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Thornton v Shoe Lane Parking Ltd. [1971] 2 Q.B. 163, Pg.

170 Paragraph G
Thornton v Shoe Lane Parking Ltd. [1971] 2 Q.B. 163, Pg. 170 Paragraph A
J Spurling Ltd v Bradshaw [1956] 1 W.L.R. 461, Pg. 466, Denning

May it please your Lordship, I am [your own name] and I am appearing with
[team members name] for the appellant [clients name]. My learned friends
Nora Rosenblum and Susannah Paul are appearing for the respondent.
Would your Lordship care to be reminded of the facts of this case?
Facts of this case;
In January 2011 Bella Daball, the appellant, purchased a suit and after using the
item she planned to sell it to Good as New. She was advised by Good as News
buyer that she could expect to recoup around 1,500 for the suit if it was in a
suitable condition. After the function, Bella handed the suit into the local dry
cleaner, the respondent, on the 24th February 2011, paying 50 for the cleaning
service.
After collecting the suit on the 27th February 2011 she discovered a tear at the
hem near the back of the skirt. The owner of Spick and Span insisted that the
tear was already there when her assistant inspected the suit prior to cleaning.
However, there was no written report as the assistant forgot to write it down,
claiming it was a particularly busy day. Bella raised an action claiming 1,500 in
damages for breach of contract as she will no longer be able to sell the suit to
Good as New. At first instance, Lord Borrowdale refused the claim and accepted
that Spick and Spans limitation clause was effective to exclude liability. Bella
now reclaims to the Inner House on grounds that the notice was not effectively
incorporated into the contract and therefore the exclusion clause did not form
part of the express terms of the contract to clean the suit.

Beginning

Your Lordship, In establishing the case for the appellant, reclaiming on the
grounds that the notice was not effectively incorporated into the contract
and therefore did not form part of the express terms of the contract, it will
firstly be argued that we can say that the terms and conditions of the
notice were not known to exist by Mrs Bella Daball prior to the formation
of contract because the respondent did not specifically draw the notice to
the appellants attention. Secondly, it will be shown that the terms to be
incorporated are particularly onerous and unusual, causing significant
imbalance to the rights of the parties to the detriment of the appellant.
The more onerous, unreasonable or unusual the clause the, greater

insistence by judges that the clause should be drawn to the attention of


the other party in a full, developed way. Finally, Counsel for the
appellant will argue that even if the notice was incorporated and formed
part of the express terms of the contract, that the notice was
unreasonable under The Unfair Contract Terms Act 1977 and the Unfair
Terms in Consumer Contracts Regulations 1999.
Your Lordship, turning to the first submission, the argument for the
appellant is that the respondents notice did not form part of the express
terms of the contract because the terms and conditions were not known to
exist by the appellant prior to the contracts formation.
The respondent denies liability by relying on a notice taped to the front
door of the shop. As was the case in Thornton and Shoe Lane Parking
Ltd. [1971] 2 Q.B. 163, Pg. 170 Paragraph G (Lord Denning), Would
your Lordship care to be reminded of the facts of this case?, a garage
company could not escape liability by reason of an exemption condition
because the customer was only bound by an exemption condition if the
company did what was reasonably sufficient to give the plantiff notice of
the condition. In application to the facts of this case, we would submit to
the court that because on the 24th of February 2011 when Bella handed
the suit to the respondent, that because the limitation clause in question
was not specifically drawn to the attention of the appellant that the notice
did not form part of the express terms of the contract. The notice was not
visible at the point of the formation of contract and the notice was not
inside the shop, but rather, on the outside of the front door, and we
submit to the court that the respondent did not employ a safeguard which
would be regarded as reasonably sufficient, such as verbally informing
Bella of such a limitation clause or some other means of specifically
drawing the exemption condition to the appellants attention.
Without informing Bella of the clause the respondent is simply relying on
Mrs Daball to read the notices which are displayed on the shop door. We
submit that this method was not an effective or reliable means of ensuring
the appellant read and was aware the exemption clause applied because
it is not enough that the respondent subject the appellant to such a notice
without further developed clarification. As was stated in the case of
Thornton and Shoe Lane Parking(Thornton v Shoe Lane Parking Ltd.
[1971] 2 Q.B. 163, Pg. 170 Paragraph A- Lrd Denning), Lord Denning
affirmed the question put forward by Lord Justice Mellish in Parker and
South Eastern Railway Co:
It is no use telling the customer that the ticket is issued subject to some
"conditions" or other, without more: for he may reasonably regard

