the language is likely to come under scrutiny, and ambiguous wording is unlikely to rebut the presumption that parties to commercial / business agreements intend those agreements to be binding. In Edwards v Skyways [1964] 1 WLR 349, it was held that an employee air pilot was entitled to enforce his employer's promise to make an 'ex gratia' payment equivalent to the employer's contribution to a pension fund on the termination of his employment. The employer failed in his contention that the use of the expression 'ex gratia' was sufficient to show that the parties did not intend to create legal relations. The court held that: "[the person agreeing to pay] is certainly not seeking to preclude the legal enforceability of the settlement itself by describing the contemplated payment as 'ex gratia.' So here. There are obvious reasons why the phrase might have been used by the company in just such a way. It might have desired to avoid conceding that any such payment was due under the employers' contract of service. It might have wished — perhaps ironically in the event — to show, by using the phrase, its generosity in making a payment beyond what was required by the contract of service. I see nothing in the mere use of the words 'ex gratia,'... to warrant the conclusion that this promise, duly made and accepted, for valid consideration, was not intended by the parties to be enforceable in law".

Alpenstow v Regalian Properties plc [1985]

On intention to create legal relations: It is possible that there is a sufficiently strong and exceptional case for holding that even something marked 'subject to contract' is binding: in Alpenstow v Regalian Properties plc [1985] 1 WLR 721 a contract had legal effect because it was a detailed, carefully and professionally drawn agreement, and had been acted upon.

Rose and Frank Co. v Crompton Bros. [1925]

On intention to create legal relations: The courts seek to give effect to the intentions of the parties, whether expressed or presumed. In Rose and Frank Co. v Crompton Bros (1925) AC 445 Scrutton LJ said, in the Court of Appeal, that: "It is quite possible for parties to come to an agreement by accepting a proposal with the result that the agreement does not give rise to legal relations. The reason for this is that the parties do not intend that their agreement shall give rise to legal relations. This intention may be implied from the subject matter of the agreement, but it may also be expressed by the parties. In social and family relations such an intention is readily implied, while in business matters, the opposite result would ordinarily follow." In Rose and Frank Co. v Crompton Bros [1925] AC 445, a paragraph in a document which stated that the document was not a 'formal or legal agreement, and shall not be subject to legal jurisdiction' was effective to prevent the written agreement being a binding contract. However, the parties' performance of part of the obligations set out in the document had 'legal significance' and effectively, those actions gave rise to a separate binding agreement.

Merritt v Merritt [1970]

On intention to create legal relations: The test of intention is objective, by which we mean that the intention of the parties is to be determined more by what the actions of the parties in the particular circumstances suggests, rather than by taking evidence from the parties of what was actually in their minds. As Lord Denning MR puts it in Merritt v Merritt [1970] 1 WLR 1211: "In all these cases the court does not try to discover the intention by looking into the minds of the parties. It looks at the situation in which they were placed and asks itself: would reasonable people regard the agreement as intended to be binding?" In this case the husband and wife were married in 1941 and had three children. In 1966, the husband left home to live with another woman. The matrimonial home, a freehold house, was in the joint names of husband and wife and was subject to an outstanding mortgage of some £180. In order to make arrangements for the future, the wife met the husband in his car. He said that he would pay her £40 a month out of which she would have to pay off the outstanding mortgage. He gave her the building society mortgage book. Before leaving the car the wife insisted that he put into writing the following agreement: "In consideration of the fact that you [the wife] will pay all charges in connection with the house. . .until such time as the mortgage payment has been completed, when the mortgage payment has been completed I [the husband] will agree to transfer the property into your sole ownership." The husband signed and dated this agreement. When the mortgage was paid off, the husband refused to transfer the house as agreed. It was held by the Court of Appeal that the written agreement was intended to create legal relations. The presumption of fact against such an intention, where arrangements were made by a husband and wife living in 'amity' (meaning friendship / harmony), did not apply to arrangements made when they were not living in amity but were separated or about to separate. In these circumstances, it might safely be presumed that they intended to create legal relations. Lord Denning MR stated: "I do not think that [cases such as Balfour v Balfour] have any application here. The parties there were living together in amity. In such cases their domestic arrangements are ordinarily not intended to create legal relations. It is altogether different when the parties are not living in amity but are separated, or about to separate. They then bargain keenly. They do not rely on honourable understandings. They want everything cut and dried. It may safely be presumed that they intend to create legal relations [...] " The wife was entitled to a declaration that she was the sole owner of the house and to an order that the husband transfer it to her.

Jones v Padavatton [1969]

On intentions to create legal relations: The claimant and defendant were mother and daughter respectively. There was an agreement between the parties to the effect that if the daughter gave up her very satisfactory pensionable job in the USA and came to London to read for the Bar with the intention of practising law in Trinidad (where the mother lived), the mother would pay an allowance of 200 dollars a month to maintain the daughter and her small son while in England. Lord Justice Fenton Atkinson: "It is perhaps not without relevance to look at the daughter's evidence in cross-examination. She was asked about the occasion when the mother visited the house [that the daughter was living in], and she, knowing perfectly well that the mother was there, refused for some hours to open the door. She said: 'I didn't open the door because a normal mother doesn't sue her daughter in court. Anybody with normal feelings would feel upset by what was happening.' Those answers and the daughter's conduct on that occasion provide a strong indication that she had never for a moment contemplated the possibility of the mother or herself going to court to enforce legal obligations, and that she felt it quite intolerable that a purely family arrangement should become the subject of proceedings in a court of law. At the time when the first arrangement was made, the mother and the daughter were, and always had been, to use the daughter's own words, 'very close'. I am satisfied that neither party at that time intended to enter into a legally binding contract, either then or later when the house was bought." Lord Justice Salmon: "[Counsel for the mother] has said, quite rightly, that as a rule when arrangements are made between close relations, for example, between husband and wife, parent and child or uncle and nephew in relation to an allowance, there is a presumption against an intention of creating any legal relationship [...] There may, however, be circumstances in which this presumption, like all other presumptions of fact, can be rebutted. [...] On the facts as found by the county court judge this was entirely different from the ordinary case of a mother promising her daughter an allowance whilst the daughter read for the Bar [...] I cannot think that either intended that if, after the daughter had been in London, say, for six months, the mother dishonoured her promise and left her daughter destitute, the daughter would have no legal redress."

Cavendish Square Holdings BV v Talal El Makdessi [2015]

On liquidated damages: Is the clause a primary or secondary obligation? a. A clause will be primary if it is part of the primary obligations in the commercial context of the contract, ie furthers the commercial objective of the contract. b. A clause will be secondary if it is an obligation triggered by breach of contract to compensate the innocent party. If primary, the clause will not engage the penalty rule at all (so it will be valid). If secondary, the clause will be a penalty if it imposes a detriment out of all proportion to any legitimate interest of the innocent party in the performance of the primary obligation. To determine this the Supreme Court gave two steps: a. What (if any) legitimate business interest is served and protected by the clause? b. Is the detriment imposed to protect that interest extravagant, exorbitant or unconscionable? The burden of proof is on the person alleging that the clause is a penalty to prove this. FACTS: Mr Makdessi agreed to sell Cavendish a substantial stake in his advertising company in the Middle East, but the contract provided that Mr Makdessi would retain a 20% shareholding in the holding company after the acquisition. Cavendish had an option to purchase this retained shareholding subsequently as part of the deal. Part of the purchase price was to be paid by Cavendish in instalments after completion (known as deferred consideration). Mr Makdessi had built a considerable amount of personal goodwill through the company over the years, which meant that the company would be worth less to Cavendish if he competed against it. Accordingly, the sale and purchase agreement contained a clause (a 'restrictive covenant'), which prevented him competing with the business following completion of the sale. If Makdessi breached the covenant, the sale and purchase agreement contained default clauses saying that: (a) Mr Makdessi would not be entitled to receive the final two instalments of the deferred consideration; and further (b) Cavendish could exercise the option of purchasing Mr Makdessi's retained shareholding but at a much reduced price. Mr Makdessi did compete against the company in breach of this clause. Accordingly, Cavendish tried to exercise the default clauses. The potential impact of this for Mr Makdessi was to deprive him of deferred consideration of $44m and to allow Cavendish to purchase his shares under the option for a price which was tens of millions of dollars lower than otherwise. In contrast, the damage he had actually caused to the company by competing was valued at just $500,000. As a result of this disparity Mr Makdessi asked the Court for a declaration that Cavendish's rights under the default clauses were unenforceable penalty clauses. HELD: The Supreme Court determined that the default clauses were not penal. It considered first whether the clauses in question were primary or second obligations. It held that, notwithstanding that they were triggered by 'breach', they were in effect primary obligations - the withholding of the final payments was a 'price adjustment' mechanism adjusting the price payable to Mr Makdessi, and the transfer of shares was a way for the company and Mr Makdessi to part company in circumstances when Mr Makdessi started competing with it. You can see how, once the court determined that the clause was part of a price adjustment mechanism, it was not appropriate to intervene - the court has no power to intervene in a contract just because it considers the price agreed is unfair.

Dunlop Pneumatic Tyre Co v New Garage and Motor Co [1915]

On liquidated damages: Prior to 2016 the leading case on the law on penalties was Dunlop Pneumatic Tyre Co v New Garage and Motor Co [1915] AC 79. The test from this case was one based on whether the clause in question was a genuine pre-estimate of loss (in which case it would be upheld) or whether it required a payment which was extravagant and unconscionable and designed to act as a deterrent 'in terrorem' of the breaching party (in which case it was an unenforceable penalty clause).

Vivienne Westwood Limited v Conduit Street Development Limited [2017]

On liquidated damages: in the recent case of Vivienne Westwood Limited v Conduit Street Development Limited [2017] EWHC 350 (CH), the court described the test derived from Makdessi for determining whether a clause is a penalty clause or not as set out on the following page. The Makdessi test Is the clause a primary or secondary obligation?A clause will be primary if it is part of the primary obligations in the commercial context of the contract, ie furthers the commercial objective of the contract. A clause will be secondary if it is an obligation triggered by breach of contract to compensate the innocent party. If primary, the clause will not engage the penalty rule at all (so it will be valid). If secondary, the clausewill be a penalty if it imposes a detriment out of all proportion to any legitimate interest of the innocent party in the performance of the primary obligation. To determine this the Supreme Court gave two steps:What (if any) legitimate business interest is served and protected by the clause?Is the detriment imposed to protect that interest extravagant, exorbitant or unconscionable? The burden of proof is on the person alleging that the clause is a penalty to prove this

Brown v Raphael (1958)

On misrepresentations and opinions: The real question for the court is to say, on the basis of the facts and the context of this case, whether this is an instance in which the representation that the vendor has reasonable grounds for his belief out to be imported. So where the representor is in a position of superior knowledge or experience, a statement of opinion by him may be able to involve a statement of fact that there are reasonable grounds for his opinion. If there are no reasonable grounds for that opinion (or, to put it another way, the opinion is one which someone with the knowledge of the representor, could not have reasonably held), then a false statement has been made.

JEB Fasteners v Mark Bloom (1983)

On misrepresentations: the representation must have caused the representee to enter into the contract in order to be an actionable misrepresentation. This requirement was NOT satisfied in this case. It was held that the representation did not play a 'real and substantial' part in inducing the claimants to act

Avon Insurance Plc v Swire Fraser Ltd (2000)

On misrepresentations: the statement must be false. It will not be false if it is substantially correct: "A representation may be true without being entirely correct, provided it is substantially correct and the difference between what is represented and what is actually to induce a reasonable person in the position of the claimants to enter into the contracts"

Smith v Land and House Property Corporation (1885)

On misrepresentations: when someone expresses an opinion, they also suggest two factual matters: 1) they impliedly state that they know facts which justify their opinion. Where the same facts are known to each party, this implicit statement is unlikely to have much impact on the representee, as the representee can determine whether the facts justify the opinion themselves. However, if the representor is considered to ahve greater knowledge over and above the representee, then the implied statement that there are facts which justify the opinion can significantly mislead the representee. "In a case where the facts are equally well nown to both parties, what one of them says to the other is frequently nothing but an expression of opinion... but if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of material fact, for he impliedly states that he knows facts which justify his opinion."

Williams v Carwardine (1833)

On offer and acceptance: An offer is not accepted by doing the required act in ignorance of the offer. To create a contract, parties must reach agreement, it is not enough that their actions happen to coincide. The act or promise must be give in the knowledge of the offer. HERE: as long as there is evidence of the requisite knowledge, it matters not that the act is performed for an entirely different motive which is quite unconnected with the terms of the offer. The rule as outlined seems quite logical but one valid criticism is worth noting: in cases such as the reward case of Clarke it can operate to penalise an individual who gives information out of a sense of moral duty whilst, at the same time, rewarding those who give information only because they are aware that some monetary recompense is available. Furthermore, it may allow an offeror to avoid the legal consequence of his offer even though he has obtained the information requested.

R v Clarke (1927)

On offer and acceptance: An offer is not accepted by doing the required act in ignorance of the offer. To create a contract, parties must reach agreement, it is not enough that their actions happen to coincide. The act or promise must be give in the knowledge of the offer. In R v Clarke a reward was offered for information leading to the arrest and conviction of the persons who committed the murders of two police officers. Clarke had seen this offer but he only gave the relevant information after he had been arrested for the crime and had forgotten the reward offer at the time. It was held that as such, he had not acted on the faith of, or in reliance upon, the offer.

Tool Metal v Tungsten [1955]

On promisory estoppel. How can the promisor resume to his strict legal rights? the promisor may resume his full legal rights after giving reasonable notice of his intention to do so - Tool Metal v Tungsten [1955] This reflects that the effect of promissory estoppel is generally to suspend the rights concerned, but not to extinguish them. So, in Hughes v Metropolitan Railway Co, the landlord's right to insist on the repairs was not extinguished: the landlord could have enforced the repair clause by giving reasonable notice to the tenant requiring him to repair. The key principle is that the court will order an outcome which is just and equitable, and in some cases, this might mean a past right is extinguished. For example, in High Trees itself, the landlord could recover the rent for the last two quarters of 1945 and going forward, but Denning J stated (obiter) that if the landlord had sought to recover the full rent from 1940 to 1945 he would have been estopped from doing so - the right to the rent for that period would have been extinguished. Exceptionally, rights might also be extinguished where it has become impossible for the other to party to meet the obligation concerned or it would be clearly inequitable to require them to do so.

Alan & Co. v El Nasr Export & Import Co

On promisory estoppel: In Alan & Co. v El Nasr Export & Import Co., Lord Denning MR stated that, although it was essential that the promisee should have acted on the promise, it was not essential that he should have acted on it to his detriment.

Woodhouse A.C. Israel Cocoa Ltd. S.A. and Another v Nigerian Produce Marketing Co. Ltd [1972]

On promisory estoppel: There must be a clear and unequivocal promise or representation that existing legal rights will not be fully enforced: Woodhouse A.C. Israel Cocoa Ltd. S.A. and Another v Nigerian Produce Marketing Co. Ltd [1972] AC 741. The promise must be intended to affect legal relations and not simply amount to a gratuitous privilege given to the promisee. A promise can be express or implied (for example by conduct).

CIBC Mortgages plc v Pitt [1994]

On undue influence and third parties: RBS v Etridge (giving constructive notice) - This confirmed the approach taken in CIBC Mortgages plc v Pitt [1994] 1 AC 200, where the husband used the borrowed money to speculate on the stock market, losing everything in the 1987 stock market crash. The wife sought to have the mortgage on the matrimonial home set aside on the grounds of undue influence, having signed the mortgage without reading it under pressure from her husband. The House of Lords rejected the wife's claim. The husband had not been acting as the lender's agent and the lender had no actual or constructive notice of the husband's undue influence. As the mortgage application said that the loan was for a holiday cottage, there was nothing to put the lender on notice that the transaction was anything other than a normal advance for the couple's joint benefit.

Barclays Bank plc v O'Brien [1994]

On undue influence and third parties: Mr O'Brien was a shareholder in a company and wanted to increase the overdraft facility of the company in question. The company's bank agreed a loan of £12,000 that was to be guaranteed by Mr O'Brien, his liability in turn being secured by a second charge over the matrimonial home, which was jointly owned by Mr O'Brien and his wife. The bank manager gave instructions for a legal charge to be signed by both Mr O'Brien and his wife, together with a guarantee to be signed by Mr O'Brien. He also instructed that both Mr O'Brien and his wife should be made aware of the nature of the transactions and that, if they had any doubts, to obtain independent advice. However, the bank staff had not followed these instructions and subsequently both husband and wife signed the documents without reading them. When the company's indebtedness increased beyond the agreed limit, the bank took proceedings to enforce its security against the husband and wife. In her defence, Mrs O'Brien contended that, firstly, her husband had put undue pressure on her to sign the agreements and, secondly, that her husband misrepresented the effect of the legal charge in that she believed it was limited to a sum of £60,000 over three weeks when in fact the charge covered £135,000. It was held by the House of Lords that the bank was aware that the parties were husband and wife and as such were put on notice that influence may be exercised. The bank had failed in its duty to take reasonable steps to warn the wife of the risks she ran in entering into the surety contract nor had it properly advised her to seek independent legal advice. On this basis, the bank was fixed with constructive notice of the misrepresentation made by the husband to induce his wife into the surety contract and therefore the wife was entitled to have the legal charge set aside. It was held that a creditor would be put on notice when: "...a wife offers to stand surety for her husband's debts by the combination of two factors: (a) the transaction is on its face not to the financial advantage of the wife; and (b) there is a substantial risk in transactions of that kind that, in procuring the wife to act as surety, the husband has committed a legal or equitable wrong that entitles the wife to set aside the transaction. It follows that unless the creditor who is put on inquiry takes reasonable steps to satisfy himself that the wife's agreement to stand surety has been properly obtained, the creditor will have constructive notice of the wife's rights." Did bank know of relationship/potential undue influence? Did they take reasonable steps to warn wife of risks, get independent advice?

Allcard v Skinner 1887

On undue influence: Etridge approved by Lindley LJ: "Lindley LJ pointed out that where a gift of a small amount is made to a person standing in a confidential relationship to the donor, some proof of the exercise of the influence of the donee must be given. The mere existence of the influence is not enough. He continued, at p 185 "But if the gift is so large as not to be reasonably accounted for on the ground of friendship, relationship, charity, or other ordinary motives on which ordinary men act, the burden is upon the donee to support the gift." Where a party has shown a relationship of trust and confidence and a transaction which requires explanation, then the wrongdoer might argue (for example) that the innocent party received comprehensive independent advice about the transaction, and therefore that they could not have been subjected to undue influence. Whether such an argument would succeed will depend on all the facts. The court has made clear that even when someone fully understands a transaction having received independent legal advice, it is possible that their consent to it is still being given only as a result of undue influence.

Coatsworth v Johnson (1886)

On what equity means (injunctions and specific performance as equitable and discretionary remedies): The court will take into account the conduct of the claimant - because 'he who comes to equity must come with clean hands': Coatsworth v Johnson (1886) 55 LJQB 220. For example, a claimant which is itself also in breach of contract, or which gives an incomplete account of events to the court, is less likely to succeed in obtaining an order for specific performance or prohibitory injunction

Watford Electronics Ltd v Sanderson CFL Ltd (2001)

One factor which the courts seem to view as particularly important is the relative bargaining power of the parties. The greater the equality of bargaining power, the more likely it is that the clause will pass the reasonableness test. In this case the clauses were deemed to be reasonable because the contract had been negotiated between experienced businessmen of equal power. Compare in Granville Oil & Chemicals Ltd v Davies Turner & Co Ltd, Tucker LJ stated "I am less enthusiastic UCTAs intrusion into contracts between commercial parties of equal bargaining strength, who should generally be considered capable of being able to make contracts of their choosing and expect to be bound by their terms.

application for bad character

Part 21 Criminal Procedure Rules - notices, applications and responses: requires that a party wishing to adduce bad character evidence must Non-defendant: make an application Defendant bad character: give notice Rules 21.2 and 21.4 - Defendant bad character: Prosecution evidence: no more than 20 business days after D pleads not guilt, Crown court: no more than 10 business days after D pleads not guilty Co-Defendant's evidence: as soon as reasonably practicable, and no more than 10 days after prosecutor discloses material on which notice is based Response: not more than 10 business days after service of the notice Rules 21.2 and 21.3 - non-defendant bad character: Magistrates and CC: as soon as practicable, no more than 10 days after prosecutor discloses material on which application is based Response no more than 10 business days after application Contents: set out facts of misconduct, why evidence is admissible, Response: what is admitted, what is disputed, ...

youth - persistent offender

Persistent offenders Some sentences can only be imposed on children and young people if they are deemed a persistent offender. There is no statutory definition but: if there have been three findings of guilt in the past 12 months for imprisonable offences of a comparable nature then the court could certainly justify classing the child or young person as a persistent offender; or a child or young person is being sentenced in a single appearance for a series of separate, comparable offences committed over a short space of time then the court could justifiably consider the child or young person to be a persistent offender even if no previous convictions. So, for example, a series of robberies committed over a period of two days qualified a defendant as a persistent offender even though they had no previous convictions. Similarly, a youth aged 14 appeared for sentence for offences of burglary and aggravated vehicle taking committed on four different days over a two-month period were sentenced as a persistent offender.

plea before venue

Plea before venue At a first hearing when the offence is one which is triable either-way, D will be asked to indicate their plea. D is supplied with a copy of the initial details by the prosecutor in accordance with Criminal Procedure Rules, Part 8. The charge is written down and read out to D. D can then (1) indicate guilty, (2) indicate not guilty or (3) give no indication Where no indication is given, it is treated as a not guilty indication. This part of the hearing is known as plea before venue and this procedure is set out in s17A Magistrates Courts Act 1980 Before they indicate their plea, D must be warned that if they plead guilty, they can be Sentenced by the Court Committed under s14 Sentencing Act 2020 if a magistrates' court is of the opinion that ist sentencing powers are insufficient to deal with the offence A guilty plea must be unequivocal Free of any suggestion or statement that D is not guilty, either because they purport to rely on a defence or refuse to accept an element of the offence. If a plea is equivocal, it will be not guilty.

