CARLILL V CARBOLIC SMOKE BALL CO.

The primary ingredients to a valid and enforceable contract are offer, acceptance, consideration and performance; and so, on this occasion the sale of medicinal apparatus proved the undoing of what may have at first blush appeared to be a lucrative use of marketing and false pretence.

In 1891, an advertisement was placed in the Pall Mall Gazette boasting the remedial powers of carbolic smoke balls, that when used in accordance with the manufacturers instructions, could prevent users from the effects of influenza, while the exact words used stated that:

“100l reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. 1000l is deposited with the Alliance Bank, Regent Street shewing our sincerity in the matter.”

Having decided to take the challenge, the respondent in this appeal purchased and used the product in full observation of the terms of the advert, and yet still caught the virus; whereupon, she sued for breach of contract.

Following a general examination of  the nature of her claim, the court awarded in favour of the respondent, before the appellants sought to challenge the existence of a contract on grounds that the advert did not constitute a contract, that non-specificity of persons prevented any binding effect on consumers, that no acceptance had been notified so as to bind them, and that no consideration had been made by the respondent to warrant a claim of right.

After addressing each point sequentially the Court of Appeal unanimously held that while the advert did not amount to a contract, it did represent an offer to the world entire; therefore, those who chose to purchase and use the product as prescribed within the published text, were through their participation, demonstrating full and unconditional acceptance of the offer.

Similarly, the money spent and time invested when using the smoke balls (an unpleasant experience in itself) further indicated that consideration had been sufficient enough to allow a claim.

In addition, the Court upheld the appeal on grounds while noting how unlike arms-length contracts, the all-encompassing design of advertisements were not such that required acceptance for reasons of practicality.

And that reasonable application of the promises made prevented revocation by the advertisers on grounds that when drafting the advert, they did so upon the risk that profit may, or may not, have become certain, while reminding the parties that:

“Inconvenience sustained by one party at the request of the other is enough to create a consideration.”

JOSEPH CONSTANTINE v IMPERIAL SMELTING CORP.

While the doctrine of frustration relies upon the existence of an unforeseen and so unexpected event, its design is not one that requires any element of blame in order to apply, as was seen in this case between a corporation and shipowner.

In August of 1836, the now appellants contracted to supply one of their steamships to the respondents for the purposes of transportation to a number of international sea ports by way of commercial enterprise.

Having been used for the reasons agreed, the ship was later anchored over the Christmas period, while awaiting further use until its return in January 1837.

Unfortunately, while dockside the ship suffered an enormous explosion that sent the auxiliary boiler over one hundred and sixty four feet from its original position, while the primary boilers were forced backwards by the blast; all of which, rendered the vessel inoperable and thereby unable to complete its journey to the respondents.

Having cited frustration of contract, the appellants looked to leave matters as they were; however, the respondents argued that the explosion had arisen by way of negligence and so damages were owed for the loss accrued. 

First heard in the Court of the Kings Bench, the judge held that the appellants were merely unwitting victims of unforeseen circumstances, particularly when a Board of Trade Enquiry had failed to establish any liability in relation to the cause of the explosion, or any possible negligence shown by those working on the ship at the time.

And so, in closing the court held that:

“It is plain that it has not been established that they were guilty of negligence and there is no finding of any negligence. The worst finding against them is under the one heading of possibility of negligence.”

To which the respondents challenged the finding in the Court of Appeals, who awarded in their favour while holding that:

“A party prima facie guilty of a failure to perform his contract cannot escape under the plea of frustration, unless he proves that the frustration occurred without his default. There is no frustration in the legal sense unless he proves affirmatively that the cause was not brought into operation by his default.”

After being denied leave to appeal, the House of Lords Appeal Committee granted it so that the issue of liability could be afforded examined and conclusive clarification, and so the matter was once again given due discussion.

In the first instance, Viscount Simon turned to Taylor v Caldwell; in which, the court held that: 

“[I]n contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance.”

Taylor v Caldwell

While Viscount Maugham noted that in Hirji Muji v Cheong Yue Steamship Co Ltd, the Privy Council held that:

“[W]hatever the consequences of the frustration may be upon the conduct of the parties, its legal effect does not depend on their intention or their opinions, or even knowledge, as to the event, which has brought this about, but on its occurrence in such circumstances as show it to be inconsistent with further prosecution of the adventure.”

