“With regard to the Definitive Phase AX500 project I would like to advise you of the status of our administrative process in preparation for continuing this design work beginning on Monday September 12. The formalities of internal presentation/phase gate sign off has had to be rearranged to fit changed vacation and business schedules. This however does not change the plans we agreed to begin the reassembly of your team etc at the beginning of week 37. The purchase order requisition has been signed by two of the three needed and is only waiting for the General Manager’s return to the office on Friday for the final signature. For the record requisition number is 31030. I hope this information is sufficient for now and look forward to meeting you again after your well earned vacation.” 41A.3 In the premises, even prior to Allen’s issue of the Purchase Order dated31st August 1994 , Allen had agreed in principle to appoint Ricardo pursuant to the Definitive Design Proposal, subject to formal confirmation which was to be provided by way of issue of a Purchase Order. Further, such confirmation would be provided “shortly”, on completion of Allen’s internal administrative processes and formalities. 41A.4 Accordingly when Allen issued the Purchase Order on31st August 1994 and sent a copy of the same to Ricardo by fax on the same day, this represented not a “counter-offer” as alleged by the Claimants but Allen’s formal and final confirmation of Ricardo’s appointment for the Definitive Design phase, in accordance with the Definitive Design Proposal. 41B Paragraph 13B is denied. Even if, contrary to the foregoing, the Purchase Orders did represent only counter-offers, those counter-offers were accepted by Ricardo’s letters of acknowledgement of the Purchase Orders, written and sent to Allen on22nd December 1993 and31st August 1994 .”
“whether Allen in fact entered into the contract of appointment with Ricardo intending to act as agent for RRPE. None of the 7 Allen witnesses support this; they do not even refer to the 1992 “Management Agreement” relied upon in the Claimants’ pleadings; indeed the witnesses do not even suggest that as at 1994 they were aware of the alleged relationship of agency”. 10. The burden is clearly on the Claimant to show that Allen did have the necessary intention to act as agent. Accordingly, and since the D expressly raised the point at the PTR, it is surprising that the Claimants (a) have not sought to adduce supplementary evidence of such an intention, and (b) have not even addressed this issue in their Opening Note. 11. D submits that, absent any evidence that Allen did have such an intention (which is the case here even before any cross-examination of the witnesses), the Claimants’ case on agency must fail. 12. The Claimants’ contemporary documents also suggest that Allen did not intend to contract (and indeed did not contract) as RRPE’s agent. The Claimants have disclosed over 650 files of documents in this case. In October 2003 they proposed that 9 lever arch files of those documents be included in the preliminary issue trial bundles (Bundle E). Aside from the Management Agreement itself, not a single one of those documents even refers to the alleged relationship of agency between Allen and RRPE. 13. In fact the documents paint a very different picture. They suggest that Allen conducted its business, and pursued the AX500 project, in its own right, and not on behalf of RRPE. See for example: (a) The fact that the phase gates were signed off by Allen internally, i.e. by directors of Allen not RRPE. So far as approval was required from RRPE or “Rolls Royce”, the Claimants rely heavily on the involvement of Mr. Stewart Miller, and the need to obtain his approval for entry into the Definitive Design phase. They appear to have lost sight of the fact that Mr. Miller was a director of Rolls Royce Plc, not RRPE, the alleged principal. (b) The contemporaneous documents, which Ricardo will refer to during the course of the trial next week. 14. The strong impression is that the “Management Agreement” document came into being principally if not solely in order to justify the adoption of a convenient and cost effective single accounting system within the companies in the RRPE group. In particular, it avoided the need for separate accounts to be prepared in respect of each of the companies in the group, and (by stipulating that RRPE’s role as principal was to be undisclosed) had the added advantage of ensuring that the exposure of RRPE itself to potential liability under Allen’s contracts, was kept secret. 15. There is no evidence to suggest that the Management Agreement was intended to apply, or did apply, beyond such accounting matters. Indeed, for the reasons already referred to above, the evidence suggests the contrary.”
“Where an agent has … actual authority and enters into a contract with another party intending to do so on behalf of his principal, it matters not whether he discloses to the other party the identity of his principal, or even that he is contracting on behalf of a principal at all, if the other party is willing or leads the agent to believe that he is willing to treat as a party to the contract anyone on whose behalf the agent may have been authorised to contract. In the case of an ordinary commercial contract such willingness of the other party may be assumed unless either the other party manifests his unwillingness or there are other circumstances which should lead the agent to realise that the other party was not so willing.”
“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 Seller will mark and despatch the Goods in accordance with the Buyer’s instructions and ensure that each separate consignment is suitably packaged and each item is clearly identified.” (c) D also relies on C’s own admission that the standard terms are inappropriate to Ricardo’s appointment, as contained in a letter from John Brown of Allen to Allen’s loss adjusters on17 January 1996 , regarding an insurance claim in respect of a burglary [which] included the theft of some of Ricardo’s computers … “Please note that the Ricardo proposal does not specifically address the question of insurance and the purchase order conditions [are] not really appropriate to a contract of this nature, whereby the sub-contractor is actually employing people on our site and using his own equipment.” (d) There is also evidence that C did not in fact believe that it could impose its own standard terms on Ricardo. See in particular Allen’s manuscript notes on Ricardo’s letter of22 December 1993 acknowledging receipt of the Purchase Order … : “…it will be too late to change the agreement now … hopefully KK will agree to 30 days in this case”; And “Are 30 days agreed?” (e) See also the inconsistencies between the 2 documents:e.g. the payment terms under the standard terms (clause 8.1: 60 days for payment of invoices) differ from those contained in the payment provisions in the DDP (at clause 8.3: 30 days for payment).”
“The essence of a fiduciary relationship is that one person acts for, or on behalf of, or in the interests of, or with the confidence of, another.”
“(e) that Morgan Grenfell were constructive trustees for [the council] of the benefit of any rights under or for breach of the building contracts against Wiltshier and as such would have been entitled, but for the assignment, to recover substantial damages for and on behalf of [the council]. Accordingly, by the assignment [the council] is seeking to recover a head of loss which would have been available to Morgan Grenfell and the burden on Wiltshier is not thereby increased because Morgan Grenfell would have been entitled, but for the assignment, to substantial damages as constructive trustees.”
“In such a case, it seems to me proper, as in the case of the carriage of goods by land, to treat the parties as having entered into the contract on the footing that Corporation would be entitled to enforce contractual rights for the benefit of those who suffered from defective performance but who, under the terms of the contract, could not acquire any right to hold McAlpine liable for the breach.”