"Forged Warehouse Receipts Access World has become aware that there are forged warehouse receipts in our name circulating in the market. We encourage holders of any Access World warehouse receipts to seek authentication from the relevant issuing office for any warehouse receipts not issued to them directly by Access World."
" ... In order to provide relevant market participants with additional clarity, we are now announcing a four business day authentication window commencing Friday10 February 2017 and ending Wednesday15 February 2017 . Holders are requested to make appointments with the relevant issuing office to be scheduled during business hours within this period. We note that currently all relevant forged warehouse receipts we have seen have been in the name of Access World Logistics (Singapore) Pte Ltd (previously Pacorini Metals (Asia) Pte. Ltd.) and have been solely across nickel . ... "
“42. By way of overview, Marex contends that AW is contractually liable on promises (or warranties) of delivery of metal that it made to Marex and/or Natixis, as contained in: (a) The thirteen PC4 receipts and the PC5 receipts that were expressly authenticated by AW in its emails dated22 December 2016 and9 January 2017 (the “Authentication Emails”) ; and/or (b) The so-called PMA letters dated23 November 2016 ,19 December 2016 and3 January 2017 sent by AW to Natixis with specific reference to the PC4 and PC5 receipts (the “PMA letters”) . 43. In each case, Marex specifically relies on the promise or warranty by AW that “[d]elivery will be made upon presentation of the duly completed/endorsed ORIGINAL Warehouse Receipt” (as set out in the PC4-5 receipts) and/or that “upon receiving the original warehouse receipt duly endorsed, signed and dated by the order party, and subject to payment of [its] warehousing fees, [it] will release the goods to the endorsee without further written instructions from the order party” (as set out in the PMA letters) . 44. There are issues as to whether the above statements ever took effect as contractually binding promises or warranties, and how any contract arose as between AW (on the one hand) and either Marex or Natixis (on the other hand) in the terms of such promises or warranties. However, for the reasons explored in paragraphs 51 -52 and 54 below, it is submitted that there is no particular difficulty in identifying the usual ingredients of a contract or a contractual promise or warranty binding AW on the particular facts of this case. 45. If Marex is right that AW has made contractually binding promises or warranties to deliver metal as alleged, then the promisee, be it Marex or Natixis, is entitled to claim delivery of the metal by way of specific performance of the promises, subject to compliance with the terms of the promise. 46. In so far as the promise is to be performed only upon presentation of a duly endorsed “original warehouse receipt”, a question arises as to what is meant by “original”
“The plan for this transaction is to get the warehouse receipts made out to you directly …”
“Warehouse receipt to be made out to: Natixis S.A.”
“KN I – do we – I mean, you know, do we know why they won’t just do a new one to the bank, do we know why that is? I’m not sure I wanna ask, but I mean, do we know why? Do you have any idea? JF No, I don’t know why, and from what I’ve been told, you know, in transactions that they’ve done in the past, with other counterparties, you know, it’s just a question of endorsing – I don’t know what they want – you know what they don’t wanna do a clean one”
“In reply to your inquiry, we advise that based upon the photocopy document you provided and according to our records a Warehouse Receipt with cargo details and Reference No. AWSG/KR/0027116 and AWSG/KR/0027117 dated08/11/2016 had been issued by Access World (formerly known as Pacorini Metals). We however cannot confirm the authenticity and/or validity of the photocopy document until we are in possession of the original Warehouse Receipt and have verified same to our satisfaction. Any information given and/or statement made is for information purposes only without any engagement and/or liability on our part. …” “In reply to your inquiry, we advise that based upon the photocopy document you provided and according to our records a Warehouse Receipt with cargo details and Reference No. AWSG/KR/0027116 and AWSG/KR/0027117 dated08/11/2016 had been issued by Access World (formerly known as Pacorini Metals). We however cannot confirm the authenticity and/or validity of the photocopy document until we are in possession of the original Warehouse Receipt and have verified same to our satisfaction. Any information given and/or statement made is for information purposes only without any engagement and/or liability on our part. …”
“Did he set a max level? Lastly, I assume he is aware from Treasury that we have not yet been able to increase our counterfeit document cover. Given that we now authenticate the documents, the risk is diminished (unless of course the warehouse and the client work in concert).”
“… that phone call wasn’t good on all sorts of levels – a) they knew they were s..t b) we got f…..g lined up c) y’know – sorry it went wrong […] Completely and absolutely f….d. Completely played. Everyone knew what was going on. I f…..g wish I knew this phone call before I did this. Either he didn’t tell us or … right? We got f…..g used. Absolutely f…..g used and played.”