Hiri Muji v Cheong Yue Steamship Co Ltd

Before illustrating that in Bank Line Ltd v Arthur Capel & Co, the House of Lords held that:

“I think it is now well settled that the principle of frustration of an adventure assumes that the frustration arises without blame or fault on either side. Reliance cannot be placed on a self-induced frustration; indeed, such conduct might give the other party the option to treat the contract as repudiated.”

Bank Line Ltd v Arthur Capel & Co

And so, it was that a uniform House held how the appeal court judgment was to be reversed on the very simple yet clear principle that: 

“[W]hen frustration in the legal sense occurs, it does not merely provide one party with a defence in an action brought by the other. It kills the contract itself and discharges both parties automatically.”

FA TAMPLIN STEAMSHIP CO. v ANGLO MEXICAN PETROLEUM PRODUCTS CO.

Rescission of contract under abnormal circumstances, can often be cited as frustration, yet unless the parties bargaining are in agreement as to the essence of the contract, there is little a court can do to amend the terms to suit.

In winter of 1912, a ship owner agreed to let one of their fleet to a commercial entity for a period of five years, with no specific requirements as to its use, aside from which types of cargo were acceptable for carriage.

Just over two years into the agreement, the vessel was requisitioned by the British Government under Royal Proclamation; an act which would result in full compensation payable to the affected parties upon its safe return.

Having planned to return the ship after only two months, the Admiralty Transport Service informed the respondents that they would in fact, be extending their requisition indefinitely, thereby denying the respondents any future use of the ship until the end of its military use.

This left the appellants under the assumption that by an alteration in the use of the vessel, the contract had now expired; and so, no further payments were due, and that when issuing compensation, the State was liable for the loss suffered only by the appellants, as they were legally the owners of the ship at the time of requisition; a position fiercely argued by the respondents.

Having failed to settle the matter through arbitration, the case went to trial; during which, the judge held that the requisitioning of the ship did not constitute a termination of the contract, but instead served to suspend the contract until such time that the vessel was returned; which at the point of litigation, was looking unlikely to happen within the agreed five year period.

When presented to the Court of Appeal, the Court affirmed the original judgment; at which point, the matter was placed again before the House of Lords, who first examined the statement by Lord Blackburn in Dahl v Nelson, Donkin & Co; in which, he stressed:

“[A] delay in carrying out a charterparty, caused by something for which neither party was responsible, if so great and long as to make it unreasonable to require the parties to go on with the adventure, entitled either of them, at least while the contract was executory, to consider it at an end.”

Dahl v Nelson, Donkin & Co

However, art.20 of the charterparty agreement also noted that:

“[T]he act of God, perils of the sea, fire, barratry of the master and crew, enemies, pirates and thieves, arrests and restraints of princes, rulers, and peoples, collisions, stranding and other accidents of navigation always excepted, even when occasioned by negligence, default or error in judgment of the pilot, master, mariners or other servants of the shipowner.”

Were exceptions to any rule that might provide for the end of the contract through unforeseen events.

Therefore, the respondents argument that the contract was merely suspended was in fact validated by the imposition by the State during a time of war; and that despite implications forwarded by the appellants, the Court was in no position to argue against an express term of a contract, no matter how inconvenient that might be to those involved.

It was for that simple reason, that the House ruled by majority in favour of the Appeal Court judgment and dismissed the appeal with costs, while reminding the parties that:

“When a lawful contract has been made and there is no default, a Court of law has no power to discharge either party from the performance of it unless either the rights of someone else or some Act of Parliament give the necessary jurisdiction.”

KRELL v HENRY

Performance of a contract since frustrated through unexpected events, lies at the heart of a matter between a landlord and potential tenant, who having secured a room for the purposes of viewing a landmark event, was left unable to realise it when those plans were thwarted through a sudden cancellation.

In 1902, the appellant had negotiated the private use of a room within a property owned by the respondent, who for reasons of convenience, had recently offered the whole property for rent for a six-month period.

