Saturday, 30 April 2011
Prince William
Thursday, 28 April 2011
William’s surprising uniform choice honors servicemen
LONDON – Prince William has opted for a surprising choice of uniform for his wedding to Kate Middleton at Westminster Abbey on Friday.
Britain’s future King will walk down the aisle wearing his bright red tunic from his honorary position as colonel of the Irish Guards, a regiment of the British Army which has spent the last six months deployed in Afghanistan, where three of their members were killed in action.
William has not served directly with the unit, but was afforded the honorary title of Colonel due to his growing status as a senior member of the Royal Family, where he is second in line to the throne.
It was widely expected that the prince would instead get married in his formal Royal Air Force uniform, the service in which he is currently employed as a search and rescue helicopter pilot. Bookmakers Paddy Power even stopped taking bets on that choice, after more than 90 per cent of gamblers placed money on the specific outcome.
However, St James’s Palace officials confirmed that William had instead taken the step of using his highest ranking uniform, partially to honor those servicemen who lost their lives in combat. The ensemble will give him a truly regal look and will be the height of grandeur and propriety for the grand occasion.
His outfit contains a crimson and gold sash and gold sword slings, which are to be worn when officers of the unit are in the presence of a royal. He will not, as speculated, wear a sword, but will wear a Garter Sash with the Wings of the Royal Air Force, plus military medallions the Garter Star and the Golden Jubilee Medal.
William’s dazzling tunic is distinctive in that the buttons are arranged in groups of four, featuring logos of the Harp of Ireland topped by the Crown Imperial motif of the British monarchy.
Another option for William would have been to wear the uniform of the Blues and Royals, the army regiment which he was commissioned into after graduating from the Sandhurst military training academy.
Instead, that uniform will be worn by his brother and best man Prince Harry. Harry’s gear will come complete with aiguillettes – official decorative tags – a cross-belt and a gold waist belt with sword slings, but also no sword.
His attire will be adorned with badges of the Wings of the Army Air Corps, the Golden Jubilee Medal and the Afghanistan Campaign medal. Harry spent 10 weeks serving in Afghanistan until February 2008, before his tour of duty was revealed by a German newspaper and he was brought home.
There were no details, however, surrounding the dress to be worn by the bride, which has been the best-kept secret of a wedding which has seen its preparations take place firmly under the glare of the public eye.
Sunday, 24 April 2011
MISREPRESENTATION
INTRODUCTION:
A misrepresentation is a false statement of fact made by one party to another, which, whilst not being a term of the contract, induces the other party to enter the contract.
The effect of an actionable misrepresentation is to make the contract voidable, giving the innocent party the right to rescind the contract and/or claim damages.
1. FALSE STATEMENT OF FACT
An actionable misrepresentation must be a false statement of fact, not opinion or future intention or law.
(A) STATEMENTS OF OPINION
A false statement of opinion is not a misrepresentation of fact. See:
Bisset v Wilkinson [1927] AC 177.
However, Threr are two exceptions.
1) where the person giving the statement was in a position to know the true facts and it can be proved that he could not reasonably have held such a view as a result, then his opinion will be treated as a statement of fact.
Smith v Land & House Property Corp. (1884) 28 Ch D 7.
Esso Petroleum ltd v Mardon [1976] QB 801.
2) Which can lead to statement of openion being treated as a false steatement of fact is where there is evidence that the person making the statement does not believe it at the time that it is made.
Edgington vs Fitzmaurice(1885) 29 Ch D 459
(B) MERE PUFF
Some expressions of opinion are mere puffs. Thus, in Dimmock v Hallet (1866) 2 Ch App 21, the description of land as 'fertile and improvable' was held not to constitute a representation.
(C) STATEMENTS AS TO THE FUTURE
A false statement by a person as to what he will do in the future is not a misrepresentation and will not be binding on a person unless the statement is incorporated into a contract.
However, if a person knows that his promise, which has induced another to enter into a contract, will not in fact be carried out then he will be liable.
Edgington v Fitzmaurice (1885) 29 Ch D 459
(D) STATEMENTS OF THE LAW
A false statement as to the law is not actionable misrepresentation because everyone is presumed to know the law. However, the distinction between fact and law is not simple.
Solle v Butcher [1950] 1 KB 671.
(E) SILENCE
Generally, silence is not a misrepresentation. The effect of the maxim caveat emptor is that the other party has no duty to disclose problems voluntarily. Thus if one party is labouring under a misapprehension there is no duty on the other party to correct it.
Smith v Hughes (1871) LR 6 QB 597.
However, there are three fundamental exceptions to this rule:
(i) HALF TRUTHS
The representor must not misleadingly tell only part of the truth. Thus, a statement that does not present the whole truth may be regarded as a misrepresentation.
Nottingham Brick & Tile Co. v Butler (1889) 16 QBD 778.
Dimmock v Hallet (1866) 2 Ch App 21
(ii) SUBSEQUENTL FULSITY
Where a statement was true when made out but due to a change of circumstances has become false by the time it is acted upon, there is a duty to disclose the truth. See:
With v O'Flanagan [1936] Ch 575.
(iii) CONTRACTS UTMOST GOOD FAITH
Contracts uberrimae fidei (contracts of the utmost good faith) impose a duty of disclosure of all material facts because one party is in a strong position to know the truth. Examples would include contracts of insurance and family settlements.
A material fact is something which would influence a reasonable person in making the contract. If one party fails to do this, the contract may be avoided.
Lambert v Co-Operative Insurance Society [1975] 2 Lloyd's Rep 485.