“I wouldn’t have gone anywhere near this s..t. Inconsistencies – this went wrong, that went wrong … yeah well … [Bill Silverstein] f…..g knew all this s..t. All his goal was to find a hole to fill from Freepoint – and he found one. It might cost me my job.”
“Logically, before one can turn to the rules as to mistake, whether at common law or in equity, one must first determine whether the contract itself, by express or implied condition precedent or otherwise, provides who bears the risk of the relevant mistake. It is at this hurdle that many pleas of mistake will either fail or prove to have been unnecessary. Only if the contract is silent on the point, is there scope for invoking mistake. … The first imperative must be that the law ought to uphold rather than destroy apparent contracts.”
“Circumstances where a contract is void as a result of common mistake are likely to be less common than instances of frustration. Supervening events which defeat the contractual adventure will frequently not be the responsibility of either party. Where, however, the parties agree that something shall be done which is impossible at the time of making the agreement, it is much more likely that, on the true construction of the agreement, one or other will have undertaken responsibility for the mistaken state of affairs.”
“… the following elements must be present if a common mistake is to avoid a contract: (i) there must be a common assumption as to the existence of a state of affairs; (ii) there must be no warranty by either party that that state of affairs exists; (iii) the non-existence of the state of affairs must not be attributable to the fault of either party; (iv) the nonexistence of the state of affairs must render performance of the contract impossible; (v) the state of affairs may be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contractual adventure is to be possible.”
“It is clear as a matter of fact (despite Natixis’ denial) that there was a common and fundamental assumption by both Marex and Natixis in connection with the financing transactions reflected in PC1-5 that (1) delivery of the relevant metal would be by means of the transfer of warehouse receipts relating to it; (2) the warehouse receipts to be delivered by CHH to Marex would thereafter be delivered on by Marex to Natixis; and (3) those warehouse receipts would be genuine (i.e. authentic) warehouse receipts, issued by AW, entitling the endorsee or transferee of those receipts to call for delivery by AW of the metal described in the receipts, upon presentation thereof to AW. Furthermore, it is now common ground that the PC1-5 receipts delivered by CHH to Marex and delivered in turn by Marex to Natixis were not authentic, and that the last (and critical) assumed fact was a mistaken assumption.”
“A state of doubt is different from that of mistake. A person who pays when in doubt takes the risk that he may be wrong — and that is so whether the issue is one of fact or one of law.” 26. This was a very compressed remark in the course of a discussion of other matters and I do not think that Lord Hope could have meant that a state of doubt was actually inconsistent with making a mistake. Contestants in quiz shows may have doubts about the answer (“it sounds like Haydn, but then it may be Mozart”) but if they then give the wrong answer, they have made a mistake. The real point is whether the person who made the payment took the risk that he might be wrong. If he did, then he cannot recover the money. Speaking for myself, I think that there is a parallel here with the question of whether a common mistake vitiates a contract. As Steyn J said in Associated Japanese Bank (International) Ltd v Credit du Nord SA[1989] 1 WLR 255 , 268: “Logically, before one can turn to the rules as to mistake … one must first determine whether the contract itself, by express or implied condition precedent or otherwise, provides who bears the risk of the relevant mistake. It is at this hurdle that many pleas of mistake will either fail or prove to have been unnecessary.” 27. Likewise, the circumstances in which a payment is made may show that the person who made the payment took the risk that, if the question was fully litigated, it might turn out that he did not owe the money. Payment under a compromise is an obvious example: see Brennan v Bolt Burdon[2004] EWCA Civ 1017 ;[2005] QB 303 . I would not regard the fact that the person making the payment had doubts about his liability as conclusive of the question of whether he took the risk, particularly if the existence of these doubts was unknown to the receiving party. It would be strange if a party whose lawyer had raised a doubt on the question but who decided nevertheless that he had better pay should be in a worse position than a party who had no doubts because he had never taken any advice, particularly if the receiving party had no idea that there was any difference in the circumstances in which the two payments had been made. It would be more rational if the question of whether a party should be treated as having taken the risk depended upon the objective circumstances surrounding the payment as they could reasonably have been known to both parties, including of course the extent to which the law was known to be in doubt.” “A state of doubt is different from that of mistake. A person who pays when in doubt takes the risk that he may be wrong — and that is so whether the issue is one of fact or one of law.” “Logically, before one can turn to the rules as to mistake … one must first determine whether the contract itself, by express or implied condition precedent or otherwise, provides who bears the risk of the relevant mistake. It is at this hurdle that many pleas of mistake will either fail or prove to have been unnecessary.”