Code for Leasing Business Premisesn- Good Practice

Premises - heads of terms should clearly define demise, provide a lease plan, refer to all rights that the tenant will need for premises Length of term / renewal rights and break rights - heads of terms should clearly specify the length of term and any break rights. Code sets out basic conditions for exercising break clause. Rent and Review - heads of terms should clearly state initial rent, frequency of payment, whether VAT is charged, any rent-free period, and how rent review will be carried out, and how often Landlord's title - Landlord should be responsible for obtaining any consent to grant lease (ie from superior landlord) repairs - tenant repairing obligation should be appropriate to the length of the term and the condition of the premises. if tenant gives a qualified repairing obligation, a schedule of condition should be required. tenant should be given protection against inherent construction defects for new buildings insurance and damage - lease should suspend the rent if the premises are damaged by an insured risk, or an uninsured risk

Combe v Combe [1951]

Promisory estoppel acts as a shield not a sword, it cannot be the cause of an action, only the defence to an action: Following a divorce Mrs. Combe's husband indicated that he was prepared to make an allowance of £100 a year to Mrs Combe. However, he did not make any of the agreed payments. In 1950, the wife brought an action, claiming arrears of payment under the husband's promise. The husband had made a promise which the wife had acted on. However, the Court of Appeal held that since the wife had given no consideration for the husband's promise, she could not succeed in an action on it. Promissory estoppel could not help because: "It does not create new causes of action where none existed before. It only prevents a party from insisting on his strict legal rights when it would be unjust to allow him to do so, having regard to the dealings which have taken place between the parties. ...Thus, a creditor is not allowed to enforce a debt which he has deliberately agreed to waive if the debtor has carried on business or in some other way changed his position in reliance on the waiver. [...] Seeing that the principle never stands alone as giving a cause of action in itself, it can never do away with the necessity of consideration when that is an essential part of the cause of action. The doctrine of consideration is too firmly fixed to be overthrown by a side-wind. " In the language of counsel for the husband in Combe v Combe, the doctrine of promissory estoppel is a shield and not a sword.

Hyde v Wrench (1849)

Rejection: an attempt to accept an offer on new terms may be a rejection of the offer accompanied by a counter offer. Where an offeree makes a counter offer, the original offer is deemed to have been rejected and cannot be subsequently accepted. Acceptance must be unqualified, i.e. must correspond exactly with the terms of the offer (mirror image rule).

Hadley v Baxendale (1854)

Remoteness of damage in contract The law of contract provides that not all losses flowing from (ie caused by) a breach of contract are recoverable. A line must be drawn somewhere dictating which loss is recoverable and which is not. The foundation of the law on remoteness in contract is the decision of Hadley v Baxendale. The claimant, who was a mill owner, contracted with the defendant carrier to take a broken mill-shaft to the makers as a pattern for a new one. Owing to the carrier's neglect, there was a delay in the transport of the broken mill-shaft, which resulted in considerable losses for the mill owner, because no spare shaft was available. HELD: Applying the above two-stage test, the court held (considering the first limb) that in most cases of a breach of this kind, no such losses would have followed (as a spare shaft would be available), so it could not be said that the losses followed naturally from the breach. Nor (considering the second limb) was the defendant aware, at the time of the contract, that the mill would not be able to function at all without this particular shaft, and so the loss could not 'reasonably be supposed to have been in the contemplation of both parties'. Therefore, the losses were not recoverable. The losses might have been recoverable under the second limb if the special circumstances (that delay would cause a loss of profit) had been communicated to the defendant at the time of contracting, but they had not been. Baron Alderson set out the test to be applied: "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may [1] fairly and reasonably be considered either arising naturally, ie, according to the usual course of things, from such breach of contract itself, or [2] such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it." [square brackets and numbering added] The first limb - loss of a type ordinarily and naturally arising from the breach - is not based on actual knowledge of the particular parties. It looks at 'the usual course of things' and consequently what loss is liable to result from a breach of contract in that 'usual course'. If the loss is deemed a normal type of loss which would follow from the breach then it will be recoverable under the first limb of the Hadley v Baxendale test. If losses are too unusual and far reaching to satisfy the first limb, then in order to recover those losses the claimant will have to establish, under the second limb of the Hadley v Baxendale test, that the particular defendant had sufficient actual knowledge of the particular and special circumstances to be aware of the risk of those losses.

Clarke v Dickinson (1858)

Rescinding a contract (Remedies for misrepresentation): Where restitution is possible: the right to rescind is lost if 'restitutio in integrum' is no longer possible; that is, if it is no longer possible to restore the parties to their previous position before the contract was made. This will be the case where the nature of the subject matter has been changed or it has decline din value. E.g. Clarke v Dickinson, the representee was induced to take shares in partnerships which was later converted into a limited liability company and the company was in the process of being wound up. HELD: rescission was impossible since the existing shares were wholly different in nature and status from those originally received. As rescission is essentially an equitable remedy, the court will not allow minor imperfections in the restoration of the original position to stand in the way of a remedy.

Custody Officer

Responsible for handling and welfare of suspects in detention at the police station Must be a police officer of the rank of at least sergeant Must be unrelated to the process of the investigation of the offence The custody officer will determine whether there is sufficient evidence to proceed to charge the detainee. If there are grounds to detain, the custody officer will: Authorise detention of suspect Open a custody record Inform the detainee of the reason of their arrest Inform the detainee of the reason for their detention Advise the detainee of their rights Additional duties of the custody officer: Conducting a risk assessment procedure for each detainee Making special arrangements for detainees who may be physically or mentally incapacitated Arranging for interpreters to be present Dealing with a detainee's property Contacting health care professionals

taxes - anti avoidance rules

Restriction on deduction of loans for IHT purposes Gifts with reservation of benefit ('GROB') rules Pre-owned assets charge ('POAC') General anti-abuse rule ('GAAR') Disclosure of Tax Avoidance Schemes ('DOTAs')

Koufos v C Czarnikow Ltd, The Heron II [1969]

Returning to the 'traditional' test of remoteness in Hadley v Baxendale, how does the court's approach to remoteness in contract differ to that taken in tort? In Koufos v C Czarnikow Ltd, The Heron II [1969] 1 AC 350 the court clarified that the remoteness test in contract is narrower than the remoteness test in tort. In tort, it is generally enough that the loss is 'forseeable'. However, in contract, it must be contemplated as being something 'not unlikely' or as having a 'very substantial degree of probability' of occurring. Something can be foreseeable, hence recoverable in tort, but still be unlikely, hence too remote for recovery following a breach of contract.

review of detention

Reviews of detention must be carried out - s40 PACE Review officer must be satisfied detention is still necessary. - s37 Review officer must be an officer of the rank of inspector S 40 stiuplates that the first review of a suspect will take place not more than 6 hours after detention was first authorised by custody officer, then periodically 9 hours after.

Byrne v Van Tienhoven (1880)

Revocation of an offer is effective only upon actual notice of it reaching the offeree. Where revocation is communicated by post it takes effect from the moment it is received, not from time of posting.

Suspects rights

Right to consult privately with a solicitor/free legal advice Right to have someone informed about their arrest Right to consult Codes of Practice COP (right to an appropriate adult or an interpreter) Delay to these rights in circumstances:

right to have someone informed of arrest section 56 pace

Right to delay this right is in s56. The person must be in detention for an indictable offence Authority to delay by rank of an inspector Inspector must have grounds to believe exercising the right will lead to: Interference with/harm to evidence connected with indicatble offence Interference/harm to others Alerting other people suspected of commiting an indictable offence not yet arrested Hinder the recovery of property obtained in consequence of the comission of such an offence Any delay of rights must be proportionate and should last no longer than necessary. Max 36 hours.

bad character gateways defendant

S101 gateway through which evidence of bad character for defendant can becom e admissible: Agreement - if all parties agree to the evidence being admissible, no need to make application to adduce evidence through this gateway. Blurts out Context Done it before He did it False impression Gets at the witness

detention periods and time to extend

S41 PACE - the maximum period a detainee can be kept in custody before charged is 24 hours from the 'relevant time'. Usually 'relevant time' begins when suspect arrives at police station. Time is indicated on police record. Extending for further 12 hours (total detention 36 hrs) S 42 PACE - extend for further 12 hours; totalling to 36 hours total. Must be given before the 24 hours expire. Grounds for extension must be explained and noted in custody record. Solicitor or suspect must be allowed to make representations. Superintendent must make auhtorisation for extension. Reasonable grounds for believing detention is necessary. Offence must be indictable. Investigation must be conducted dilligently and expeditiously. Detention beyond 36 hrs: They must apply to magistrates court for a warrant under ss43 and 44 PACE Mags will then authorise detention for a further 36 hours on first applicaiton, and another 36 totalling to 96 hours on second application.

Misrepresentation Act (MA) 1967

Section 2(1) of the Negligent misrepresentation (Misrepresentation Act 1967): "Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable grounds to believe and did believe up to the time the contract was made that the facts represented were true." In summary, the defendant will be liable for negligent misrepresentation under s 2(1) unless he can prove that he had reasonable grounds to believe, and did believe up to the time the contract was made, that the statement was true. In the course of negotiations leading to a contract the statute imposes an absolute obligation not to state facts which the representor cannot prove he had reasonable ground to believe. The statutory right to damages for negligent misrepresentation reverses the normal burden of proof by requiring the representor (making the statement) to prove that he had reasonable grounds to believe his statement and did belive his statement. (SPLIT BURDEN) On Rescission: s1 of MA: rescission is available to a party misled by an innocent misrepresentation notwithstanding that the misrepresentation has become a term of the contract: s 1 of the MA. A party misled by an innocent misrepresentation is entitled to rescind even where the contract has been performed (s1). (except for affirmations and lapse of time, where restitution is possible or where third party rights accrue). In the case of negligent and innocent misrep. the court can choose to exercise its discretion to award damages in lieu of rescission under s2(2) of MA. s2(2): where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled by reason of the misrepresentation, to rescind the contract, then, if it is claimed, in any proceedings arising out of the contract, that the contact ought to be or has been rescinded, the court or arbitrator may declare the contract subsisting and award damages in lieu of rescission, if of the opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party The damages under s2(2) are only applicable in situations where the court has decided, at its discretion, not to award rescission. s(3): If a contract contains a term which would exclude or restrict (a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made; or (b) any remedy available to another party to the contract by reason of such a misrepresentation that term shall be of no effect except in so far as it satisfies the requirement of reasonableness as stated in s11(1) of the UCTA. and it is for those claiming that the term satisfies that requirement to show that it does.

Maritime National Fish Ltd v Ocean Trawlers Ltd [1935]

Self-induced frustration The doctrine will not apply where the event was induced by one of the parties. The party alleging self-induced frustration must prove that the other party is at fault. Facts: the claimant chartered a steam trawler, the 'St. Cuthbert', to the defendant, which was useless for fishing unless fitted with an otter trawl. Both parties knew such a trawl could only be fitted if a licence had been obtained to do so. The defendant applied for five licences for the five trawlers they operated, including the St. Cuthbert. They were granted three licences, and they were asked to nominate the three trawlers to which the licences would attach. The three named trawlers did not include the St. Cuthbert. The claimant sued for the charter hire (ie the price the defendant had agreed to pay for hiring the vessel) and the defendant argued that the charterparty was frustrated because it was impossible to perform. Held: the charterparty was not frustrated because it was the defendant's own act which prevented the St. Cuthbert from being licensed for fishing with an otter trawl. The defendant was liable for the hire.

Co-operative Insurance Society Ltd v Argyll Stores (Holdings)

Specific performance will not be awarded for breach of an obligation to perform a series of acts which would need the constant supervision of the court. Thus building contracts are specifically enforceable only in certain special circumstances

De Francesco v Barnum (1890)

Specific performance will not be awarded for breach of contracts of employment

Patel v Ali [1984]

Specific performance will not be awarded where it would cause undue hardship on the defendant

first hearings

Summary and either way offences The first hearing will be the hearing that deals with matters such as plea, bail, representation and legal aid. Indictable only The magistrates' court has no jurisdiction to deal with an indictable only offence and so D charged with an indictable only offence makes only a brief frist appearance in a magistrates' court. The court will deal with bail and legal aid then D is sent to the Crown Court where they will enter a plea. The hearing at the Crown Court is three to four weeks later depending on D's bail status. Summary only offences in Crown Court There is an important exception to the rule that summary only offences never go to the CC. This happens where D is charged with an offence that is to be tried in the CC and tehre is a summary only offence which is connected to the indictable only offence. If the summary only offence is one of those listed below and is before the magistrates court at the same hearing as the indictable only offence, it must be sent to the Crown Court

Tenant's statutory right to carry out improvements

Tenant's statutory right to carry out improvements: If the tenants proposed alterations are improvements, then even if the lease contains an absolute covenant against alterations, the tenant may be able to circumvent this: Under s3 LTA 1927, the tenant serves notice on the landlord of ist intention to carry out improvements If the landlord objects, the tenant can apply to the court for permission to carry out the improvements. The court will usually grant permission if the improvements add value, are reasonable and suitable, will not diminish value of other properties belonging to the landlord If the landlord does not object within 3 months, the tenant can go ahead The landlord may offer to carry out the works himself and increase the rent, but the tenant does not need to agree

Code for Leasing Business Premises

The Code for Leasing Business Premises exists to Improve the quality and fairness of negotiations on lease terms Promote the issue of comprehensive heads of terms that should make the legal drafting process more efficient The code is written by the Royal Institution of Chartered Surveyors (RICS) and applies to members of the RICS and RICS regulated firms. Many property professionals, whether property firms or in-house property specialists who deal with the letting of comercial property, will be RICS regulated. A RICS regulated firm will be professionally obliged to take account of the Code in negotiations. The code concerns iteself with negotiations and heads of terms, and is divided into mandatory requirements and good practice. Mandatory requirements are indicated with "must" Good practice is indicated with "should" (but you should follow them unless there are exceptional circumstances) Mandatory requirements: Lease negotiations msut be approached in a constructive and collaborative manner An unrepresented party must be advised about the existence of the code and recommended to seek professional advice The landlord is responsible for ensuring that heads of terms compliant with the code are agreed before the draft lease is circulated Mandatory to prepare written heads of terms, areas which must be covered Extent of premises Length and term and break rights Rent and rent review Repairing obligation Rights to assign Permitted use of the property Rights to alter the property and any obligation to put the property back in ist original state PRINCIPLES OF THE CODE Applies primarily to surveyors Purpose is to achieve clarity, transparency and fairness

ParkingEye Limited v Beavis [2015]

The appeal for ParkingEye was heard at the same time as the Makdessi decision and illustrates the new test more clearly. FACTS: ParkingEye managed a car park for the owners of a riverside retail park. ParkingEye displayed numerous signs at the entrance to the car park and at frequent intervals throughout it. The notices stated that a failure to comply with a two-hour time limit would result in a parking charge of £85. Mr Beavis parked his car at the car park; he exceeded the two-hour limit. ParkingEye demanded payment of the £85 charge. Beavis refused to pay on the basis that the £85 charge was unenforceable as a penalty. HELD: the obligation to pay the sum of £85 was a secondary obligation - it was triggered by breach of the contract. This mean that court had to consider whether the clause was penal. The court concluded that the £85 charge was not a penalty. The Lordships agreed that ParkingEye had a legitimate interest in charging motorists for any period they occupied the car park beyond the two hours. Although the amount of the charge exceeded any likely loss (the loss was whatever a motorist would need to pay to use the parking space for the extra time - much less than £85), Parking Eye had a responsibility to manage the car park effectively and it was legitimate to use the charges as a means of influencing the conduct of motorists in order to ensure they did not overstay. In this context the £85 charge was proportionate to that interest.

Hughes v Metropolitan Railway Co. (1877)

The case from which the modern doctrine of promissory estoppel derives is Hughes v Metropolitan Railway Co. (1877) 2 App Cas 439. In this case, the tenant, by his lease, was under an obligation to keep the premises in good repair. In October, the landlord gave the tenant six months in order to undertake some repairs, with which the tenant agreed. In November, negotiations began between the landlord and tenant regarding the tenant's purchase of the lease. The tenant stated that, while negotiations were ongoing, he would not undertake the repairs. In December, the negotiations broke down. At the end of the six-month notice period the landlord, relying on the failure of the tenant to undertake the repairs, sought forfeiture of the lease. It was held, in a unanimous judgment of the House of Lords, that the landlord's conduct was an implied promise to the tenant that he would not enforce the forfeiture at the end of the notice period and, in not doing the repairs, the tenant had been relying on this promise. The landlord would be estopped from asserting the right to forfeiture. The Lord Chancellor, Lord Cairns, stated: 'It is the first principle upon which all Courts of Equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results ... afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.'

Linden Gardens Trust v Lenesta Sludge Disposals Ltd

The case involved a contract between an 'employer' and a 'contractor' (Lenesta) whereby the latter was to remove asbestos from a property in which the employer had a leasehold interest. The property was ultimately destined to be developed as shops, offices and residential flats. Both parties knew that the building was going to be leased on to a third party. The contract contained a clause preventing the employer from assigning its rights under the contract to anyone else without the written consent of the contractor. The work under this contract was completed in 1980 and in 1985 the employer transferred its interest in the property to the plaintiffs, Linden Gardens Trust, who subsequently discovered asbestos in the property that should rightly have been removed under the original contract. Linden Gardens Trust paid to have the asbestos removed and, when the original contracting party (the employer) assigned their right to sue the contractors to them, they (Linden Gardens Trust) brought an action to recover the losses sustained in remedying the defective performance under the contract between the employer and Lenesta. It was held that the plaintiffs had no right to sue due to the prohibition of assignment contained within the original contract between the employer and the contractor.

Payzu v Saunders [1919]

The case of Payzu v Saunders [1919] 2 KB 881 demonstrates that reasonable steps to mitigate may, in some circumstances, include accepting the performance offered by the defendant under a new contract even when that performance amounts to a breach of the original contract. FACTS: The defendant agreed to sell the claimants 200 pieces of silk. The goods were to be delivered as required and payment was to be made monthly following delivery. The first consignment was delivered and the claimants wrote a cheque for it which the defendant did not receive, and so the claimants sent another cheque. This delay caused the defendant to form the mistaken impression that the claimants were in financial difficulties, leading the defendant to refuse to make any further deliveries. This amounted to a repudiatory breach by the defendant. However, the defendant then offered to continue to supply the claimants under a new contract at the same price on the same terms, except for the single change that payment was to be made in cash on delivery. The claimants refused to accept this offer and sought damages for breach of contract. The market price of silk had risen and consequently damages of the difference between the market price and contract price were sought. HELD: the claimants should have mitigated their loss by accepting the defendant's offer. Damages were confined to the loss that the claimants would have suffered if they had paid cash and acquired the goods at the contract price, ie the loss of a month's credit which had originally applied under the contract. If the defendant's offer of performance remains the best substitute performance (as it was in Payzu) then it would seem unreasonable not to go to that source.

Thomas v BPE Solicitors (2010)

The case of Thomas v BPE Solicitors is important for two reasons. Firstly, the case established that an email was to be treated like other forms of instantaneous communications therefore an email acceptance is effective when received (ie when the email arrives on the offeror's email server). The second thing that the case established was that the meaning of 'ordinary office hours' depends on the context of the parties prior communications.

Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd [2010]

The claimant in C&P Hauge was seeking its reliance loss (in a situation where it had no expectation loss); however, it did not succeed as it failed to show that, had the contract gone ahead properly, it would have been able to recoup this expenditure in any event. The claimant was therefore limited to recovering a nominal amount of damages in recognition of the technical breach it had sustained. This case shows that it will only be possible for the claimant to claim his reliance interest if the contract would have enabled him to recoup those expenses had it been properly performed. It is for the defendant to prove that the claimant would not have recouped the expenditure had the contract gone ahead (Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd [2010] EWHC 2026).

Overbrooke Estates Ltd v Glencombe Properties Ltd (1974)

The contact of sale stated. "The vendors do not make or give and neither the Auctioneers nor any person in employment of the Auctioneers has any authority to make or give any representation or warranty in relation to these premises". Mr Justice Brightman held that, even assuming that the auctioneers had made a misrepresentation to the purchaser, the clasue prevented the vendor from being responsible for it. s3 of MA would not help the purchaser: the section does not... in any way qualify the right of a principal publicly to limit the otherwise ostensible authority of his agent

Royscot Trust v Rogerson [1991]

The court has confirmed the effect of s 2(1) of MA in this case: is that the correct measure for damages for negligent misrepresentation must be based on the tort of deceit. For example, the claimant is entitled to recover all losses even if those losses are unforeseeable. Concern has been expressed that to place such an interpretation on s 2(1) draws no distinction between the honest but careless representor and the fraudulent representor, but that is the current state of law. Note however, that in relation to negligent misrep. ,damages may be reduced for contributory negligence where the loss was in part the fault of the reprsentee.