Where there is a fiduciary relationship between the parties to a contract a duty of disclosure will arise, eg, solicitor and client, bank manager and client, trustee and beneficiary, and inter-family agreements.
(F) OTHER REPRESENTATIONS
The term 'statement' is not to be interpreted too literally:
In Gordon v Selico Ltd (1986) 278 EG 53, it was held that painting over dry rot, immediately prior to sale of the property, was a fraudulent misrepresentation.
In St Marylebone Property v Payne (1994) 45 EG 156, the use of a photograph taken from the air, printed with arrows (misleadingly) indicating the extent of land boundaries, was held to convey a statement of fact (which amounted to actionable misrepresentation).
2. THE MISREPRESENTATION MUST HAVE INDUCED THE CONTRACT:
The false statement must have induced the representee to enter into the contract. The requirements here are that (a) the misrepresentation must be material and (b) it must have been relied on.
(A) MATERIALITY
The misrepresentation must be material, in the sense that it would have induced a reasonable person to enter into the contract. In Edgington v Fitzmaurice (1885) 29 Ch D 459 it was held that misrepresentation need not be sole inducement that it was an inducement which was actively present to the representee’s mind. However, the rule is not strictly objective:
In Museprime Properties v Adhill Properties [1990] 36 EG 114, the judge referred, with approval, to the view of Goff and Jones: Law of Restitution that, any misrepresentation which induces a person to enter into a contract should be a ground for rescission of that contract. If the misrepresentation would have induced a reasonable person to enter into the contract, then the court will presume that the representee was so induced, and the onus will be on the representor to show that the representee did not rely on the misrepresentation either wholly or in part. If, however, the misrepresentation would not have induced a reasonable person to contract, the onus will be on the misrepresentee to show that the misrepresentation induced him to act as he did.
(B) RELIANCE
The representee must have relied on the misrepresentation.
However, there will be no reliance if the misrepresentee was unaware of the misrepresentation.
Horsfall v Thomas [1862] 1 H&C 90.
There will be no reliance excpt fraudulent misrepresentation, if the representee does not rely on the misrepresentation but on his own judgment or investigations.
Attwood v Small (1838) 6 CI & F 232.
There will be reliance even if the misrepresentee is given an opportunity to discover the truth but does not take the offer up. The misrepresentation will still be considered as an inducement.
Redgrave v Hurd (1881) 20 Ch D 1.
There will be reliance even if the misrepresentation was not the only inducement for the representee to enter into the contract.
Edgington v Fitzmaurice (1885) 29 Ch D 459
3. ADDRESS TO THE PARTY MISLED:
It must be shown that the misrepresentation was address to the party misled. There are two ways in which a representation may address to the party misled. The First and most obvious method is by the direct communication of the misrepresentation to the claimant by the misrepresentor. Alternatively, the misrepresentation may be addressed by the representor to a third party with the intention that it be passed on the claimant: Commercial Banking Co of Sydney vs RH Brown and Co (1972).
4. TYPES OF MISREPRESENTATION:
Once misrepresentation has been established it is necessary to consider what type of misrepresentation has been made. There are three types of misrepresentation: fraudulent, negligent and wholly innocent. The importance of the distinction lies in the remedies available for each type.
(A) FRAUDULENT MISREPRESENTATION
Fraudulent misrepresentation was defined by Lord Herschell in Derry v Peek (1889) as a false statement that is "made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless as to whether it be true or false." Therefore, if someone makes a statement which they honestly believe is true, then it cannot be fraudulent: Derry v Peek (1889) 14 App Cas 337.
The burden of proof is on the plaintiff - he who asserts fraud must prove it. Tactically, it may be difficult to prove fraud, in the light of Lord Herschell's requirements.
The remedy is rescission (subject to exceptions discussed later) and damages in the tort of deceit (see later).
(B) NEGLIGENT MISREPRESENTATION
This is a false statement made by a person who had no reasonable grounds for believing it to be true. There are two possible ways to claim: either under common law or statute.
(B) (i). NEGLIGENT MISSTATEMENT AT COMMON LAW
The House of Lords have held that in certain circumstances damages may be recoverable in tort for negligent misstatement causing financial loss:
Hedley Byrne v Heller and partner [1964] AC 465.
Success depends upon proof of a special relationship existing between the parties. Such a duty can arise in a purely commercial relationship where the representor has (or purports to have) some special skill or knowledge and knows (or it is reasonable for him to assume) that the representee will rely on the representation.
Esso Petroleum v Mardon [1976]
Williams v Natural Life Health Foods (1998) TheTimes, May 1.
Williams v Natural Life Health Foods (1998) TheTimes, May 1.
The remedies are rescission (subject to exceptions discussed later) and damages in the tort of negligence.
(B) (ii). NEGLIGENT MISSTATEMENT UNDER MISREP ACT 1967:
Section 2(1) of the Misrepresentation Act 1967 provides:
"Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true."
This provision does not require the representee to establish a duty of care and reverses the burden of proof. Once a party has proved that there has been a misrepresentation which induced him to enter into the contract, the person making the misrepresentation will be liable in damages unless he proves he had reasonable grounds to believe and did believe that the facts represented were true. This burden may be difficult to discharge as shown in:
Howard Marine & Dredging Co v Ogden & Sons [1978] QB 574.
(C) WHOLLY INNOCENT MISREPRESENTATION:
This is a false statement which the person makes honestly believing it to be true.
The remedy is either (i) rescission with an indemnity, or (ii) damages in lieu of rescission under the courts discretion in s2(2) Misrepresentation Act 1967.
