Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE BINGHAM |
| Judgment Date | 12 November 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1112-6 |
| Docket Number | 87/1126 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 November 1987 |
[1987] EWCA Civ J1112-6
Lord Justice Dillon
and
Lord Justice Bingham
87/1126
Case No. 480669
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LAMBETH COUNTY COURT
(HIS HONOUR JUDGE HOLROYD)
Royal Courts of Justice
MR. S. LENNARD (instructed by Messrs. Andrew Moore & Co.) appeared on behalf of the (Plaintiff) Respondent.
MR. NICHOLAS YELL (instructed by Messrs. Steven Fisher & Co.) appeared on behalf of the (Defendant) Appellant.
The defendants appeal against a decision of the late Judge Holroyd Q.C. given in the Lambeth County Court at the trial of this action on the 11th March, 1987 whereby the judge awarded the plaintiffs judgment against the defendants in the sum of £3,783.50 with interest and costs. The judge described the case as an interesting case, and in that I agree with him.
The plaintiffs run a library of photographic transparencies. The defendants are engaged in advertising. On the 5th March, 1984 Mr. Beeching, a director of the defendants, wanting photographs for a presentation for a client, telephoned the plaintiffs, whom the defendants had never dealt with before. He spoke to a Miss Fraser of the plaintiffs and asked her whether the plaintiffs had any photographs of the 1950s which might be suitable for the defendants' presentation. Miss Fraser said that she would research his request, and a little later on the same day she sent round by hand to the defendants 47 transparencies packed in a jiffy bag. Also packed in the bag, among the transparencies, was a delivery note which she had typed out, and to which I shall have to refer later.
Having received the transparencies, Mr. Beeching telephoned the plaintiffs at about 3.10 on the afternoon of the 5th March, and told Miss Fraser, according to a contemporary note which the judge accepted, that he was very impressed with the plaintiffs' fast service, that one or two of the transparencies could be of interest, and that he would get back to the plaintiffs.
Unfortunately he did not get back on to the plaintiffs and the transparencies seem to have been put on one side and overlooked by the defendants. The plaintiffs tried to telephone Mr. Beeching on the 20th and again on the 23rd March, but only spoke to his secretary. In the upshot the transparencies, which the defendants did not use for their presentation, were not returned to the plaintiffs until the 2nd April.
The plaintiffs thereupon sent an invoice to the defendants for £3,783.50 as a holding charge for the transparencies. The invoice was rejected by the defendants, and accordingly in May 1984 the plaintiffs started this action claiming the £3,783.50, the amount of the invoice. That is the sum for which the judge awarded the plaintiffs judgment by his order now under appeal.
The plaintiffs' claim is based on conditions printed on their delivery note, which I have briefly mentioned, and must now describe in greater detail.
It is addressed to Mr. Beeching of the defendants at the defendants' address and in the body of it the 47 transparencies are listed by number. In the top right-hand corner the date of dispatch is given as the 5th March, 1984 and the date for return is clearly specified as the 19th March. Across the bottom, under the heading "Conditions" fairly prominently printed in capitals, there are set out nine conditions, printed in four columns. Of these the important one is No.2 in the first column, which reads as follows:
"2. All transparencies must be returned to us within 14 days from the date of posting/delivery/collection. A holding fee of £5.00 plus VAT per day will be charged for each transparency which is retained by you longer than the said period of 14 days save where a copyright licence is granted or we agree a longer period in writing with you."
Condition 8 provides:
"8. When sent by post/delivered/collected the above conditions are understood to have been accepted unless the package is returned to us immediately by registered mail or by hand containing all the transparencies whole and undefaced and these conditions shall apply to all transparencies submitted to you whether or not you have completed a request form."
The conditions purport to be merely the conditions of the bailment of transparencies to a customer. If the customer wishes to make use of transparencies so submitted to him, a fresh contract has to be agreed with the plaintiffs, but, as that did not happen so far as the defendants are concerned, it is unnecessary to consider that aspect further.