Sky Petroleum Ltd v VIP Petroleum Ltd [1974]

The court will look at the substance of the proposed remedy when deciding whether it would amount to a prohibitory injunction or specific performance, not the superficial wording of the injunction. For example, in Sky Petroleum Ltd v VIP Petroleum Ltd [1974] 1 All ER 954, the defendant agreed to supply petrol to the claimant for a set period of time. In breach of contract, the defendant terminated the agreement early. The claimant sought an interim injunction preventing the defendant from terminating and withholding the supply. The court held that although the injunction requested appeared to be in 'negative' terms (broadly, the defendant must not terminate the agreement / withhold supply), the effect of the injunction would be to require the defendant to supply petrol to the claimant. This is a requirement that the defendant should do what the contract says it must do, and so in substance is an order for specific performance. Accordingly, the court decided the case according to the principles that apply to orders for specific performance, not those that apply to interim injunctions (and on the particular facts, the court found in the claimant's favour).

Holyoake v Candy [2017]

The fact that Makdessi places a clear boundary between primary and secondary obligations in terms of the ability of the Court to strike down a clause as 'penal' may be of assistance for practitioners drafting contracts. Careful drafting to frame provisions as 'primary' rather than secondary obligations can reduce the chances of a party falling foul of the law on penalties (see for example Holyoake v Candy [2017] EWHC 3397 (Ch). The key is to prevent an allegation that the clause is a secondary liability payable on breach in either substance of form.

Quenerduaine v Cole (1883)

The fact that the counter offer was made by telegraph indicated an implied condition that prompt acceptance was required. The putported acceptance by letter, which reached the counter-offeror after the counter offer had lapsed, was ineffective.

Keates v The Earl of Cadogan (1851)

The general rule is that there is no duty to disclose facts which, if known, might affect the other party's decision to enter the contract. (It is hard to conceive of silence as a statement of fact. in most cases, mere silence will not give rise to an action for misrepresentation). In this case, the defendant let a house to the plaintiff knowing that the plaintiff wanted it for immediate occupation but did not tell the plaintiff that the house was in fact uninhabitable. It was held that in the absence of fraud, the defendant was under no implied duty to disclose the state of the house. This rule may be justified by saying that a general duty of disclosure would be too vague since it would be impossible to specify precisely what should be disclosed.

Assignment

The grant of a lease creates a leasehold interest. Just as a freehold interest may be sold or transferred to a new owner, so a leasehold interest may be sold or transferred. We speak of the lease being assigned by the existing tenant (assignor) to the new tenant (assignee). As with a freehold, the assignee may pay for the leasehold interest, or the consideration may simply be the assignee agreeing to pay the rent and perform the other obligations of a tenant under the lease. Assignment is a form of alienation. Following assignment, the landlord becomes the landlord of the assignee. The new tenant is now entitled to exclusive possession of the premises, and is obliged to pay the rent and perform the other tenant covenants. The assignor is no longer entitled to use the premises, and generally need not pay the rent or perform the other tenant covenants. However, the assignor may still have liability for them, as we will see. The common law position for old leases was that despite assignment, the original tenant remained liable to the landlord to pay the rent and perform the other obligations under privity of contract. CPSE 4 enquiries for assignment

Chaplin v Hicks [1911]

The loss of an opportunity is recoverable in damages if the lost chance is quantifiable in monetary terms and there was a real and substantial chance that the opportunity might have come to fruition. Otherwise, the loss of opportunity will be treated as too speculative. The leading case is Chaplin v Hicks [1911] 2 KB 786, in which the defendant, Hicks, was a theatre producer. He advertised a competition in a national newspaper for young women to send in photographs to be shortlisted by readers for a prize. The winner of the competition would be offered a part in one of the defendant's plays. Six thousand photographs were sent in, each woman paying one shilling to take part in the competition. For the purposes of the competition, the country was divided into four areas, and the winners from each were to attend the final round. The claimant, Chaplin, came top in her area but was only informed of this at a very late stage, and was then unable to attend the final round. She sued for loss of the chance to win the competition. The jury awarded her £100 to represent her loss of chance and the Court of Appeal upheld the award.

initial Details of the Prosecution Case (IDPC)

The prosecution is obliged to serve the initial details on the court officer as soon as practicable and in any 11/02/2023 event, no later than the beginning of the day of the first hearing. Where D requests those details, the prosecutor must serve them on D as soon as practicable and in event, no later than the beginning of the first day of the hearing. A solicitor would almost certainly request those documents. The CPS now uses electronic case files. These can be sent to D's reprsentatives via secure email. Ordinarily, the failure to supply initial details does not constitute a ground upon which a court may dismiss a charge or give rise to an abuse of process application. The usual remedy is for the court to adjourn a first hearing and/or award costs to D for prosecution's failure to serve. Initial details must include: A summary of circumstances of offence Any account given by D in an interview Any written statements and exhibits that are available and material to plea/mode of trial/sentence Victim impact statements D's criminal record The rules prescribe that where D was in police custody immediately before the first hearing, initial details only need to comprise (a) a summary of circumstances of offence and (b) D's criminal record Informaiton supplied must be sufficient at the first hearing to allow the court to take an informed view on plea and venue for trial. Where no guilty plea is anticipated, they shoud be sufficient to assist the court in identifying the real issues and in giving directions. The information required for the Preparation for Effective Trial (PET) form must be available and where there is to be a tria, the parties must complete the form

Pilkington v Wood [1953]

The question of what steps are 'reasonable' is one of fact. In Pilkington v Wood [1953] CH 770, it was held that there was no expectation that the claimant should embark on 'a complicated and difficult piece of litigation' in order to minimise the effects of the defendant's breach.

Economic duress and consideration

The relationship between economic duress and consideration is most clearly illustrated in cases where an attempt has been made to vary a contract. For example, X agrees to supply a computer package to Y. The original price for the package is agreed at £1,000. X then tries to reshape the deal: after further negotiations, X persuades Y to pay more, say £1,250. In order to establish whether the variation (i.e. the promise to pay more) is binding, we need to return to first principles and answer this question: what makes a promise binding? If the variation is to be binding it must demonstrate all the characteristics of a valid contract - consideration, intention to create legal relations and agreement. Of particular interest for present purposes is consideration. If a party does no more than he was already bound to do, there is no consideration to make the variation binding (Stilk v Myrick (1809) 2 Camp 317). So, if X does no more than supply the computer package to the original specification, then he has offered no consideration to make Y's promise to pay more binding. The variation lacks consideration so it is not enforceable. However, if X does something above and beyond his original contractual obligations, it may amount to good consideration, eg he adds to the computer package an anti-virus program which Y needs (Hartley v Ponsonby (1857) 7 E & B 872). In other words, the variation is supported by consideration and, provided there is also the necessary intention to create legal relations and agreement, the variation will be enforceable. Taking it a step further, in Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1, the Court of Appeal demonstrated a clear willingness to look imaginatively at the doctrine of consideration, identifying practical benefit as good consideration to make Roffey's promise to pay more binding. However, even where such practical benefit exists, the promise will not be enforceable where duress has been exercised to extract the promise to pay more.

Role of Solicitor at police station

The role of the solicitor is set out in PACE 1984, COP C Notes for guidance paragraph 6D: The solicitor's only role in the police station is to protect and advance the legal rights of their client. On occasions, this may require the solicitor to give advice which has the effect of the client avoiding giving evidence which strengthens a prosecution case. The solicitor may intervene in order to seek clarification, challenge an improper question to their client or the manner in which it is put, advise their client not to reply to particular questions, or if they wish to give their client further legal advice. Active Defence: a solicitor should actively defend and promote their client's interests. It is not a passive role or to sit and take notes. Active defence includes: Obtaining as much information from the police as possible Advising your client fully and in accordance with your professional obligations Advising on issues which arise during the police investigation, such as whether to provide samples, extensions of periods of detention, searches of premises and bail Attending and advising during the interview It is vital that a comprehensive contempraneous record is kept Evidence may need to be given at a subsequent trial concerning disclosure, police conduct or advice given to the client,

Sibree v Tripp (1846)

The rule in Foakes v Beer is only applicable if the promise of the creditor to accept a lesser sum is unsupported by fresh consideration from the promisee. However, if, at the creditor's request, some new element is introduced, then this will amount to good consideration, and the court will not enquire as to the value of the new element. Examples might be payment at a different place, or at a different tim

Pinnel's Case (1602)

The rule in Foakes v Beer is only applicable if the promise of the creditor to accept a lesser sum is unsupported by fresh consideration from the promisee. However, if, at the creditor's request, some new element is introduced, then this will amount to good consideration, and the court will not enquire as to the value of the new element. Examples might be payment at a different place, or at a different timeConcerning: consideration; part payment of a debt Facts - Cole owed Pinnel £'8 10s. At Pinnel's request, Cole paid £'5 2s. 6d. one month before the full sum was due. Cole claimed that there was an agreement that the part payment would discharge the full debt. Legal principle - Pinnel was unsuccessful in claiming the balance of the unpaid debt. The court held that in general part payment of an original debt did not provide good consideration for the promise to waive the balance. However, since Pinnel gained some benefit by part payment having been made early, this was sufficient consideration to enforce his promise to forego the balance of the debt. The court stated that:

Poussard v Spiers & Pond (1876)

The usual remedy for breach of contract is an award of compensatory damages, ie monetary compensation. Such a remedy is in principle available for any breach of contract, but a party does not always acquire a right to terminate the contract as a result of a breach of contract (Poussard v Spiers & Pond (1876)

youth's in the crown court

The youth court (or the adult magistrates' court if the youth is appearing there) can commit a youth to the Crown Court for sentence where they are charged with certain serious offences. Three powers of committal to the Crown Court for sentence apply to youths: Youth is convicted of a 'grave crime' offence under s.249 SA 2020 and the court considers a Crown Court should have power to deal with the offender by imposing a sentence of detention under s.250 SA (i.e. a sentence in excess of two years' detention is required) (s 16 SA 2020). Committal for sentence of dangerous young offenders (s.17 SA 2020). Committal for sentence for related offences (s.19 SA 2020).

McApline v Panatown (2001)

Their lordships prevented a claim on behalf of a third party where they had their own right of action by an alternative route (ie based on a separate duty of care deed -- a contract actually with the third party). The Albazero principle will only be applied if the third party has no other means of recourse, which is consistent with the judicial intention to obviate harshness of the doctrine of privity.

Types of Rent Review

There is no implied right for the landlord to be able to increase the rent. An FRI of 10 years will usually contain a rent review clause. Stepped rent - lease may set out a yearly rent of X for 2 years, and then up to XX for next two years Index-linked rent - the rent is increased by reference to an agreed measure of inflatinon such as the retail price index Turnover rent - the rent may be calculated based on the tenants turnover at the property. This is most commonly seen with retail leases Open market rent review - this is the most common type of rent review adopted in FRI leases, and involves ascertaining the rent based on comparable premises Open Market Rent Review: commercial leases almost always have an 'upward only' rent review, this means that rent can only increase. If they cannot agree, a valuer will consider the rent payable for comparable premises, and the terms of the hypothetical lease If the rent review is before the 5th anniversary of the term commencement date, the tenant may have to pay Stamp Duty Land Tax or LTT. If after, they will not have to pay further SDLT or LTT

timing of a charge

There is no statute of limitation requiring that a charge be brought within a specified period after the commission of the offence. The only exception is that s127(1) Magistrates' Courts Act 1980 provides that where the alleged offence is 'summary only' a magistrates' court shall not try an information on hear or complaint unless the information was laid or complaint made within six months of the date of the alleged offence. There is no limit for charging the accused with an indictable offence. If there is any dispute as to whether a charge has been brought within the specificed period, then the prosecution have the burden to satisfy the court to the criminal standard that proceedings were correctly brought in time.

Community Orders (YRO)

These fall within the community orders band. Before a YRO can be passed the court must be satisfied that the offence is "serious enough" to warrant it although the offence does not have to be imprisonable. Courts are able to select from a wide range of sentences and tailor interventions to suit the particular offender. YROs can be used a number of times. These requirements can only be imposed if the offence is an imprisonable one AND the custody threshold has been passed. For children and young people aged under 15 they must be deemed a persistent offender.

Powell v Lee (1908)

Third parties can communicate acceptance, but only if they are given authority. P had applied to a committee of school managers for the post of headmaster. The committee decided to appoint P, but did not inform him of the decision. One of their number, without authorisation, informed P that he had been selected. The committee then had a change of mind and selected another person. P contended that there was a breach of contract. It was held that there was no contract because the committee had not communicated an acceptance of P's offer to take the post. The purported acceptance, made without authority, was not binding on the committee.

Turnbull Guidelines

Turnbull guidelines: R v Turnbull - CoA case issued guidelines to be followed in all cases where the case against the accused depended wholly or substantially on evidence of identification which the suspect alleged to be mistaken. On what the judge should say to a jury when a case depended wholly or substantially on disputed identification evidence To judges on when identification evidence can safely be left to the jury and when a case must be withdrawn to protect the defendant from an unsafe conviction When is Turnbull used? Situations where D was picked out in a formal ID procedure but maintains that the witness is mistaken in the identification. What is a Turnbull direction? The guidelines are aimed at assessing the quality of the identification. The judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification, whenever the prosecution case against an accused depends wholly or substantially on the correctness of the identification, and where D alleges the identificaiton to be mistaken. This special turnbull warning has 3 key elements: Instructing the jury as to the reason for the need for such a warning Direct the jury to examine the circumstances in which the identification by each witness came to be made Remind the jury of any specific weaknesses in the identification evidence

underletting

Underletting is another form of alienation. Unlike assignment, the tenant does not pass its leasehold interest on entirely, but instead grants an underlease to an undertenant. The underlease must be for a shorter term than the lease itself, even if only a day shorter. Following an underletting, the tenant remains the tenant of the landlord, and must pay the rent and ensure that the other obligations are performed. The tenant, however, receives a rent from the undertenant which the tenant may use to pay therent under its own lease. The tenant can also enforce the undertenant's covenants to ensure that the tenant does not fall foul of its own covenants to the landlord. Why an underletting? A tenant may want to underlet the premises if: they are not using all of the premises, and it is possible to underlet the part they are not using they do not need the premises at the moment, but are likely to do so in future they cannot find a willing assignee, but can find a willing undertenant

RBS V Etridge (no 2 2002)

Undue influence: If the consent to a transaction was produced in a way such that the consent ought not fairly to be treated as the expression of a person's free will, then the transaction will not be allowed to stand. The leading case on undue influence is RBS v Etridge (No 2) [2002] 2 AC 773. In this case the court stated that undue influence exists where a person's consent to a transaction was produced in a way such that the consent ought not fairly to be treated as the expression of their free will. The court stated that it is 'impossible to be more precise or definitive' than the definition above. This suggests that the court wants to keep its options open to find undue influence in any situation which falls within this test. Notwithstanding this, the court detailed the circumstances in which undue influence has already been established. All the legal principles set out in this element, save those in the last page, were summarised in Etridge, which clarified much of the case law in this area. In Etridge the court set out two types of undue influence. Firstly, there are instances of overt acts of improper pressure or coercion such as unlawful threats. This type has much overlap with the idea of duress. Secondly, there are situations where one party has influence or ascendancy over the other, and the first party takes advantage of that influence / ascendancy. In these cases there may be no specific or overt act of pressure or coercion, but the underlying relationship is sufficient for the undue influence to be exercised. The lack of an act of pressure or coercion makes this quite distinct from duress. With respect to undue influence and third parties: The House of Lords was once more asked to consider this area of law in the consolidated appeal of RBS v Etridge (No 2) [2002] 2 AC 773. As well as clarifying and/or approving many of the authorities in this area, Lord Nicholls extended the principles of constructive notice beyond cases of husband and wife when he stated that 'the only practical way forward is to regard banks as put on inquiry in every case where the relationship between surety and debtor is non-commercial'. He clarified that a bank is put on inquiry whenever one party in a non-commercial setting is standing as surety for the other party.

L'Estrange v Graucob (1934) 2.

Unilateral mistake as to the nature of the document signed: The general rule is that a person is bound by the terms of any instrument which he signs or seals even though he did not read it or did not understand its contents. In this case, there is an exception to this general rule: under certain circumstances, where a person signs or seals a document under a mistaken belief as to the nature of the document. Where a person signs a document or executes a deed in such circumstances, they may raise the defence non est factum (it is not my deed). In light of the case law it seems that a plea of non est factum may be available where the mistake was either due to : a) the blindness, illiteracy or senility of the person signing of b) a trick or fraudulent misrepresentation as to the nature of the document, provided that person took all reasonable precautions before signing.

s23 Sale of Goods Act 1979

When the seller of goods has a voidable title thereto, but their title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided they buy them in good faith and without notice of the seller's defect in title. (E.g. I sell my car to a fraudster. Fraudster will have a 'voidable title' (bc. they misrepresented themselves, and contract is voidable). Fraudster sells car to third party. So long as I have not voided the contract at time of sale, third party obtains car 'good title', if done in good faith and w/o knowledge of fraud title).

Raffles v Wichelhaus (1854)

Where A and B have negotiated completely cross-purposes, whereby A is offering one thing whilst B is accepting another, it cannot be said that they were ever in agreement. Genuine mutual consent is obviously lacking. Such a contract would be void. E.g. this case: there was a contract for the sale of 125 bales of cotton arriving from Bombay on the ship 'Peerless'. It happened that there was two ships names Peerless leaving Bombay at about the same time: the buyer meant one and the seller meant the other. It was held that the contract was void for mistake. What is meant is that in these circumstances the court will employ an objective test and decide what a reasonable third party would believe the agreement to be, based on the words and conduct of the parties themselves. Using this test it may be decided that the agreement was that which A understood it to be or that which B understood it to be, or it may be decided that no meaning can be attributed to the agreement at all. The result of that is, from the available evidence, a reasonable man would infer the existence of a contract in a given sense, the court will hold that a contract in that sense is binding upon both parties, notwithstanding a material mistake.

British Waggon Co v Lea & Co (1880)

Where a contract involves the performance of a service, it is possible that the service can be provided by a third party to the contract, but this is not always permitted. In British Waggon Co v Lea & Co (1880) 5 QBD 149, where it was permissible for a contract to let out railway wagons and to keep them in repair for seven years to be performed by someone else. It did not matter to the hirer who kept the wagons in repair so long as the work was properly done. Here the judge emphasised that the work was of an ordinary nature which could be accomplished by the average workman.

Robson and Sharpe v Drummond (1831)

Where a contract involves the performance of a service, it is possible that the service can be provided by a third party to the contract, but this is not always permitted. In Robson and Sharpe v Drummond (1831) 2 B & Ad 303, a person had agreed to keep a carriage in repair for five years and to paint it from time to time. It was held by the court that he was not entitled to delegate performance of the contract to his partner. This was seen as a contract of personal service.

Foakes v Beer (1884)

Where a debtor promises to pay part of his debt in return for a release from the remainder of his liability, he is simply offering to do something which is already obliged to do: he is seeking to offer an existing obligation as consideration. At common law, this is not good consideration: the debtor remains liable even where the creditor has agreed to release him from further liability. Simply paying a smaller sum than that owed will not be sufficient consideration. The factual benefit that might accrue to the creditor from securing some payment rather than nothing at all is not regarded as sufficient and some separate consideration is required. Mrs Beer had obtained a judgment against Dr Foakes for £2,090. Dr Foakes requested time to pay and the parties agreed in writing that, if Dr Foakes paid £500 at once and the balance by instalments, Mrs Beer would not 'take any proceedings whatever on the judgment'. The agreement made no reference to the question of interest although by virtue of the Judgments Act 1838, all judgment debts carry interest until paid. Dr Foakes ultimately paid the whole amount of the judgment debt itself and Mrs Beer then claimed the accrued interest. Dr Foakes refused to pay on the basis of the written agreement whilst Mrs Beer claimed that the agreement was unsupported by consideration. The House of Lords held that Mrs Beer's claim should succeed - the agreement was unsupported by consideration.

Peyman v Lanjani [1985]

Where a person has a right to elect whether to affirm or to terminate the contract, he will only be bound by the course he takes if, in deciding upon that course, he was aware not only of the facts giving rise to the right to elect, but also that the right existed

Mondial Shipping v Astarte Shipping

Where an acceptance is sent outside ordinary office hours, the question arises whether the acceptance takes effect instantaneously, or whether it is deemed to have been received at the start of business the next working day? The case of Mondial Shipping v Astarte Shipping deals with a telex that was sent at 23.41 on a Friday 2 December. The court held that the acceptance was received at the start of business on Monday 5 December. The case of Mondial Shipping v Astarte Shipping deals with a telex that was sent at 23.41 on a Friday 2 December. The court held that the acceptance was received at the start of business on Monday 5 December.

