An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under the TOA and an injunction to prevent the defendants proceeding in California. The defendants appealed. There were allegations of the withholding of information which would be treated differently in the two courts.
Held: If the agent had no obligation to disclose anything, his failure to do so could not be characterised as fraudulent or negligent, whatever his motives may have been. The agreement gave explicit preference to English law. The clause specifying what was to be disclosed was neither unfair nor unreasonable. The injunction was correctly granted.
Judges:
Lord Justice Aldous, Lord Justice Clarke, And Lord Justice Laws
Citations:
[2001] EWCA Civ 658, [2001] 3 All ER 733
Links:
Statutes:
Unfair Contract Terms Act 1977 2(2), Misrepresentation Act 1967 3
Jurisdiction:
England and Wales
Citing:
Cited – Reichhold Norway ASA and Reichhold Chemicals Inc v Goldman Sachs International CA 28-Jun-1999
An application was made to stay proceedings to await the decision of a foreign court. At first instance, Moore-Bick J had held that a Court has an interest in deciding the order in which related proceedings should be tried ‘not only because the . .
Cited – Sheffield v Oxford Controls Co Ltd EAT 18-Dec-1978
The company had been owned equally by Mr. Sheffield and Mr. Raison. The Raisons gained effective control of the company on the issue of shares. Mr. and Mrs. Sheffield had been employed, but after a row, she was told she would have to go. This . .
Cited – Societe Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) PC 14-May-1987
Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a . .
Cited – Continental Bank Na v Aeakos Compania Naviera Sa and Others CA 26-Nov-1993
The Bank was entitled to an injunction in the UK, by virtue of the jurisdiction given in their agreement, even though it was not the UK court which was first seised of the matter. Steyn LJ said: ‘. . a claim for damages for breach of contract would . .
Cited – Aggeliki Charis Compania Maritima SA v Pagnan SpA – The Angelic Grace CA 1995
On the charterers’ orders the Angelic Grace was required to tie up alongside another vessel which they owned. Whilst unloading the weather turned and the vessels collided. Each blamed the other and the owners claimed a salvage. The court considered . .
Cited – Airbus Industrie G I E v Patel and Others HL 2-Apr-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
Cited – Roger Thomas Donohue v Armco Inc and others CA 29-Mar-2000
The claimant sought an order restraining the defendants from pursuing a claim in America. The parties were party to a contract governed by English law, but the allegation was one of fraud, and the defendants said this was outside the provisions of . .
Cited – Canada Steamship Lines Ltd v The King PC 21-Jan-1952
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .
Cited – Smith v UMB Chrysler (Scotland) Ltd HL 9-Nov-1977
The principles set out in Canada Steamship apply to ‘clauses which purport to exempt one party to a contract from liability’. The principles should be applied without ‘mechanistic construction’.
Lord Keith of Kinkel said: The tests were . .
Cited – Phillips Products Ltd v Hyland CA 1987
To decide whether a clause is an exclusion clause it is necessary to look at the effect of the clause and not its form. ‘There is no mystique about `exclusion’ or `restriction’ clauses. To decide whether a person `excludes’ liability by reference to . .
Cited – de Dampierre v de Dampierre HL 1988
The existence and state of foreign proceedings are relevant to the exercise of the court’s discretion to stay an action on the ground of forum non conveniens. The essential test on which the court might exercise its discretion to stay the petition . .
Cited – Smith v Eric S Bush, a firm etc HL 20-Apr-1989
In Smith, the lender instructed a valuer who knew that the buyer and mortgagee were likely to rely on his valuation alone. The valuer said his terms excluded responsibility. The mortgagor had paid an inspection fee to the building society and . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Stewart Gill Ltd v Horatio Myer and Co Ltd CA 1992
The ‘guidelines’ in Schedule 2 are usually regarded as of general application to the question of reasonableness under the 1977 Act. The effect of s13 which deals with exemption clauses, is to apply s3 inter alia to ‘no set off’ clauses. The . .
Cited – Thomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .
Cited by:
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – Sheffield United Football Club Ltd v West Ham United Football Club Plc ComC 26-Nov-2008
The claimant sought an order to prevent the defendant company from pursuing further an appeal against a decision made by an independent arbitator in their favour as regards the conduct of the defendant in the Premier League in 2006/2007.
Held: . .
Lists of cited by and citing cases may be incomplete.
Banking, Jurisdiction, Contract
Updated: 31 January 2022; Ref: scu.135463