REMEDIES:
Recent case-law has shown that the remedies available are as those available in fraud unless the representor discharges the burden of proof. In particular, damages will be based in the tort of deceit rather than the tort of negligence.
4. REMEDIES FOR MISREPRESENTATION
Once an actionable misrepresentation has been established, it is then necessary to consider the remedies available to the misrepresentee.
(A) RESCISSION
Rescission, ie setting aside the contract, is possible in all cases of misrepresentation. The aim of rescission is to put the parties back in their original position, as though the contract had not been made.
The injured party may rescind the contract by giving notice to the representor. However, this is not always necessary as any act indicating repudiation, eg notifying the authorities, may suffice.
Car & Universal Finance v Caldwell [1965] 1 QB 525.
BARS TO RESCISSION:
Rescission is an equitable remedy and is awarded at the discretion of the court. The injured party may lose the right to rescind in the following four circumstances:
(i) AFFIRMATION OF THE CONTRACT:
The injured party will affirm the contract if, with full knowledge of the misrepresentation and of their right to rescind, they expressly state that they intend to continue with the contract, or if they do an act from which the intention may be implied.
Long v Lloyd [1958] 1 WLR 753.
Note that in Peyman v Lanjani [1985] Ch 457, the Court of Appeal held that the plaintiff had not lost his right to rescind because, knowing of the facts which afforded this right, he proceeded with the contract, unless he also knew of the right to rescind. The plaintiff here did not know he had such right. As he did not know he had such right, he could not be said to have elected to affirm the contract.
(ii) LAPSE OF TIME:
If the injured party does not take action to rescind within a reasonable time, the right will be lost.
Where the misrepresentation is fraudulent, time runs from the time when the fraud was, or with reasonable diligence could have been discovered. In the case of non-fraudulent misrepresentation, time runs from the date of the contract, not the date of discovery of the misrepresentation. See:
Leaf v International Galleries [1950] 2 KB 86.
(iii) RESTITUTION IN INTEGRUM IMPOSSIBLE:
The injured party will lose the right to rescind if substantial restoration is impossible, ie if the parties cannot be restored to their original position.
Vigers v Pike (1842) 8 CI&F 562.
Clark vs Dikson (1858)
Precise restoration is not required and the remedy is still available if substantial restoration is possible. Thus, deterioration in the value or condition of property is not a bar to rescission:
Armstrong v Jackson [1917] 2 KB 822.
(iv) THIRD PARTY ACQUIRES RIGHTS:
If a third party acquires rights in property, in good faith and for value, the misrepresentee will lose their right to rescind. See: Phillips v Brooks [1919] 2 KB 243 under Mistake.
Thus, if A obtains goods from B by misrepresentation and sells them to C, who takes in good faith, B cannot later rescind when he discovers the misrepresentation in order to recover the goods from C.
(v) NOTE:
The right to rescind the contract will also be lost if the court exercises its discretion to award damages in lieu of rescission under s2(2) of the Misrepresentation Act 1967.
For innocent misrepresentation two previous bars to rescission were removed by s1 of the Misrepresentation Act 1967: the misrepresentee can rescind despite the misrepresentation becoming a term of the contract (s1(a)), and the misrepresentee can rescind even if the contract has been executed (s1(b)). Generally, this will be relevant to contracts for the sale of land and to tenancies.
(B) INDEMNITY
An order of rescission may be accompanied by the court ordering an indemnity. This is a money payment by the misrepresentor in respect of expenses necessarily created in complying with the terms of the contract and is different from damages.
Whittington v Seale-Hayne (1900) 82 LT 49.
(C) DAMAGES:
(i) FRAUDULENT MISREPRESENTATION
The injured party may claim damages for fraudulent misrepresentation in the tort of deceit. The purpose of damages is to restore the victim to the position he occupied before the representation had been made.
The test of remoteness in deceit is that the injured party may recover for all the direct loss incurred as a result of the fraudulent misrepresentation, regardless of foreseeability:
Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158
Smith New Court Securities v Scrimgeour Vickers [1996] 4 All ER 769.
Smith New Court Securities v Scrimgeour Vickers [1996] 4 All ER 769.
Moreover, damages may include lost opportunity costs, eg loss of profits. See:
East v Maurer [1991] 2 All ER 733.
In Archer v Brown [1984] 2 All ER 267, the court held that the plaintiff was entitled to aggravated damages in deceit for the distress he had suffered.
The claimant will not be entitled to recover damages after the date he discovered the misrepresentation and had an opportunity to avoid further loss:
Downs v Chappell [1996] 3 All ER 344.
(ii) NEGLIGENT MISREPRESENTATION
The injured party may elect to claim damages for negligent misrepresentation at common law. The test of remoteness in the tort of negligence is that the injured party may recover
for only reasonably foreseeable loss (Esso Petroleum v Mardon [1976] QB 801).
Alternatively, the injured party may claim damages for negligent misrepresentation under s2(1) of the Misrepresentation Act 1967. This will be the normal course to pursue as s2(1) reverses the burden of proof. Damages will be assessed on the same basis as fraudulent misrepresentation rather than the tort of negligence, ie 'direct consequence' rather than 'reasonable foresee ability'.
Royscott Trust Ltd v Rogerson [1991] 3 WLR 57
(iii) INNOCENT MISREPRESENTATION
In cases of non-fraudulent misrepresentation, s2(2) of the Misrepresentation Act 1967 gives the court a discretion, where the injured party would be entitled to rescind, to award damages in lieu of rescission. Damages under s2(2) cannot be claimed as such; they can only be awarded by the court. Section 2(2) states:
"Where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to rescind the contract, then, if it is claimed, in any proceedings arising out of the contract, that the contract ought to be or has been rescinded the court or arbitrator may declare the contract subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party."