“In a broad sense, the warranties given by AW through its emails of22 December 2016 and9 January 2017 (collectively, the “Authentication Emails”) and/or the PMA letters can be described as collateral warranties – in the sense of being collateral to the PC4 and PC5 contracts between Marex and Natixis, but whether or not collateral, they gave rise to contracts in their own right as between AW and Marex / Natixis as described above.”
“(4) The expression “document of title” shall include any bill of lading, dock warrant, warehouse-keeper's certificate, and warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented”
“9. Lead is regularly traded on the LME which operates a warrant system that is described in detail by the judge in para 14 and following of his judgment [2002] 2 All ER (Comm) 705, 712. The lead is deposited by producers in LME approved warehouses in lots of 25 metric tons, each of which is individually identified and made the subject of a single warrant. The lead is traded by buying and selling the warrants, which are effectively documents of title. Physical delivery can only be obtained from the warehouse against presentation of the relevant warrant.”
“54. Warehouse receipts are common instruments in trade and finance, and may contain, or evidence, a contract between the warehouse and the party on whose behalf the goods are stored. … 55. A warehouse receipt represents goods in the possession of a warehouse. The document gives a description of the goods, and is a receipt for the goods stored. At common law, warehouse receipts are not treated as negotiable documents of title (unlike bills of lading). However, though not in itself conferring possession of the goods on the holder, possession of a warehouse receipt in effect gives the holder the right to possession of the goods. The evidence in this case, for example, is that without receiving the receipt back, the warehouse will not release the goods. …”
“This Warehouse Receipt is only valid when duly/legibly completed, endorsed, signed and dated by the order party / transferee.”
“…If this is right, then it would seem to me to follow that any representation, whether made innocently, negligently or fraudulently, which is intended to be acted on and which is acted on creates a contractual relationship. I do not think that this can be right.”
“show a warranty, i.e. a contract collateral to the main contract to take the shares, whereby the defendants in consideration of the plaintiff taking the shares, promised that the company itself was a rubber company.”
“must be proved strictly. Not only the terms of such contracts but the existence of an animus contrahendi on the part of all the parties to them must be clearly shown.” and said at p. 51: “In the present case the statement was made in answer to an inquiry for information. There is nothing which can by any possibility be taken as evidence of an intention on the part of either or both of the parties that there should be a contractual liability in respect of the accuracy of the statement.”
“Considerable confusion has arisen from failure to keep in view the simple principle … enunciated by Holt C.J. that an affirmation can only be a warranty provided it appear on evidence to have been so intended.”
“Delivery will be made upon presentation of the duly completed/endorsed ORIGINAL Warehouse Receipt in the office of the undersigned Access World entity”
“Based on the warehouse receipts that we have received from the courier today, we have authenticated to be issued by us. The 2 sets of warehouse receipts which we have authenticated as below.”
“…it seems to me that an estoppel gives no title to that which is the subject-matter of estoppel. The estoppel assumes that the reality is contrary to that which the person is estopped from denying, and the estoppel has no effect at all upon the reality of the circumstances… I am speaking now of the estoppels which arise upon transactions in business or in daily life, and, as it seems to me, these estoppels have no effect on the reality of the transaction. It may be that under some circumstances an estoppel will prevent a person from dealing in a particular manner with goods; for instance, if a person is estopped from denying that he has made a contract to deliver goods, and if the goods are still in his possession, in a suit to enforce performance of the alleged contract he may be obliged to hand over the goods, although, in fact, there was no contract, and he may be liable to act as if there had been a contract, and to fulfil his supposed obligation. But suppose that although a person is estopped from denying that he has made a contract to deliver goods, he has parted with the goods and has sold them to somebody else: it seems to me that although he may be estopped as against the person claiming delivery under the supposed contract, he cannot be compelled to deliver the goods, which, there being no contract, have legally passed to somebody else: owing to the estoppel he cannot deny that a contract was entered into, but he cannot fulfil it by delivering another person’s goods; and therefore the only remedy against him is that he shall pay damages for not delivering the goods. In a similar manner a person may be estopped from denying that certain goods belong to another; he may be compelled by a suit in the nature of an action of trover to deliver them up, if he has them in his possession and under his control; but if the goods, in respect of which he has estopped himself, really belong to somebody else, it seems impossible to suppose that by any process of law he can be compelled to deliver over another’s goods to the person in whose favour the estoppel exists against him: that person is entitled to maintain a suit in the nature of an action of trover against him; but that person cannot recover the goods, because no property has really passed to him, he can recover only damages. In my view estoppel has no effect upon the real nature of the transaction: it only creates a cause of action between the person in whose favour the estoppel exists and the person who is estopped.”