Having been aware that the King’s Coronation procession was expected to pass along the Pall Mall, the appellant read that the respondent was offering a single room for a fixed time and sum to those wishing to take advantage of the view afforded.

By means of letter, the two parties agreed upon the arrangement; after which, the appellant paid by cheque, a sum of 25l with a further 50l outstanding.

Unfortunately, the date of the procession was put back; at which point, the appellant refused to pay the outstanding 50l, thereby prompting the respondent to seek recovery of the balance owed, while the appellant counter-claimed for the 25l on grounds that the contract was unenforceable and the deposit due for return.

In the fist hearing, the court awarded in favour of the respondent on both counts, relying upon the principle that the contact rested upon the presence of the Coronation procession, which for the reasons stated had not occurred; therefore, the contract was unable to be completed to the satisfaction of both parties.

Taken to the Court of Appeal, the facts were revisited, along with the earlier facts of Taylor v Caldwell; in which, it was remarked:

“[W]here, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless, when the time for the fulfilment of the contract arrived, some particular specified thing continued to exist, so that when entering into the contract they must have contemplated such continued existence as the foundation of what was to be done; there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be considered a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor.”

Taylor v Caldwell

It was this approach that gave effect to the cancellation of the Coronation procession as being an event that was, as stated in Baily v De Crespigny:

“[O]f such a character that it cannot reasonably be supposed to have been in the contemplation of the contracting parties when the contract was made, and that they are not to be held bound by general words which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterwards happened.”

Baily v De Crespigny

While in ‘Taylor on Evidence’ (vol II) it was also stressed that:

“It may be laid down as a broad and distinct rule of law that extrinsic evidence of every material fact which will enable the Court to ascertain the nature and qualities of the subject-matter of the instrument, or, in other words, to identify the persons and things to which the instrument refers, must of necessity be received.”

So, it was for these fundamental reasons that the Court agreed with the previous decision, and ruled again in favour of the respondent, while reminding the parties that:

“[W]hatever is the suggested implication – be it condition, as in this case, or warranty or representation – one must, in judging whether the implication ought to be made, look not only at the words of the contract, but also at the surrounding facts and the knowledge of the parties of those facts.”

GRANT v BRAGG

As can sometimes happen, the mediation by a solicitor can prove the undoing of bargaining between parties, when for one reason or another, the third party attempts to manipulate matters to the detriment of those he was initially employed to serve.

On this occasion, a shareholder sale agreement was drafted by two company co-directors; one of whom, had decided upon his retirement to relinquish his stake holding for a sum of around £347,000.

During the preliminary stages of the contract, numerous oral agreements were made with little to no conflict; however, as time progressed, the matter became complicated through the construction of a draft agreement, which had been worded by a second firm of solicitors.

At the point of litigation, communication had deteriorated to a quick succession of emails between the respondent and the solicitor alleged to be acting for both parties.

Within these exchanges were a number of comments and misinterpretations that ultimately derailed the negotiations; however, for the purposes of the clarification, the timeline was as follows:

(1) A draft agreement was made on behalf of both parties, subject to mutual consent to the document’s wording.

(2) The respondent’s solicitors suggested an amendment to the terms of the agreement.

(3) The suggestion was construed by the appellant as a rejection of the agreement.

(4) The mediating solicitor construed from a telephone conversation, that the respondent was refusing to sign the agreement without knowledge of the appellant’s future plans.

(5) The respondent expressed that he perceived the appellant to be contractually obliged to purchase the shares.

(6) The respondent denied he had any interest in the future of the company or the appellant.

(7) The mediating solicitor imposed a time restriction for acceptance of the draft agreement.

(8) The mediating solicitor withdrew his services upon expiration of the time restriction.

(9) The respondent later agreed to sign the agreement, despite his earlier reservations.

In the first hearing, the judge found that the discussions within the first and last email were tantamount to a binding contract; and so, awarded accordingly.

However, at the Court of Appeal a reexamination of the facts and chronology of events painted quite a different picture.

Here, it was held that while the contract itself was not subject to time penalties, the position adopted by the ‘mediating’ solicitor was one that implied how all terms of the bargain were now defined through his presence.