The sum of £3,783.50 is calculated by the plaintiffs in strict accordance with condition 2 as the fee for the retention of 47 transparencies from the 19th March to the 2nd April, 1984. It is of course important to the plaintiffs to get their transparencies back reasonably quickly, if they are not wanted, since if a transparency is out with one customer it cannot be offered to another customer, should occasion arise. It has to be said, however, that the holding fee charged by the plaintiffs by condition 2 is extremely high, and in my view exorbitant. The judge held that on a quantum meruit a reasonable charge would have been £3.50 per transparency per week, and not £5 per day, and he had evidence before him of the terms charged by some ten other photographic libraries, most of which charged less than £3.50 per week and only one of which charged more (£4 per transparency per week). It would seem therefore that the defendants would have had a strong case for saying that condition 2 was void and unenforceable as a penalty clause; but that point was not taken in the court below or in the notice of appeal.
The primary point taken in the court below was that condition 2 was not part of the contract between the parties because the delivery note was never supplied to the defendants at all. That the judge rejected on the facts; he found that the delivery note was supplied in the same jiffy bag with the transparencies, and that finding is not challenged in this court. He made no finding however that Mr. Beeching or any other representative of the defendants read condition 2 or any of the other printed conditions, and it is overwhelmingly probable that they did not.
An alternative argument for the defendants, in this court as below, was to the effect that any contract between the parties was made before the defendants knew of the existence of the delivery note viz. either in the course of the preliminary telephone conversation between Mr. Beeching and Miss Fraser, or when the jiffy bag containing the transparencies was received in the defendants' premises but before the bag was opened. I regard these submissions as unrealistic and unarguable. The original telephone call was merely a preliminary enquiry and did not give rise to any contract. But the contract came into existence when the plaintiffs sent the transparencies to the defendants and the defendants, after opening the bag, accepted them by Mr. Beeching's phone call to the plaintiffs at 3.10 on the 5th March. The question is whether condition 2 was a term of that contract.
There was never any oral discussion of terms between the parties before the contract was made. In particular there was no discussion whatever of terms in the original telephone conversation when Mr. Beeching made his preliminary enquiry. The question is therefore whether condition 2 was sufficiently brought to the defendants' attention to make it a term of the contract which was only concluded after the defendants had received, and must have known that they had received the transparencies and the delivery note.
This sort of question was posed, in relation to printed conditions, in the ticket cases, such Parker v. South Eastern Railway L.R.2 C.P.D. 416, in the last century. At that stage the printed conditions were looked at as a whole and the question considered by the courts was whether the printed conditions as a whole had been sufficiently drawn to a customer's attention to make the whole set of conditions part of the contract; if so the customer was bound by the printed conditions even though he never read them.
More recently the question has been discussed whether it is enough to look at a set of printed conditions as a whole. When for instance one condition in a set is particularly onerous does something special need to be done to draw customers' attention to that particular condition? In an obiter dictum in J. Spurling Ltd. v. Bradshaw [1956] 1 W.L.R.461 at page 466 (cited in Chitty on Contracts 25th Ed. Vol. 1 at page 408) Lord Justice Denning stated that "Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient".
Then in Thornton v. Shoe Lane Parking Ltd. (1971) 2 Q.B. 163 both Lord Denning M.R. and Lord Justice Megaw held as one of their grounds of decision, as I read their judgments, that where a condition is particularly onerous or unusual the party seeking to enforce it must show that that condition, or an unusual condition of that particular nature, was fairly brought to the notice of the other party. Lord Denning at pages 169H–170D re-stated and applied what he had said in the Spurling case, and held that the court should not hold any man bound by such a condition unless it was drawn to his attention in the most explicit way. Lord Justice Megaw deals with the point at pages 172F–173E where he says:
"I agree with Lord Denning M.R. that the question here is of the particular condition on which the defendants seek to...
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