“The legal requirements of an estoppel by representation of fact are well known: (i) a representation which is in law deemed a representation of fact, (ii) that the precise representation was in fact made, (iii) that the later position taken contradicts in substance the original representation, (iv) that the original representation was of a nature to induce and was made with the intention and result of inducing the party raising the estoppel to alter his position on the faith of it and to his detriment, and (v) that the original representation was made by the party sought to be estopped and was made to the party setting up the estoppels (see for example Spencer Bower, The Law Relating to Estoppel by Representation (4th edn, 2004) at paragraph 1.2.3). The representation must be clear or unequivocal, or precise and unambiguous (see Chitty on Contracts (31st edn) at paragraph 3-090).”
“6. The decision of the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd was a landmark in the development of the law of tort. Contrary to the ordinary rule as it had previously been understood, it allowed the recovery of a purely economic loss in negligence where the existence of a special relationship between claimant and defendant made this appropriate. The facts were that Hedley Byrne asked its bank, National Provincial Bank, to obtain a credit reference for a company wishing to place advertising contracts through it. The company’s bank, Heller & Partners, supplied the reference to National Provincial. The Appellate Committee inferred as a matter of fact that Heller & Partners must have appreciated that National Provincial was not acting for its own account but wanted the reference for a client intending to do business with Heller’s client, even though they did not know who that client was: see, in particular, pp 482 (Lord Reid), 493-494 (Lord Morris of Borth-y-Gest), 530 (Lord Devlin). The ratio of the decision was that the reasonable reliance of Hedley Byrne on the reference, combined with Heller & Partners’ appreciation of the fact that they would reasonably rely on it, gave rise to a direct relationship between them involving a duty of care.”
“I consider that it follows and that it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference. Furthermore, if in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise.”
“The respondents in this case cannot deny that they were performing a service. Their sheet anchor is that they were performing it gratuitously and therefore no liability for its performance can arise. My Lords, in my opinion this is not the law. A promise given without consideration to perform a service cannot be enforced as a contract by the promisee; but if the service is in fact performed and done negligently, the promisee can recover in an action in tort. … I think, therefore, that there is ample authority to justify your Lordships in saying now that the categories of special relationships which may give rise to a duty to take care in word as well as in deed are not limited to contractual relationships or to relationships of fiduciary duty, but include also relationships which in the words of Lord Shaw in Nocton v. Lord Ashburton [1914] A.C. 932 , 972 are ‘equivalent to contract,’ that is, where there is an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract. Where there is an express undertaking, an express warranty as distinct from mere representation, there can be little difficulty. The difficulty arises in discerning those cases in which the undertaking is to be implied. In this respect the absence of consideration is not irrelevant. Payment for information or advice is very good evidence that it is being relied upon and that the informer or adviser knows that it is. Where there is no consideration, it will be necessary to exercise greater care in distinguishing between social and professional relationships and between those which are of a contractual character and those which are not. It may often be material to consider whether the adviser is acting purely out of good nature or whether he is getting his reward in some indirect form. The service that a bank performs in giving a reference is not done simply out of a desire to assist commerce. It would discourage the customers of the bank if their deals fell through because the bank had refused to testify to their credit when it was good.”
“recovery of purely economic loss in negligence was available where the relationship between the claimant and the defendant made it appropriate; that where there was reasonable reliance by the claimant on the particular representation combined with appreciation by the defendant of that reliance, a direct relationship arose between them involving a duty of care; but that it was the responsibility, voluntarily accepted by the defendant, towards those who acted on the representation, based either on a general relationship, or specifically in relation to a particular transaction, which created such a duty; that it was fundamental that the defendant assumed responsibility to an identifiable person or group of persons, but not to an indeterminate group or to the world at large; that the foundation of the duty was proximity so that the defendant, in giving the particular information or advice, was fully aware of the nature of the transaction in question and knew that it would be communicated to the claimant and acted on by him; that the claimant would reasonably suppose that he was entitled to rely on it for the purpose for which he had sought it; that the defendant's knowledge of the transaction was potentially relevant for the purpose, in particular, of identifying those to whom he assumed responsibility; that ordinarily where a statement was relied on by B to whom A passed it on, the representor owed no duty to B unless he knew that it was likely to be communicated to and relied on by B, and it had to be part of the statement's known purpose that it should be communicated to and relied on by B if the representor were to be taken to assume responsibility to B; that the present case was no different because the first claimant was the undisclosed principal of the third claimant; that the relationship of the bank and the first claimant was not “equivalent to contract” under the rule that an undisclosed principal might declare itself and assume the benefit of the contract and it bore no correlation to the concepts of proximity and voluntary assumption of responsibility which were critical features of the duty of care; that the law relating to undisclosed principals was in the main entirely inapposite to the law of tort; and that, accordingly, since there was no evidence that the bank had known that its reference would be communicated to or relied on by anyone other than the third claimant or had had reason to suppose that the third claimant was acting for someone else, and since it had known nothing of the first claimant so that it was plain that it had not voluntarily assumed any responsibility to it, the bank had not owed the duty of care.”