Therefore, by the imposition of a threshold upon which to contract, the eventual acceptance by the respondent was both after the fact and thereby null in effect.

Hence, for that reason (and perhaps unnecessary element of the negotiation) the appeal was upheld and judgment awarded to the appellant, while the court reminded the parties that:

“[T]here is a distinction between a counter-offer or a refusal, which does put an end to an offer, and a request for further information which does not amount to a new offer but is to an investigation of the offering party’s position.”

HASHAM v ZENAB

Specific performance and cessation of contract on grounds of mistake, are both viable arguments for either continuation of contractual obligations, or the cessation of a transaction for reasons non-detrimental to both contractees; however, both approaches rely upon the honesty and accountability of at least one party, should the courts take a view to upholding either of them.

In this instance, a Gujarati widower entered into an agreement to convey a determinate plot of land for an agreed sum, yet immediately after signing the disposition she tore up the document and refused to continue with the transaction, on grounds that she had been misled as to the size of the plot, and the identity of the individual to whom the purchaser was planning to sell it to.

During initial litigation in the Supreme Court of Kenya, her argument for the fraudulent misrepresentation was based upon her limited grasp of the English language; and so, she had elected a representative to be present with her at the time of signing.

However, it was also argued that no mention had been given as to the size of the plot; which in the first instance, was alleged to be half an acre and not the two acres contained within the conveyance; a fact discovered only after the signing.

When cross-examined, the respondent was proven to have falsified the statement; and so, her witness was accused of perjury, whereas the appellant contested that during preliminary talks, the proposed plot was described as two acres and not the half-acre suggested.

The contract itself was signed in the presence of a third party; however, the respondent also relied upon the contention that at no point during an earlier meeting did anybody translate the contents of the contract, despite the appellant claiming that not only did he explain it, but that the respondent’s cousin had also clarified its contents to her.

It was likewise argued by the appellant that the respondent tore up the contract, not because of the plot variation, but upon the knowledge that the land was to be resold to an individual she disliked; however, this was also proven to be untrue after lengthy cross-examination and questioning of oral evidence.

Upon summation, the trial judge awarded in favour of the appellant, despite reservations around the integrity of both parties; and so, when presented to the Court of Appeal of East Africa, the Court took issue with the reliability of the appellant’s statements and proceeded to reexamine the facts, before reaching the same conclusion as the lower court.

Taken finally to the House of Lords, it was noted that vol. 2 of ‘Williams on Vendor and Purchaser’ clearly illustrated that:

“[A]s a rule, either party to a contract to sell land is entitled to sue in equity for specific performance of the agreement. This right is, in general, founded on a breach of the contract, but not in the same manner as the right to sue at law. The court has no jurisdiction to award damages at law except in case of a breach of the contract; while the equitable jurisdiction to order an agreement to be specifically performed is not limited to the cases in which at law damages could be recoverable.”

Which translated that when contracting parties hold a good account of themselves throughout their dealings, equity would provide sufficient weight as to instigate specific performance.

Yet, on this occasion neither party had been anywhere near as truthful as a court would rightfully expect; and so, on this principle it was impossible to uphold the appeal, nor enforce the equitable rights of the appellant, or those forwarded by the respondent.

Hence, the appeal was dismissed, while the House reminded the parties that:

“In equity all that is required is to show circumstances which will justify the intervention by a court of equity.”

SPECIFIC PERFORMANCE

Under the law of contract there are times when two parties can no longer honour their agreement, and at which point one of them is left wanting, while in some instances the award of monetary damages is enough to provide remedy; however, there are also those where the loss is irreplaceable.

On those occasions, the court can legally impose a duty on those no longer willing (or seemingly able) to perform the task they originally contracted to undertake. While in certain cases the source of non-performance can also stem from frustration, the criteria here is one of general breakdown of communication or even unresolvable conflict that while perhaps entirely warranted on the part of the negator, leaves the claimant with no other option than to sue.

Once agreed upon, an order for specific performance will comprise two elements (i) declaration of the order and (ii) provision of consequential directions to that effect.