Dolphin & Maritime & Aviation Services Ltd v Sveriges Angfartygs Assurans Forenig, The Swedish Club (2009)

Where it is clear that an agreement is designed to confer a benefit on an identified third party, it will surely be implausible to argue that the contracting parties did not intend that the third party should have a right to enforce the agreement. However, the statutory test of 'purporting to confer a benefit' on a third party is more demanding than one that simply requires the contract to be of benefit to a third party. The significance of this point is underlined in this case. To simplify and abstract the somewhat complex facts of the Dolphin case, imagine that A has unliquidated claims against C (Sveriges). A employs B (Dolphin) to pursue these claims against C (Sveriges). Under the contract between A and B, B is to be paid a commission of 10% on all monies recovered from C. C issues a letter of undertaking to A essentially accepting that it will pay court-ordered damages up to a certain amount. But, then, C deals directly with A to agree an out-of-court settlement of the claims that A has against C. B's first line of complaint against C is that this unlawfully interferes with the contract between A and B (because B now has no claim for commission). But, B also argues that it has a claim based on the letter of undertaking issued by C to A. We do not need to go into the details of this claim. Suffice it to say that, for our purposes, the relevant question is whether the letter of undertaking (viewed as a contract between C and A) is intended to confer a benefit on B within the meaning of s 1(1)(b). Holding that it did not, Christopher Clarke J. said (at paragraph 74): "A contract does not purport to confer a benefit on a third party simply because the position of that third party will be improved if the contract is performed. The reference in the section to the term purporting to "confer" a benefit seems to me to connote that the language used by the parties shows that one of the purposes of their bargain (rather than one of its incidental effects if performed) was to benefit the third party. [emphasis added]" Even if it were conceded that the letter of undertaking purported to confer a benefit on Dolphin (B), Christopher Clarke J. held that, 'in its commercial context', there was no intention that its provisions should be enforceable by Dolphin (see paragraph 82). We return shortly to the possibility raised by s1 (2) of the Act of the contractors intending that the third party should not be entitled to enforce the term.

British Westinghouse Electric and Manufacturing Co v Underground Electric Rail Co [1912]

Where one party has suffered loss resulting from the other party's breach of contract, the injured party should take 'reasonable steps' (British Westinghouse Electric and Manufacturing Co v Underground Electric Rail Co [1912] AC 673) to minimise the effect of the breach. Technically, there is no obligation to mitigate, but losses attributable to a failure to do so are not legally recoverable. The innocent party cannot, therefore, seek compensation by the party in default for loss which is really due not to the breach itself, but its own failure to behave reasonably after the breach.

Hartog v Colin & Shields (1939)

Where the offeror makes a material mistake in expressing his intention, and the other party knows, or is deemed to know, of the error, the mistake is likely to lead to the contract being void. E.g. this case: the defendants entered into a contract to sell 3000 Argentinian hare skins to the claimants. By mistake, they offered them for sale at 10d per pound, instead of the 10d per piece they intended. The negotiations had proceeded on the basis of a price per piece (there being three pieces per pound). As a result, the court found that the defendants' offer was not an accurate reflection of their true intention and that there was no binding contract. The claimants could not 'snap up' an offer when that party was aware that the other had made a mistake relating to the terms.

Vitol SA v Norelf Ltd, The Santa Clara [1996]

Where there has been a repudiatory breach of contract, the contract is terminated only if the aggrieved party makes the election (meaning choice) to treat the breach as repudiating the contract, ie putting an end to all unperformed primary obligations. The innocent party must make his decision to terminate the contract known to the party in default

juvenile's arrest

Who should be informed of the juvenile's arrest? The person responsible for the juvenile's welfare must be informed as soon as practicable that the juvenile has been arrested, why he has been arrested and where he is being detained. The AA, who may or may not be the same person who has responsibility for the welfare of the child, must also be contacted. The AA must be informed of the grounds for the juvenile's detention and the whereabouts of the juvenile and must be asked to attend the police station.

pre-completion enquiries for a lease

Why do we investigate title? Ensure landlord has right to grant lease Check there is no mortgage, and if there is, whether consent is needed Check other restrictions Check covenants / esp. Restrictive covenants CPSE 1 enquiries to be made by tenant sols Landlord to Provide replies to standard enquiries. CPSE 3 specific enquiries for a lease OS1 search for whole of land, OS2 for part or OS3 for a tenancy (but doesnt confer priority) COMP!!! C - Completion information & undertakings form (Requisitions on title) O - OS1 search and other searches M - money from bank and client P - purchase deed TR1 or lease

absolute, qualified and fully qualified covenant

absolute covenant - 'Tenant shall not alter premises' not permitted to do something. Landlord does not have to consider such a request at all Qualified - they are only permitted with the landlord's consent. landlord does not have to give consent Fully qualified - landlord must act reasonably in deciding to withhold consent

Turnbull Guidelines

consider ADVOKATE A - amount of time under observation D - distance v - visibility o - obstruction K - known or seen before A -any reason to remember T - time lapse E - error or material discrepancy

Robinson v Harman (1848)

expectation interest: The default approach to compensating the innocent party means putting the innocent party in the same position post-breach that they should have been in had the contract been performed. This is sometimes called the innocent party's 'expectation' interest -- putting them in the position they 'expected' to be in. "The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed" This is normally what the innocent party will want -- if they did not want to be in a position as if the contract had been performed, they would not have entered into the contract in the first place.

St Martins Property Corporation Ltd and another v McAlpine

his case has very similar facts to Linden Gardens Trust v Lenesta Sludge Disposals Ltd and the court held that the third party should fail on the same point as above, ie the assignment of the employer's rights to the third party was ineffective due to the prohibition against assignment without consent. However, unlike in Linden Gardens, the employer had been joined as a party to the legal action. On appeal, the employer argued that a principle arising from a shipping case, The Albazero [1976] 3 All ER 129, should be applied to this situation. In The Albazero, the court had ruled that where a contract was entered into by A and B, both of whom knew that the end benefit of the contract was going to reside in a third party, C, then in that situation, either party breaching the contract could be sued by the other party on behalf of the contemplated third party. In St. Martins Property Corporation Ltd and another v McAlpine the court held, applying The Albazero principle, that, the employer could sue to recover the contemplated third party's loss.

ParkingEye Limited v Beavis [2015] and Cavendish Square Holdings BV v Talal El Makdessi [2015]

on liquidated damages: the law from Dunlop has been replaced by a test derived from the Supreme Court decisions of ParkingEye Limited v Beavis [2015] UKSC 67 and, in particular, Cavendish Square Holdings BV v Talal El Makdessi [2015] UKSC 67. These two cases were based on the same legal issue and were therefore heard together. The leading judgment is regarded as coming from Lord Neuberger and Lord Sumption in the Makdessi case, but each of the Lordships had their say, reaching their decisions with different nuances. As such it has proved slightly challenging for academics and practitioners to determine a settled version of the new test.

Cremdan v Nash (1977)

s3 of MA was considered in this case. The plaintiffs purchased two properties for use as office space by way of sale by tender. Information as to the total area of available space was inaccurate in the invitation to tender and the plaintiffs claimed rescission of the contracts of sale. The defendants sought to rely on a clause in the conditions of tender which provided that a) these particulars are prepared for the convenience of an intending purchaser or tenant and although they are believed to be correct their accuracy is not guaranteed and any error, omission or misdescription shall not annul the sale or constitute any part of an offer of a contract; b) any intending purchaser or tenant must satisfy himself by inspection or otherwise as to the correctness of each of these statements contained in these particulars The defendants argued that this was not an exclusion clause, but a clause which prevented a misrepresentation being made. The CoA held that the statement was a representation which was false; the MA 1967 could be applied .

Darlington BC v Wiltshier Northern Ltd (1995)

this case applied the Albazero principle (as applied in St. Martins Property Corporation Ltd and another v McAlpine) and extended it to cases in which the employer had never had a proprietary interest in the property affected. However, this judicial boldness has been stemmed by the decision by the HoL in McApline v Panatown (2001).

West London Commercial Bank v Kitson (1884)

A false statement as to the existence of an Act of Parliament is a misrepresentation of fact.

Felthouse v Bindley (1862)

Acceptance must be communicated to the offeror: In Felthouse v Bindley (1862) F offered to buy his nephew's horse for £30 15s. In the letter containing the offer, F wrote, 'If I hear no more about him, I consider the horse mine at £30 15s.' The nephew did not reply to this letter. Some weeks later, the horse was inadvertently sold (by the defendant, an auctioneer) to someone else. F alleged that there was a binding contract for sale of the horse to him. The court held that the nephew had not communicated his intention to sell the horse to F (i.e. his acceptance of the offer), and so there was no contract.

Jing's Norton Metal Co Ltd v Edridge Merrett & Co Ltd. (1897)

By way of contract, the court did not find a contract void in a distance-selling transaction in this case. The reasoning seems to be that the mistake made by the original seller in this case was one as to attributes (creditworthiness of the fraudster) not identity).

Helibut Symons & Co v Buckleton (1913)

Collateral contracts: The court may hold that there are in fact two contracts: the written contract to which the parole evidence rule does apply and the oral collateral contract to which the rule does not apply. The basis for this is that an extrinsic oral assurance is given, the consideration for that promise being that the recipient enters into the main written agreement: clearly benefit to the other party. Lord Moulton: it is evident both on principle and on authority, that there may be a contract the consideration for which is the making of some other contract: "If you will make such and such a contract, I will give you one hundred pounds", is in every sense of the word a complete legal contract. it is collateral to the main contract, but each has an independent existence and they do not differ in respect to their possessing to the full the character and status of a contract. But such collateral contracts by their nature must be rare.

Johnson v Unisys Ltd [2003]

Confirmed the rule that damages will not be awarded in relation to mental distress.

Farley v Skinner (No. 2) [2001]

Exception to the rule that damages will not be awarded in relation to mental distress: Initially, such compensation was limited to cases involving contracts whose whole purpose was the provision of pleasure, relaxation and peace of mind (Jarvis v Swan Tours [1973] QB 233). More recently, the House of Lords has allowed damages for non-pecuniary loss (in this case loss of amenity) where a major object (though not the whole purpose) of the contract was to provide pleasure, relaxation and peace of mind (Farley v Skinner (No. 2) [2001] UKHL 49).

Cutter v Powell (1796)

Facts: Cutter agreed to serve on a ship from Jamaica to Liverpool. The defendant, Powell, agreed in return to pay Cutter 30 guineas (which was four times the going rate) 'provided he proceeds, continues and does his duty... from hence to the port of Liverpool'. Cutter died at sea some seven weeks into the voyage and nineteen days short of Liverpool. Cutter's widow brought an action to recover a proportion of the agreed contract price. Held: the action failed. The contract was said to be entire. Cutter was obliged to perform the given duty fully before he could demand payment. As the contract had not been completely performed the widow was entitled to nothing.

Tinn v Hoffman (1873)

If prescribed mode of acceptance is not made mandatory: another mode of acceptance which is no less advantageous to the offeror will bind him,

Dunlop Pneumatic Tyre Co. V Selfridge & Co (1915)

It is a fundamental principle of the common law that no person can sue or be sued on a contract unless they are a party to it = Privity of contract.

Trollope Colls v North West Regional Hospital Board (1973)

It must be emphasised that, where the parties have made an unambiguous express provision in their contract, the court will not imply a term to the contrary, as demonstrated in the HoL's decision in this case.

Pioneer Shipping Ltd and others v BTP Tioxide Ltd, The Nema[1981]

Lord Roskill remarked that 'the doctrine is not lightly to be invoked to relieve contracting parties of the normal consequences of imprudent commercial bargains.

Nash v Inman (1908)

On Capacity to contract: A minor is bound by a contract to supply necessaries to them if the contract is for their benefit. A minor must pay a reasonable price for these rather than the actual cost of the necessaries supplied. 11 waistcoats supplied to a minor who was an undergraduate at Cambridge University at the time were suitable according to the minor's situation in life but not necessary as he already had sufficient clothing. Accordingly, the contract was not enforceable.

Interfoto Picture Libary Ltd v Stiletto visual Programmes Ltd (1989)

On adverse terms and bringing them to the attention of the party that it affects: The defendants were an advertising agency and the claimants ran a library of photographic transparencies. The defendants ordered some transparencies by telephone and the claimants dispatched them to the defendant together with a delivery note. the note provided for modest charges for the first 14 days, and then much greater charges after that. The transparencies returned after 4 weeks, leading to a huge charge of 3783£. The issue before the court was whether the terms of the delivery note formed part of the contract between the parties and, if so, whether the claimant could enforce these terms against the defendants. The Court of Appeal held that the clause could not be enforced. It was an extortionate clause which the claimants had not brought to the attention of the defendants, and therefore, it did not become part of the contract. The defendants were ordered to pay a sum which the trial judge would have awarded on a quantum meruit on his alternative findings, ie the reasonable charge of 3.50£ per transparency per week.(HOWEVER note that when a document containing contractual terms is signed the singing party is bound by those terms even if the offending clause is onerous (lestrange v Graucob)

Morris-Garner v One Step (Support) Ltd [2018]

On efficient breach: In Morris-Garner v One Step (Support) Ltd [2018] UKSC 20 the exceptional nature of Blake was again emphasised, and the key point made by Lord Reed: Common law damages for breach of contract cannot be awarded merely for the purpose of depriving the defendant of profits made as a result of the breach, other than in exceptional circumstances.

McCutcheon v David MacBrayne (1964)

On incorporation by a course of dealing: An attempt to incorporate by a course of dealing was unsuccessful because the written terms relied upon had not been consistently incorporated in the past -- sometimes a signature in relation to those terms had been required, sometimes it had not. (see also for implied terms: a term may be implied if the parties have dealt with each other on many occasions over a long period of time, in this case it was unsuccessful)

Bunn & Bunn v Rees & Parker 16 April 2002

On intention to create legal relations: In this case the issue that the court had to decide was whether a document signed by the claimants (C) and the defendants (D), relating to the purchase by C's company (H) of the entire share capital of D's company (R), was legally binding. C argued that it was legally binding but D argued that there had been no intention to create legal relations and D was therefore not bound. H and R were both involved in the sale of spas and were competitors. Negotiations were undertaken and a document was drawn up at a meeting between the parties. C issued a cheque to D for the first instalment of the share purchase price but it was returned by D. C then took advice on the enforceability of the agreement and at another meeting informed D that the agreement would be enforced, by litigation if necessary. At that meeting, the cheque was given back to D and was paid into D's account but D maintained that the document they had signed was nothing more than heads of agreement which were not binding until a final agreement was drawn up. It was held: (a) it was open to a party to adduce evidence to show that an agreement was made without any intention to create legal relations, but in commercial relations this was a heavy burden to discharge. (b) The terms of the document were typical of a commercial agreement intending to be binding - it was in a format form, had a formula to fix the purchase price, stated the completion date and was signed by both parties. (c) Documents could be binding even if there remained some finer details to be worked out. The expectation of a further, more detailed agreement was not inconsistent with the intention to create legal relations. (d) The terms agreed were not so vague that the parties could not have intended to create legal relations. (e) D were experienced business people and understood the consequences of signing such a document and if they did not intend to be bound by it they would have either declined to sign it or sought the inclusion of further provisions in the agreement to that effect. D had failed to discharge their evidential burden and the agreement was binding on them.

Well Barn Farming Ltd v Backhouse [2005]

On intention to create legal relations: The ordinary presumption is that in a commercial or business agreement, the parties intend that it should be legally binding. The courts will readily imply this. In Well Barn Farming Ltd v Backhouse [2005] EWHC 1520 the 'slight importance' and temporary nature of an arrangement allowing the cutting back of woodland in return for a licence to occupy the land was still seen as evidence of legal intention. If a party to a business agreement wishes to assert that legal relations were not intended when the agreement was entered, the onus is on him to rebut the presumption and the burden of doing so is a heavy one.

Smith v Eric Bush 1990

On misrepresentations and investigating the representation made by representor: It may well be that the more commercial the representee is (and therefore the more resources they have at their disposal to carry out an investigation), the more likely it is that the court will consider it reasonable for the representee to have investigated

The Post Chaser [1981]

On promisory estoppel: The doctrine only applies where it would be inequitable for the creditor to go back on his promise. As Lord Goff stated in The Post Chaser [1981] 2 Lloyd's Rep 693: "it does not follow in every case in which the representee has acted, or failed to act in reliance on the representation, it will be inequitable for the representor to enforce his rights"

Storer v Manchester City Council 1974

Demonstrates that for a valid offer, it must be CLEAR, CERTAIN, and demonstrate an intention to be bound. Lord Denning: When determining whether an agreement exists between the offeror and the offeree, the cour is not concerned with the inward mental intent of the parties but rather with what a reasonable man would say was the intention of the parties, having regard to all the circumstances. "In contracts you do not look into the actual intent in a man's mind. You look at what he said and did. A contract is formed when there is, to all outward appearances a contract. A man cannot get out of a contract by saying: 'I did not intend to contract'. if by his words he has done so. --> objective test

Shanklin Pier v Detel Products (1951)

A collateral contract may be between only one of the parties to the other (main) contract and a third party. Where A enters into a contract with B on the faith of an express promise by C, there is a collateral contract between A and C. This principle is of general application, but it is of special significance with respect to the relationship between a guarantor and the principal debtor, and to the relationship between dealer and hirer in contracts of purchase. In this case. Shanklin Per entered into a contract to have the pier repaired and repainted. it was a term of this contract that SP was to specify the paint to be used by the contractor. Detel Products, defendant, informed SP that their paint would last for seven years. SP instructed the contractors to use DP's paint. The paint lasted three months. SP sued for breach of contract, however, the contract for the purchase of the paint was between contractors and DP. The court held that there was a collateral contract between SP and DP, the consideration for which was, on the one hand, the warranty by DP that the paint would last for seven years and on the other, the instruction by SP to the contractors to buy the paint.

Schawel v Reade (1913)

A statement may become a term of the contract where the vendor expressly accepts the responsibility for the soundness of the sale item in question. Here, the claimant required a horse for stud purposes. He attempted to examine the defendant's horse but was told that he need not look for anything and that the horse was sound in every way. The price was agreed and delivery of the horse took place three weeks later. The horse was not in fact fit for stud purposes and the judge directed the jury to consider two points: did the defendant, at the time of the sale, represent that the horse was fit for stud purposes? Did the purchaser act on that in purchasing the horse? Both questions were answered in the affirmative, and as such the statement was deemed to be part of the contract. In Schawel the statement may have in fact dissuaded the plaintiff from making further checks on the horse (contrary to Ecay v Godfey where the seller made a statement but advised buyer to still survey object).

Beale v Taylor (1967)

Correspondence with description: s 13(1) of SoGA(1979). a private seller sold a car to a private buyer on the strength of an advertisement were the car was described as a 'herald convertible, white, 1961, twin carbs. In reality, the car was an amalgam of two cars, the back was indeed a 1961 model but the front was an entirely earlier one, a fact unknown to the seller. It was held by the court that the advertisement was part of a contractual description of the car and consequently the seller was liable under s13(1). For s13 to apply the starting point is to identify whether the sale is a sale by description.

Stevenson, Jaques & co. v Mclean (1880)

Counter offer <> request for further information: If an offeree responds seeking clarification, then the original offer remains open for acceptance. The defendant offered to sell to the claimant 3800 tons of iron at '40s net cash per ton, open till Monday'. The claimant responded 'Please wire whether you would accept 40 for delivery over two months, or, if not, the longest limit you would give'. Having received no reply, at 1:34pm, the claimant despatched a telegram accepting the original offer. The court held that the claimant's response was not a counter-offer but rather an enquiry which did not serve to reject the offer. Accordingly, a binding contract was made when the claimant sent the telegram accepting the offer.

Adams v Lindsell (1818)

Acceptance by Post. The defendant wrote to the claimant offering to sell them some wool and asking for a reply 'in the course of post'. The letter was delayed in the post. On receiving the letter the claimant posted a letter of acceptance the same day. However, due to the delay the defendant's had assumed the claimant was not interested in the wool and sold it on to a third party. The claimant sued for breach of contract. Held: There was a valid contract which came in to existence the moment the letter of acceptance was placed in the post box. This case established the postal rule. This applies where post is the agreed form of communication between the parties and the letter of acceptance is correctly addressed and carries the right postage stamp. The acceptance then becomes effective when the letter is posted.

Warlow v Harrison (1859)

Auction sales 'without reserve': If the sale of the item in question is expressed to be 'without reserve' the auctioneer may be sued for breach of contract if he refuses to sell to the highes bona fide bidder. This view was expressed, obiter dicta, in Warlow v Harrison. The analysis of this case suggests that where the sale is expressed to be without reserve, there are in fact two contracts: the first bilateral contract proceeds on the usual analysis of an auction sale whereby the bidder makes an offer which is capable of acceptance or rejection. This contract determines who is entitled to the goods. The second contract is unilateral based on the promise that the auction will be without reserve. This approach has been approved in the Court of Appeal in Barry v Davies

Manchester Diocesan Council for Education v Commercial and General Investments [1970]

Buckley J explained that it is open to the offeror to prescribe a mode of acceptance; particularly clear words would be required of the offeror to make his chosen mode mandatory. But, if not made mandatory: another mode of acceptance which is no less advantageous to the offeror will bind him (as established in Tinn v Hoffmann (1873).

