References: [1985] 1 Lloyd’s Rep 107
Coram: May LJ, Ackner LJ
May LJ considered the creation of a contract by implication, saying: ‘no such contract should be implied on the facts of any given case unless it is necessary to do so: necessary, that is to say, in order to give business reality to a transaction and to create enforceable obligations between parties who are dealing with one another in circumstances in which one would expect that business reality and those enforceable obligations to exist.’
As to choice of jurisdiction by choice of law, May LJ considered BP v Hunt, saying that he would not go so far as Kerr J in saying that the fact that the contract was governed by English law was a predominating factor. That factor would have a different weight in different circumstances.
Ackner LJ observed that where exclusive reliance was placed on the contract being governed by English law, the burden of showing that there was good reason justifying service out of the jurisdiction was a particularly heavy one.
This case is cited by:
- Cited – Sawyer -v- Atari Interactive Inc ChD (Bailii, [2005] EWHC 2351 (Ch), [2006] ILPr 8)
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . . - Cited – Novus Aviation Ltd -v- Onur Air Tasimacilik As CA (Bailii, [2009] EWCA Civ 122, [2009] 1 CLC 850, [2009] 1 Lloyd’s Rep 576)
The defendant appealed against a refusal to set aside the grant of leave to serve outside the jurisdiction granted to the claimant. Neither party conducted and business in England, and the contract was made in Switzerland, but was expressed to be . .