It is also important to note that where a contractual breach is only anticipated the court can still require specific performance or provide injunctive measures, as was outlined by Lord Tucker in Hasham v Zenab:

“In equity all that is required is to show circumstances which will justify the intervention by a court of equity. The purchaser has an equitable interest in the land and could get an injunction to prevent the vendor disposing of the property.”

Hasham v Zenab

In this instance, the potential vendor immediately tore up a signed contract for sale of land after learning that the acreage was greater in the conveyance than as she had orally agreed.

The language barrier between the two parties thus prevented clear understanding of what was at stake; and so left with a collapsed purchase the buyer sought specific performance prior to the completion date, upon which the court pondered its feasibility before dismissing the claim upon grounds of falsified evidence on both sides.

A positive example of specific performance can however be found in Rosesilver v Paton where a purchaser entered into a contract to acquire residential property; after which, the vendor argued that the terms of the agreement relied on reimbursement of the part-purchase payments upon winning their two pending litigation cases, therefore the intention to sell was implied at the outset.

Having examined the inconsistency of the vendor’s argument, the judge dismissed additional claims of fiduciary breach and undue influence on a lack of cohesive evidence before ruling that the sale must now be completed.

When reaching summary judgement Mann J concluded:

“I do not consider that Mr Paton has advanced a sufficiently clear and plausible case for saying that there was any form of binding (in any sense) arrangement, contemporaneously with the contract and its variation, which would restrict or restrain the enforcement of the contract.”

Rosesilver v Paton

There are of course a number of factors that can hinder the ability to undertake a contract of engagement, and these can range from disability and illness, personal conflict, mistrust based upon recent behaviour and costly supervision to enforce the performance.

Likewise, a failure to seek remedy for a protracted period can also work against a claimant as the negator could claim estoppel under the doctrine of laches.

Ultimately, the choice to pursue specific performance will always run with an attached risk of further complications, as the inherent trust between contracting parties will have been irreversibly eroded once litigation commences, therefore financial damages should never be ruled out unless all other options have been exhausted.

INJUNCTIONS

There are many types of legal injunctions across a number of different fields, and their purpose is one of prevention or denial of an action, or that of proximity to a party or place.

In English contract law, there are mandatory (or negative) and prohibitory injunctions.

In English civil litigation, there are interim (also found in criminal law), anti-suit and freezing injunctions.

Within English family law, there are non-molestation and occupation injunctions (or orders),

Under English tort law, a claimant can apply for either partial or temporary injunctive relief, as well as interim and super-injunctions (depending on the circumstances).

In English equity and trust law, there are also perpetual (or final) injunctions, along with quia timet injunctions.

The aim of this article will be to look at all of the above, while supporting each one with illustrative citations to help underpin their use, starting first with negative injunctions.

Mandatory injunctions

Often sought after the fact, the purpose of this injunction is to force by application, the party that has undertaken an act causing sufferance to the clamant, a liability to reverse the damage caused through new action.

There are however, degrees of limitation to its use, as under certain conditions, the extent of work required to restore the balance may outweigh the priority of the claimant seeking redress.

An example of this is Charrington v Simons & Co Ltd, where after selling a portion of his land, the buyer breached the restrictive covenant by resurfacing an adjoining road, despite inherited limitations as to its operational height.

When the applying the mandatory injunction, the previous judge set conditions upon its use that allowed the respondent to effectively trespass on his land when restoring the road to its intended level, which was a decision causing further angst toward the appellant and was overturned to ironically set the injunction back into its proper effect.

This was clarified by Russell LJ, who explained:

“…[T]he judge, in adopting the course which he did, travelled beyond the bounds within which discretion may be judicially exercised; for in effect he sought to force upon a reluctant plaintiff something very like a settlement involving operations by the defendant on the plaintiff’s land which must lead to greatly increased harm to his business as a condition or term of his obtaining a mandatory injunction should the works not prove a satisfactory solution.”

Charrington v Simons & Co Ltd

Prohibitory injunctions

While compelling in their purpose, prohibitory injunctions serve to prevent through inaction, and are often used to control the events that either surround a contractual relationship, or follow when the arrangement is dissolved.

Typical scenarios range from former employees prevented from occupying similar positions within a particular radius, or from using their skills to benefit another in a competing field, through to sportsmen unable to play for specific rival teams for a determined period.