It is not clear from the above words if the right to damages will be lost if the representee has lost the right to rescind (See Cheshire & Fifoot, p301-2; Treitel, p333). According to Thomas Witter v TBP Industries (1996) this will not be a bar provided the plaintiff had such a right in the past.
It is not yet clear what the measure of damages is under s2(2):
According to Treitel (p337) and to Chitty, damages under s2(2) may be lower than the damages awarded under s2(1). Chitty suggests the possibility of a special measure to compensate the injured party for the loss of the right to rescind.
According to Cheshire & Fifoot, compensation should be limited to an indemnity (p305). This was in substance the view taken by the High Court in:
Thomas Witter v TBP Industries [1996] 2 All ER 573.
5. EXCLUDING LIABILITY FOR MISREPRESENTATION:
Any term of a contract which excludes liability for misrepresentation or restricts the remedy available is subject to the test of reasonableness. Section 3 of the Misrepresentation Act 1967, as amended by s8 of UCTA 1977, provides that:
"If a contract contains a term which would exclude or restrict:
a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made; or
b) any remedy available to another party to the contract by reason of such a misrepresentation, that term shall be of no effect except insofar as it satisfies the requirement of reasonableness as stated in s11(1) of the Unfair Contract Terms Act 1977; and it is for those claiming that the term satisfies that requirement to show that it does."
(Section 11(1) UCTA 1977 provides that "… the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.")
FORMATION OF A CONTRACT
INTRODUCTION
A contract may be defined as an agreement between two or more parties that is intended to be legally binding.
The first requisite of any contract is an agreement (consisting of an offer and acceptance). At least two parties are required; one of them, the offeror, makes an offer which the other, the offeree, accepts.
OFFER
An offer is an expression of willingness to contract made with the intention that it shall become binding on the offeror as soon as it is accepted by the offeree.
A genuine offer is different from what is known as an "invitation to treat", ie where a party is merely inviting offers, which he is then free to accept or reject. The following are examples of invitations to treat:
1. AUCTIONS
In an auction, the auctioneer's call for bids is an invitation to treat, a request for offers. The bids made by persons at the auction are offers, which the auctioneer can accept or reject as he chooses. Similarly, the bidder may retract his bid before it is accepted. See:
Payne v Cave (1789) 3 Term Rep 148
2. DISPLAY OF GOODS
The display of goods with a price ticket attached in a shop window or on a supermarket shelf is not an offer to sell but an invitation for customers to make an offer to buy. See:
Fisher v Bell [1960] 3 All ER 731
P.S.G.B. v Boots Chemists [1953] 1 All ER 482.
3. ADVERTISEMENTS
Advertisements of goods for sale are normally interpreted as invitations to treat. See:
Partridge v Crittenden [1968] 2 All ER 421.
However, advertisements may be construed as offers if they are unilateral, ie, open to all the world to accept (eg, offers for rewards). See:
Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256.
4. MERE STATEMENTS OF PRICE
A statement of the minimum price at which a party may be willing to sell will not amount to an offer. See:
Harvey v Facey [1893] AC 552
Gibson v Manchester County Council [1979] 1 All ER 972.
5. TENDERS
Where goods are advertised for sale by tender, the statement is not an offer, but an invitation to treat; that is, it is a request by the owner of the goods for offers to purchase them. The process of competitive tendering came under scrutiny in the following cases:
Harvela Investments v Royal Trust Co. of Canada [1985] 2 All ER 966
Blackpool Aero Club v Blackpool Borough Council [1990] 3 All ER 25.
ACCEPTANCE
An acceptance is a final and unqualified acceptance of the terms of an offer. To make a binding contract the acceptance must exactly match the offer. The offeree must accept all the terms of the offer.
However, in certain cases it is possible to have a binding contract without a matching offer and acceptance. See:
Brogden v Metropolitan Railway Co. (1877) 2 App Cas 666
Lord Denning in Gibson v Manchester City Council [1979] above
Percy Trentham Ltd v Archital Luxfer Ltd [1993] 1 Lloyd's Rep 25.
The following rules have been developed by the courts with regard to acceptance:
1. COUNTER OFFERS
If in his reply to an offer, the offeree introduces a new term or varies the terms of the offer, then that reply cannot amount to an acceptance. Instead, the reply is treated as a "counter offer", which the original offeror is free to accept or reject. A counter-offer also amounts to a rejection of the original offer which cannot then be subsequently accepted. See:
Hyde v Wrench (1840) 3 Beav 334.
A counter-offer should be distinguished from a mere request for information. See:
Stevenson v McLean (1880) 5 QBD 346.
If A makes an offer on his standard document and B accepts on a document containing his conflicting standard terms, a contract will be made on B's terms if A acts upon B's communication, eg by delivering goods. This situation is known as the "battle of the forms". See:
Butler Machine Tool v Excell-o-Corp [1979] 1 All ER 965.
2. CONDITIONAL ACCEPTANCE
If the offeree puts a condition in the acceptance, then it will not be binding.
3. TENDERS
A tender is an offer, the acceptance of which leads to the formation of a contract. However, difficulties arise where tenders are invited for the periodical supply of goods:
(a)Where X advertises for offers to supply a specified quantity of goods, to be supplied during a specified time, and Y offers to supply, acceptance of Y's tender creates a contract, under which Y is bound to supply the goods and the buyer X is bound to accept them and pay for them.