“19. What is noteworthy for present purposes is the emphasis given in the decision in the Hedley Byrne case to the need for the representee reasonably to have relied on the representation and for the representor reasonably to have foreseen that he would do so. This is expressly stressed in the speech of Lord Hodson at p 514. In fact it lies at the heart of the whole decision: in the light of the disclaimer, how could it have been reasonable for the appellant to rely on the representation? If it is not reasonable for a representee to have relied on a representation and for the representor to have foreseen that he would do so, it is difficult to imagine that the latter will have assumed responsibility for it. If it is not reasonable for a representee to have relied on a representation, it may often follow that it is not reasonable for the representor to have foreseen that he would do so. But the two inquiries remain distinct.”
“8. In Caparo Industries plc v Dickman[1990] 2 AC 605 , the Appellate Committee held that foreseeability, although it was a necessary condition for liability, was not necessarily a sufficient one. The foundation of the duty is proximity, which may require more than the mere foreseeability of reliance. The problem before the Appellate Committee was to identify the outer limits of the class of persons whose reliance on a statement could properly be said to give rise to a sufficiently proximate relationship. They found the relevant limiting factors in the defendants’ knowledge of (i) the person known to be likely to rely on the statement, and (ii) the transaction in respect of which he was known to be likely to rely on. After reviewing the authorities supporting a duty of care for negligent statements, both before and after Hedley Byrne, Lord Bridge (with whom Lord Roskill, Lord Ackner and Lord Oliver agreed), summarised the position as follows at pp 620-621: “The salient feature of all these cases is that the defendant giving advice or information was fully aware of the nature of the transaction which the plaintiff had in contemplation, knew that the advice or information would be communicated to him directly or indirectly and knew that it was very likely that the plaintiff would rely on that advice or information in deciding whether or not to engage in the transaction in contemplation. In these circumstances the defendant could clearly be expected, subject always to the effect of any disclaimer of responsibility, specifically to anticipate that the plaintiff would rely on the advice or information given by the defendant for the very purpose for which he did in the event rely on it. So also the plaintiff, subject again to the effect of any disclaimer, would in that situation reasonably suppose that he was entitled to rely on the advice or information communicated to him for the very purpose for which he required it. The situation is entirely different where a statement is put into more or less general circulation and may foreseeably be relied on by strangers to the maker of the statement for any one of a variety of different purposes which the maker of the statement has no specific reason to anticipate. To hold the maker of the statement to be under a duty of care in respect of the accuracy of the statement to all and sundry for any purpose for which they may choose to rely on it is not only to subject him, in the classic words of Cardozo CJ to ‘liability in an indeterminate amount for an indeterminate time to an indeterminate class:’ see Ultramares Corpn v Touche (1931) 174 N.E. 441 , 444; it is also to confer on the world at large a quite unwarranted entitlement to appropriate for their own purposes the benefit of the expert knowledge or professional expertise attributed to the maker of the statement. Hence, looking only at the circumstances of these decided cases where a duty of care in respect of negligent statements has been held to exist, I should expect to find that the ‘limit or control mechanism … imposed upon the liability of a wrongdoer towards those who have suffered economic damage in consequence of his negligence’ rested in the necessity to prove, in this category of the tort of negligence, as an essential ingredient of the ‘proximity’ between the plaintiff and the defendant, that the defendant knew that his statement would be communicated to the plaintiff, either as an individual or as a member of an identifiable class, specifically in connection with a particular transaction or transactions of a particular kind (eg in a prospectus inviting investment) and that the plaintiff would be very likely to rely on it for the purpose of deciding whether or not to enter upon that transaction or upon a transaction of that kind.”