The caveat within these restrictions is one of a right to live; and so any prohibitory injunction granted must not deny those relevant, the opportunity to work and live, inclusive to the terms afforded others in a similar position.

An example of this is Jaggard v Sawyer, where damages in lieu were awarded to avoid the imposition of an injunction after completion of a second property upon land that contained restrictive covenants designed to deny such acts.

While the defendants argued that attempts were made to explain their intentions, and that due care was shown during the building process, the appellants refused to accept damages and moved instead to enforce an injunction that by now, was pointless and highly oppressive to the owners and potential tenants of the new house.

This point was made clear by Sir Thomas Bingham MR, who noted:

“It was suggested that an injunction restraining trespass on the plaintiffs roadway would not be oppressive since the occupiers of No. 5A could use the other half of the roadway outside the plaintiffs house, but this would seem to me unworkable in practice, a recipe for endless dispute and a remedy which would yield nothing of value to the plaintiff.”

Jaggard v Sawyer

Interim injunctions

Found in at least three areas of law, these are often used to deny certain actions for a specific period and most often issued pre-trial in order to preserve order while the parties prepare themselves for the hearing without interruption.

That said, it is important that those seeking one are able to rely upon a substantive cause of action, as was explained by Lord Diplock in The Siskina, when he said:

“A right to obtain an [interim] injunction is not a case of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the [claimant] for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an [interim] injunction is merely ancillary and incidental to the pre-existing cause of action.”

The Siskina

It is also not uncommon for the High Courts to issue interim injunctions when criminal matters call, while this position was made clear when in Attorney-General v Chaudry, Lord Denning MR expounded:

“There are many statutes which provide penalties for breach of them; penalties which are enforceable by means of a fine or even imprisonment but this has never stood in the way of the High Court gaining an injunction. Many a time people have found it profitable to pay a fine and go on breaking the law. In all such cases the High Court has been ready to grant an injunction…”

Attorney-General v Chaudry

Within tort there is legislative security offered through the Protection from Harassment Act 1997 which explains within s.3, that those seeking relief can apply for injunctions carrying criminal sanctions for non-compliance.

This is seen in celebrity and media related cases, including AM v News Group Newspapers Ltd, where an emergency interim injunction was ordered against a number of leading newspapers, after their photographers descended upon the home of a landlord that inadvertently let one of his properties out to a suspected terrorist; an act which then attracted unwanted and stressful press attention around the claimant’s private residence.

The grounds for this restriction were outlined by Tugendhat J, who commented:

“Measures to ensure that respect is given to person’s home and family and family are required by ECHR Art 8 and Human Rights Act 1998 s.6. In so far as the order that I make prohibits disclosure of information, it is with a view to preventing interference with that right by intrusion or harassment, not preventing disclosure of information which is sensitive for any other reason.”

AM v News Group Newspapers Ltd

Freezing injunctions

Also known as a Mareva Injunction, this order is issued in relation to assets involved in a civil claim.

The injunction will typically apply only to the value argued, and it prevents access by one party that might otherwise seek to remove or sell them for profit.

While used to secure their presence during pre-trial and proceedings, the order cannot override the effects of liquidation, and those seeking claim may find themselves denied of success when judgment is made.

An example of the strict criteria surrounding freezing injunctions (particularly without notice) was expressed by Neuberger J in Thane Investments Ltd v Tomlinson (No1), where he remarked:

“…[T]he duty of a person seeking an order, and in particular an order which can have as substantial an effect as a freezing order, in the absence of the Defendant against whom it is sought, is strict and important. An order against a person in his absence, particularly when it is a freezing order, which is a very serious infringement of his rights and liberties, can only be justified on appropriately clear and strong facts and risks. It should only be granted in circumstances which provide maximum protection for the person against whom the order is to be made. The courts have frequently emphasised the importance of compliance with the various requirements of the Rules relating to the obtaining of without notice orders.”

Thane Investments Ltd v Tomlinson (No1)

Non-Molestation injunctions

Designed to provide victim protection within intimate or blood-related relationships, this injunction can be sought by the party involved, or under s.60 of the Family Law Act 1996 where a third party can seek the court’s issue if those suffering are too afraid to request it.

