“To supply site operatives for the installation of the sprinkler system complete with all sprinkler control valves, pumps and associated pipework, valves, starters and controllers. Floor zone valves with all equipment and risers.”
“To install the complete sprinkler system with all associated equipment, including testing and commissioning the electrical pumping units with all associated pipework valves, starters controllers. Including all small bore drains, controls pipework. Testing for the works, commissioning, marking up record drawings and compliance with the company quality control systems.”
“the law does not require judges to attribute to the parties an intention which they plainly could not have had.”
“if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.” ”
“I think, though it is not conclusive, that the fact that it is admittedly an upper limit would lead to the conclusion that, if reasonable, it should be taken as the measure. … The law, in my opinion, encourages reasonable settlements, particularly where, as here, strict proof would be a very expensive matter. …if there is evidence at the end of the matter of the kind which I have indicated, on which the court can come to the conclusion that this was a reasonable settlement in the circumstances, then I think that it should be the measure. Parties, Bowen, L.J., said, have been held to contemplate litigation in the sort of circumstances which have arisen here. It would, I think, be unfortunate if they were not also held to contemplate reasonable settlements in the type of circumstances which have arisen here.”
“The defendant knew for what purpose the plaintiffs were purchasing the coal, namely, to resell it to the owners of steamers, and he must have known as a business man what damages might naturally result to the sub-vendees if it was not reasonably fit for the purposes of steamships, and therefore could not be used by the sub-vendees for such purposes. He may therefore be reasonably supposed to have contemplated, if the warranty were broken, that claims for damages would be made against the plaintiffs by the sub-vendees, and also, if he thought about it, he must have known that the plaintiffs, if such claims were made, would be in a position of difficulty: … … if the plaintiffs succeeded in their defence, there would be no occasion for their making any claim over; but if they failed the defendant must in reason be taken to have contemplated that they would have to pay damages and costs. All these matters I have mentioned seem to me to be matters that may reasonably be supposed to have been within the contemplation of the parties at the time they made the contract, and therefore the question whether the case comes within the second branch of the rule in Hadley v. Baxendale seems to me to be answered….”
“Before the court can award a sum as damages, there must be evidence on which it can act. Therefore, in a case such as this, the plaintiffs must call evidence to establish their case. If the evidence which they call satisfies the judge or jury that the settlement was a reasonable one, the damages awarded will be the amount of the settlement and the costs reasonably incurred.”
“The question, in my opinion, is: what evidence is necessary to establish reasonableness? I think it relevant to prove that the settlement was made under advice legally taken.… The plaintiff must, I think, lead evidence, which can be cross-examined to, as to facts which the witnesses themselves prove and as to what would probably be proved if, as here, the arbitration had proceeded, so that the court can come to a conclusion whether or not the sum paid was reasonable. The defendant may, by cross-examination, as was done here, seek to show - and perhaps successfully show - that it was not reasonable. He may do so, or call evidence which leads to the same conclusion. He might in some cases show that some vital matter had been overlooked.”
“The plaintiffs must establish a prima facie case that the settlement was a reasonable one. If the defendants fail to shake that case, the amount of the settlement can properly be awarded as damages.”
“If in order to succeed in this case [Comyn Ching] had to prove that they were negligent, of course, they must fail because they did not even try. Their evidence was to opposite effect, but in my judgment what they have to show is that the [employer] had a case or might reasonably have established a case….It seems to me that Ching were facing a serious claim and an appreciable risk of failing on that issue…. ”
“It is clear that in Fisher v Val de Travers, Lord Coleridge, CJ, put two questions to the jury: (1) Was it reasonable to compromise, and (2) Was the sum paid reasonable (see page 480). In Biggin v Permanite Somervell LJ said (at p.320) the two questions are really only one, and so of course, for his purpose they were because in his case the defendant admitted that he was liable to indemnify the plaintiff and the only issue was that of quantum. In practice I think they will generally be found to merge into one another, although for example, if the point was one which could be speedily and cheaply determined, it might not be reasonable as against the indemnifier to settle, though if there were going to be a settlement, the amount might be perfectly reasonable. I will consider the problem in the present case on the basis that there are two separate questions which are the most favourable to the defendants. So far as the first question is concerned, it has in my judgment only to be asked to be seen to require an affirmative answer. Ching were advised to settle by competent and experienced legal advisers. That is not conclusive, but clearly important. Ching were facing long and complex litigation which was bound to be costly, and the outcome of which they could not foresee with any certainty.”