(b) Where X advertises for offers to supply goods up to a stated maximum, during a certain period, the goods to be supplied as and when demanded, acceptance by X of a tender received from Y does not create a contract. Instead, X's acceptance converts Y's tender into a standing offer to supply the goods up to the stated maximum at the stated price as and when requested to do so by X. The standing offer is accepted each time X places an order, so that there are a series of separate contracts for the supply of goods. See:
Great Northern Railway Co. v Witham (1873) LR 9 CP 16.
4. COMMUNICATION OF ACCEPTANCE
The general rule is that an acceptance must be communicated to the offeror. Until and unless the acceptance is so communicated, no contract comes into existence:
Lord Denning in Entores v Miles Far East Corp. [1955] 2 All ER 493.
The acceptance must be communicated by the offeree or someone authorized by the offeree. If someone accepts on behalf of the offeree, without authorization, this will not be a valid acceptance:
Powell v Lee (1908) 99 LT 284.
The offeror cannot impose a contract on the offeree against his wishes by deeming that his silence should amount to an acceptance:
Felthouse v Bindley (1862) 11 CBNS 869.
Where an instantaneous method of communication is used, eg telex, it will take effect when and where it is received. See:
Entores v Miles Far East Corp [1955] 2 QB 327
The Brimnes [1975] QB 929
Brinkibon v Stahag Stahl [1983] 2 AC 34.
5. EXCEPTIONS TO THE COMMUNICATION RULE
a) In unilateral contracts the normal rule for communication of acceptance to the offeror does not apply. Carrying out the stipulated task is enough to constitute acceptance of the offer.
b) The offeror may expressly or impliedly waive the need for communication of acceptance by the offeree, eg, where goods are dispatched in response to an offer to buy.
c) The Postal Rule - Where acceptance by post has been requested or where it is an appropriate and reasonable means of communication between the parties, then acceptance is complete as soon as the letter of acceptance is posted, even if the letter is delayed, destroyed or lost in the post so that it never reaches the offeror. See:
Adams v Lindsell (1818) 1 B & Ald 681.
Household Fire Insurance Co. v Grant (1879) 4 Ex D 216.
The postal rule applies to communications of acceptance by cable, including telegram, but not to instantaneous modes such as telephone, telex and fax. The postal rule will not apply:
(i) Where the letter of acceptance has not been properly posted, as in Re London and Northern Bank (1900), where the letter of acceptance was handed to a postman only authorised to deliver mail and not to collect it.
(ii) Where the letter is not properly addressed. There is no authority on this point.
(iii) Where the express terms of the offer exclude the postal rule, ie if the offer specifies that the acceptance must reach the offeror. In Holwell Securities v Hughes (1974, below), the postal rule was held not to apply where the offer was to be accepted by "notice in writing". Actual communication was required.
(iv) It was said in Holwell Securities that the rule would not be applied where it would produce a "manifest inconvenience or absurdity".
Revocation of posted acceptance:
Can an offeree withdraw his acceptance, after it has been posted, by a later communication, which reaches the offeror before the acceptance? There is no clear authority in English law. The Scottish case of Dunmore v Alexander (1830) appears to permit such a revocation but it is an unclear decision. A strict application of the postal rule would not permit such withdrawal. This view is supported by decisions in: New Zealand in Wenkheim v Arndt (1873) and South Africa in A-Z Bazaars v Ministry of Agriculture (1974). However, such an approach is regarded as inflexible.
6. METHOD OF ACCEPTANCE:
The offer may specify that acceptance must reach the offeror in which case actual communication will be required. See:
Holwell Securities v Hughes [1974] 1 All ER 161.
If a method is prescribed without it being made clear that no other method will suffice then it seems that an equally advantageous method would suffice. See:
Tinn v Hoffman (1873) 29 LT 271
Yates Building Co. v Pulleyn Ltd (1975) 119 SJ 370.
7. KNOWLEDGE OF THE OFFER:
An offeree may perform the act that constitutes acceptance of an offer, with knowledge of that offer, but for a motive other than accepting the offer. The question that then arises is whether his act amounts to a valid acceptance. The position seems to be that:
(a) An acceptance which is wholly motivated by factors other than the existence of the offer has no effect.
R v Clarke (1927) 40 CLR 227
(b) Where, however, the existence of the offer plays some part, however small, in inducing a person to do the required act, there is a valid acceptance of the offer. See:
Williams v Carwardine (1833) 5 Car & P 566.
8. CROSS-OFFERS:
A writes to B offering to sell certain property at a stated price. B writes to A offering to buy the same property at the same price. The letters cross in the post. Is there (a) an offer and acceptance, (b) a contract? This problem was discussed, obiter, by the Court in Tinn v Hoffman (1873) 29 LT 271. Five judges said that cross-offers do not make a binding contract. One judge said they do.
TERMINATION OF THE OFFER
1. ACCEPTANCE
Once an offer has been accepted, a binding contract is made and the offer ends.
2. REJECTION
If the offeree rejects the offer that is the end of it.
3. REVOCATION
The offer may be revoked by the offeror at any time until it is accepted. However, the revocation of the offer must be communicated to the offeree(s). Unless and until the revocation is so communicated, it is ineffective. See:
Byrne v Van Tienhoven (1880) 5 CPD 344.
The revocation need not be communicated by the offeror personally, it is sufficient if it is done through a reliable third party. See:
Dickinson v Dodds (1876) 2 ChD 463.