The purpose of this order is in the name, inasmuch as denial of physical access when used to molest, harass or threaten the claimant to the point of legal intervention through verbal abuse and unwarranted use of that person’s private property.

The importance of this order was outlined by Wall J in G v F (Non-Molestation Order: Jurisdiction), where after the original court failed to grant protection to a single mother, it was overturned and expeditiously supported through the words:

“Part IV of the Family Law Act 1996 is designed to provide swift and accessible protective remedies to persons of both sexes who are the victims of domestic violence, provided they fall within the criteria laid down by section 62. It would, I think, be most unfortunate if section 62(3) was narrowly construed so as to exclude borderline cases where swift and effective protection for the victims of domestic violence is required.”

G v F (Non-Molestation Order: Jurisdiction)

Occupation injunctions

Sometimes issued in conjunction with a non-molestation injunction, the occupation injunction confers power upon the court to prevent those in question from occupying a property.

This can be used in both domestic abuse cases and also civil disputes surrounding property ownership or residency.

As this injunction runs risk of serious restriction to individual rights, the circumstances surrounding its use must be fully evaluated to avoid counter claims by the affected party.

This strict yet delicate approach was underlined by Lady Justice Black in Dolan v Corby, where she stressed:

“…[I]t must be recognised that an order requiring a respondent to vacate the family home and overriding his property rights is a grave or draconian order and one which would only be justified in exceptional circumstances, but exceptional circumstances can take many forms and are not confined to violent behaviour on the part of the respondent or the threat of violence and the important thing is for the judge to identify and weigh up all the relevant features of the case whatever their nature.”

Dolan v Corby

Super injunctions

Falling under the umbrella of interim injunctions, a super injunction reveals greater, yet highly focussed powers when preventing actions of third parties.

Typically used to deny publication of potentially damaging material, this order can be issued without notice, and not only denies public access, but anonymises the applicants identities, making it an effective tool for public figures and corporate entities alike.

The validity of this injunction was well explained by The Master of the Rolls in JIH v News Group Newspapers Ltd, where it was outlined:

“…[T]he claimant’s case as to why there is a need for restraints on publication of aspects of the proceedings themselves which can normally be published is simple and cogent. If the media could publish the name of the claimant and the substance of the information which he is seeking to exclude from the public domain (i.e. what would normally be information of absolutely central significance in any story about the case who is seeking what), then the whole purpose of the injunction would be undermined, and the claimant’s private life may be unlawfully exposed.”

JIH v News Group Newspapers Ltd

Perpetual (or final) injunctions

Unlike interim injunctions, these orders are issued at point of judgment, and therefore remain in effect for an unlimited period.

An example of this is Law Society v Kordowski, in which a website designed to allow members of the public free expression of their disdain following direct experience with named solicitors, was challenged upon numerous litigious grounds.

This case was one of a number of individual matters, and when moving to award final and indefinite removal of the site and future publications, Tugendhat J iterated that such injunctions were imperative when:

“The procedural remedy of representative proceedings, coupled with an injunction, may be the best that the law can offer at present to protect the public from the unjustifiable dissemination of false information about the suppliers of goods and services. It is also the means by which the court may protect its limited resources in time and judiciary from having to deal with large numbers of claims by different claimants against the same individual on the same or similar facts.”

Law Society v Kordowski

Quia Timet injunctions

In much the same as mandatory injunctions serve to ‘undo’ the damage done, quia timet injunctions are anticipatory, in that their purpose is the prevention of potential future harm, that while proactive in design, relies upon compelling evidence to provoke court dispensation.

The importance of overwhelming argument was made clear by Lord Dunedin in Attorney-General for Canada v Ritchie Contracting & Supply Co Ltd, when he outlined:

“Any restraint upon that at the instance of the other party must consist of an injunction of the quia timet order. But no one can obtain a quia timet order by merely saying ” Timeo ” ; he must aver and prove that what is going on is calculated to infringe his rights.”

Attorney-General for Canada v Ritchie Contracting & Supply Co Ltd,

In closing, it must be noted that this is by no means an exhaustive list of injunctions; however it is hopefully detailed enough to provide a sound knowledge base when an understanding of their differences and relevance within case law is a priority.

