Advanced Industrial Technology Corpn Ltd v Bond Street Jewellers Ltd
= No treatment has been given--only citation information is available.
[2006] EWCA Civ 923, [2006] All ER (D) 21 (Jul)
Court: CA
Judgment Date: 04/07/2006
Cases considered by this case
Annotations: All CasesCourt: ALL COURTS
Sort by: Judgment Date (Latest First)
| Treatment | Case Name | Citations | Court | Date | Signal |
| Considered | HIH Casualty and General Insurance Ltd v Chase Manhattan Bank | [2003] UKHL 6, [2003] 1 All ER (Comm) 349, [2003] 2 Lloyd's Rep 61, [2003] Lloyd's Rep IR 230, 147 Sol Jo LB 264, [2003] All ER (D) 272 (Feb) | HL | 20/02/200 3 |
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| Considered | Standard Chartered Bank v Pakistan National Shipping Corp (No 2) | [2002] UKHL 43, [2003] 1 AC 959, [2002] 2 All ER (Comm) 931, [2003] 1 All ER 173, [2002] 3 WLR 1547, [2003] 1 Lloyd's Rep 227, [2003] 1 BCLC 244, [2003] 01 LS Gaz R 26, (2002) Times, 7 November, 146 Sol Jo LB 258, [2002] All ER (D) 67 (Nov) | HL | 06/11/200 2 |
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| Considered | Singer Manufacturing Co v Clark | (1879) 5 Ex D 37, 44 JP 59, 49 LJQB 224, 28 WR 170, [1874-80] All ER Rep 952, 41 LT 591 | Ex D | circa 1879 |
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= This decision has received neutral or ambivalent treatment: considered, explained, etc.Catchwords & Digest
MISREPRESENTATION AND FRAUD - FRAUDULENT MISREPRESENTATION - NON-DISCLOSURE - DEFENDANT PAWNING NECKLACE WHICH DID NOT BELONG TO HIM - DEFENDANT NOT HAVING AUTHORITY TO PAWN NECKLACE - DEFENDANT FALSELY REPRESENTING BY CONDUCT THAT HE HAD RELEVANT TITLE TO NECKLACE - WHETHER CLAIMANT ENTITLED TO SUMMARY JUDGMENTH owned an emerald diamond necklace which was insured for £150,000. He left it with the second defendant for sale or return. The first defendant company, of which the second defendant was the sole director and 50% shareholder (the other 50% being owned by his wife), was in financial difficulties. He approached S, whose company, the claimant, was in the business of money lender. S offered the second defendant a loan of £80,000 for six months with the necklace as security for the loan. Neither the first nor the second defendant had H's authority to pawn the necklace. At the term date of the loan, both the principal sum and interest were outstanding. Thereafter the claimant, through S, agreed for the necklace to be released for the second defendant to show a prospective customer, but instead it was returned to the order of H. The first defendant ceased trading owing a lot of money and was later wound up. In the meantime, the claimant brought proceedings against the defendants, claiming, inter alia, £80,000 and the unpaid interest. There was dispute as to whether the pawnor of the necklace was the first defendant or the second defendant, and as to whether the second defendant had expressly told S that neither he nor the first defendant either owned the necklace or had authority to pawn it. The claimant applied for summary judgment. The judge concluded that the application was flawed as a matter of law and was bound to fail. He said that since Singer Manufacturing Co v Clark (1880) 61 LTR 591 it had been clear that in the case of an ordinary pledge there was an implied undertaking on the part of the pledgor that the property pledged was his own or that he had the authority of the owner to pledge it, and that it might safely be delivered back to him. It was the pawnor and only the pawnor who was subject to the implied warranty. The judge drew a distinction between a warranty implied by law and a representation. A warranty implied by law is implied by law, whereas a representation involved the making of a positive assertion by somebody of a state of affairs. He described it as a quantum leap between a claim on the implied warranty, and a claim based on fraudulent misrepresentation by the second defendant. He treated the two as separate, and held that the claim could not succeed against the second defendant on the Singer principal. The claimant appealed.
It submitted that if the judge had considered the whole picture he would have been driven unerringly to the conclusion that there was no real prospect that the second defendant's case would succeed.
Held - The appeal would be allowed. It was clear that a false representation created by non-disclosure could be sued upon quite independently of the warranty envisaged in Singer. The judge should have found that the second defendant, through his conduct, had falsely represented to S that either he or the first defendant had the relevant title to the necklace. The judge had erred in failing to analyse the factual dispute between the parties. Had he done so he would have concluded that the second defendant's defence was fanciful; the evidence pointed conclusively to the second defendant having fraudulently misrepresented that he was in a position to pawn the necklace when he was not. The security S thought he was getting was no security at all.
Summary judgment would be entered for the claimant.
