Contractual Capacity in UK Law

I do not think that it is open to this court to introduce such a classification. Where a public authority acts outside its jurisdiction in any of the ways indicated by Lord Reid in Anisminic the decision is void. In the case of a decision to enter into a contract of guarantee the consequences in private law are those which flow where one of the parties to a contract lacks capacity.

Private law issues must be decided in accordance with the rules of private law. The broader and less rigorous rules of administrative law should not without adjustment be applied to the resolution of private law disputes in civil proceedings. Public law, that is to say, the law governing public law entities and their activities, is a primary source of the principles applied in administrative law proceedings.

It remains necessary to ask what amounts to a defence to a private law cause of action. Want of capacity is a defence to a contractual claim; breach of duty, fiduciary or otherwise, may be a defence depending upon the circumstances. To say that administrative law categorises all grounds for judicial review as 'ultra vires' does not assist. In civil proceedings the question is whether, after taking into account the relevant public law, there is on the facts a private law defence.

The above analysis of the CRTA is further supported by the way in which the relevant concepts were expressed through the process of amendment. The phrase ‘maximum rates of delivery of Non-Capacity Gas notified by the CATS Operator pursuant to clause 4.6(a)(vii)’ was, in the unamended CRTA, adopted as the definition of ‘Booked Capacities’. The contractual purpose of the phrase ‘Booked Capacities’ was in determining matters of allocation, under Schedule XIII.

Was ITS retained by Mobil and AIC in any kind of advisory capacity? What was the proper scope of the contractual duties owed by ITS to AIC?

I have dealt with this point at some length because of its obvious importance and out of deference to Mr Mitchell's interesting argument. I have been particularly concerned to examine carefully a point on which Mr Milligan and Mr Railton made common cause. There is no doubt that Norwegian law looks at these matters in a way different from the English approach.

This conclusion renders it unnecessary to give separate consideration to the question of the actual authority of the individual officers of the municipalities to enter into the loan agreements. However in case it is relevant I should state that I can in any event see no basis upon which the officers concerned had authority to enter into the amendments to the loan agreements. It bore no relation to anything authorised by the resolution.