Gibson v Manchester City Council 1979

COMPARE WITH STORER V MCC: Gibson does NOT demonstrate the requirements of a valid offer, because it doesnt show a clear intention to be bound! It is also not sufficiently clear or certain. The City Treasurer wrote to a tenant saying that the council 'may be prepared to sell the house to you at the purchase price of £2725, less 20 percent ? £2180 (Freehold). The letter went on 'if you would like to make a formal application to buy your council house please complete the form and return it to me as soon as possible'. The tenant completed and returned the form. Subsequently, the Council changed its policy on the sale of council houses, and, accordingly the tenant was advised that the Council was unable to proceed with his application. The tenant brought his action claiming that the Council's letter was an offer which he had accepted by returning the form. The HoL held there was no binding contract because there was never an offer made. The Council's letter stating that it 'may be prepared to sell' was not sufficiently clear and certain to be an offer. (wording 'may' also lacks sufficient intention to be legally bound, a requirement for a contract)

Chapleton v Barry UDC (1940)

Contractual effect: The terms will only be incorporated by notice if the document giving notice was intended to have 'contractual effect'. In Chapelton v Barry the claimant hired a deck chair, having paid for the hire, he was given a 'ticket'. On the back of the ticket were additional terms and conditions. These were held not to be binding, because the ticket was not intended to have contractual effect -- an observer would have understood it to be only a receipt.

Errington v Errington & Woods (1952)

Exception to the rule of revoking a unilateral offer: Where the offeree has partly performed the obligation and is willing to complete it (a father agreed to give his house to his sone and daughter in law if they paid off the mortgage on the house. The act required of the couple was therefore paying off a building society mortgage loan. The couple had made several payments towards paying off the loan when the father sought to revoke the offer. The court held that the promise could not be revoked after the couple had started to pay the instalments and as long as they continued to be paid

Goodlife Foods Ltd v Hall Fire Protection ltd (2018)

Goodlife Foods had engaged Hall Fire Protection to provide a fire detection and suppression system for a multi-purpose fryer in its frozen food factory. Clause 11 of the Hall's standard terms and conditions purported to exclude all liability for loss or damage arising to property or goods directly or indirectly resulting from negligence or malfunction of the systems or components provided by it for whatever reason, but offered to provide insurance to cover those risks at an extra cost if required. Following a fire at the Goodlife's premises, caused by a faulty section of pipework carrying fire suppressant, Goodlife issued a negligence claim against the Hall. One issue in dispute was whether the clause passed the 'reasonableness' test, the contract being on the basis of the Hall's standard terms and conditions. Here the fact that the parties were of equal bargaining power was taken into account. The Court of Appeal also highlighted particular facts as pertinent: in respect of the reasonableness of the exclusion clause, the clause had referred explicitly to the need for insurance protection against the risk of the fire protection system failing; the main loss if the system failed would be a fire, for which a customer should have insurance and which Hall Fire Protection was willing to arrange for an extra payment. It was a sensible allocation of the risk of loss and damage between two commercial concerns of equal size and bargaining power. The clause was therefore reasonable.

Hong Kong Fir Shipping Co v Kawaski Kisen Kaisha Ltd (1962)

In Hong Kong Fir Shipping Co. v Kawasaki Kisen Kaisha Ltd the charterers of a ship under a two year charterparty sought to treat the charterparty as repudiated by the owners, on the grounds that there was a breach of the owners' undertaking that the ship was 'in every way fitted for ordinary cargo service'. The ship had broken down on a number of occasions due to the incompetence of the engine room crew and was unavailable for a period of two months. It was held by the Court of Appeal that in the circumstances there was no breach of condition and, therefore, no right to treat the contract as repudiated. Upjohn LJ: "the question to be answered is, does the breach of the stipulation go so much to the root of the contract that it makes further commercial performance impossible, or is the whole contract frustrated? if yes, innocent party may treat the contract as at an end. if no, his claim sounds in damages only". Diplock LJ expressed the view that many contractual undertakings cannot be categorised as being conditions or warranties, and that of such undertakings "all that can be predicted is that some breaches will, and other will not, give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract; and the legal consequences of such an undertaking, unless provided for expressly in the contract, depend on the nature of the event to which the breach gives rise and do not follow automatically from a prior classification of the undertaking as a condition or warranty. --> the legal consequences of a breach of contract depend on the consequences or effect of the breach or, to use the words of Diplock LJ, 'the nature of the event to which the breach gives rise'.

Schuler v Wickman Machine Tool Sales (1974)

In relation to condition and warranties: even where the parties describe a term as a condition, it is open to the court to hold that the parties could not have intended the term to have this effect. (in general, the parties to a contract are free to classify the relative importance of the terms of the contract as they see fit). Wickman was given sole distribution rights in the UK of Schuler's panel presses for a period of four and a half years. Clause 7b of the agreement provided that 'it shall be a condition of this agreement that i. wickmann shall send its representatives to visit at least once in every week'. Wickman's representatives failed to make a number of these visits and Schuler claimed that this failure was a breach of condition and entitled Schuler to terminate the agreement. The court held that 7b was not a condition as the parties could not have intended that a single breach, whoever trivial, would entitle the innocent party to terminate the contract.

Shuey v United States (1875)

In support of Carbolic smoke ball revocation and offers made to the whole world. It will be a question of fact in each case as to whether the offeror has taken all reasonable steps as required and whether the revocation has been given the same notoriety as the original offer

Canada Steam Ship Lines v R (1952)

In this case, Lord Morton set out guidelines for construction of such clauses purporting to exclude liability for negligence, and they can be summarised as follows: a. does the clause expressly mention 'negligence' (or a close synonym: Monarch Airlines v London Luton Airport 1997)? If so, the court must give effect to the clause subject to any statutory controls. b. Are the words wide enough to cover negligence? if there is no express reference to negligence in a clause, the court must consider whether the words are wide enough, in their ordinary meaning, to cover negligence by the party seeking to rely on the clause. c. Are they too wide? if the words are 'wide enough', the court must then consider whether, in the particular context, liability may be based on some ground other than the negligence of the proferens (those seekign to rely on it). However, that other ground must not be so fanciful or remote that the proferens cannot be supposed to have desired protection against it. If, on the facts of the case, the clause could cover a ground other than negligence then the clause will be ineffective in excluding liability for negligence and will only be effective as against that alternative head of liability (White v John Warwick 1953).

Financings Ltd v Stimson (1962)

Lapse of an offer: non fulfilment of a condition. Where the offeror makes his offer subject to the fulfilment of a condition, failure on the part of the offeree to fulfil the condition will prevent acceptance from taking place. Facts: A customer offered to take a motor car under a hire purchase agreement. The car was stolen from the dealer's premises and damaged before the finance company accepted the customer's offer. There was a dispute as to whether the customer's offer was subject to an implied term that the car remained in the same condition up to the time of acceptance of the offer: which it was.

Phillips Products Ltd v Hyland (1987) / Thompson v T. Lohan Plant Hire (1987)

Lord Bridge's view in george mitchell v Finney Lock is exemplified here. The application and validity of an identical clause which purported to transfer lability for the negligent operation of a JCB excavator from the owner of the JCV to the hirer. In Philipps, the owner's employee negligently damaged the hirer's buildings. Section 2(2) engaged (negligence liability other than for death/PI. Terms were presented on a take it or leave it basis. Failed the reasonableness test. In Thomspon, however, owner's employee negligently caused death of Mr Tomphson. No section engaged, because the clause was not an exclusion/limitation of liability, rather it allocated responsibility to hirer rather than owner. More bluntly: these two cases are highly result orientated. Whereas in Philips, the victim of the negligence would have been denied a remedy if the clause was judged to be effective, in Thompson the victims widow had an adequate remedy even if the clause effectively transferred responsibility from the owner to the hirer.

Cehave NV v Bremer Handels GmnH: The Hansa Nord (1976)

Lord Denning MR: The task of the court can be stated simply in the way in which Upjohn LJ stated it in Honkong Fir case: first, to see whether the stipulation such that for any breach of it the other party is entitled to treat himself as discharged. Second, if it is not such a condition, then look to the extent of the actual breach which has taken place. If it is such as to go to the root of the contract, the other party is entitle dto treat himself as discharged. I.e. when considering the classification of terms, the starting point should be to consider whether the term in question has been classified as a condition or warranty by i. statute, ii. the parties, iii. previous judicial decisions. If that does not provide an answer, then the court will need to look at the contract, the subject matter, and the surrounding facts to determine whether the parties intended for any breach of the term to entitle termination. If the court cannot determine the parties intention, the term is likely to be innominate, and then the Hong Kong test is applied.

Alderslade v Hendon Laundry Limited (1945)

Mr Alderslade left ten large handkerchiefs with the defendant laundry to be washed. They were lost. The conditions on which the handkerchiefs had been accepted provided "the maximum amount allowed for lost damaged articles is twenty times the charge made for laundering". Lord Greene MR held "there seems to me to be no case of lost goods in respect of which it would be necessary to limit liability, unless it be a case where the goods are lost by negligence. If that be right, to construe this clause, so far as it relates to loss, in such a way as to exclude loss occasioned by lack of proper care, would be to leave the clause so far as loss is concerned -- i say nothing about damage -- without any content at all. The result in my opinion that the clause must be construed as applying to the case of loss through negligence. As negligence was the only head of liability on the facts, the clause (in order to have some meaning) had to be construed to cover negligence. Accordingly the exemption clause DID limit liability for negligence.

Thornton v Shoe Lane Parking (1971)

On 'reasonable steps'. Where a party wants to incorporate terms which are particularly adverse to the other party, such terms must be more clearly brought to the attention. Lord Denning MR commenting on a clause that attempted to exclude the defendant's liability for personal injury stated: All I say is that it is so wide and so destructive of rights that the court should not rule any man bound by it unless it is drawn to his attention in the most explicit way. It is an instance for what I had in mind in Spurling v Bradshaw when I stated that in order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it, or something equally startling.

Charles Rickards ltd v Oppenhaim (1950)

On Time for performance or completion: the defendant placed an order for the building of a body on the chassis of a motor car in August 1947, delivery to be made within 'six months or, at the most, seven months.' No delivery took place within the agreed period of time, and from March 1948 onwards the defendant kept demanding delivery. On June 1948, the defendant wrote to the plaintiffs 'i regret that I shall be unable to accept delivery after July 25'. After it transpired that the body of the car would not be ready by 25 July, the defendant cancelled his order. He was entitled to do so. Although there was initial stipulation for delivery within seven months, making time of the essence of the contract, it was waived by the defendant's requests for delivery after March 1948. However, the waiver of the initially stipulated time of delivery did not prevent the defendant from giving at any time thereafter a reasonable notice making time again of the essence, that was what happened. Accordingly, the failure to deliver by July 25 amounted to a repudiatory breach, and the defendant was entitled to terminate.

Museprime Properties Ltd v Adhill Properties Ltd (1990)

On issue of inducement, following test of objectivity as set out in Pan Atlantic Co Ltd. If the statement is not found to be material, then inducement of the claimant cannot be inferred as a matter of fact. In these circumstances, the claimant must prove that he was subjectively induced. If the claimant can prove this, then they will be held to have been induced by the misrepresentatoin

Smith v Chadwick (1884)

On issue of inducement, following test of objectivity as set out in Pan Atlantic Co Ltd.: If the statement is found to be material, then inducement will generally be inferred as a matter of fact (set by this case). The 'burden' then shifts to the defendant to rebut the inference that the claimant was induced. The defendant does this by proving that the claimant was not subjectively induced.

Gordon v Selico (1986)

On misrepresentation: Statements are usually made by words, but statements can also be made by conduct, i.e. conduct may be treated as a statement of fact. In this case, the intentional concealment of dry rot was deemed to be a misrepresentation. Slade LJ commented: "The law must be careful not to run ahead of popular morality by stigmatising as fraudulent every trivial act designed to make buildings or goods more readily saleable, even if a highly scrupulous person might consider it dishonest. But it is to my mind quite a different matter for an intending vendor to hide so sinister and menacing a defect as active dry rot. I believe it to be the law that conduct alone can constitute a fraudulent misrepresentation. In my judgment the concealment of dry rot was knowingly false representation, intended to deceive purchasers, and did deceive the plaintiffs.

Kleinwort Benson Ltd v Malaysia Mining Corp (1989)

On misrepresentations: To be actionable, a representation must be a statement of fact, i.e. 'a representation is not an undertaking to do, or not to do something. It is a statement asserting a given state of affairs'.

Dimmock v Hallet (1866)

On misrepresentations: distinguished from mere puff. Mere advertising 'puff' will not qualify as a representation. The law allows a salesman a good deal of latitude in his choice of language, e.g. the 'desirable residence' advertised by the estate agent may leave much to be desired, but there is no misrepresentation, because this is just 'advertising puff'. In this case, a description as 'fertile and improvable' did not amount to a representation but was viewed as mere puff.

Bannerman v White (1861)

One factor which the courts take into account is the importance attached to the statement by one of the parties. A statement may be regarded as a term of the contract if it can be shown that the injured party considered it to be so important that it would not have entered into the contract but for that statement. In this case, in respect of negotiations to purchase hops, the defendant said 'if they have been treated with sulphur, i am not interested in even knowing the price of them'. When the plaintiff produced the samples, the defendant again enquired whether sulphur had been used and was assured that it had not. In fact, a small amount of the crop, some of five acres out of a total of 300, had been treated with sulphur. The defendant treated the contract as repudiated, and the question was as to a condition of the agreement that the hops may be rejected if sulphur had been used. It was argued that the conversation relating to sulphur was preliminary to entering the contract and, as such, was not part of the contract. The court held that the statement was understood and intended by the parties to be a term of the contract of sale.

Holwell Securities v Hughes (1974)

Postal rule does not apply if manifestly inconvenient or absurd. Also: postal rule does not apply if it is disapplied by offeror. In this case, it was less clear whether the rule had been displaced. Wording used was "exercisable by notice in writing to the defendant at any time within six months from the date hereof'. It was held that the option had not been validly exercised because actual communication was required by the use of the phrase 'by notice.. to'.

Consumer Rights Act 2015 on unfair terms

Regulates unfair terms in two areas: a) it regulates attempts to exclude or limit liability for breach of contract (or occasionally other duties): this is similar terrain to that regulated by the UCTA 1977 in relation to business contracts. b) It regulates unfair terms more generally -- the regulation of large class of terms in consumer contracts is quite different to the situation in relation to business to business contracts, where the majority of terms cannot be considered to fairness. Section 65(1) provides: A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence. I.e. any attempt to exclude or restrict liability for death or personal injury resulting from negligence will not be binding on the consumer Section 65(5) defines negligence and includes breaches of: a) any obligation arising from the express or implied terms of a contract, to take reasonable care or exercise reasonable skill in the performance of the contract, b) any common law duty to take reasonable care or exercise reasonable skill and c) the common duty of care imposed by the occupier's liability act 1957. (reminder: s 49 of CRA itself implies a term into a contract for the supply of a service that the supplier will carry out the service with reasonable care and skill, breach of such a term would constitute negligence). Section 31 provides that any attempt to exclude or restrict liability for the following implied terms of the CRA will not be binding on the consumer: a. Section 9: goods to be of satisfactory quality b. Section 10: goods to be fit for particular purpose c. Section 11: goods to be as described. I.e. breach of CRA implied germs under ss 9-11 about goods: not binding under s 31. Section 47 of CRA provides that any attempt to exclude or restrict liability for the following terms implied by the CRA will not be binding on the consumer: a. Section 34: digital content to be of satisfactory quality b. Section 35: digital content to be fit for particular purpose c. Section 36: digital content to be as described. i.e. breach of CRA implied terms under ss 34-36 about digital content are not binding as per s 47. Section 57 of CRA provides that any attempt to entirely exclude the following term implied by CRA will not be binding on the consumer: a. Section 49: service to be performed with reasonable care and skill. Any attempt to restrict/limit under s 49 will not be binding to the extent that it would prevent the consumer from recovering the price paid, so effectively, liability cannot be limited to less than the price paid. i.e. breach of CRA implied term under s 49 about services: exclusions not binding per 2 57, and restrictions/limits not binding if preventing recovery of price paid. s72: entering into a separate contract by which the other party will agree not to pursue any claims in relation to contract A are prohibited. Transparent and prominent terms specifying main subject matter of contract/price cannot be assessed for fairness. CRA also provides that any term in a consumer contract is not binding on the consumer if it is unfair (s 62). However, terms specifying the main subject matter of the contract cannot be assessed for fairness, nor can the court assess the fairness of the price for the goods, digital content or services concerned provided that the terms are transparent and prominent (s64). A term is unfair if, contrary to the requirement of good faith, it causes significant imbalance in the parties rights and obligations under the contract to the detriment of the consuemr (s62(4).

Daulia v Four Mill Bank Nominees Ltd (1978)

Revocaiton of a unilateral offer: the court explained how such a conclusion could be reached conceptually. Lord Justice Geoff stated 'the true view of a unilateral contract must be that the offeror is entitled to require full performance of the condition which he has imposed subject to one important qualification, which stems from the fact that there must be an implied obligation on the part of the offeror not to prevent the condition becoming satisfied, which obligation it seems to me must arise as soon as the offeree starts to perform.

Great Northern Railway Company v Witham (1873)

Revocation of a unilateral offer: acceptance is perceived as the completed performance of the acts required by the terms of the unilateral offer. Consequently, it remains possible to revoke the offer at any time prior to the completion of the required act.

The Supply of Goods and Services Act 1982 (as amended)

SGSA: provides for the implications of terms in a. certain contracts for the transfer of property in goods; b. contracts for the hire of goods; c. contracts for the supply of services. s 1(a) 'contract for the transfer of goods' means a contract under which one person transfers or agrees to transfer to another the property in goods (i.e. where ownership of the goods changes hands). s 6(a) 'contract for the hire of goods' means a contract under which one person bails or agrees to bail goods to another by way of hire (i.e.contracts where party A owns the goods but party B voluntarily has possession of the goods) s 11: a supplier may navigate or vary the terms set out, subject to the provisions of the Unfair Contract Terms Act 1999. s 13: Care and skill: where the supplier is acting in the course of a business there is an implied term that the supplier will carry out the service with a reasonable care and skill => inominate term!! s 14: time of performance. where the supplier is acting in the course of a business and the time for the service to be carrie dout is not fixed by the contract, left to be fixed in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the supplier will carry out the service within a reasonable time s 15: Consideration: where the consideration for the service is not determined by the contract, left to be determined in a manner to be agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the party contracting with the supplier will pay a reasonable charge. (what reasonable charge and time are depends on the circumstances) s 16: a party may contract out of the implied terms set out in this element, subject to provisions of the Unfair Contract Terms Act 1999.

Houghton v Trafalgar Insurance (1954).

Six passengers in a car, excess load; the court will construe an exemption clause contra proferens. The car insurance company policy excluded liability for damage 'caused or arising whilst the car is conveying any load in excess of that for which it was constructed'. As there was only seating space for five passengers, the defendants denied liability claiming that six passengers was an excess load and therefore fell within exclusion clause. LJ Somervell: If there is any ambiguity, it will be resolved in favour of the assured. He judged that the words relied on only clearly cover cases where there is a weight load specified."I think that it would need the plainest possible words if it were desired to exclude the insurance cover by reason of fact that there was at the back one passenger more than the seating accomodation".

George Mitchell (Chester Hall) Ltd v Finney Lock Seeds Ltd (1983)

Some indication of the judicial approach to 'reasonableness' is found in the case of George Mitchell. In the HoL, Lord Bridge emphasised that the question whether an exemption clause is reasonable can largely but not entirely be equated with the concept of judicial discretion. In other words, it involves a large element of judgment of the facts governed by a few legal rules. As such, there is scope for legitimate differences of judicial opinion as to the reasonableness or otherwise of an exemption clause. Lord Bridge warned that: the appellate court should treat the original decision (of the trial judge) with the utmost respect and refrain from interference with it unless satisfied that it proceeded on some erroneous principle or was plainly and obviously wrong. This approach suggests that, as the deliberations regarding reasonableness are significantly dependent upon the facts of the case, there will be little precedent value in the decisions themselves.

White v John Warwick (1953)

The claimant, Mr White, hired a bike from the defendants. He was thrown off the bike and injured when the saddle tipped up. Clause 11 of the agreement provided that the defendants would not be liable for any personal injuries to the riders of the machines hired. putting aside the exclusion clause, the defendants could have been liable for such injuries on the basis of (a) a failure to supply a bike which was reasonably fit for purpose s 14(2) SGA 1979 or (b) on the basis of negligence in failing to ensure the bike was in proper working condition. Lord Denning held, where there are two possible heads of liability on the part of the defendant, one for negligence an d the other a strict liability an exemption clause will be construed, so far as possible, as exempting the defendant only from his strict liability and not as reliving him from his liability for negligence. I.e. the exemption clause did not exclude liability for negligence.