"conditions" in general as merely regulatory, and not as taking away his


rights, unless the exempting condition is drawn specifically to his
attention.
We submit to the court, that on application of the law in this instance we
can see that taping the notice to the door and using no other safeguard to
ensure the appellant read the terms and conditions did not incorporate
the terms into the contract. This is because the respondent should have
specifically drawn the notice to the attention of our client. It is argued
that, a regular customer walking into a shop would not expect a notice to
bind them with such terms and conditions as notices themselves can have
vague interpretations and connotations, for instance, the notice may be
disregarded as an advertisement or general information such as the dry
cleaners notices of opening and closing hours.
The final ground of appeal which will be submitted to the court to
establish that the notice was not effectively incorporated into the express
terms of the contract is that the terms to be incorporated are particularly
onerous and unusual. We submit this to the court on the basis that the
notice states the respondent, In no circumstances will accept liability for
damage or staining or for any unanticipated effects of the dry cleaning
process, except to the extent of refunding the cost of cleaning., and this
causes a significant imbalance in the parties rights and obligations to the
determent of the appellant because the cost of dry cleaning is only 50
while our client realistically expected to recoup 1,500 for the suit. The
more onerous, unreasonable or unusual the clause the, greater insistence
by judges that the clause be drawn to the attention of the other party in
an explicit, fully developed way and therefore the notice cannot be said to
have been successfully incorporated into the contract. As was stated in
the case of Spurling and Bradshaw Ltd [1956] 1 W.L.R. 461, Pg.
466- Lrd Denning where the genesis of the red hand rule is to be found,
Would your Lordship care to be reminded of the facts of this case?, Lord
Denning said:
the more unreasonable a clause is, the greater the notice which must be
given of it. 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.
It is submitted to the court that on application to the facts of this case that
this clause is regarded as unreasonable in Lord Dennings words and the
notice is not effectively incorporated into the contract because the
respondent did not take enough effort or care in drawing our clients

attention specifically to such an unreasonable and onerous clause. It is


argued that the notice causes such an imbalance in party rights, to the
benefit of the respondent and detriment of our client, because the
respondent is only prepared to refund the small cost of cleaning and not
prepared to look to the future and protect our clients expectations.
Your Lordship, today I have made three submissions in order to establish
that the respondents notice was not effectively incorporated into the
express terms of the contract. And in summary I would ask this
honourable court to find in our favour on the basis that we can say that
the notice was not known to exist by Mrs Bella Daball prior to the
formation of contract as the respondent did not specifically draw the
notice to the appellants attention. I would also ask this honourable court
to find in our favour because the notice to be incorporated was
particularly onerous and unusual, putting our client in a vulnerable
situation, creating significant disadvantages to our client in respect of her
party rights as it removes basic safeguards the law of contract strives to
protect which we submit is protecting realistic expectations and putting
people in the position they should be in. I will now hand over to my
learned friends, Counsel for the Respondent.

Lrd Denning p170 para G


the company did not do what was reasonably sufficient to give him notice of it
(the condition).
I do not think the garage company can escape liability by reason of the
exemption condition. I would, therefore, dismiss the appeal.
Relate to issue of problem and conclude this.
Issue of problem and introduce this.
Lrd Denning pg 170 para A
It is no use telling the customer that the ticket is issued subject to some "
conditions " or other, without more: for he may reasonably regard " conditions" in
general as merely regulatory, and not as taking away his rights, unless the
exempting condition is drawn specifically to his attention.
Relate to issue of problem and conclude.

The ticket was issued here by an automatic machine and in such cases the
conditions must be drawn to the attention of the recipient before the money is
put into the machine or the machine is operated
Previous dealings, local dry cleaner, may have friends who go there. Previous
dealings are relevant only if they prove knowledge of the terms, actual or
constructive, and assent to them.
Taken from McCutcheon case. Lrd Devlin.
If a term is not expressed in a contract it can only come in by implication and no
implication can be made against a party of a term which was unknown to him.
Here the company failed to prove that the car owner made himself acquainted
with the conditions they had introduced into previous dealings and he was not
estopped from saying that, for good reasons or bad, he signed the previous
contracts without knowing what was in them. Either he did not make the contract
at all because the parties were not ad idem or he made it without conditions
(post, pp. 134, 135).

Case law.
Thornton
Thornton v Shoe Lane Parking
Thornton v Shoe Lane Parking Ltd., Court- Court of Appeal,
Judges- Lord Denning M.R.; Megaw L.J. and Sir Gordon Willmer

Facts: In 1964 Mr. Thornton, the plaintiff, drove in his car to an engagement and
went to park it at a multi storey automatic car park. It was his first time there.
There was a notice on the outside giving the parking charges. At the bottom it
read: "All Cars Parked At Owner's Risk." Mr. Thornton drove to the entrance. No
one was attending the entrance. There was a traffic light signalling red, As he
drove to the appropriate place, the traffic light turned green and Mr. Thornton
took the ticket from the machine. He drove into the garage and the car was
taken up by mechanical means to a floor above. Mr Thornton left it there and
went off to keep his appointment. Three hours later Mr Thornton came back,
went to the office and paid the charge for the time the car was there. His car
was brought down from the upper floor. He went to put his belongings into the

boot of the car. An accident occurred and Mr. Thornton was severely
injured. Shoe Lane Parking Ltd, the defendants sought to exempt
themselves from liability for any personal injury suffered by the
customer while he was on their premises. The judge has found it was half
his own fault, but half the fault of Shoe Lane Parking Ltd. The judge awarded him
3,637 6 shillings, 11 pennies. On this appeal the garage company do not
contest the judge's findings about the accident. They acknowledge that they
were at fault, but they claim that they are protected by particular exempting
conditions. The appeal was dismissed as the plaintiff did not know of the
exemption condition and the defendants had not done what was reasonably
sufficient to bring it to his notice and did not exempt them from liability.

