I – Implied terms
6/3/24
PERHAR v FREESTONE [2024] EWHC 945 (Ch)
The judge below had been wrong to determine on a summary basis the question whether a debenture had been enforceable and that administrators had been properly appointed under it. There were disputed factual issues, including whether the creditor had waived any breach. The debenture did not include any express term as to when the floating charge within it became enforceable and the appeal court did not consider it appropriate to decide on a summary basis the nature of any implied term because this could be fact dependent and might turn on findings made at a trial. The fact that the debenture provided for payment on demand was not sufficient because a term as to reasonable notice might be implied for enforcement of the floating charge.
25/1/23
Considers principles to be applied in ascertaining the express and implied terms of an oral agreement. A majority of the Supreme Court held that on the facts, an agreement to pay an agent a commission if and only if a sale of property for £6.5m was concluded on his introduction, prevented any term from being implied as to payment if a sale was concluded at a lower price. It also prevented any claim succeeding in unjust enrichment.
18/6/20
ESSEX COUNTY COUNCIL v UBB WASTE LTD [2020] EWHC 1581 (TCC)
Considers principles for the implication of terms of good faith in relational contracts [99] and a term that a contractual power or option is to be exercised within a reasonable time [373] [400]. On the facts the defendant had made a number of design errors and as a result had built a facility which could not pass the acceptance tests under a PFI contract for the design, construction and operation of a mechanical biological waste treatment plant.
15/3/19
BATES v POST OFFICE LTD [2019] EWHC 606 (QB)
Contracts between sub-postmasters and the Post Office had been relational contracts with implied duties of good faith. The relevant principles were considered [702].
10/8/17
TAKEDA PHARMACEUTICAL COMPANY LTD v FOUGERA SWEDEN HOLDING 2 AB [2017] EWHC 1995 (Ch)
There was no express or implied term in a sale and purchase agreement which required the seller to provide information to the buyer after completion which might have assisted the buyer to reduce or eliminate a claim by tax authorities. Nor was the seller under any duty to co-operate by providing the information, or not to delay or impede its provision.
13/2/17
ALI v PETROLEUM CO OF TRINIDAD AND TOBAGO [2017] UKPC 2; [2017] ICR 531
Emphasises the test of necessity to imply contract terms [7]. On the facts it was necessary to imply a term that an employer would do nothing to prevent an employee from completing 5 years’ service, excluding justified dismissal or repudiatory breach [11].
2/12/15
MARKS AND SPENCER PLC v BNP PARIBAS SECURITIES SERVICES TRUST COMPANY (JERSEY) LTD [2015] UKSC 72
For a term to be implied it must be necessary for business efficacy or be so obvious as to go without saying. The suggestion that Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10 supports a wider test that a term may be implied if it is reasonable, is wrong. The law is as stated in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) as extended in Philips Electronique Grand Public SA v British Sky Broadcasting Limited (1995). Business efficacy and the officious bystander test are alternatives.
31/3/15
MYERS v KESTREL ACQUISITIONS LTD [2015] EWHC 916 (Ch)
Noteholders claimed that amendments to loan notes had been made in breach of an implied term of good faith and an event of default had occurred because the issuer was insolvent. The court held on the facts that no such term could be implied but balance-sheet insolvency had been established and a declaration was granted to that effect.
20/2/15
ROSSERLANE CONSULTANTS LTD v CREDIT SUISSE INTERNATIONAL [2015] EWHC 384 (Ch)
An agreement giving a bank a right to sell assets in certain circumstances was a self standing commercial agreement freely negotiated between the parties and complete in its form. It had been professionally drafted and it was not possible to imply a term that the bank would take reasonable care to obtain the best price reasonably obtainable.
13/2/15
D&G CARS LTD v ESSEX POLICE AUTHORITY [2015] EWHC 226 (QB)
Considers principles to be applied in deciding whether a breach of contract is a repudiatory breach [170], circumstances in which a term as to good faith or integrity and honesty is to be implied into a contract [174] and circumstances in which liability for acts involving dishonesty or lack of integrity can be attributed to a company [178].
31/10/13
HAMSARD 3147 LTD v BOOTS LTD [2013] EWHC 3251 (Pat)
Considers principles to be applied in determining what was a reasonable period of notice to determine a supply agreement and whether any term as to good faith was to be implied.
20/9/13
DEUTSCHE BANK AG v UNITECH GLOBAL LTD [2013] EWHC 2793 (Comm)
In a claim by a bank for repayment of credit facilities, the defendant was given permission to plead repudiatory breach of an implied term that the bank would not seek to manipulate LIBOR. But permission to plead various other alleged defences was refused. There was an issue estoppel arising from an earlier judgment preventing a claim for rescission for misrepresentation. It made no difference that an appeal was pending against that judgment. Illegality in setting LIBOR could not render the credit and swap agreements void. The agreements did not comprise exchange contracts for the purpose of exchange control legislation. Unsuitability of the swap and manipulation of LIBOR could not be regarded as unusual features of the contractual relationship requiring disclosure and in any event did not affect the defendant's liability as primary obligor. A no set-off clause prevented there being a defence of set-off.
17/7/13
ENERGY VENTURE PARTNERS LTD v MALABU OIL & GAS LTD [2013] EWHC 2118 (Comm)
Broker held entitled to reasonable fees under an implied agreement or implied term.