J Evans & Son (Portsmouth) Ltd v Andrea Merzario Ltd (1976)

The claimants, importers of machines, regularly contracted with the defendant's forwarding agents. ON every occasion the machines were carried below deck in crates or trailers so as to avoid the risk of corrosion. In 1967, the defendants proposed to change to containerised transportation to enable them to carry goods both above and below deck. However, in discussions with the claimants, the defendants gave them an oral assurance that their machines would be packed in containers but would always be carried below deck. About a year later, such a container was inadvertently carried on deck and was lost overboard. It was held by the Court of Appeal that the oral promise did have contractual force, principally on the basis that the claimants attached great importance to the carriage of their goods under deck and also on the basis that they would not have agreed to the new mode of carriage but for the promise. According to Geoffrey Lane LJJ, the oral assurance was an express term of the contract and, as the contract was partly oral and partly written, evidence of the oral term was admissible.

Victoria Street v House of Fraser (2011)

The court is less likely to read a clause contra proferentum in a contract between commercial parties of equal bargaining power. The words used, commercial sense, and the documentary and factual context are, and should be, normally enough to determine the meaning of a contractual provision. CP rule should be applied with sensitivity to the particular circumstance of case.

Carlill v Carbolic Smoke Ball Co (1893)

The defendants, the proprietors of a medical preparation called 'The Carbolic Smoke Ball', issued an advertisement in which they offered to pay £100 to any person who used one of their smoke balls in a specified manner for a specified period but who nevertheless still contracted influenza. The defendants also proclaimed that they had deposited £1000 in a named bank 'shewing our sincerity in the matter'. The plaintiff, on the faith of the advertisement, bought one of the balls and used it in the manner and for the period described and still contracted influenza. The facts established a contract under which the defendants were bound to pay the plaintiff 100£. The advertisement in this case was held to be a unilateral offer because there was a clear prescribed act, performance of which constituted acceptance. Further, the defendant's intentions to be bound was clearly demonstrated by their deposit of 1000£ and the certainty of the language used. ON REVOCATION: a unilateral offer can be made to the whole world and there is no requirement that those embarking on performance should communicate their intention to accept. Consequently, where such an offer has been made, the offeror may well have no knowledge of who or indeed how many potential offerees may be responding to the offer. In this circumstance, revocation is almost impossible, he would have to take reasonable steps to bring the revocation to attention of those who have read the offer.

Persimmon Homes Ltd v Ove Arup & Partners ltd.

This decision has cast doubt of the extent to which the decision of Canada Steamship applies to commercial contracts. In recent years, the courts have favoured a more commercial, and less mechanistic, approach to interpreting exemption clauses and to the application of the canada steamship guidelines. In Persimmon Homes Ltd v Ove Arup & Partners (2017), Lord Justice Jackson commented that the contra proferentum rule now has a very limited role in relation to commercial contracts negotiated between parties of equal bargaining power. The CoA considered that, in so far as the Canada Steampship guidelines survived, they are now more relevant to indemnity clauses than to exemption clauses. In recent years, and especially since the enactment of UCTA, the courts have softened their approach to both indemnity clauses and exemption clauses my impression is that to both indemnity clauses and exemption clauses. As previously noted, the exemption clauses in the present case form part of the contractual arrangements concerning professional indemnity insurance. In the contractual arrangements concerning professional indemnity insurance. In clause 6 of the 2009 arrangement and in clause 4 of the warranties, the parties agreed that a. what risks Arup would accept and insure against and b. what risks Arup would not accept and would not insure against. Self-evidently, the fees which Arup charged and which the Consortium agreed to pay allowed for the cost of that professional indemnity insurance, even tough that cost was not separately identified. In my view, the canons of construction in the Canada steamships line of case are now of very little assistance in the present case. If I am wrong, however, and if Lord Morton's principles are applicable, the two exemption clauses still exclude liability for the breaches of duty alleged in the particulars of claim. I reach that conclusion for the following reasons (i) The words of the two clauses in their ordinary meaning are wide enough to cover negligence by Arup in advising about the extent of asbestos on site. (ki) it is not possible to think of any non-negligent groud of claim relating to asbestos which the parties might have had in mind. The suggested non-negligent breaches put forward by the claimants, namely breaches of various regulations, fall into Lord Morton's 'fanciful or remote' category. The parties cannot sensibly have been agreeing that Arup's only liability in relation to asbestos would be for non-negligent breaches of those regulations. IN SUM: The meaning of the two exemption clauses is clear. Neither the contra proferentum rule nor the case law on exemption clauses can come to rescue of the claimants. Clause 6.3 of the 2009 agreement and clause 4.3 of the warranties exclude liability for all the Consotium's pleaded claims in respect of asbestos. I therefore reject the third and fourth grounds of appeal.

St Albans City Council v International Computers Ltd (1995)

UCTA does not define 'deals on written standard terms of business', the courts appear to take a relatively common sense approach. The courts considered that even where a party's general terms had been the subject of negotiation, they were still dealing on 'standard terms' for the purposes of UCTA as the terms remained effectively untouched. A number of bespoke negotiated alterations to a standard form can, however, lead to the contract being outside the scope of UCTA (Flamar Pride 1990). More recently, there has been support for the proposition that, if the exemption clauses are from one party's standard terms, then even if other clauses are negotiated or come from the other party, UCTA will apply (See Commercial management investments ltd v mitchell design and construct ltd).

Pan Atlantic Co Ltd v Pine Top Insurance Co Ltd (1995)

When considering the issue of inducement, the first question for the court is whether the representation was material. The test for materiality is an objective one: did the statement relate to an issue that would have influenced a reasonable man (per Lord Mustill in Pan Atlantic Co Ltd v Pine Top). Materiality test: Would a reasonable person have entered into that contract based on that statement?

Oscar Chess Ltd v Williams (1957) <-> Dick Bentley v Harold Smith (1965)

Where the party who made the statement had exclusive access to information or special knowledge as compared with the other party, this is likely to be taken into account in the latter's favour (the one with less knowledge). In Oscar Chess v Williams the claimant car dealers (Oscar) agreed on a trade-in of Williams' old car as apart of a new purchase. Williams had no knowledge of the motor trade. The registration book of the car traded in gave its date as 1948 and Williams confirmed in good faith. It was later discovered that the date should have been 1939 and the car was worth much less than thought. The Court of Appeal held that the age of the car was not a term of the contract and therefore no breach. It was clear that the skill and expertise lay in the hands of Oscar, not Williams, who was making the statement. Thus statement was representation. Versus Dick Bentley v Harold Smith: Smith told Bentley the car had done 20 thousand miles only since the fitting of a new engine and gearbox. The milometer also showed 20 thousand miles. later that day, Mr Bentley took his wife to see the car and Mr Smith repeated his statement. But it soon became clear that it had done more than that. The Court of Appeal held that the statement of was part of the contract (ie term NOT representation). The defendant was a car dealer who should be taken to have better knowledge of such matters than Mr Bentley, who was not involved in the motor trade.

City and Westminster Properties v Mudd (1959)

held that a party could rely on evidence of a collateral contact even where the collateral contract actually contradicted the main contract. The defendant was a tenant of a lockup shop and slept in the office at the back of the shop, a fact which was known to the lessor. In 1947, during negotiations for a new lease, the defendant was sent a draft of a new lease containing a covenant by the lessee 'not to permit or suffer the demised premises or any part thereof to be used as place for lodging, dwelling, or sleeping'. The claiman'ts agent told the defendant that, if he signed the lease, the claimant would not object to him continuing to live in the shop. The defendant therefore signed in response to this assurance. Some years later, the claimant sought forfeiture of the lease on the ground of breach of this covenant. It was held that the defendant had not signed the lease only because of the promise by the claimant's agent, eh was entitled to rely on that promise as long as he was in occupation of the shop, even though the promise was not only absent from the written document, but it was contradicted by the written document.

Hollier v Rambler Motors (AMC) Ltd (1972)

incorporation by a course of dealing: As well as being consistent, a course of dealing must also have been regular. incorporation by a course of dealing will not be established if the parties have contracted with each other only a few occasions over a number of years. In Hollier v Rambler, three or four transactions over a period of five years was held to be insufficiently regular to establish a course of dealing. (see also for implied terms: a term may be implied if the parties have dealt with each other on many occasions over a long period of time, in this case it was not implied)

Sale of Goods Act 1979

s 12 (1): the seller has the right to sell the goods s 12(2)(a): the goods will be free from any undisclosed encumberance => warranties s 12 (2)(b): the buyer will enjoy a right to quiet possession of the goods. => warranties s 13(1): Where there is a contract for the sale of goods by description, there is an implied term that the goods will correspond with that description (for this to apply the starting point is to identify whether the sale is sale by description) s 14(2): Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality. s 14(2A): they meet the standard that a reasonable person would regard as satisfactory taking into account any description of the goods, the price (if relevant9 and all the other relevant circumstances). s 14(2B): provides a checklist of what may be taken into account in assessing whether goods are of a satisfactory quality: a. fitness for all the purposes for which goods of the kind in question are commonly supplied, b. appearance and finish, c. safety, e. durability. (this also includes self-evident purposes of objects, such as hot-water bottle) s 14(2B)(e): stipulates that durability is an aspect of satisfactory quality. Goods which can be described as durable will be those possessing 'those qualities which will enable them to last in a reasonable condition for a reasonable time'. There is no attempt to define what a reasonable time is, each case must be determined taking into account the particular goods in question. (problem: by the time the buyer has discovered that the goods are not durable they will have accepted them so that any remedy will be confined to damages for breach of warranty) s14(2C)(a)(b): Exceptions to satisfactory quality: there is no condition as regards defects specifically drawn to the buyer's attention before the contract was made, or if the buyer examines the goods before contract. s 14(2C)(c) a buyer under a contract for sale by sample cannot claim in respect of a defect which would have been apparent from a reasonable examination of the sample. s 14(3): Where the seller sells goods in the course of a business and the buyer, expressly or by implication makes known to a. the seller or b. where the purchase price or part of it is payable by instalments and the goods were previously sold by a credit-broker to the seller, to that credit-broker, any particular purpose for which the goods are being bought, there is an implied term that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is the purpose for which such goods are commonly supplied, except where the circumstances show that the buyer does not rely on that it is unreasonable for him to rely on the skill or judgment of the seller or credit-broker. s 15(2): Sale by saple: Where a sale is by sample, two conditions are implied into the contract by the Sale of Goods Act 1979: a. that the bulk will correspond with the sample in quality; b...; c. that the goods will be free from any defect, making their quality unsatisfactory, which would not be apparent on reasonable examination of the sample. s 15(A): if the breach is so slight that it would be unreasonable for the buyer to reject the goods and repudiate the contract, the breach should be treated as a breach of warranty, which will only entitle the buyer to claim damages. Burden of proving falls on the seller. ss 12-15 CONDITIONS! except s12(2) is a warranty

Fisher v Bell (1961)

Display of goods for sale: the general rule is that price-marked goods displayed in a shop window are not an offer for sale but an invitation to treat. This is regardless of whether the shop actually expressly designated that the goods are an offer; a shop's 'special offer' usually amounts to no more than an invitation to treat.

Attorney-General v Blake [2001]

As a result of the decision of the House of Lords in Attorney-General v Blake [2001] 1 AC 268, it is now clear that there are at least certain circumstances in which a claimant can recover the profit which the defendant has made from his breach of contract. FACTS: Blake, a former member of the intelligence services, undertook not to divulge any official information gained as a result of his employment and broke the undertaking by publishing his memoirs, '\No Other Choice'. The Crown sought to recover the royalties he was to be paid by his publishers. HELD: Their Lordships confirmed that, in general, damages were measured by the claimant's loss, but held that in an exceptional case the court can require the defendant to account to the claimant for benefits received from a breach of contract. In determining whether to order an account for profits, Lord Nicholls (with whom Lord Goff and Lord Browne-Wilkinson agreed) stated: 'An account of profits will be appropriate in exceptional circumstances. Normally the remedies of [compensatory] damages, specific performance and injunction, coupled with the characterisation of some contractual obligations as fiduciary, will provide an adequate response to breach of contract. It will only be in exceptional cases, where those remedies are inadequate, that any question of accounting for profits will arise. No fixed rules can be prescribed. The court will have regard to all the circumstances, including the subject matter of the contract, the purpose of the contractual provision which has been breached, the circumstances in which the breach occurred, the consequences of the breach and circumstances in which relief is being sought. A useful general guide, although not exhaustive, is whether the claimant had a legitimate interest in preventing the defendant's profit-making activity and, hence, in depriving him of his profit.' The inadequacy of other remedies thus appears fundamental to the award of an account of profits. The claimant must also show that he has a 'legitimate interest' in depriving the defendant of his profit. The Crown was held to have such a 'legitimate interest' in Blake and no other remedy was adequate on the facts. If restitutionary damages had not been awarded, the Crown would have recovered nothing, since they had suffered no loss. Although their Lordships in Blake declined to give more clear guidance as to when an account of profits would be awarded, they did indicate that the existence of a so-called 'efficient breach' would not alone justify allowing an account of profits. An 'efficient breach' is one where: a) the breach was cynical and deliberate; b) the breach enabled the defendant to enter into a more profitable contract elsewhere; and c) by entering into a new and more profitable contract, the defendant put it out of his power to perform the contract with the claimant. This is called an efficient breach because, on traditional measures of damages, it is a breach that puts the breaching party in a better position than if there had been no breach. It is therefore efficient for the breaching party to breach the contract. However, as stated above, this alone will not justify the award of damages on a restitutionary measure.

Bad character evidence

Bad character is defined in s98 Criminal Justice Act 2003 ... evidence of, or of a disposition towards, misconduct on his part, other than evidence which has to do with the alleged facts of the offence with which D is charged, or is evidence of misconduct in connection with the investigation or prosecution of that offence. Sources of Evidence for bad character: Previous convictions in UK Previous convictions in other jurisdictions Cautions Acquittals Agreed facts that amount to reprehensible behaviour Witness evidence

Banco de Portugal v Waterlow & Sons [1932]

Banco de Portugal v Waterlow & Sons [1932] AC 452 establishes that when considering whether the claimant has taken reasonable steps to mitigate, the claimant's actions 'ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty'.

Ailsa Craig Fishing Co Ltd v Malvern Fishing Co (1983)

Contra Proferentum: The courts have held that clear words must be used if they are to excuse one party from its liability. Also, courts apply the contra proferentum rule with less rigour where the clause merely relates to limits rather than (fully) excluding. liability.

Standard Chartered Bank v Pakistan National Shipping Corporation (no.2) (2003)

Contributory negligence is not available as a defence to a claim for fraudulent misrepresentation.

UCTA 1977

Does NOT apply to consumer contracts (these are covered by CRA). Where both parties acting in the course of a business, UCTA applies. If neither party is acting in the course of a business, neither UCTA NOR CRA apply. UCTA ONLY regulates exemption clauses (not any other kind of unfair terms). I.e. those clauses which attempt to exclude or limit liability. Section 1(3) states that the operative provisions of UCTA (sections 2-7) apply only to 'business liability'. i.e. unless you are dealing with this type of liability, UCTA will not generally apply. Section 1(3) defines business liability as: .... liability for breach of obligations or duties arising (a) from things done or to be done by a person in the course of a business (whether it is their own or another); (b) from the occupation of premises used for business purposes of the occupier; and references to liability are to be read accordingly... Section 2(1): A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence (i.e. any attempt to exclude/restrict liability for death or personal injury resulting from negligence will be void). Negligence for the purposes of UCTA is defined in s1(1): includes breach of (a) any obligation arising from the express or implied terms of a contract, to take reasonable care or exercise reasonable skill in performance of the contract (b) any common law duty to take reasonable care or exercise reasonable skill and (c) the common duty of care imposed by the Occupiers Liability Act 1957. (Tort of Negligence is covered by 1(1)(b). Duties of care are also caught by 1(1)(a). => SGSA s13: supply of goods and services must be carried out with reasonable care and skill. If this is breached, it will constitute negligence for the purposes of UCTA. Section 6(1): Liability for breach of the obligations arising from section 12 of the Sale of Goods Act 1979 (seller's implied undertakings as to title, etc.) cannot be excluded or restricted by reference to any contract term. Section 6(1A): Liability for breach of obligations arising from section 13, 14,15 of 1979 Act (SGA) (seller's implied undertakings as to conformity of goods with description of sample, or as to their quality or fitness for particular purpose) cannot be excluded or restricted by reference to a contract term except in so far as the term satisfies the requirement of reasonableness. (i.e. a clause wanting to limit/exclude liability of breach of statutory implied terms about the quality of the good are valid if reasonable) s 2(2): A person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness. (hence: Loss resulting from negligence, so long as not death or personal injury, is validly exempt/reduced if reasonable as per 2(2).). s 3(1): where any party deals on its own written standard terms of business, that party cannot rely on a contract term to: (important! here it only says 'written standard terms', anything that is not written is outside the scope of this). (a) exclude or restrict any liability for breach of contract (s3(2)(a)); (b) claim to be entitled to render a contractual performance substantially different from that which was reasonably expected (s3(2)(b)(i)) or (c) claim to be entitled in respect of the whole or any part of the contractual obligation to render no performance at all (s3(2)(b)(ii). unless the contract term satisfies the requirement of reasonableness. (b+c prevent a party from inserting a term into written terms of business to permit actions which would ordinarily be breaches of contract). UCTA reasonable test s 11(1): the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made. (the requirement of reasonableness is judged at the time the contract was made, not at the time the term is considered by the court. Section 11(2) provides that, when considering the reasonableness test, 'regard shall be had in particular to the matters specified in Schedule 2 to this Act'. (i.e. schedule 2 guidelines should be taken into account for the purposes of s 6 and s7 of UCTA, the courts have clarified that the schedule 2 guidelines may be used more widely (ie at any time the UCTA reasonableness test is applied): See steward Gill Ltd v Horation Myer & Co Ltd 1992. The matters to which regard is to be had in particular for the purposes of sections [F16(1A), 7(1A) and (4),] 20 and 21 are any of the following which appear to be relevant— (a)the strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer's requirements could have been met; (b)whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having a similar term; (c)whether the customer knew or ought reasonably to have known of the existence and the extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties); (d)where the term excludes or restricts any relevant liability if some condition was not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable; (e)whether the goods were manufactured, processed or adapted to the special order of the customer.

White v Jones (1995)

More contentious is imposing liability in negligence for pure economic loss when there are underlying contractual arrangements. Nonetheless, such claims have succeeded in particular circumstances (like this case).

CTN Cash and Carry Ltd v Gallaher Ltd [1994]

On Economic duress: This case involved a lawful threat, which will not amount to economic duress: CTN bought cigarettes from Gallaher under a long-standing contract, with each purchase being a separate transaction. Gallaher regularly gave credit to CTN. A consignment of cigarettes worth £17,000 due to be delivered was stolen from a warehouse and there was a disagreement about which party bore the risk. It later became clear that the risk was in fact with Gallaher but before this was determined, a representative of Gallaher made it clear that if CTN did not pay the £17,000, all credit facilities would be withdrawn. CTN decided that paying was the lesser of two evils. They later sought to recover on the grounds that they had only paid as a result of economic duress. Lord Justice Steyn: "... the defendants were in law entitled to refuse to enter into any future contracts with the plaintiffs for any reason whatever or for no reason at all. Such a decision not to deal with the plaintiffs would have been financially damaging to the defendants, but it would have been lawful. A fortiori it was lawful for the defendants, for any reason or for no reason, to insist that they would no longer grant credit to the plaintiffs. The defendants' demand for payment of the invoice, coupled with the threat to withdraw credit, was neither a breach of contract nor a tort. [a] critically important, characteristic of the case is the fact that the defendants bona fide thought that the goods were at the risk of the plaintiffs and that the plaintiffs owed the defendants the sum in question. The defendants exerted commercial pressure on the plaintiffs in order to obtain payment of a sum which they bona fide considered due to them. The defendants' motive in threatening withdrawal of credit facilities was commercial self-interest in obtaining a sum that they considered due to them... [...] I also readily accept that the fact that the defendants have used lawful means does not by itself remove the case from the scope of the doctrine of economic duress. Professor Birks, in his 'Introduction to the Law of Restitution', at 177, lucidly explains: 'Can lawful pressures also count? This is a difficult question, because, if the answer is that they can, the only viable basis for discriminating between acceptable and unacceptable pressures is not positive law but social morality. In other words, the judges must say what pressures (though lawful outside the restitutionary context) are improper as contrary to prevailing standards. That makes the judges, not the law or the legislature, the arbiters of social evaluation. On the other hand, if the answer is that lawful pressures are always exempt, those who devise outrageous but technically lawful means of compulsion must always escape restitution until the legislature declares the abuse unlawful. It is tolerably clear that, at least where they can be confident of a general consensus in favour of their evaluation, the courts are willing to apply a standard of impropriety rather than technical unlawfulness. ...' Outside the field of protected relationships, and in a purely commercial context, it might be a relatively rare case in which 'lawful-act duress' can be established. And it might be particularly difficult to establish duress if the defendant bona fide considered that his demand was valid. In this complex and changing branch of the law I deliberately refrain from saying 'never'. But as the law stands, I am satisfied that the defendants' conduct in this case did not amount to duress. It is an unattractive result, inasmuch as the defendants are allowed to retain a sum which at the trial they became aware was not in truth due to them. But in my view the law compels the result."