Where an offer is made to the whole world, it appears that it may be revoked by taking reasonable steps. See:
Shuey v United States [1875] 92 US 73.
Once the offeree has commenced performance of a unilateral offer, the offeror may not revoke the offer. See:
Errington v Errington [1952] 1 All ER 149
Daulia v Four Millbank Nominees [1978] 2 All ER 557.
4. COUNTER OFFER
See above for Hyde v Wrench (1840).
5. LAPSE OF TIME
Where an offer is stated to be open for a specific length of time, then the offer automatically terminates when that time limit expires. Where there is no express time limit, an offer is normally open only for a reasonable time. See:
Ramsgate Victoria Hotel v Montefiore (1866) LR 1 Ex 109.
6. FAILURE OF A CONDITION
An offer may be made subject to conditions. Such a condition may be stated expressly by the offeror or implied by the courts from the circumstances. If the condition is not satisfied the offer is not capable of being accepted. See:
Financings Ltd v Stimson [1962] 3 All ER 386.
7. DEATH
The offeree cannot accept an offer after notice of the offeror's death. However, if the offeree does not know of the offeror's death, and there is no personal element involved, then he may accept the offer. See:
Bradbury v Morgan (1862) 1 H&C 249.
SUGGESTED READING FOR OFFER & ACCEPTANCE
OFFER :Definition of Offer (Khokon Vai Hand note)
INVITATION TO TREAT :Definition of ITT (Khokon Vai Hand note)
Rabiul Sir (Two way of ITT and discussion)
Khokon Vai (Exceptions of ITT of hand note)
COMMUNICATION OF OFFER :McKendrick (Including Hudsin’s argument)
Rabiul Sir (Communication of Offer + Acceptance of the Offer)
COUNTER OFFER :Elliott
Rabiul Sir (Communication of Offer + Acceptance of the Offer)
ACCEPTANCE :Rabiul Sir (Hand note)
McKendrick
COMMUNICATION OF ACCEPTANCE :Khokon Vai (Hand note)
INSTANTANEOUS COMMUNICATION :Khokon Vai { Hand note(III) }
ACCEPTANCE BY SILENCE :Elliott (p.19)
PRESCRIBE METHOD OF ACCEPTANCE : McKendrick (p.45)
POSTAL RULE :Khokon Vai (Hand note)
McKendrick (p.49)
REVOCATION OF POSTAL RULE :Khokon Vai (Hand note)
REVOCATION OF BILATERAL :Elliott (p.16-18)
REVOCATION OF UNILATERAL :WT MAJOR (p.30-32)
TERMIMNATION OF OFFER :Rabiul Sir (Hand note)
DEFAMATION
INTRODUCTION
The law of defamation is concerned with protecting the reputation of an individual, corporation or other legal person from the harm caused by the communication of untrue statements to a third party. It involves a balance between protecting the claimant and maintaining the right of freedom of speech. Legal Aid is not available either to pursue, or to defend an action for defamation;
Defamation is only defined at common law. Early references to inducing ‘hatred or ‘contempt’ {Parmiter v Coupland (1840)} have been replaced by Lord Atkin's classic definition given in Sim v Stretch (1936):
“do the words tend to lower the plaintiff [claimant] in the estimation of right-thinking members of society generally?”
DISTINCTION BETWEEN LIBEL AND SLANDER
There is no single tort of “defamation”, there are two different torts - libel and slander. It is necessary to distinguish between the two as in some aspects different rules apply.
The basic distinction lies in the form in which the statement is conveyed to a third party. Libel applies to statements conveyed in a permanent form; slander applies to statements conveyed in a transient form. It is clear therefore that spoken words are slander and printed words are libel.
Youssoupoff V MGM Pictures Ltd (CA 1934): The court had to consider the status of spoken words in a permanent form, in the context of a film. The court held that the film was libellous, placing an emphasis on, although not holding as decisive, the permanency of the film.
S 3 of Law of Libel Amendment Act 1888: Libel is a crime also. Slander is not a crime. .
For most cases of slander special/actual damage is necessary. Only four slanders are actionable viz:
1. Imputation of a criminal offence punishable with imprisonment.
2. Imputation of disease.
3. Imputation of unchastity to a crime.
4. Imputation of unfitness or incompetance.
WHO CAN SUE?
Only a living person may sue.
Derbyshire County Council V Times Newspaper ( 1993 HL): Public authority cannot sue for defamtion.
Metropolitan Saloon Omnibus Co. V Hawkins (1859 ): Trading corporation may sue for defamation affecting its trading reputation or property.
ELEMENTS OF DEFAMATION
There are a number of hurdles, each of which the claimant must cross to prove a case of defamation:
1. The statement / picture / gesture was defamatory;
2. The statement referred to the claimant;
3. The defamatory statement was published to a third party.
1. DEFAMATORY STATEMENT
Monson V Tussauds Ltd (1894): A wax-model exhibition was held to constitute a libel. The claimant had been cleared of a murder charge, however a model of him with a gun described as his own was displayed in the famous museum in close proximity to other depictions of murders and notorious murder scenes.
Charleston V News Group Newspapers Ltd (1995 HL): An article must be read as a whole with the picture which may not be defamatory. The position would be different if the antidote in in the text is in a place where the reader would be unlike to find it.
Tolley V JS Fry (1930 HL): The words may be prima facie innocent but, in the light of extrinsic facts known to persons to whom the statement is published, bear some secondary defamatory meaning. This is a true, or legal, innuendo.