25/6/13
DANIEL STEWART & CO PLC v ENVIRONMENTAL WASTE CONTROLS PLC [2013] EWHC 1763 (QB)
Under an agreement for an investment bank to get a company listed on AIM, a fee was payable if the project did not proceed for reasons unconnected by the bank’s performance. The company regarded the bank’s valuation as too low and the listing did not proceed. The company was held liable to pay the fee. Although the bank had been required to act in good faith and rationally, the court refused to imply a term that the bank was required to act reasonably in deciding whether to proceed with the listing. The term was too uncertain and incapable of objective assessment.
24/5/13
GAVIN v ONE HOUSING GROUP LTD [2013] EWCA Civ 580
No term implied into a commercial lease for the landlord to repair retained parts of building. Exaggerating claim and unreasonably refusing offers to settle was sufficient to justify an award of indemnity costs.
23/5/13
ASPECT CONTRACTS (ASBESTOS) LTD v HUGGINS CONTRACTORS LTD [2013] EWHC 1322 (TCC)
A claim for a negative declaration that the claimant was not in breach of a construction contract was time-barred. The claimant could not rely on a new cause of action following an unfavourable adjudication under the HGCRA Scheme because there was no implied term in the construction contract that the party who lost the adjudication had a new cause of action to recover money paid to satisfy the adjudicator’s decision.
8/5/13
TSG BUILDING SERVICES PLC v SOUTH ANGLIA HOUSING LTD [2013] EWHC 1151 (TCC)
On its proper construction a contract which gave each party the right to terminate at any time and for any reason did not require the party which terminated to act reasonably in doing so, nor was there an implied term of good faith requiring it to do so. No compensation was therefore payable on termination.
15/3/13
MID ESSEX HOSPITAL SERVICES NHS TRUST v COMPASS GROUP UK & IRELAND LTD [2013] EWCA Civ 200
There was no implied term in a catering and cleaning service contract that in deciding whether to impose service failure points leading to payment deductions, the Trust would not exercise its discretion arbitrarily, capriciously or irrationally. The contract contained a mechanism to determine when service failure points became due, including a dispute resolution clause. Once the points were due, the Trust had an unfettered discretion whether or not to award them.
8/3/13
MRI TRADING AG v ERDENET MINING CORP LLC [2013] EWCA Civ 156
Although a metal supply contract omitted a shipping schedule and some charges, its terms were sufficiently certain to create an enforceable contract. The contract was part of a wider agreement which the parties had been performing. In those circumstances a term could be implied that the shipping schedule and charges were to be reasonable or determined by arbitration in the event of disagreement.
28/2/13
DEUTSCHE BANK AG v UNITECH GLOBAL LTD [2013] EWHC 471 (Comm)
The defendants were refused permission to amend their pleadings against the bank to plead false implied representations by the bank that the LIBOR rate applicable to a swap transaction was genuine and the bank did not intend to manipulate it. The proposed amendments were not sufficiently arguable. Permission might be given to plead reliance on an implied term that the bank would not manipulate the rate.
15/2/13
SWALLOWFALLS LTD v MONACO YACHTING & TECHNOLOGIES SAM [2013] EWHC 236 (Comm)
Where the seller of a yacht borrowed money from the buyer under a loan agreement to be repaid at certain milestones during the course of the yacht's construction by the seller, it was an implied term of the loan agreement that the buyer would not breach the construction agreement so as to prevent or delay the seller from repaying the loan. The buyer's claim for repayment was stayed pending determination of arbitration proceedings to decide whether the buyer had breached the construction agreement by not confirming that the milestones had been reached.
1/2/13
YAM SENG PTE LTD v INTERNATIONAL TRADE CORP LTD [2013] EWHC 111 (QB)
There is nothing novel or foreign to English law in recognising an implied duty of good faith in the performance of contracts [145].
21/11/12
YILPORT KOTENYNER TERMINALI VE LIMAN ISLETEMELERI AS v BUXCLIFF KG [2012] EWHC 3289 (Comm)
Although a party to a contract had a discretion to fix rates and charges, there was an implied term that the charges had to be reasonable. But since services had been provided in an emergency, the claimant was not required to provide detailed proof of its expenditure.
29/10/12
GRAISELEY PROPERTIES LTD v BARCLAYS BANK PLC [2012] EWHC 3093 (Comm)
The claimant was given permission to amend its claim against the bank to plead false and fraudulent implied representations made by the bank and implied terms that the LIBOR rate applicable to a swap transaction was genuine and the bank did not intend to manipulate it. The proposed amendments gave rise to a sufficiently arguable case.
27/7/12
ASSENAGON ASSET MANAGEMENT SA v IRISH BANK RESOLUTION CORP LTD [2012] EWHC 2090 (Ch), [2013] Bus LR 266
A majority of bond holders were not entitled to vote for a resolution which expropriated the rights of the minority for nominal consideration. The power of the majority under the contract to bind the minority was subject to an implied term that the power should be exercised for the benefit of the class as a whole not individual members.
EUROPTION STRATEGIC FUND LTD v SKANDINAVISKA ENSKILDA BANKEN AB [2012] EWHC 584 (Comm)
Where a clearing broker had a discretion to close–out transactions if a client failed to provide sufficient cash margin for option transactions, the broker’s duty was limited to exercising its discretion rationally. The broker owed no duty of care in tort and when closing-out transactions the broker was not providing a service within the meaning of the Supply of Goods & Services Act 1982 so there was no implied term of skill and care. Nor was it necessary to imply a term applying common law principles.