Eads v Williams (1854)

On what equity means (injunctions and specific performance as equitable and discretionary remedies): The action must be brought with reasonable promptness, as 'delay defeats the equities'

Consumer Rights Act 2015

Part 1: Applies to contracts to supply goods, digital content or services between a trader and a consumer. A 'consumer0 is defined as an 'individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession' and a 'trader' is defined as 'a person acting for purposes relating to that person's trade, business, craft or profession, whether acting personally or through another person acting in the trader's name or on the trader's behalf. s 2(4): where a trader claims that an individual was not acting for purposes wholly or mainly outside the individual's trade, business craft or profession, then it is for the trader to prove it. s 9: Goods should be of a satisfactory quality (where goods sold to a consumer fail this quality, or the one in s 10, or s 11, then the goods are regarded as non-conforming; the remedial options then become available: short term right to reject, right to repair or replacement, and right to price reduction or the final right to reject; s 22). s 10: Goods should be reasonably fit for any purpose which the consumer makes known to the trader that the consumer intends to use the goods for s 11: Where goods are sold by description the goods should match that description. where goods fail to meet s9,s10,s11, they are regarded as non-conforming. Which means there are three remedial options available to the consumer: s22 short term right to reject (is available to the consumer for 30 days running from the time (i) that ownership has passed (or in the case of contracts for hire or the like, posession has transferred), and (ii) the goods have been delivered and (iii) in cases where the trader is required to install the goods or to take action to enable the consumer to use the goods, the trader has notified the consumer that the required steps have been taken s23 the right to repair or replacement: is available unless repair or replacement is either impossible or disproportionate (in the sense that it imposes an unreasonable cost on the trader relative to the other remedies and the interests of the consumer) (a) requires the trader to repair or replace the goods 'within a reasonable time and without significant inconvenience to the consumer' s 23(5) these questions of reasonableness and significance are to be determined by taking into account '(a) the nature of the goods; and (b) the purpose for which the goods were acquired'— considerations which, while relevant, are hardly determinative. s24 the right to a price reduction or the final right to reject: If right to repair or replacement is impossible/disproportionate, has been tried once and the goods still don't conform, or trader has failed to repair/replace: The consumer is not entitled to both a price reduction and final rejection; and, in either case, the remedy may only be exercised where: (a) after one repair or one replacement, the goods do not conform to the contract; or (b) the consumer can require neither repair nor replacement of the goods (because it is impossible or disproportionate); or (c) the consumer has required the trader to repair or replace the goods, but the trader is in breach of the requirement to do so within a reasonable time and without significant inconvenience to the consumer (s 24). It should also be noted that s 24(10) provides that the general rule is that, where the final right to reject is exercised within 6 months (the clock running—as with the short term right to reject—from the time that ownership has passed, and so on), there should be a full refund with no deduction for use—but this does not apply to motor vehicles or any other goods that may be specified by statutory order. Where a consumer contracts for digital content (like an e-book), in line with the provisions of the consumer goods, the implied terms are that the digital content: s 34: Should be of satisfactory quality s 34(2): the 'quality of a digital content is satisfactory if it meets the standard that a reasonable person would consider satisfactory'. Such a reasonable person would take account of matters of description and price together with 'all other relevant circumstances? (s 34(2)(c)) s 35: should be reasonably fit for purpose s 36: should match any description of it given by the trader to the consumer s 42: where the digital content is non-conforming in breach of the terms implied in s 34, s 35, and s 36, there are two remedial options: the right to repair or replacement and right to price reduction s 42(9): digital content which does not conform to the contract at any time within the period of six months beginning with the day on which it was supplied must be taken not to have conformed to the contract when it was supplied. (s 43 further specifies this). S 43 elaborates and qualifies the right to repair or replacement in the way that we have seen already in relation to contracts for goods. In particular, s 43(2)(a) requires the trader to repair or replace the digital content 'within a reasonable time and without significant inconvenience to the consumer'; s 43(3) precludes the consumer from requiring repair or replacement where this would be impossible or disproportionate; and s 43(5) identifies the nature of the digital content together with the purpose for which the digital content was obtained or accessed as material to judging 'what is a reasonable time or significant inconvenience'. s 44: right to price reduction, this right being exercisable only where the consumer cannot require repair or replacement or where trader has failed to repair or replace the digital content within a reasonable time and without significant inconvenience to the consumer. s 45: Where the trader had no right to supply the digital content that it supplied, s45 gives consumer the right to receive a refund of all money paid for the digital content (within 14 days). The trader must give a refund using the same payment method that the consumer used to pay for the digital content, without imposing any fee in respect of the refund. s 46: where the non-compliant digital content damages another device owned by the consumer: where (a) a trader supplies digital content to a consumer under a contract, (b) the digital content causes damage to a device or to other digital content, (c) the device or digital content that is damaged belongs to the consumer, and (d) the damage is of a kind that would not have occurred if the trader had exercised reasonable care and skill, then the consumer is entitled to repair or to a compensatory payment. Statutory rights of a consumer under a services contract: s 49: That the services is performed with reasonable care and skill s 50(1): also provides that anything that is said or written to the consumer, by or on behalf of the trader, about the trader or the service is to be included as a term where it is taken into account by the consumer when deciding to enter into the contract or when making any decision about the service after entering into the contract. s 51: That (where a price has not been agreed) a reasonable price is to be paid) s 52: That (where a time has not been fixed) the service is provided in a reasonable time s 54: where the services (as opposed to a good) are non-conforming in breach of the term implied by s49, there are two remedial options available to the consumer (right to require repeat performance and right to a price reduction) s 55(2)(a): The right to require repeat performance is elaborated and qualified in ways that are analogous to the parallel provisions in relation to goods and digital content. In particular, s 55(2)(a) requires the supplier to provide the repeat performance within a reasonable time and without significant inconvenience to the consumer s 55(4) offering the usual guidance on what, for this purpose, is reasonable and significant); and s 55(3) states that the consumer cannot require repeat performance if completion in conformity with the contract is impossible. s 56(3), a price reduction becomes available only where repeat performance is impossible or where the trader has failed to provide repeat performance within a reasonable time and without significant inconvenience to the consumer. Part II: regulates unfair terms (in consumer contracts) Part III: is of a miscellaneous and general nature.

s 37 Senior Courts Act 1982

Prohibitory injunctions are granted only where 'just and convenient'

William Robinson & Co Ltd v Heuer (1898)

Prohibitory injunctions are granted only where 'just and convenient' (s 37 Senior Courts Act 1982). For example, in William Robinson & Co Ltd v Heuer (1898) 2 Ch 451, a term forbade the defendant to engage in 'any trade, business, or calling, either relating to goods of any description sold or manufactured by the claimant or in any other business whatsoever'. The court granted an injunction but on more limited terms: it did not restrain the defendant from engaging in 'any other business whatsoever', it only restrained the defendant from engaging in a narrower class of business. That gave the claimant reasonable protection but no more.

Bank Line v Arthur Capel & Co [1919]

The concept of unavailability is common in shipping contracts. Even temporary unavailability may discharge a contract if the interruption is such as to make performance substantially different from what was originally undertaken. Thus, where a ship was requisitioned for a period of five months out of a year's charterparty, the contract was frustrated

Re Schebsman (1944)

The courts have made it clear that 'it is not legitimate to import into the contract the idea of trust when the parties have given no indication that such was their intention' .

Tamplin SS Co Ltd v Anglo-Mexican Petroleum Co [1916]

The difficulties inherent in deciding whether frustration has occurred in these circumstances, particularly where there is still a period of the charterparty in the future, are illustrated by the case of Tamplin SS Co Ltd v Anglo-Mexican Petroleum Co [1916] 2 AC 397, where the court had to decide whether the requisitioning of a ship (for the purposes of war) in February 1915 frustrated a five year charterparty which was to last until December 1917. The court held that it did not, on the basis that the war would soon be over and thus a considerable proportion of the charterparty would remain. In the circumstances, this was overly optimistic, but it nevertheless demonstrates the problems facing a court in reaching satisfactory conclusions.

Tsakiroglou Co Ltd v Noblee Thorl GmbH [1962]

The doctrine of frustration, as Viscount Simonds stated in Tsakiroglou Co Ltd v Noblee Thorl GmbH [1962] AC 93, 'must be applied within very narrow limits'

The Eurymedon: New Zealand Shipping Co. Ltd v A.M. Satterthwaite & Co. Ltd. (1975)

The facts were very similar to those in Scruttons but, in this case, the exemption clause in the contract had been carefully drafted to fulfil Lord Reid's criteria. The Privy Council held that the exemption clause could be relied upon by the stevedores. The first three of Lord Reid's conditions were easily met, and the fourth condition, that of consideration, was provided by the stevedores by virtue of their unloading the goods. Lord Wilberforce found there to be a third contract (in addition to the two identified in Scruttons), being a contract between the shippers and the stevedores. The analysis of this third contract, according to Lord Wilberforce, was that a unilateral offer to exempt the stevedores from liability was made by the shipper to the stevedores through the carrier as agent for the stevedores. This unilateral offer was accepted when the stevedores unloaded the goods. In a unilateral contract, the act of performance is both the acceptance of the unilateral offer and the consideration for the contract. It did not matter that the stevedores were already under an existing contractual obligation to the carrier to perform unloading services because performance of an existing contractual obligation owed to a third party is good consideration.

Partridge v Crittenden (1968)

The general rule regarding advertisments is that they are regarded as statements inviting further negotiations or invitations to treat.

Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002]

The innocent party is allowed a period of time in order to decide between these two alternatives -- In Stocznia Gdanska SA v Latvian Shipping Co [1998] 1 WLR 574, Lord Goff explained the test for total failure of consideration: "I start from the position that failure of consideration does not depend upon the question whether the promisee has or has not received anything under the contract ... In truth, the test is not whether the promisee has received a specific benefit, but rather whether the promisor has performed any part of the contractual duties in respect of which the payment is due."

Adderley v Dixon (1824)

The most important point is that an order for specific performance or a prohibitory injunction will not be granted if damages are an appropriate and adequate remedy: Adderley v Dixon (1824) 3 S & S 607. To show that damages are inadequate in the specific performance context, it will need to be proved that the subject matter of the contract is unique or irreplacable, or that an award of damages would be ineffective to provide adequate compensation. So, for example, an order for specific performance is unlikely to be appropriate for the failure to deliver a commonly available car - damages will be perfectly adequate to allow the innocent party to purchase a practically identical car elsewhere. On the other hand, specific performance might be an appropriate remedy in cases of breach of a contract for the sale or lease of land, because in many cases land is unique.

Household Fire and Carriage Accident Insurance Co. v Grant).

The postal rule applies even if the letter is delayed or lost in the post Also: Postal Rule does not apply if it is disapplied by the offeror. They wrote "your answer by post is only to bind if it reaches me", meaning acceptance is valid upon receipt, not postage.

Henthorn v Fraser [1892]

The postal rule does not apply if not contemplated post would be used. This case makes it clear that the postal rule is applicable only where it was reasonable in all the circumstances for the offeree to have used the post.

when does the first hearing take place?

Where D is on bail, the first hearing must be within: 14 days of being charged - if prosecutor anticipates a guilty plea which is likely to be sentenced at magistrates court 28 days of being charged - where it is anticipated that D will plead not guilty and the case is likely to go to the Crown Court for trial or sentence

Dickinson v Dodds (1876)

Where the offeror gives an undertaking to keep the offer open for a stipulated period, he is not bound by his undertaking unless the offeree has given consideration in return for it. The offeror is not bound to keep the offer open for the stipulated period unless the offeree gives something of value in return for the offeror's promise to keep the offer open for a period of time. If that is the case, then there is a separate binding contract known as an option and revocation within the period will be in breach of that contract. ALSO: provided the offeror has shown, by words or conduct, a clear intention to revoke his offer and notice has reached the offeree, the revocation is effective. The means of communication do not matter, so the revocation will be effective even if communicated by a third party.

The Hypothetical Lease

from the starting point of the actual lease, the rent review provision instructs the valuers on assumptions, and disregards. The hypothetical lease differs therefore from the actual lease. Basic assumptions: the premises are vacant and available, there is a willing landlord and tenant Common disregards: generally operate to ignore what the tenant has done voluntarily and not as an obligation of the lease, the rationale is that the tenant should not be penalised with a higher rent, if they have improved the premise

Blackpool & Fylde Aero Club Ltd v Blackpool Borough Council (1990)

here it was held that an invitation to tender could give rise to a binding contractual obligation to consider tenders in circumstances where (1) the tenders had been solicited from specified parties who were known to the requesting party (2) there was an absolute deadline for submission (3) the party requesting tenders had laid down absolute and non-negotiable conditions for submission. On this basis, Bingham LJ held that there was a contractual duty to consider those tenders which had complied with the conditions for submission.

The Contract (Rights of Third Parties) Act 1999:

s1: the circumstances in which a third party may enforce a term of a contract to which he is not a party are limited and set out in s1: (a)the contract expressly provides that he may, or (b)subject to subsection (2), the term purports to confer a benefit on him (Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.) s1 (3): The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into. s1(6): Where a term of a contract excludes or limits liability in relation to any matter references in this Act to the third party enforcing the term shall be construed as references to his availing himself of the exclusion or limitation. s1(5): For the purpose of exercising his right to enforce a term of the contract, there shall be available to the third party any remedy that would have been available to him in an action for breach of contract if he had been a party to the contract (and the rules relating to damages, injunctions, specific performance and other relief shall apply accordingly). s2(1): Subject to the provisions of this section, where a third party has a right under section 1 to enforce a term of the contract, the parties to the contract may not, by agreement, rescind the contract, or vary it in such a way as to extinguish or alter his entitlement under that right, without his consent if— (a)the third party has communicated his assent to the term to the promisor, (b)the promisor is aware that the third party has relied on the term, or (c)the promisor can reasonably be expected to have foreseen that the third party would rely on the term and the third party has in fact relied on it. s2(3): Subsection (1) is subject to any express term of the contract under which— (a)the parties to the contract may by agreement rescind or vary the contract without the consent of the third party, or (b)the consent of the third party is required in circumstances specified in the contract instead of those set out in subsection (1)(a) to (c). s2(4): Where the consent of a third party is required under subsection (1) or (3), the court or arbitral tribunal may, on the application of the parties to the contract, dispense with his consent if satisfied— (a)that his consent cannot be obtained because his whereabouts cannot reasonably be ascertained, or (b)that he is mentally incapable of giving his consent. s2(5): The court or arbitral tribunal may, on the application of the parties to a contract, dispense with any consent that may be required under subsection (1)(c) if satisfied that it cannot reasonably be ascertained whether or not the third party has in fact relied on the term. s2(6): If the court or arbitral tribunal dispenses with a third party's consent, it may impose such conditions as it thinks fit, including a condition requiring the payment of compensation to the third party. s3(2): The promisor shall have available to him by way of defence or set-off any matter that— (a)arises from or in connection with the contract and is relevant to the term, and (b)would have been available to him by way of defence or set-off if the proceedings had been brought by the promisee. s3(3)The promisor shall also have available to him by way of defence or set-off any matter if (a)an express term of the contract provides for it to be available to him in proceedings brought by the third party, and (b)it would have been available to him by way of defence or set-off if the proceedings had been brought by the promisee. s3(6): Where in any proceedings brought against him a third party seeks in reliance on section 1 to enforce a term of a contract (including, in particular, a term purporting to exclude or limit liability), he may not do so if he could not have done so (whether by reason of any particular circumstances relating to him or otherwise) had he been a party to the contract. s4: Enforcement of contract by promisee. Section 1 does not affect any right of the promisee to enforce any term of the contract. s5: Protection of promisor from double liability. Where under section 1 a term of a contract is enforceable by a third party, and the promisee has recovered from the promisor a sum in respect of— (a)the third party's loss in respect of the term, or (b)the expense to the promisee of making good to the third party the default of the promisor, then, in any proceedings brought in reliance on that section by the third party, the court or arbitral tribunal shall reduce any award to the third party to such extent as it thinks appropriate to take account of the sum recovered by the promisee. s6: the Act leaves the common law unchanged for those contracts excluded from the operation of the Act (contracts of employment between company and its members for example). s7 (1): the existing common law and statutory exceptions are preserved.

Bell v Lever Brothers (1932)

(This was not exactly the result of this case): It has been suggested that there is a limited category of cases where the mistake is so severe that the contract will be void for mistake as to quality. The tests to be applied to engage this exception is unclear. It could be a question of whether the mistake is such that the subject matter is 'essentially different' from that intended (Bell v Lever Brothers (1932)), or alternatively whether the mistake renders the assumed performance 'impossible' or alternatively whether the subject matter is rendered 'radically different'.

Pankhania v Hackney LBC (2002)

A buyer of a car park was told by Hackney LBC that the car park was let out to a tenant on a contractual licence. In fact, after the car park had been purchsed, it transpired that it was occupied under a protected tenancy (pursuant to the Landlord and Tenant Act 1964). Such a tenancy was quite different to a licence. The legal status of the arrangement had been misrepresented. This was a misrepresentation of law because it was a matter of law that the arrangement was a tenancy, not a licence. => The traditional rule was that a statement of law could NOT give rise to an actionable misrepresentation. However, the distinction between statements of fact and statements of law has now been abolished and it is clear that a statement of law CAN give rise to an actionable misrepresentation.

DSND Subsea Ltd v Petroleum Geo Services ASA [2000]

A definition of economic duress which perhaps best reflects the current position was set out by Mr Justice Dyson: "The ingredients of actionable duress are that there must be pressure, (a) whose practical effect is that there is compulsion on, or a lack of practical choice, for the victim, (b) which is illegitimate, and (c) which is a significant cause inducing the claimant to enter into the contract ... [emphasis added]" In this case, DSND threatened to suspend its work under the contract until Petroleum Geo's provision of insurance and indemnities covering the safety of the deep sea divers under the contract was clarified. In the face of that threat, Petroleum Geo (PGS) entered into a contract / 'memorandum of understanding' (MOU) agreeing to make further payments / provide further reassurances to DSND. PGS later argued that this was entered into under duress. Mr Justice Dyson: "The position at the start of the meeting of 24 September was that there were two principal problems facing the parties: the question of insurance/indemnity, and the issue of compensation for the riser installation. DSND were in my view entirely justified in being reluctant to go offshore without at least a reliable assurance that, if there were a problem with the ... [riser installation], PGS' all risks policy would cover it. ... [If such a problem with riser installation] were to happen, the consequences might well be disastrous for DSND, unless that contingency was adequately covered by insurance/indemnity arrangements. That is why there were negotiations during the meetings of 24 and 25 September in relation to liability for [part of the rise installation], and amendments to the insurance and indemnity provisions of the Contract. The Contract did not contain a provision which entitled DSND to suspend work. The Contract simply did not make provision for a situation such as occurred. If it were necessary so to hold, I would say that the suspension of work on the ...[riser installation] pending resolution of the insurance/indemnity question, even if it was a breach of contract, and even if it amounted to pressure, did not amount to illegitimate pressure. It was reasonable behaviour by a contractor acting bona fide in a very difficult situation. ... I am not persuaded that PGS were subjected to pressure in the sense that they had no realistic practical alternative but to concede DSND's demands. ...Mr Wilson is a careful and intelligent person. I believe that, if he had felt that he was being blackmailed, he would at least have explored the possibility of alternative vessels. The fact that he did not do so strongly suggests that did not feel that he was being blackmailed... There are a number of features of the case which are very difficult to explain if Mr Wilson was blackmailed into signing the MOU. First, there is the fact that there was plainly a reasonably amicable atmosphere between the parties. This is most obviously evidenced by the fact that the parties went out to dinner together during their stay in Oslo. ..." Dyson J concluded that the MOU was not entered into under duress.

Cundy v Lindsay (1878)

A man called Blenkarn placed an order with Lindsay on credit (ie payment would be after delivery) for goods to be delivered to "Blenkarn, 37 Wood street". There was a reputable firm of Blenkiron & Co at 123 Wood Street. Blenkarn signed his signature in such a way as to make it appear that he was in fact ordering for Blenkiron, and Lindsay (who knew of Blenkiron but no their precise address) believed they were dealing with Blenkiron. Blenkarn took delivery of the goods and sold them to Cundy. Blenkarn never paid Lindsay. Lindsay brought a claim against Cundy on the basis that they never got the good title to the goods. It was held that the respondents at all times believed that they were dealing with Blenkiron & Co. of Wood street and not the fraudster, Blenkarn. The contract was void for mistake as to identity. Important: Distance selling! Not face-to-face.

L'Estrange v Gaucob Ltd (1934)

A party can express an intention to be bound by something they have not read or understood.

Curtis v Chemical Cleaning and Dyeing Co (1951)

A party may be prevented from relying on incorporation of a clause through signature of a document if they have orally misrepresented the meaning of the clause to the other party.

