English Legal Cases Made Easy Episode 10 – When is a Contract a Contract? Or can we just agree to disagree?

It’s easy to tell if you’ve made a contract with somebody isn’t it?  Well, there are some who would argue that even if it looks like a duck and quacks like a duck, that does not mean it necessarily is a duck!  A company called G.Percy Trentham Limited was instructed to carry out what Lord Justice Steyn called “window works” on a construction site.  That is, they were asked to design, supply and install windows in a building.  Now, the other side in this argument, Archital Luxfer Limited, undertook this work.  They were manufacturers and installers of aluminium windows.  (Case citation: G. Percy Trentham Ltd v Archital Luxfer Ltd [1993] 1 Lloyd’s Rep. 25; 63 B.L.R.44 CA (Civ Div) I am sure that you are now looking at this arrangement and saying to yourself – well, that’s a clear case of a contractor and a sub-contractor.  However, if you were on Archital’s side, you would be wrong.  They argued that there was no binding contract (‘sub’ or otherwise) at all!  This is despite the fact that Archital carried out the work fully and Trentham paid them – in full.  Confused?  You will be!

The problem arose when the main employer (Municipal Mutual) took action against the main contractor (Trentham) for defects and delays who then took action against the subbie (Archital).  It gets easier – honestly.  Peeved by having to pay out substantial sums of money when it wasn’t their fault, Trentham placed the blame on their sub-contractors, one of which was Archital who then took great exception to this and vigorously defended themselves.   Their defence was two-pronged; firstly that there were no defects or delays and secondly, that there was not even a contract between them so how could it be breached… nurr!

Their reasoning was that no integrated written contract ever came into being and, furthermore, they had never fully agreed on terms.  Trentham argued that there were oral discussions, written exchanges and, of course, performance of these transactions by Archital.  Hmm.. Checkmate I believe. 

This was heard in the Court of Appeal and the point of appeal was that the first judge should not have come to his conclusions (that there was a binding contract) on the evidence placed before him.  Archital’s appeal against this decision was rejected.

The Court of Appeal judge said “I am, in any event, satisfied that in this fully executed transaction a contract came into existence during performance even if it cannot be precisely analysed in terms of offer and acceptance and it does not matter that a [written] contract came into existence after part of the work had been carried out and paid for.”  He finished with “I would therefore hold that a binding contract was concluded”.

So there you have it.  Even if you faff about swapping letters, forms, changing prices and asking endless questions, if you then go on to perform the essential requirements of the service that you have been asked to do and it is paid for – then, quite frankly, you have a contract.  Quack quack!

Tina Morgan    www.john-kennedy.co.uk      

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English Legal Cases Maded Easy Episode 7 - Oh Dear, What Can the Matter Be - in which a public convenience becomes extremely inconvenient

Imagine how you would feel if you went into a public lavatory, shut the door behind you and when you went to leave, found the lock was broken and you couldn't get out. Oh dear! This is what happened to poor Mrs Sayers way back in the '50's when there was such a thing as a public toilet. The poor lady was well and truly stuck in the lavatory and the only thing she could think to do was to escape over the top. Unfortunately, she decided to use the toilet-roll holder as a step-ladder. Sadly for her, the toilet-roll holder did what they are put on this earth to do - that is - roll. Mrs Sayers fell and hurt her leg. I'll put you out of your misery at this point as you are probably agog with anxiety as to how badly poor Mrs Sayers was hurt and I'll tell you that apparently it "wasn't serious" but it "wasn't trivial". Mmmm...that's what I like - straight talking!

Naturally, (and let's face it, it was the call of nature that started this whole thing) Mrs Sayers took the local authority to court for their negligence in not maintaining their toilet cubicles to a proper standard and she won. She did, however, lose a portion of the damages awarded to her because the court felt that putting your whole weight on to a toilet-roll holder was probably not appropriate in all the circumstances.

This case is an example of contributory negligence - that is, that although the person suffered an injury due to somebody else's negligence, their own negligence contributed to that injury. In this case, Mrs Sayers was held to have contributed to her own injury to the level of 25%. (Case citation: Sayers v Harlow UDC (1958) 1 WLR 623).

I suppose, to be on the safe side, one should perhaps leave the door open to prevent this kind of calamity but on the other hand, there are certain things one should keep to oneself - wouldn't you agree?

Tina Morgan   www.john-kennedy.co.uk

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English Legal Cases Made Easy Episode 6 - Lord Justice Sherlock? - in which a House of Lords Judge quotes a fictional character

You have to have evidence to prove your case. If you are the Crown trying to find a 'baddie' guilty, you have to prove your case against him or her beyond a reasonable doubt. If you go to civil court, however, perhaps for a broken contract or for negligence maybe, you have to prove your case on a balance of probabilities. This means that it is more probable than not that you are right. One of the legal cases that establishes this is a shipping case. The crew of the Popi M were happily steaming across the Mediterranean when, bam, a big hole opened up in the hull of the ship which promptly sank to the bottom of the sea taking all the evidence with it. How could this have happened? The insurers declared that it was wear and tear on the ship - in other words, the old tub had just sunk and it wasn't up to them, therefore, to pay out on the insurance . The owners of the ship, however, contended that the ship had been struck by an unidentified, moving, submerged submarine that was never detected, never seen and which never surfaced. Well, let's face it, it could happen to anyone!