“61 In addition, I consider that the judgment of Colman J in General Feeds provides a cogent explanation of the proper approach in cases of this sort, where A's liability to B may be difficult, if not impossible, to establish. The court must consider whether the breach of contract caused the loss incurred in satisfying the settlement. Unless the claim was (or was reasonably considered to be) of sufficient strength reasonably to justify a settlement, and the amount paid in settlement is reasonable having regard to the strength of the claim, it cannot be shown that the loss has been caused by the relevant breach of contract. On the other hand, the settlement of an intrinsically weak claim in order to avoid the uncertainties and expenses of litigation may well be reasonable; on Colman J's analysis (with which I respectfully agree) a claim will usually have to be so weak as to be obviously hopeless before it could be said that the settlement of the claim was unreasonable. In my view, in the passages of his judgment in the General Feeds case that I have cited above, Colman J provided an answer to preliminary issue 3 (“it is not necessary to prove that the claim settled … would probably have succeeded”) and provided the clearest guidance as to the appropriate test to be applied (“it is enough to establish that [the claim] had sufficient substance for the settlement of it to be regarded as reasonable”). … 63 The authorities cited above do not demonstrate any rule or principle of law that A must prove that he was liable to B before recovering against C the sums which he paid to B by way of settlement. Of course, that is not to deny that, in the vast majority of cases, that liability will either be agreed by A and C or will, on investigation, be demonstrated. But there will be some cases, like the Comyn Ching case and the General Feeds case where, even though investigation of the underlying facts demonstrated that there was in truth no liability at all, the settlement of the claim that had been made was found to be reasonable in all the circumstances. Furthermore, it seems to me that this is entirely in accordance with normal rules of foreseeability and remoteness of damage. It must be reasonably foreseeable, at the time that the contracts were made between A and C, that A might settle a claim brought by B arising out of the same subject matter, even if, on a detailed analysis, A's legal liability to B might actually be hard or even impossible to establish.”
“If this were a settlement case I would regard myself as bound to hold that the plaintiffs would have to prove that the amount for which they had settled was reasonable. It is not clear to me how far the Court of Appeal thought that the plaintiffs must go in establishing that fact. Nevertheless, the Court of Appeal appears to have thought that it would not be sufficient merely to produce the settlement and that some examination of the underlying facts would be required, although it is not entirely clear whether they thought that the Court should consider facts which were not known (and could not reasonably have been known) to the plaintiffs at the time when the settlement was made. Mr. Nolan submits that the statement of Lord Justice Singleton that the defendant might in some cases show that some vital matter had been overlooked shows that he thought that it was open to the defendant to rely upon evidence which was not available to the plaintiff at the time. I do not so read it. It seems to me that Lord Justice Singleton may have meant no more than that if the plaintiff overlooked a point which he ought to have taken, the amount of the agreement would not be regarded as the correct measure of damages in the subsequent action.”
“As a matter of principle, given that the purpose of the investigation of whether the settling party acted reasonably is to ascertain whether the settlement loss was caused by the breach or by the settling party's decision to enter into the settlement, it must be those facts upon which he could be expected to base his decision to settle rather than facts which later come to light which are material for this purpose. It is the facts available to him at the time by reference to which this question of causation has to be determined.”
“in the event of any breach of an obligation under this deed, [Kvaerner] shall be liable to [Trucidator] and [Slaughter & May] for (i) the reasonable costs of repair, renewal and/or reinstatement of any part or parts of the Project to the extent that [Trucidator] or [Slaughter & May] incurs such costs and/or [Trucidator] or [Slaughter & May] is or becomes liable either directly or by way of financial contribution for such costs and (ii) the reasonable additional costs to [Trucidator] or [Slaughter & May] of alternative accommodation and/or the net loss of rent together with the cost of relocation to and/or from alternative accommodation to the extent that such costs, loss or relocation were necessarily incurred as a result of a physical defect in or damage to the Development or Property for which [Skanska] is liable to [Trucidator] or [Slaughter & May] or the imminent threat of such defect or damage.”