It may also pay to consider that in many instances there will always be degrees of overlap, as nothing in life is ever straightforward, while it is only through the investigative efforts of the judges that the attributable criteria can emerge.

MAPLE LEAF MACRO VOLATILITY MASTER FUND v ROUVROY

When consideration is given by at least one party to a contract (whether interim or final), it becomes in principle, very hard for the other party to claim no contract could stand, irrespective of signatures or third-party withdrawal.

In this case, the founder-directors of a beverage firm sought to rescind an agreement between themselves and a hedge fund provider, despite a long-standing commercial history and openly agreed terms of engagement.

After enjoying moderate success as an alcoholic drinks manufacturer, and having recently acquired a smaller company as part of their expansion, it was decided that the time had come to recoup on their investment; and so, a controlling share of their business was sold to a large financial holdings company.

Within a year, the working relationship between the investors and owners deteriorated, to the degree that the appellants moved to buy back their company and regain controlling influence.

As part of this reversion, the terms of the arrangement required them to obtain significant loans within a very narrow timeframe, which themselves provided stakeholder rights to the lenders.

During the construction of the funding package, the defendants took the step of paying the monies loaned directly to the controlling firm, as part of their commitment to the loan arrangement and repurchase scheme.

When a third party to the draft contract renegotiated a different arrangement with the appellants, they declined to add their signature to the final agreement, leaving only the appellants’ and defendants’ ink upon the document.

It was then argued by the appellants that the absence of a third signature rendered the contract void; and so, there now existed no binding obligation on their part to continue with the loan or invitation to share control.

However, when stripped down and reassembled in its proper context, it was found by the Court of Appeal that due to the significant consideration given by the defendants, there was sufficient evidence to show an enforceable contract that bound both signatories, despite the reluctance of the third party.

Hence, the court dismissed the appeal, while reminding the parties that:

“[A]lthough no contract can be made without an intention to be legally bound, that intention has to be ascertained objectively, not by looking into the parties’ minds.”

SCRIVEN BROS & CO. v HINDLEY & CO.

Negligence and mistake, are two elements of contract law which conflict as between vendor and purchaser, particularly when the former is unreasonably applied to the buyer.

In this very brief but notable case, the issue in hand turns upon the overpayment for a product at auction.

Typical of the period, many agricultural products were imported for domestic use as the temperate weather of foreign countries provided for larger tonnage and lower prices; and so, on this occasion the subject matter was Russian industrial grade hemp, which while grown widely across the UK, remained their largest export at the time, and was a much sought after commodity.

Contrastingly, tow is a by-product of hemp, and thus sold at a much lower price, often for use as upholstery stuffing and other secondary purposes.

However, when a dockside auctioneer put out large bales of both hemp and tow, the samples shown to potential bidders were easily confusable.

To make matters worse, the two consignments were given similar lot names, therefore the possibility of bidding in error was high.

On this occasion, the purchaser had recruited a manager to bid on his behalf; at which point, he had placed similar bids on both items on the assumption that he was buying hemp.

To his further detriment, the auction programmes failed to distinguish the lots; and so, only those who had the foresight to inspect them beforehand were spared the embarrassment of overpaying for items of lower market value.

When the purchaser discovered his managers error, he sued the auctioneers for misrepresentation upon the principle of ‘ad idem’ (which is parties not in agreement to the nature of a contract); who themselves counter-sued for negligence on the part of the manager.

In the original trial, it was found that there could be no evidence of a contract as per the principle of disagreement, and that no grounds of negligence existed in the absence of any duty of care by the manager to examine the lots prior to bidding.

When brought before the Court of the Kings Bench, it became apparent despite a number of opposing facts, that the auctioneers had been recent victims of fraud, thus were simply looking to pass on the loss to another unsuspecting buyer.

And so, irrespective of any argument that the onus of inspection fell to the buyer’s representative, it was found that a contract could not be found to exist where no agreement had been settled between the vendor and the purchaser

Hence, the court awarded for the defendants, while reminding the parties that:

“A buyer when he examines a sample does so for his own benefit and not in the discharge of any duty to the seller.”

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