What was the Judge to decide? He plumped for the less implausible of the 2 accounts. Yes, he thought that plain old wear and tear was virtually impossible whereas an invisible, undetected, badly-driven submarine was much more believable.

This case was particularly unusual in that, when it got to the highest court in the land, the House of Lords, the judgment included a quotation from a fictional character. Lord Brandon said "[the Judge] fell into error in applying the approach propounded by Sherlock Holmes in that well known legal text "The Sign of Four", in which he reminded Dr Watson: "How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?" (Case citation: Rhesa Shipping Co v Edmunds [1985] 1 WLR 948)

The outcome of the case was that the House of Lords said that if the Judge found each side's evidence equally unconvincing, then the claimant had clearly failed to prove his case on a balance of probabilities ie he had not demonstrated that it was more probable than not.

And so, the Case of the Invisible Submarine indubitably failed to convince the venerable Law Lords of England and Wales. It's all just elementary my dear Watson.

Tina Morgan  www.john-kennedy.co.uk

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English Legal Cases Made Easy Episode 5 - Oh What a Nuisance!

You know the old saying - you can't choose your family and you can't choose your neighbours - well, some of us think we are dead unlucky with our neighbours. They can be such a pain - parking their caravan on the front drive, having parties, playing the trumpet, having bonfires in the garden, you know the sort of thing. Well, the next time a little bit of smoke is floating across the garden fence or you have just heard the 150th attempt at a major C scale, spare a thought for poor old John Rylands who had been happily mining his land for coal. Like a mole he had dug some nice tunnels and was content in their construction, when, dash-it-all, the Fletchers next door built a reservoir to run their mill. Needless to say, as plastic pond-liners hadn't been invented back in 1868, the water seeped into the ground and flooded Rylands' lovingly-excavated tunnels and mine-shafts. Well, they'd put up with the trumpet-tootling and the bonfires but this was the straw that broke the camel's back.

Off they went to court but sadly, the first court said that having water on your land is not the sort of thing that you can complain about your neighbours for - even if it is a reservoir. Rylands took issue with the "nuisance" perpetrated by Fletcher but the court held that there had been no negligence by Fletcher, so tough! Rylands was clearly not the sort of person to give in; he appealed and the case finally got to the highest court in the land - the House of Lords.

So, perseverance won the day in the end and it was another great moment in the annals of English legal cases that prove a point. The point it proved is that if you take something on to your land which is likely to do mischief if it escapes and it does so, then you will be liable for the damage. Here are a few words from the Lord Chancellor for your enjoyment:

"The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property." (Lord Cairns) (Rylands v Fletcher [1868] UKHL 1)

The question was not whether Fletcher had acted with due care and caution, it was whether his actions had caused the damage. This is the doctrine of strict liability.

So next time you take rampaging cattle into your garden or produce stenches from your industrial processes or even, perish the thought, have a seriously leaky loo, be prepared to have your poor "damnified" next-door neighbour take you to court for being a right rotten nuisance.

Tina Morgan   www.john-kennedy.co.uk

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English Legal Cases Made Easy Episode 4 - Don't Believe the Hype - A warning for purveyors of snake oil

Once upon a time (and a very, very long time ago) people were extremely silly and believed what they were told in an advertisement, something which would never happen these days! One of these people bought a small ball filled with carbolic acid from which a rubber tube entered the nose and when the ball was squeezed, the vapours made the nose run thereby preventing the catching of flu. Well, so the company who made them claimed. In fact, they were so insistent that this little device would prevent the owner from getting flu, they proclaimed in their advertisement that if it were to fail, they would pay £100 to the poor sufferer (if they survived of course, as flu was a tricky customer in 1891) and to show their sincerity, they had deposited £1000 with a bank in Regent Street.

Well, Mrs Carlill (for that was her name) duly bought herself a Carbolic Smoke Ball and used it in accordance with the instructions. Sadly, however, she contracted the flu. Upon recovery from said flu, Mrs Carlill became the personification of vengeance and pursued the Carbolic Smoke Ball Company to within an inch of its life. I won't bore you with the arguments but the outcome was that Mrs Carlill won her reward of £100 (and seemed to suffer no lasting ill-effects from either the flu or the nasally-inserted rubber hose complete with nostril-hair-removing carbolic fumes).

The point of law that arose from this strange case was to do with contract law (Case citation: Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1). The company argued that it was not meant to be a real contract and that the promise of a reward was a "mere puff" which was not meant to be taken seriously. They also said that it did not comply with the requirements of a proper contract as the offer was made to the public as a whole and there was no "acceptance" (necessary to form a contract at that time). The judges thought otherwise and said that the Company had made a UNILATERAL offer of a contract to the entire world and that Mrs Carlill had accepted that offer by purchasing the Smoke Ball. They also said that the Company had clearly meant what they had said as they had deposited the money with a bank. In other words, the only "mere puff" had been from the smoke ball itself.

Finally, just so as you know, carbolic acid was put on the Poisons Register in 1900 and Mrs Carlill lived to a ripe old age of 96, succumbing to the Grim Reaper in 1942 mainly through old age but, sadly, also due to a touch of flu.

Tina Morgan   www.john-kennedy.co.uk

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