Lecture 10 - agency - undisclosed agency PDF

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Agency - undisclosed agency ...

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Preliminary point  Undisclosed v unnamed: why important? Liability: Rix LJ in Cumbria Roofing Ltd v Athersmith [2005] EWCA Civ 1098 at [19] ‘the law relating to the liability of an A of an unidentified P is somewhat different from the law relating to an A of an undisclosed P’ Definition Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199 (PC)  Lord Lloyd in *Siu Yin Kwan v Eastern Insurance Co Ltd, at 207D: ‘for present purposes, the law can be summarised shortly. (1) an UP may sue and be sued on a contract made by the A on his behalf, acting within the scope of his actual authority. (2) In entering into the contract, the A must intend to act on the P’s behalf. (3) The A of an undisclosed P may also sue and be sued on the contract. (4) Any defence which the T may have against the A is available against his P. (5) The terms of the contract may expressly or by implication, exclude the P’s right to sue and his liability to be sued. The contract itself, or the circumstances surrounding the contract, may show that the A is the true and only P’.  T does not know of P’s existence, so T thinks A is the P and YET, P has a right to intervene on conditions 1-2 in Siu Yin Kwan  The right can be excluded expressly or impliedly: condition 5 in Siu Yin Kwan  As P is undisclosed, contract between A/T upon which P intervenes : choice of T whom to sue (condition 3 Siu Yin Kwan)  Anomaly in light of privity?  Legal basis of UA? o No accepted legal basis (theories advanced: trust assignment and Professor Tan’s implied ctct theory, based on the beneficial assumption in Teheran-Europe Co Ltd v ST Belton (Tractors) Ltd [1968] 2 QB 545 ) o Justified because commercially convenient: Freeman & Lockyer, Diplock at 503; Siu Yin Kwan v Eastern Insurance Co Ltd at 207, per Lord Lloyd The conditions A must have authority A intended to contract for P Contract does not exclude UP’s intervention Prior authority: Keighley Maxsted v Durant (1901) BUT see Watteau v Fenwick (1893) A intended to contract for P? Subjectivity? Magellan Spirit ApS v Vitol SA, the Magellan Spirit [2016] EWHC 454 (Comm), Leggatt at [17]: ‘it is one thing to infringe upon the objective principle (…) but it would go a step further and would give rise to wholly unacceptable uncertainty, if such rights and obligations were to depend on a purely private intention of the supposed A’. Test to be preferred: Lord Pearson in Garnac Grain Co Inc v HMF Faure & Fairclough: consent of the P and A assessed objectively [1968] AC 1130 (Pearson LJ at 1137)  P may not intervene:

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 Express and/or implied contractual exclusion  Other factors: identity of A Contractual exclusions  Express exclusions: Foster v Action Aviation Ltd [2013] EWHC 2439 (Comm): legal owner, Hamblen J, at 135-136  By implication: property rights v identified as a contracting party: has the A impliedly contracted that there is no P: Bowstead and Reynolds (para 8-079): compare and contrast Humble v Hunter (1848) 12 QB 310 ctct signed ‘CJ Humble esq-owner of the good ship or vessl called Ann’ and Fred Drughorn Ltd [1919] AC 203: ‘charterer’, Viscount Haldane ‘the term ‘charterer’ is very different from the term ‘owner’ or ‘proprietor’ (…) although rights of ownership or rights akin to ownership may be given under it, prima facie it is a contract for the hiring or use of the vessel. (…) the term charterer was meant simply to describe a particular person who is to carry out [the contract] at 207’. Ferryways NV v Associated British Ports [2008] 1 Lloyd’s Rep 639 : ‘employer’ Other factors for exclusion?  A has attributes/personality relevant to T: Greer v Downs Supply Co [1927] 2 KB 28, ‘the ctct was made with the A for reasons personal to the A which induced the other party to contract’ Scrutton LJ at 35. Rolls Royce Power Engineering [2006] EWHC 2871, ‘the contract was not an ordinary commercial contract (…) it was one which was made in circumstances such that (…) Ricardo was not willing to contract with anyone other than Allen’ Seymour QC, at [56]  Inversely, T would NOT ctct with P: Said v Butt [1920] 3 KB 497, McCardie J; Dyster v Randall [1926] Ch 932: if not a personal ctct, identity irrelevant: Lawrence J at 939 no misrepresentation for non disclosure of the beneficiary of the contract ‘even though the contracting party knows that, if the disclosure were made, the other party would not enter into the ctct’ The effects of undisclosed agency  A liable too  T can choose between A and T: Clarkson Booker Ltd v Andjel [1964] 2 QB 775; Adams and Others v Atlas International Property Services Ltd [2016] EWHC 2680 (QB): ‘in my judgment on the claimant’s claims, I will be deciding both whether the claims in contract against Sn Aroca succeed or fail and whether the claims in contract against Atlastax succeed or fail. It is common ground that they cannot both succeed. Once I have decided those issues, it will not be open to the claimant to invite me to change that decision. So there will be no opportunity after judgment is handed down for the claimants to make such an election of the kind proposed. Nor would it be right for claimants to make such an election after I have produced my judgment in draft’ (at [7] per Lavender J)  P can intervene (unless excluded)  If P sues, T has defences against him: Cooke & Sons v Eshelby (1887) 12 App Cas 271...