Page v Combined Shipping and Trading Company Ltd
| Jurisdiction | England & Wales |
| Judge | Staughton,Millett,Otton L JJ. |
| Judgment Date | 24 May 1996 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 May 1996 |
Court of Appeal
Staughton, Millett and Otton L JJ.
Lord Irvine QC, Charles Morrison and Jason Coppel (instructed by Goodman Derrick) for the plaintiff.
Michael Pooles (instructed by Richards Butler) for the defendant.
The following case was referred to in the judgment:
Brasserie du Pêcheur SA v GermanyECAS (Joined Cases C-46 and C-48/93) [1996] 1 CEC 295; [1996] 1 All ER (EC) 301.
Practice — Mareva injunction — Commercial agent instructed by principal — Agreement allowed principal to determine amount of trading — Agreement to last four years — Principal concluding business agreement after six months — Commercial agent claimed compensation for early termination — Application for Mareva injunction refused for want of good arguable case for compensation — Whether commercial agent had good arguable case for compensation — Whether European regulation departed from position under English law — Commercial Agents Council Directive Regulations 1993, reg. 17, para. (7).
This was an appeal from a decision of Wright J that the Commercial Agents Council Directive Regulations 1993 did not alter the position of English law and therefore the plaintiff, a commercial agent, had no good arguable case to recover substantial sums from the defendant principal.
The plaintiff was a sole trader who acted for the defendant buying and selling commodities. By cl. 5 of an agreement made between the parties the defendant was entitled to determine the maximum open position, the maximum allowable exposure of any individual clients and the maximum allowable exposure to creditors in respect of contracts issued under the agreement, and that any such determination was to supersede any previous determination. Under the agreement the contract was to continue for four years, although either party was entitled to terminate the contract if the other party committed any breach of the provisions. Five months after the agreement was concluded the defendant informed the plaintiff that it was deinvesting in the operations of the plaintiff and that the defendant was bringing the trading activities to an end. The plaintiff wrote to the defendant accepting the defendant's action as wrongful repudiation of the contract.
The plaintiff issued proceedings claiming damages or compensation for wrongful repudiation of the agreement and applied for a Mareva injunction against the defendant. The defendant contended that by cl. 5 of the agreement it had been entitled to determine the amount of trading and thereby reduce the trading to nil and therefore, since it was to be assumed that the defendant would exercise its right of determination in a way most favourable to itself, the plaintiff did not have a good arguable case to receive compensation. The plaintiff contended that he had a right to compensation under the Commercial Agents Council Directive Regulations 1993, reg 17, para. 6 and 7 by which an agent was entitled to compensation for the damage which he suffered as a result of a termination of a contract which “deprive[d] the agent of commission which proper performance of the agency contract would have procured for him…”
The judge found that the regulation did not depart from the position under English domestic law. Since the plaintiff therefore had no good arguable case to recover compensation, the application was refused. The plaintiff appealed.
Held, allowing the plaintiffs appeal:
1 The purpose of the directive and the regulations was to harmonise the law of member states of the Community and to afford commercial agents protection against their principals. That demonstrated an intention to depart from the domestic legal provisions of the various countries in the Community and implement the same regime for all states.
2 The plaintiff had a good arguable case that it would not have been “proper performance” of the agreement within the terms of the regulation for the defendant to reduce the trading to nil, or nearly nil, for three and a half years. Therefore the plaintiff had a good arguable case for compensation and accordingly he was entitled to a Mareva injunction.
Staughton LJ: Mr Graham Page, the plaintiff in this action, is a sole trader in the name of Graham Page Trading in essential oils. For the past six years he has acted as agent for a company called Combined Shipping and Trading Co Ltd who are the defendants in this action. Latterly, the relationship between them has been governed by an agreement which was...
To continue reading
Request your trial
-
Perlman v Rayden
... ... Mr Rayden is the director of a property management company. They purchased this house in 200It is now worth about ... Parsons [1914] 2 Ch 653 at page 667 Swinfen Eady LJ confirmed that it is a question of ... ...
-
Alan Ramsay Sales & Marketing Ltd v Typhoo Tea Ltd
...from Lonsdale, what is essentially the same argument was rejected by the Court of Appeal in an earlier case on the Regulations, Page v Combined Shipping & Trading [1997] 3 All ER 656: see per Staughton LJ at 660d-h. Accordingly, in my judgment, the notice period is to be disregarded in val......
-
Green Deal Marketing Southern Ltd v Economy Energy Trading Ltd
...and even if the agreement determined by reason of the expiration of its fixed term: Light v Ty Europe Ltd, supra. 3) In Page v Combined Shipping and Trading Co Ltd [1997] 3 All ER 656, the Court of Appeal decided, on an interlocutory appeal, that there was a good arguable case that for the......
-
Software Incubator Ltd v Computer Associates UK Ltd
...in fact it must be assumed to continue and be properly performed. Second, Flaux J relied upon the decision of the Court of Appeal in Page v Combined Shipping [1997] 3 All ER 656. This was a case involving an injunction and so all the Court of Appeal had to do was to find there was a good a......
-
Evolution Of The Commercial Agent
...within the common law. The definition of the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 9Page v. Combined Shipping [1997] 3 All ER 656 10Compared to the definition contained within Article 1(2) of the Directive 11Fridman, The Law of Agency, 7th ed, (London: Butterworths, 1996)......