Cassidy V Daily Mirror Newspapers (1929): The words may reasonably be taken as meaning, not what the defendant intended by them.
Youssoupoff V MGM Pictures Ltd (CA 1934): The court had to consider the status of spoken words in a permanent form, in the context of a film. The court held that the film was libellous, placing an emphasis on, although not holding as decisive, the permanency of the film.
Berkoff V Burchill (CA 1996): If the meaning of the article is hideously ugly, it could be capable of being defamatory. This is so as it makes him an object of ridicule in eyes of public.
2. REFERENCE TO THE CLAIMANT
Morgan V Odhams Press Ltd (HL 1941): For identifying the refered person the test would be as follows: whether a hypothetical, sensible reader of the article, having knowledge of the special circumstances, would believe that the claimant was refered to. In other words the statement must reasonably be understood to refer to the claimant.
Knuppfer V London Express Newspaper Ltd (HL 1944):
1. Normally where the defamatory statement is directed at a class of persons no individual belonging to the class is entitled to say that the words were published of him.
2. Smaller the group likely there is a claim.
3. Each member of a body, no matter how large, would be defamed when the assertion consisted that no one of the members of a community was elected unless he had committed murder (Lord Porter).
3. PUBLICATION
Theaker V Richardson (1962): It is not always foreseable that one spouse will open the other’s mail. But it could be foreseable (as it happened in that case) if the letter looks like a election circular the spouse might open the letter.
Godfrey V Demon Internet (2001 ): If the claimant notifies a server of an internet website and the website fails to withdraw its defamatory materials posted by other, it might be liable.
Forrester v Tyrrell (CA 1893): Reading out a defamatory document to a third party is, on the balance of authority a libel . Thus If A dictates a defamatory letter to a typist he publishes a slander in doing so.
REPUBLICATION
Speight V Gosnay (CA 1891): D will be liable in three situations viz:
1. where he authorises or intended the republication eg sending a letter to a newpaper (Cutler V McPhail 1962); speaking in a press conference Sims V Wran (1984).
2.where the person who republishes the words is under a legal or moral duty to repeat them to a third person.
3. where the republication is the natural and probable result of the original publication. Read the facts of McManus V Beckham (2002)
DEFENCES
1. Justification (Truth).
2. Fair Comment.
3. Privilege.
4. Offer to Make Amends.
5. Innocent Dissemination
6. Consent.
1. JUSTIFICATION (TRUTH)
Alexander V North Eastern Railway (1865): It is not necessary to prove that the statement is literally true. It is sufficient if it is true in substance p 163 of Salmon & Heuston on the Law of Torts (1992 Sweet and Maxwell ).
Williams V Reason (1988): D may widen the meaning of the words by arguing that they impute general dishonesty rather than particular matter. See the facts.
Prager V Times Newspapers: D may plead justification of any alternative meaning of the word. Pleading of justification must state the meaning which is sought to justify.
S 5 of the Defamation Act 1952: provides that the defence does not fail if the truth of a number of charges cannot be proved, provided that the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.
S 13 of the Civil Evdence Act 1968, as amended by the Defamation Act 1996: Where the defendant's allegation is that the plaintiff has been convicted of an offence and in fact he was convicted, it is conclusive evidence that he did commit it.
S 8 of the Rehabilitation of Offenders Act 1974: The fact that the plaintiff’s conviction is “spent” under the Rehabilitabon of Offenders Act 1974 does not prevent the defendant from relying upon justification, but in this case the defence is defeated by proof of malice. For detail see p 435 of Winfield.
2. FAIR COMMENT
It is a defence that the statement is a fair comment upon a matter of public interest. What is in the public interest is a question of law for the judge and, whilst there is no exhaustive category of such matters, it covers the conduct of government and public institutions, works of art and literature produced for public consumption, theatrical productions and the like. A man’s private life is not a matter of public interest unless it reflects upon his ability or fitness for public office.
To plead the defence of fair comment the defendant must cross three hurdles.
The defendant must show that the defamatory statement concerned
1. a matter of public interest.
2. fair comment.
3. an observation or inference from facts, not an assertion of fact .
Branson V Bower (2001 CA):
Slim V Daily Telegraph (1968): The comment must be fair and the test is whether the defendant was an honest man expressing his genuine opinion. Honest belief is enough.
Telnikoff V Matusevitch (1991 HL):
1. The House held that the test for fair comment is objective one: “could any fair-minded man honestly express that opinion on the proved facts? {p 268 of Torts by Alastair Mullis and Ken Oliphant (1997)}.
2. Where D is proved to have been actuated by malice the defence of fair comment will be defeated. Burden of proof on the claimant.
Brent Walker group plc V Time Out Ltd (1991): In case of republication publisher has to prove that his re-publication is fair and accurate.
3. PRIVILEGE
A. Absolute privilege (with or without malice)
Statements made on an occasion of absolute privilege are not actionable regardless of whether the defendant was malicious. They include the following:
(a) Statements in Parliament
Artcle ix of Bill of Rights 1689: Statements made in the course of parliamentary debate and proceedings.
Section 1 the Parliamentary Papers Acr 1840: Reports, papers, votes and proceedings ordered to be published by either House of Parliament.
Section 13 of the Defamation Act 1996: Members of Parliament may now waive Parliamentary privilege for the purpose of bringing proceedings. Hamilton V Al Fayed (2001) is the prominent example in this regard.
(b) Statements made during the course of judicial proceedings, whether by judge, jury, counsel or witnesses, provided they are broadly relevant to the issue before the court.