“We are presently concerned with its significance for the first of these purposes, which will vary according to what is known about the person or group expected to rely on the statement. Thus in Hedley Byrne itself, the defendant understood that the statement would be relied on by the unidentified, but readily identifiable, client on whose behalf National Provincial Bank was known to be making the inquiry. It was enough that the proposed transaction was said to be an advertising contract for£8,000 to£9,000 . It would probably have been enough even if the transaction had not been identified as an advertising contract but simply as some kind of business transaction. For Lord Morris, for example, it was enough that the person contemplated was “some one who was contemplating doing business with Easipower Ltd”: see pp 493-494. In Caparo on the other hand, where the persons said to have been entitled to rely on the defendant’s audit report were any potential bidder for the auditor’s client, the absence of a specific transaction in the defendant’s contemplation assumed decisive significance. 11. Mr Salzedo QC, who appeared for the Playboy Club, accepted that there was no evidence that BNL knew that its reference would be communicated to or relied on by anyone other than Burlington. He also accepted that in the ordinary course where a statement is relied upon by B to whom A has passed it on, the representor owes no duty to B unless he knew that the statement was likely to be communicated to B. That concession was plainly justified. I would go further and say that the representor must not only know that the statement is likely to be communicated to and relied upon by B. It must also be part of the statement’s known purpose that it should be communicated and relied upon by B, if the representor is to be taken to assume responsibility to B. Mr Salzedo’s submission was that the present case was different because the Club was Burlington’s undisclosed principal. He submitted that the relationship between BNL and the Club was, in Lord Devlin’s phrase, “equivalent to contract” because in contract the Club would have been entitled to declare itself and assume the benefit of the contract. This is an ingenious argument, but in my opinion it is fallacious.”
“…it remains the case that a claimant is much more likely to be able to show that he is entitled to depend on a service or statement where the work is undertaken by a person who is exercising a special skill in a business context. This is particularly the case when the information being given relates to matters which are within the exclusive preserve of the defendant. Thus in Smith v Eric S Bush [[1990] 1 A.C. 831 at 865] Lord Griffiths commented: “the valuer is discharging the duties of a professional man… The essence of the case against him is that he as a professional man realised that the purchaser was relying on him to exercise proper skill and judgment in his profession”
“… the approach to be adopted as to what may in law amount to an assumption of risk. This point was elucidated in Henderson by Lord Goff of Chieveley. He observed, at p. 181B-C: “… especially in a context concerned with a liability which may arise under a contract or in a situation ‘equivalent to contract,’ it must be expected that an objective test will be applied when asking the question whether, in a particular case, responsibility should be held to have been assumed by the defendant to the plaintiff:” “The touchstone of liability is not the state of mind of the defendant. An objective test means that the primary focus must be on things said or done by the defendant or on his behalf in dealings with the plaintiff. Obviously, the impact of what a defendant says or does must be judged in the light of the relevant contextual scene. Subject to this qualification the primary focus must be on exchanges (in which term I include statements and conduct) which cross the line between the defendant and the plaintiff.”
“76. As Lord Wilson JSC explains in his judgment, the requirement that there should be an assumption of responsibility is to some extent a legal construct in the sense that in many cases the defendant solicitor or other professional will be treated as having assumed responsibility to the third party for his actions by virtue of the proximity between them and the obvious effect which any failure on his part would have on the third party. There will rarely be an actual, conscious and voluntary assumption of responsibility not least because the solicitor or other professional will have a client to whom he is contractually bound. But, on the basis that the court is deciding whether to treat the defendant as having assumed legal responsibility to the third party, non-client, for his actions, it will be necessary to balance the foreseeability that the third party will rely on the professional to perform their task in a competent manner against any other factors which would make such an imposition of liability unreasonable or unfair.”
“The first is whether the defendant assumed responsibility for what he said and did vis-àvis the claimant, or is to be treated by the law as having done so. The second is commonly known as the threefold test [in Caparo Industries plc v Dickman[1990] 2 AC 605 ]: whether loss to the claimant was a reasonably foreseeable consequence of what the defendant did or failed to do; whether the relationship between the parties was one of sufficient proximity; and whether in all the circumstances it is fair, just and reasonable to impose a duty of care on the defendant towards the claimant (what Kirby J in Perre v Apand Pty Ltd(1999) 198 CLR 180 , para 259, succinctly labelled “policy”). Third is the incremental test, based on the observation of Brennan J in Sutherland Shire Council v Heyman(1985) 157 CLR 424 , 481, approved by Lord Bridge of Harwich in Caparo Industries plc v Dickman[1990] 2 AC 605 , 618, that: “ “It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable ‘considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed”.”
