Tina May Case Study - Law Assignment Help

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May it please your ladyship, my name is Araib Gill counsel retained to represent Tina May, the respondent in this appeal proceedings.

This appeal my Ladyship is premised on two fundamental legal issues:
Whether the exclusion clause given the circumstances, was incorporated to the contract between my client May, QC and Barnier Cleaning Limited; and secondlyWhether the exclusion clause was valid in light of the reasonableness test enshrined in the Unfair Contract Terms Act 1977.
Your Ladyship if I may, I would like to put forth an encapsulated recount of the facts and background of this action.
Tina May your honour is an accomplished legal practitioner who has had an illustrious career evidenced by her recent admission to the Queen’s Counsel bar. On this occasion, Tina took her business suit and silk lined gown to Barnier Cleaning Ltd to have them cleaned. Placed on the wall behind the counter was a small sign indicating that “All garments are left entirely at the customer’s own risk. Customers are advised to insure their own property against loss or damage”. However, on that day, the first line of the sign was obscured by a rack of dinner jackets, which were waiting to be collected. Even though Tina noticed the sign, she was in a rush to get to the Royal Courts of Justice for a hearing and did not ask the manager to move the dinner jackets so that she could read the sign. Unfortunately, when Tina went to collect the clothes, she was informed by the manager that both her business suit and silk lined gown had been damaged beyond repair by the negligence of an employee of Barnier Cleaning. Her efforts to recover the loss inflicted upon her by the company through its employee’s negligent conduct were futile with Malcom Barnier, the sole director of Barnier Cleaning Ltd informing her that they were not prepared to offer any compensation. It is due to that that we are here today taking into consideration that this case has already gone through the court of first instance.

With your Ladyship’s permission, I would like to proceed and commence my submissions.
Having highlighted the facts to the case, discernibly identified and outlined the main points of contention in this matter, I deem it fit to subdivide my submissions in two main parts each addressing the legal issues raised by Barnier Cleaning Limited the appellants.

To begin with, it’s the consideration:
Whether as a matter of fact, the said exclusion clause was incorporated to the contract.
Incorporation of exclusion clauses in contract law manifests in various forms by for purposes of this submissions, I am going to focus on incorporation by notice. The general rule regarding such incorporation was laid bare in the case of Parker v South Eastern Railway1877 where the distinguished court held that an individual cannot escape a contractual term by failing to read the contract but that a party wanting to rely on an exclusion clause must take reasonable steps to bring it to the attention of the customer. It is crystal clear that term must be brought to the attention of the contracting party before or at the time the contract was made. If the term was not brought to their attention, it cannot be said that they had accepted the term. Therefore, the term will not be part of the agreement between the parties. As such, I can confidently submit that in this instance, the appellants did not take any active steps towards notifying Miss May of this term which consequently means that the appellant was in breach of this common law requirement. Additionally, it is my submission that regardless off the notice being in a perceivably public place, it is apparent that the negligent obscuring of the contents therein by the rack of dinner jackets was the chief reason why Tina failed to take notice of that sign and as such, I invite your ladyship to find that the clause was unincorporated so to speak.

May I please draw your attention to the words of Lord Denning in the case of White v John Warwick [1953] on 1st WLR pg 1298 4th para, He held that in case a party wishes to be excluded from their liability imposed by common law under the exclusion clause in the contract, there must be a presence of some circumstances or communication that are subject to misunderstanding or miscommunication. The plaintiff’s contentions and claim of negligence can be identified under the law of tort and not the law of contract. The Court of Appeal opined that if there is any ambiguity in the wordings of the exclusion clause, there are chances that the defendants be excluded from any liability arising thereof. However, if there is any negligence on part of the defendants, then there will be no exclusion. As there were two possible heads of liability on the defendants, one for negligence, the other for breach of contract. He says in these circumstances, the exemption clause must be construed as exempting the defendants only from their liability in contract, and not from their liability for negligence.

In furtherance of the above position your Honour, it is the general rule that where a contractual clause is imposed by one party upon the other without room for negotiations such as the exclusion clause in our case, contra proferentem rule applies. To put it on record, this rule essentially means that the clause will be construed against the interests of the person who proposed its inclusion. if a party wishes would exempt his liability for negligence, he must make sure that the other parties understand that pursuant to Canada SS Lines Ltd v. The King1952 court of Appeal case on pg 192 where it was held that if the exclusion clauses mention "negligence" explicitly, then liability for negligence is excluded. On the other hand, if "negligence" is not mentioned, then liability for negligence is excluded only if the words used in the exclusion clause are wide enough to exclude liability for negligence. If there is any ambiguity, then the contra proferentem rule applies. Going by this argument, I believe that this court will be fully persuaded that the cleaning company is liable for negligence and award my client befitting compensatory damages.
Your Ladyship, in addition to the protection offered by the common law, there exists statutory protection from unfair terms in the form of the Unfair Contracts Terms Act 1977. More particularly, Section 2(2) provides that a business may exclude or restrict liability for other types of loss only if it is reasonable to do so. The question of what is reasonable is decided by applying the reasonableness test set out in section 11 which generally provides that reasonableness is judged by all the circumstances which were known, or ought to have been known or in the contemplation of the parties and further, vests the onus of proof on the party seeking to enforce the term to show that it was fair and reasonable. Taking that into to account, my view which was adopted by the lower court is that the notice in question is not reasonable in the sense that it is relatively small and furthermore, May was blocked from seeing it entirely because of the appellants’ fault.

Every limitation or exclusion clause must pass the test of reasonableness and the court in Kenwell & Co Pte Ltd v Southern Ocean Shipbuilding Co Pte Ltd which is a persuasive authority in this case the willingness of a party to enter into a contract containing an exception clause did not prevent it from subsequently raising questions of reasonableness, it can still challenge the validity of the clause under UCTA. Whether a clause is fair and reasonable is to be determined by reference to the time when the contract was made and taking into account the substance and effect of the term and all the circumstances existing when the contract was made and further that reliance on a notice is to be determined by reference to the time when the liability arose and taking into account the substance and effect of the notice and all the circumstances existing when the liability arose. Considering the above factors, I submit to this court that the exclusion clause in the cleaning company is unreasonable as it seeks to exclude liability on grounds that are almost completely in the applicants control and may be manipulated for unilateral gains.

Conclusion and Prayers:
Your Ladyship, in summary of the views expressed in these submissions, it is proper to conclude that the court of first instance was correct both in law and in fact by reaching the conclusions they did. It is my final submission that exclusion clause was not incorporated into the contract, because reasonable steps had not been taken to bring it to the attention of the claimant. And further that applying the test of reasonableness in the Unfair Contract Terms Act 1977, the clause was invalid.
I pray that this honourable court of law adjudges in favour of compensation to my client, uphold the findings of the trial court and dismiss this appeal with costs to the appellant.

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