Trapp v Mackie (HL, 1979): The privilege extends not only to proceedings in an ordinary court of law but to any tribunal recognised by law and acting in a similar manner, even though it is not empowered to take a final decision on the issue.
Addis v Crocker (HC 1961): The Disciplinary Committee of the Law Society would get the privilege.
Taylor V Director Serious Fraud Office (1999 HL): Absolute privilege covered any statement or conduct which is such that it can fairly be said to be part of the process of investing a crime or a possible crime with a view to a prosecution or a possible prosecution in respect of the matter being investigated.
Mahon V Rahn (2000):
(c) Communications between solicitor and client in connection with litigation. It is not clear whether other communications attract absolute or merely qualified privilege, but in any event what passes between them is only protected in so far as it is reasonably referable to the solicitor‑client relationship (Minter v Priest (HL 1930)).
(d) Communications by one officer of state to another in the course of his official duty (Chatterton v Secretary of State for India (CA 1895)). It is doubtful whether the privilege extends below communications on a ministerial level, though there may well be a qualified privilege.
(e) By section 14 of the Defamation Act 1996 fair and accurate reports of proceedings in public before any court in the United Kingdom, the European Court of Justice, the European Court of Human Rights or any international criminal tribunal set up by the United Nations. The report must be, published, contemporaneously with the proceedings.
(f) Statutory protection is given to various reports of the Parliamentary Commissioner, for Administration and of Local Commissioners.
g) Statements between husband and wife.
B. Qualified privilege (without malice)
QUALIFIED PRIVILEGE AT COMMON LAW
A. Duty to make the statement
Examples: Rreporting to the police
B. Defence of assets or reputation against C’s attack (Regan V Taylor 2000)
C. Helping others in pursuing one’s legitimate interests (Beach V Freeson 1972).
D. Protect public interests, basically by the newpapers. See also Reynold, above.
QUALIFIED PRIVILEGE UNDER STATUTE
A. Court reporting
Schedule 1 of the Defamation Act 1996: A fair and accurate report, contemporaneous or not anywhere in the world is privileged without explanation or contradiction.
B. Parliament
Fair and accurate extracts and abstarcts of papers published by parliamentary authority (Scedule 1 of the Defamation Act 1996)
C. Other official bodies and meetings
This defence exists in respect of statements made for the protection of one’s private interests or for the protection of the public interest, as where a complaint is laid before the proper authorities to secure the redress of a public grievance. It is also available where the maker of the statement and the recipient have a common interest in the matter, or where the recipient alone has an interest and the maker is under a legal, moral or social duty to communicate as, for instance, where a reference is given to a prospective employer.
Where D is proved to have been actuated by malice the defence of qualified privilege will be defeated.
Adam v Ward (HL 1917)): An essential requirement is that the person to whom the statement is made must have an interest or duty, legal, social or moral, to make it to the person to whom it is made. An equally essential requirement is that the person to whom the statement is made must either have a reciprocal interest or be under a corresponding duty to receive it.
Watts V Longsdon (CA 1930): Adam rule does not mean that both parties must have a duty or both an interest. One may have an interest and the other a duty as in the common case of an employment reference.
Horrocks V Lowe (1975 ): If the D knew that the statement was untrue at the time he made it.
Reynolds V Times Newspaper (1999 HL): There was an attempt by The Times to expand the scope of qualified privilege to protect “political information” in all circumstances, subject only to the test of malice. This attempt failed.
After citing Lord Atkinson’s formulation {Adam v Ward (HL 1917)} with approval, Lord Nicholls, who gave the leading speech in the House of Lords, summed up his position in these words: “My conclusion is that the established common law approach to misstatements of fact remains essentially sound. Thc common law should not develop “political information” as a new ‘subject matter’ category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern” (625j).
Lord Nicholls also suggested a no-exhaustive list of circumstances which would be relevant to the question of whethethe media should be regaded as having a duty to convey information and public a corresponding interest in receiving it:
“1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the alleagation is not true.
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the claimant will not always be necessary.
8. Whether the article contained the gist of the claimant’s side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of facts.
10. the circumstances of the publication, including the timing.”
Turkington and Others V Times Newspapers (2000):
4. OFFER TO MAKE AMENDS
The Defamation Act 1996 repeals section 4 of the Defamation Act 1952 and provides, by sections 2-4, for the similar but modified defence of an offer to make amends. The offer, which must be in writing,, must be not only to make a suitable correction of the alleged defamatory statement and a sufficient apology to the plaintiff, but also to pay such compensation and costs as may be agreed or determined to be payable. If such an offer is accepted no proceedings may be brought or continued in respect of the publication concerned, but if it is not, the defendant has a defence unless he knew or had reason to believe that the statement referred, or was likely to be understood as referring, to the plaintiff and was both false and defamatory of him. It is presumed that the defendant did not have the requisite knowledge of, or reason to believe, those matters until the plaintiff proves otherwise. An offer to make amends cannot be made after serving a defence in defamation proceedings and, once made and relied upon by way of defence, no other defence may be raised. The offer may be relied on in mitigation of damages whether or not it was relied on ss a defence.
5. INNOCENT DISSEMINATION
Section 1 of the Defamation Act 1996
(1) In defamation proceedings a person has a defence if he shows that--
(a) he was not the author, editor or publisher of the statement complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.
6. CONSENT
It is a defence that the claimant has expressly or impliedly consented to the publication complained of. Most clear example would be- in cases of slander the aggrieved party sometimes, perhaps rashly, invites the speaker to repeat that before witness.
REMEDIES
1.DAMAGES
2.INJUNCTION
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