“… the outcomes (or majority outcomes) of the leading cases cited above are in every or almost every instance sensible and just, irrespective of the test applied to achieve that outcome. This is not to disparage the value of and need for a test of liability in tortious negligence, which any law of tort must propound if it is not to become a morass of single instances. But it does in my opinion concentrate attention on the detailed circumstances of the particular case and the particular relationship between the parties in the context of their legal and factual situation as a whole.”
“62. It is clear that parts of the threefold test and the assumption of responsibility test overlap: Chandler v Cape plc[2012] EWCA Civ 525 ,[2012] 1 WLR 3111 , at paragraph 62 (Arden LJ). The different tests usually lead to the same answer and can be used as cross-checks on each other: Playboy Club London Ltd v Banca Nazionale del Lavoro SpA[2016] EWCA Civ 457 ,[2016] 1 WLR 3169 , at paragraph 17. They are complementary and should not be considered in isolation from each other: CGL Group Ltd v Royal Bank of Scotland plc[2017] EWCA Civ 1073 , [2017] CTLC 97; cf Robinson v Chief Constable of West Yorkshire Police[2018] UKSC 4 .”
“It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless. ‘The question is always whether the defendant was under a duty to avoid or prevent that damage, but the actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it:’ see Sutherland Shire Council v. Heyman, 60 A.L.R. 1 , 48, per Brennan J. Assuming for the purpose of the argument that the relationship between the auditor of a company and individual shareholders is of sufficient proximity to give rise to a duty of care, I do not understand how the scope of that duty can possibly extend beyond the protection of any individual shareholder from losses in the value of the shares which he holds. As a purchaser of additional shares in reliance on the auditor’s report, he stands in no different position from any other investing member of the public to whom the auditor owes no duty.”
“Even if Access World owed a duty to take reasonable care in authenticating the warehouse receipts, this duty would not be actionable because, assuming breach, it was not Access World’s breach which led to Marex’s loss but CHH’s failure to pass title. Two points flow from this analysis: first, as the duty is not actionable it is not really a duty at all and secondly, it demonstrates that the question of duty is inextricably bound up with the issue of causation.”
“52. It is accepted by Grant Thornton that an auditor may owe duties to third parties other than the members in general meeting, in certain circumstances, as other authorities make clear. In MAN Nutzfahrzeuge AG v Freightliner Ltd[2007] EWCA Civ 910 , the Court of Appeal considered the question of the purpose for which any statement was made or report communicated. Chadwick LJ, with whom the other Lords Justices agreed, stated that there was no question of distinguishing between “the defendant’s purpose” and “the claimant’s purpose”
“I consider that it follows and that it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference. Furthermore, if in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise.”
“Please find attached the copies of the warehouse receipts that I have been provided with by Come Harvest Please confirm that these are copies of documents that you have issued I note that they have an AW sticker and an orbit watermark. The signatures are also appear to be as per your signature list.”
“In the past judges have tended to invoke the contra proferentem rule as a useful means of controlling unreasonable exclusion clauses. The modern view, however, is to recognise that commercial parties (which these were) are entitled to make their own bargains and that the task of the court is to interpret fairly the words they have used. The contra proferentem rule may still be useful to resolve cases of genuine ambiguity, but ought not to be taken as the starting point: see, for example, The Hut Group Ltd v NobaharCookson[2016] EWCA Civ 128 and Transocean Drilling UK Ltd v Providence Resources plc [2016] 2 All ER (Comm) 606.”
“In paragraph 78, I explain that the authentication checks included a breakdown of the standard items to check based on the procedure, as set out in paragraphs 2 and 4 of the procedure manual (31 January 2017 version), the special test and two new tests. On reviewing the authentication checklist in detail, I realise I should have said that there were three new tests in the checklist in addition to the special test. The test in the checklist named “Signature: signatures consistent with scanned PDF record' was not included in the original manual (2016 version) or the31 January 2017 version and therefore was a new check. I would have expected one of my team, when carrying out an authentication check in November 2016 to January 2017, to perform a quick check to ensure (1) the person that signed the warehouse receipt being authenticated was authorised to do so and (2) the same names appeared on both the document being checked and the copy document in Access World’s records. This was because paragraph 4.5 of the 2017 manual and 4.4 of the 2016 manual required any suspicious observations or diverging information to be reported to the Customer Services Manager. However, I did not consider at that time (and still do not consider) that the procedure manual dated31 January 2017 or the 2016 version required a detailed check on the signatures and I did not require and do not believe that a detailed check on the signatures was performed by Access World employees authenticating warehouse receipts between November 2016 and January 2017.”