Custody Record

A separate custody record must be opened for each detainee. All information is to be recorded under COP C. Basic information to be recorded: Requirement to inform person of the reason of arrest The circumstances of arrest Why the arrest was necessary Any comments made by the arrested person

Shanklin Pier v Detel Products Ltd (1951)

An exception to privity: Collateral contracts: Facts: Shanklin Pier employed contractors to paint the pier. It was a term of the contract that Shanklin Pier was to specify the pain to be used. Detel informed Shanklin per that their pain would last for at least seven months. Shanklin Pier instructed the contractors to buy and use Detel's paint. The paint lasted three months. Shanklin Pier sued for breach of contarct. However, the contract was between Shanklin Pier and the contractors. Mr Justice McNair held that there was a collateral contract between Shanklin Pier and Detel, the consideration for which was, on the one hand, that warranty by Detel that the paint would last for seven years and on the other, the instruction by Shanklin pier to the contractors to buy the paint. Mr Justice McNair "This case raises an interesting and comparatively novel question whether or not an enforceable warranty can arise as between parties other than parties to the main contract for the sale of the article in respect of which the warranty is alleged to have been given. ... I am satisfied that, if a direct contract of purchase and sale of the D.M.U. [the paint] had then been made between the plaintiffs and the defendants, the correct conclusion on the facts would have been that the defendants gave to the plaintiffs the warranties substantially in the form alleged in the statement of claim. In reaching this conclusion, I adopt the principles stated by Holt, C.J., in Crosse v. Gardner 1and Medina v. Stoughton 2that an affirmation at the time of sale is a warranty, provided it appear on evidence to have been so intended. Counsel for the defendants submitted that in law a warranty could give rise to no enforceable cause of action except between the same parties as the parties to the main contract in relation to which the warranty was given. In principle this submission seems to me to be unsound. If, as is elementary, the consideration for the warranty in the usual case is the entering into of the main contract in relation to which the warranty is given, I see no reason why there may not be an enforceable warranty between A and B supported by the consideration that B should cause C to enter into a contract with A or that B should do some other act for the benefit of A."

Pao On v Lau Yiu Long (1980)

An exception to the rule that past consideration is not good consideration exists where some prior act or service was provided by the promisee at the promisor's request and it was always understood that payment would be made for that act or service. The leading case on the exception was heard by the Privy Council in Pao On v Lau Yiu Long [1980] AC 614. Lord Scarman recognised that 'An act done before the giving of a promise to make a payment or to confer some other benefit can sometimes be consideration for the promise'. Lord Scarman went on to outline the necessary three conditions for the exception to apply: a) The act must have been done at the promisor's request. b) The parties must have understood that the act was to be rewarded either by a payment or the conferment of some other benefit. These could be because it was expressly agreed that there would be a reward / benefit, or because such an understanding can be implied. The latter is more likely in a commercial context. c) The payment, or conferment of other benefits, must have been legally enforceable had it been promised in advance.

Thoroughgood's Case (1584)

An illiterate woman was induced to execute a deed in the belief that it was concerned with arrears of rent. In fact, the document was a deed releasing another from claims which the woman had against him. It was held that the deed was a nullity. In light of the case law it seems that a plea of non est factum may be available where the mistake was either due to : a) the blindness, illiteracy or senility of the person signing of b) a trick or fraudulent misrepresentation as to the nature of the document, provided that person took all reasonable precautions before signing.

Applications for specific disclosure

Applications for specific disclosure Under s8 CPIA the defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed under s7A(5) CPIA. This is known as a section 8 application, or app for specific disclosure. D must have served a defence statement and the prosecutor must have either provided further disclosure in light of the defence statement, or notified D that there is no further disclosure. Judicial Disclosure Protocol para 26: provides that D's requests for disclosure of particular pieces of unused prosecution material which are not referable to any issue int he case identified in the defence statement should be rejected. Any such defence statement must set out the issues clearly as a prerequisite to applying under s8 for specific disclosure. The procedure is governed by CrimPR 15.5. must explain why there is reasonable cause that the prosecutor has the material, and that it is material that this is disclosed under CPIA Disclosure failure by prosecution Consequences can be serious: D could bring an application to stay the indictment on the ground that to continue the case would be an abuse of process of the court It could result in a conviction being quashed on appeal due to being unsafe It would likely result in delay and the imposition of wasted costs Potentially result in the exclusion of evidence in the case due to unfairness

Payne v Cave (1789)

Auction Sales: The general rule in relation to auction sales is that the auctioneer's request for bids is an invitation to treat. The bidder makes an offer which the auctioneer is then free to accept or reject. Acceptance of the bidder's offer will be indicated by the fall of the auctioneer's hammer. This is consistent with the rules of revocation of an offer i.e. the bidder may revoke his offer at any time before the hammer falls. This is consistent with the rules of revocation of an offer ie the bidder may revoke his offer at any time before the hammer falls. It is also reflected in s57 of the Sale of Goods Act 1979 which states: 'a sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner, and until the announcement is made any bidder may retract his bid'. ALSO: The offeror may withdraw (revoke) his offer at any time before acceptance.

Thompson v London, Midland & Scottish Railway (1930)

Established that terms can be incorporated by reference by a ticket which says 'see back' and on the reverse side contains terms, even if the other party cannot read. Note, however, that the situation may have been different if the company had been aware of the other party's inability to read, as it would then have been clear that simply handing over the ticket did not amount to reasonable notice.

Jarvis v Swan Tours [1973]

Exception to the rule that damages will not be awarded in relation to mental distress: Initially, such compensation was limited to cases involving contracts whose whole purpose was the provision of pleasure, relaxation and peace of mind (Jarvis v Swan Tours [1973] QB 233).

CH Giles & Co Ltd v Morris [1972]

For other contracts involving services, specific performance will not be awarded if there has been a breakdown of trust and confidence between the parties, or if the court would need to consider subjective opinions regarding performance

Laying an information

For the prosecutor to serve an information alleging an offence on magistrates' court. The court will then issue a summons or an arrest warrant requiring the accused to attend. Private prosecutions may only be commenced by summons as they are not brought by 'relevant prosecutors' for the purposes of the written charge and requisition procedure under s28 CJA 2003.

Forfeiture

Forfeiture is the right of the landlord to re-enter the premises and take them back from the tenant. It brings the lease to an end before the contractual term (or during any period of holding over). Forfeiture is not an automatic right, and is only permitted insofar as the lease provides for it. A commercial lease will typically allow the landlord to forfeit the lease if the tenant fails to pay the rent (usually after a period of grace), breaches its obligations under the lease, or there is an 'insolvency event'. For non-payment of rent, the landlord is entitled to forfeit as soon as the lease allows. For any other breach of the tenant's obligations, the landlord must serve a section 146 notice (Law of Property Act 1925). This notice details the alleged breach and gives the tenant a reasonable opportunity the opportunity to remedy it, failing which the landlord will be entitled to forfeit. Key word or definition: An 'insolvency event' usually covers a range of events that indicate financial difficulties, such as the appointment of an administrative receiver, or with an individual tenant, a voluntary arrangement or bankruptcy.

a legal lease

Formalities: A legal lease must be created by deed if the term is over 3 years. A tenancy of 3 years or under may be created in writing, or even orally.

Linden Gardens Trust v Lenesta Sludges Disposals Ltd and others // St. Martins Property Corporation Ltd and another v Sir Robert McAlpine & Sons Ltd (1994)

If there is a prohibition against the assignment in the main contract, then the attempted assignment is likely to be unsuccessful.

Chudley and others v Clydesdale Bank Plc (2019)

In the case of Chudley and others v Clydesdale Bank Plc [2019] EWCA Civ 344 the Court of Appeal adopted a flexible approach in determining that a class had been identified in the contract for the purposes of s 1(3). A group of third party investors were found to have been expressly identified for the purposes of s 1(3) by the use of the term 'client account' in the contract. This was an express identification of the class, namely clients of the company who were investing in the scheme, and the appellant investors were within that class. The court considered the contract as a whole when identifying a class of persons for the purposes of s1(3).

Jackson v Royal Bank of Scotland [2005]

In the case of Jackson v Royal Bank of Scotland [2005] UKHL 3, the House of Lords, in applying Hadley v Baxendale, confirmed that what was in the contemplation (or knowledge) of the parties was to be judged at the time of contracting, as opposed to the time of the breach.

Harry Kendall & Sons v William Lilico & Sons Ltd (1969) >> Petrotrade inc v Texaco Ltd (1999)

Incorporation by a course of dealing: three or four times per month and five instances over 13 months was sufficiently regular to incorporate implied terms. (compare with Hollier v Rambler)

Spencer v Harding (1870)

Invitations to tender: A request for tenders is used where a party wishes to purchase a major item or service. The requestor invites tenders (offers) from those interested in supplying the goods. This action of inviting parties to tender is, as a general rule, deemed an invitation to treat. I.e. an invitation to interested parties to make offers to be considered. The requestor can accept or reject any tender.

London and Northern Bank, ex p. Jones [1900]

Letter has to be properly posted for postal rule to apply (i.e. handing it to the postman is not properly posted)

LCT

Lifetime chargeable transfers LCT: lifetime transfers of value which are immediately chargeable to IHT at a lifetime rate. These are also reassessed when transferor dies within 7 years.

Royscot Trust Ltd v Rogerson [1991]

Moreover, following the (sometimes criticised) decision in Royscot Trust Ltd v Rogerson [1991] 2 QB 297, s 2(1) also has the effect that, where a representor is found liable for a negligent misrepresentation, he will be treated to all intents and purposes as if he had made a fraudulent misrepresentation. This has important ramifications as regards damages.

Aylesbury Football Club v Watford Association Football Club (2000)

On Capacity to contract: A minor is also bound by a contract of employment, apprenticeship or education, but only if it is for their benefit. A young footballer's contract with the club was not beneficial and could not be enforced because the player received no extra training or experience, the terms were onerous for him, they restricted his freedom to pursue a football career and the payment of wages depended on the will of his employer.

McInerny v Lloyd's Bank Ltd (1974)

On Misrepresentations: the representor (person making the representation statement) will not be liable if the representee has placed its own unreasonable construction on the representation

Jacobs v Batavia & General Plantations trust (1924)

Parol evidence will not be admitted to prove that some particular term, which has been verbally agreed upon, had been omitted (by design or otherwise) from a written instrument constituting a valid operative contract between parties. (Parole evidence rule: Where there is a written contract, extrinsic evidence, oral or otherwise, may not be adduced which seeks to add, vary or contradict the terms of a written contract)

Getreide-Import Gesellschaft v Contimar [1953]

Postal rule does not apply if incorrectly addressed

Parker v South Eastern Railway Co (1876-77)

Terms can also be incorporated by notice (ie by one party notifying the other party of them). The claimant deposited a bag in the defendant's cloakroom. He paid two pence and was given a ticket, on the face of which was printed: 'see back'. On the back of the ticket were some relevant terms. It was held that some terms would form part of the contract if the company had taken reasonable steps to bring them to the claimant's attention. This is logical -- an objective observer would consider that, where reasonable steps have been taken to draw terms to a party's attention, that a party's persistence with the transaction suggests an intention to be bound by the terms.

The Albazero Priniple

The Albazero, the court had ruled that where a contract was entered into by A and B, both of whom knew that the end benefit of the contract was going to reside in a third party, C, then in that situation, either party breaching the contract could be sued by the other party on behalf of the contemplated third party. This principle will only be applied if the third party has no other means of recourse, which is consistent with the judicial intention to obviate harshness of the doctrine of privity.

The Brimnes (1975)

The Brimnes was a case concerning a communication sent during ordinary office hours. The Court of Appeal concluded that a telex that had been sent during ordinary office hours (between 17:30 and 18:00), but not been seen by office staff until the following Monday, was effective when received.

Shirlaw v Southern Foundries (1939)

The Moorcock Rule was given precision here: MacKinnon LJ: Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if while the parties were making their bargain an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common 'oh of course'. 'business efficiacy test' AND 'officious bystander test' help identify what the parties ultimately intended.

Hyde v Wrench (1840)

The acceptance has to be unqualified, i.e. mirror the offer exactly: The defendant offered to sell a farm to the claimant for £1,000. The claimant in reply offered £950 which the defendant refused. The claimant then sought to accept the original offer of £1,000. The defendant refused to sell to the claimant and the claimant brought an action for specific performance. Held: There was no contract. Where a counter offer is made this destroys the original offer so that it is no longer open to the offeree to accept.

Poussard v Spiers (1876)

The distinction between a condition and a warranty is that a condition is an important term 0going to the root of the contract'. A warranty is a less important term not going to the root of the contract. (Crucial question: did the parties intend, at the time of contracting, that any breach of the relevant term could result in the innocent party's terminating?, if yes, it is a condition.)

Woodar v Wimpey (1980)

The doctrine of privity came under direct criticism from HoL in this case. The problem is that in some cases, A contracts with B to provide something of benefit to C. If B fails to do so, C has suffered a loss, but cannot bring a claim because it is not party to the contract. A is a party to the contract, but has suffered no loss. Lord Scarman stated: I regret that this House has not yet found the opportunity to reconsider the two rules which effectually prevent A or C recovering that which B, for value, had agreed to provide.

Couchman v Hill (1947)

The documents in the case were held to form not the whole but only part of the contract, the oral assurance could be laid side with them so as to constitute a single and binding transaction. (On 'where parties do not intend the written contract to contain all the written terms')

breach of PACE COP Code D - visual identification

The first issue for a trial judge is to determine if a breach of Code D has in fact occured. This can usually be achieved without a voir dire (trial within a trial). If there has been a breach, the remedy for the defendant is to apply to exclude evidence obtained in breach of the code under s78 PACE. A breach of the code does not automatically lead to the exclusion of the evidence. The key issue for the trial judge is to decide whether there has been any significant prejudice to the accused. If the judge has determined that there is prejudice, they must decide if the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it. Identification evidence will usually be excluded when important safeguards have been flouted. Where identificaiton evidence is admitted into evidence, despite a breach of Code D: D advocates are still permitted to comment on the breach in their closing speech The trial judge ought to draw the Jury's attention to the breach and invite them to consider the reasons why the code has been drawn in the way it has The jury should assesss whether in their estimation the breach were such as to cause them to have doubts about the safety of the identification

Entores v Miles Far East Corporation

The general rule for acceptances made by instantaneous means is that the acceptance takes place at the moment it is received by the offeror: Instantaneous communication- acceptance is made on receipt, if not received because of offeror fault, then acceptance is made. (this is not a universal rule, as stated by Wilberforce LJ in Brinkibon) LJ Denning explained: in cases of instantaneous communication, the person sending the message of acceptance knows, or ought to know, that it has not been received if that is the case (because transmission fails, for example). Consequently, where the message of acceptance is not received, without any fault on the part of the offeror, no contract has been concluded. On the other hand, if the acceptor reasonably believes that he has communicated his acceptance but this is not so because of the fault of the offeror, e.g. by not asking for words of acceptance to be said again or 'if the ink on the teleprinter fails at the receiving end', then the offeror may be estopped from saying that he did not receive acceptance. This approach was confirmed in Brinkibon v Stahag Stahl

Regus (UK) Ltd v Epcot Solutions Ltd [2007]

The loss of amenity measure developed in Ruxley is a reflection of the court's growing willingness to accept that a consumer should have an available remedy where their loss is not economic in value, but nevertheless has a value to them. In a commercial setting, it would be 'unusual, if not impossible' for damages to be awarded for loss of amenity (Regus (UK) Ltd v Epcot Solutions Ltd [2007] EWHC 938 (Comm)).

Davis Contractors v Fareham Urban District Council [1956]

The modern definition of frustration is provided by Lord Radcliffe in Davis Contractors v Fareham Urban District Council [1956] AC 696: "[F]rustration occurs whenever the law recognises that, without default of either party, a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. ...It was not this that I promised to do." From this we can understand that frustration is about events that occur after the formation of the contract and which render performance radically different from that which was agreed to at the time the contract was formed.

Routledge v McKay (1954)

The private seller of a motorcycle told the buyer, in good faith, that it was a 1941 or 1942 model. One week later, the buyer and seller entered into a contract of sale. The written memorandum of the sale did not mention the year of the model. The motorcycle was a 1930 model and the buyer sued for breach of contract. The Court of Appeal held that the lapse of time between the making of the statement and entering into the contract meant that the statement of the year of the model was a representation and not a term of the contract. In addition, the court was influenced by the fact that the contract had been reduced into writing and the written contract made no mention of the previous oral statement about the motorcycle being of 1941 model. The inference drawn by the court was that the statement could not have been regarded as significant by the parties. If it had been, it would have been included in the agreement.

UCB Corporate Services v Thomason (2005)

The remedy of damages in lieu of rescission is available only at the discretion of the court and is only available for negligent and innocent misrepresentation (ie not fraudulent misrepresentation). In exercising this discretion, the loss that would be caused if the contract were upheld, and the loss that rescission would cause to another party. (Confirms s2(2) of MA).

Avraamides and another v Colwill and another (2006)

The requirement under s1(3) of RTPA 1999 that the third party must be expressly identified was tested in this case. In this case, a company had refurbished Mr and Mrs Avraamides's bathroom. The company then transferred all its rights and liability under the contract between itself and Avraamides to Colwill. paragraph 3 of the transfer agreement stated that Colwill agered to pay in the normal course of time any liabilities properly incurred by the company as at 31 March 2003. The refurbishment had been done defectively and Avraamides sued Colwill. At first instance it was held that Avraamides were third parties on whom paragraph 3 of the transfer agreement had conferred a benefit. The defendants, Colwill, appealed. Lord Justice Waller held that the transfer agreemend did not confer a benefit on the Avraamides as they had not been expressly identified in accordance with s1(3). He stated: The answer I am afraid is that section 1(3) by use of the word 'express' simply does not allow a process of construction or implication.

D & C Builders v Rees [1966]

The use of promissory estoppel, as an equitable doctrine, is at the discretion of the courts. Even if the other elements of the doctrine are made out, it may still not be applied because it would be inequitable in the circumstances to do so. This point is well illustrated by D & C Builders v Rees [1966] 2 QB 617, where the builders agreed to accept a cheque for the sum of £300 in full and final settlement of a debt of £482. Lord Denning MR said that because this promise had been extracted from the plaintiff creditors by intimidation on the part of the debtor, the debtor could not rely on the doctrine of promissory estoppel, since he who seeks equity must do equity.

Written Charge and Requisition

This is a method of commencing created by s29 Criminak Justice Act 2003. A public prosecutor may commence proceedings by issuing a written charge charging a person with an offence. There is no requirement that the person charged has been arrested when this method is used. At the same time the public prosecutor issues a requisition, which requires the person charged to attend a magistrates' court. The charge and requisition must be served on the person charged and on the magistrates' court at which the person is to attend. This method of commencement is available only to 'relevant prosecutors' broadly speaking those who prosecute on behalf of the state, ie CPS, Health and Safety Executive, Driver and Vehicle Standars Agency and Environment Agency

British Crane Hire v Ipswich Plant (1975)

Trade or professional custom (implied terms): the contract involved the hiring of a crane. Both parties to the contract were in the same trade. The owner of the crane sought to rely on his usual terms, even though these were not actually stated at the time of contracting. The owner's terms were based on a model supplied by the trade association and were common in the trade. The court held that the term was incorporated by a common trade custom.

Lewis v Averay (1972)

This is a leading case on unilateral mistake as to identity: Facts: the claimant put an advertisement in a newspaper, offering to sell his car for 450£. In response to the advertisement, a man (who turned out to be a fraudster) telephoned asked if he could see the car. That evening, when he came to see the car, he told the claimant that he was Richard Greene, making the claimant believe that he was the well-known film actor of that name. The fraudster wrote a cheque for the agreed sum of 450£. At first, the claimant was not prepared to let him take the car until the cheque had cleared. When the fraudster pressed to be allowed to take the car with him, the claimant asked 'Have you anything to prove that you are Mr Richard Greene'. The fraudster produced a special pass of admission to Pinewood Studios, bearing his own photograph and the name of Richard Greene. The claimant was satisfied that the man really was Mr Richard Greene and let the fraudster take the car in return for the cheque. A few days later the claimant discovered the cheque was worthless. In the meantime, the fraudster sold the car to the defendant, who paid 200£ for it entirely in good faith. The fraudster disappeared. The claimant brought an action against the defendant, claiming damages for conversion. HELD: The CoA held that it is presumed that the seller intended to deal with the person in front of them identified by sight and hearing and that is what had happened. So the contract was not void for mistake. Although it would be voidable for misrepresentation (Fraudster misrepresented who he was). This presumption will only be rebutted, and the contract held void for mistake, if the seller is able to establish that identity, rather that attributes, was of vita importance. Applying that test to the facts, the CoA held that what the seller really cared about in this case was that Mr Green's creditworthiness, an attribute, rather than an identity. Therefore, the contract was voidable for misrepresentation but not void for mistake. Important: This case concerned face to face negotiations.

Dunmore v Alexander (1830) & Wenkheim v Arndt (NZ) (1861)

What if the offeree accepts by post, and a day later, calls to revoke his acceptance? Technically acceptance is valid because the first acceptance by post is valid. The offeror can decide to hold the offeree to a contract on the strength of his posted acceptance or he could recall his acceptance by a more expeditious method. The authorities relevant to this issue do not provide a clear answer

Barry v Davies (2000)

approves of the rule in auctions 'without reserve'

ways a lease can end

effluxion of time brak clause notice to quit merger surrender

Bettini v Gye (1876)

in certain circumstances, the innocent party may treat the contract as having been terminated for repudiatory breach. This is where one party has breached a term of the contract which is either a condition or an innominate term which is to be treated as a condition

notice period for periodic tenancies

weekly tenancies - residential 4 weeks, other 1 week monthly tenancies - 1 month quarterly tenancies - 1 quarter yearly tenancies - 6 months