“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage” “Fault” is defined in section 4 as meaning: “negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence” “negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence”
“If the [claimant] were negligent but his negligence was not a cause operating to produce the damage there would be no defence. I find it impossible to divorce any theory of contributory negligence from the concept of causation.”
“The question of contributory negligence must be dealt with somewhat broadly and on commonsense grounds as a jury would probably deal with it.”
“Section 1(1) does not specify how responsibility is to be apportioned, beyond requiring the damages to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage (not, it is to be noted, responsibility for the accident). Further guidance can however be found in the decided cases. In particular, in Stapley v Gypsum Mines Ltd[1953] AC 663 , 682, Lord Reid stated: ‘A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but ‘the claimant’s share in the responsibility for the damage’ cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness.’” … The problem is not merely that the factors which the court is required to consider are incapable of precise measurement. More fundamentally, the blameworthiness of the pursuer and the defender are incommensurable. The defender has acted in breach of a duty (not necessarily a duty of care) which was owed to the pursuer; the pursuer, on the other hand, has acted with a want of regard for her own interests. The word ‘fault’ in section 1(1), as applied to ‘the person suffering the damage’ on the one hand, and the ‘other person or persons’ on the other hand, is therefore being used in two different senses. The court is not comparing like with like.” ‘A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but ‘the claimant’s share in the responsibility for the damage’ cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness.’”
"Agreement" means any agreement, whereby the Company and/or an authorized agent of the Company offers and the Customer accepts the provision of the Services, or where the Company has started performance of an order, and shall include without limitation any written contract agreed and/or correspondence by post, fax and/or email between the Company and/or an authorized agent of the Company and the Customer, and these Conditions; "
“Since it is common ground that there was no contract between Roskilde and Taberna which incorporated the disclaimer, it must be effective, if it is to be effective at all, simply as a notice to the reader of the document that Roskilde is unwilling to accept liability for its contents. Mr. Lord submitted that, since it was tucked away at the back of the document in fairly small print, the court could not be satisfied that the reasonable reader would have seen it and taken it in. I cannot accept that. The document was intended to be read by experienced professional investors, such as Taberna, who must be taken to be well aware that it is necessary to read a document of this kind in its entirety. Nor, for much the same reasons, can I accept that the disclaimer could reasonably be understood as relating only to those parts of the document which contained forecasts or estimates. In my view, read fairly as a whole, it contained a clear message: fraud apart, Roskilde was not willing to accept any liability for the accuracy of the document’s contents.”
“These Standard Terms and Conditions (hereinafter referred to as "Conditions"), electronically published at http://www.accessworld.com, as amended, set out the general standard terms on which any company or subsidiary belonging to the Access World Group of companies performs any Services”
“After [UCTA], in commercial matters generally, when the parties are not of unequal bargaining power, and when risks are normally borne by insurance, not only is the case for judicial intervention undemonstrated, but there is everything to be said, and this seems to have been Parliament's intention, for leaving the parties free to apportion the risks as they think fit and for respecting their decisions.”
"After this Act, in commercial matters generally, when the parties are not of unequal bargaining power, and when risks are normally borne by insurance, not only is the case for judicial intervention undemonstrated, but there is everything to be said ... for leaving the parties free to apportion the risks as they think fit and for respecting their decisions."
"A basic principle of the common-law of contract . . . is that parties to a contract are free to determine for themselves what primary obligations they will accept . .. ". 100. The common-law was, of course, alive to the difficulties posed by exemption clauses and addressed them, for a time, through the doctrine of fundamental breach and, enduringly, through the techniques of requiring adequate notice and a process of strict construction so as to narrow their scope. 101. With regard to the question as to the adequacy of notice, the common-law in effect operated a sliding scale, tellingly encapsulated by the observation of Bingham LJ (as he then was) in lnterfoto Library Ltd v Stiletto Ltd [1989] I QB 433, at page 443: " ... the more outlandish the clause the greater the notice which the other party, if he is to be bound, must in all fairness be given."
“In mitigating his loss the claimant victim of a wrong is only required to act reasonably and the standard of reasonableness is not high in view of the fact that the defendant is an admitted wrongdoer. Lord Macmillan put this point well for contract in Banco de Portugal v Waterlow [[1932] AC 452 ]; his remarks apply equally to tort. He said [at p. 506]: “Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. It is often easy after an emergency has passed to criticise the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency. The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken.”
“Oh, no; you’ve suffered nothing by my tort because you have a cause of action against somebody else”