Sir Gordon Wilmer


1) the really distinguishing feature of this case is the fact that the ticket on which
reliance is placed was issued out of an automatic machine. in all the previous
so-called "ticket cases" the ticket has been proffered by a human hand, and
there has always been at least the notional opportunity for the customer to say if he did not like the conditions - "I do not like your conditions: I will not have this
ticket."

2) if you do desire to impose upon your customers stringent conditions such as


these, the least you can do is to post a prominent notice at the entrance to the
premises, warning your customers that there are conditions which will apply

3) I agree with what has been said by my Lords.


Megaw
1) In relation to the main arguments that have been put before us, I would refer
to the opening paragraph of the speech of Lord Dunedin in Hood v. Anchor Line
(Henderson Bros.) Ltd.
"My Lords, this is a class of case in which of citing of authorities there is no end,
and yet it is, I think, quite possible to say 'Hear the conclusion of the whole
matter.' The case of Parker v. South Eastern Railway Co., 2 C.P.D. 416 which has
been approved in every case since its date, really stereotyped the question
which the tribunal, be it jury or judge, must put to itself when such a question
arises."
Now take those questions in relation to the present case. First, did the plaintiff
know that there was printing on the ticket? Mocatta J. has answered that

question, being a question of fact, with the answer Yes. Therefore one moves on
to the second question: did he know that the ticket contained or referred to
conditions? Mocatta J. made no express finding on that point. In my view there is
the clearest implication from the way in which he stated and dealt with the third
question that his finding on the second question was to answer it No.
So I come to the third of the three questions. That question, if I may return to the
speech of Lord Dunedin in Hood v. Anchor Line (Henderson Brothers) Ltd. [1918]
A.C. 837, 846, 847 was posed by him in this way:
"Accordingly it is in each case a question of circumstance whether the sort of
restriction that is expressed in any writing (which, of course, includes printed
matter) is a thing that is usual, and whether, being usual, it has been fairly
brought before the notice of the accepting party."
In the present case what has to be sought in answer to the third question is
whether the defendant company did what was reasonable fairly to bring to the
notice of the plaintiff, at or before the time when the contract was made, the
existence of this particular condition.
I think it is a highly relevant factor in considering whether proper steps were
taken fairly to bring that matter to the notice of the plaintiff that the first attempt
to bring to his notice the intended inclusion of those conditions was at a time
when as a matter of hard reality it would have been practically impossible for
him to withdraw from his intended entry upon the premises for the purpose of
leaving his car there.
leaving the cars blocking the entrances to the garage, in order to search for, find
and peruse the notices! Yet unless the defendants genuinely intended that
potential customers should do just that, it would be fiction, if not farce, to treat
those customers as persons who have been given a fair opportunity, *174 before
the contracts are made, of discovering the conditions by which they are to be
bound.
Denning
The important thing to notice is that the company seek by this condition to
exempt themselves from liability, not only for damage to the car, but also for
injury to the customer howsoever caused. The condition talks about insurance. It
is well known that the customer is usually insured against damage to the car. But
he is not insured against damage to himself.
We have been referred to the ticket cases of former times from Parker v. South
Eastern Railway These cases were based on the theory that the customer, on
being handed the ticket, could refuse it and decline to enter into a contract on
those terms. He could ask for his money back. He may protest to the machine,
even swear at it. But it will remain unmoved. He is committed beyond recall. He
was committed at the very moment when he put his money into the machine.

The contract was concluded at that time. It can be translated into offer and
acceptance in this way: the offer is made when the proprietor of the machine
holds it out as being ready to receive the money. The acceptance takes place
when the customer puts his money into the slot.
Assuming, however, that an automatic machine is a booking clerk in disguise - so
that the old fashioned ticket cases still apply to it. We then have to go back to
the three questions put by Mellish L.J. in Parker v. South Eastern Railway Co., 2
C.P.D. 416, 423, subject to this qualification: Mellish L.J. used the word
"conditions" in the plural, whereas it would be more apt to use the word
"condition" in the singular, as indeed the *170 lord justice himself did on the
next page. After all, the only condition that matters for this purpose is the
exempting condition. It is no use telling the customer that the ticket is issued
subject to some "conditions" or other, without more: for he may reasonably
regard "conditions" in general as merely regulatory,
the garage company were not entitled to rely on the exempting condition for the
reasons there given. Dismiss.

Spurling v Bradshaw Ltd


Spurling, Court- Court of Appeal,
Judges- Denning , Morris and Parker L.JJ.

facts of case
The defendant (Bradshaw) delivered eight barrels of orange juice for storage to
the plantiffs (Spurling), and a few days later received a "landing account" which
on its face referred to conditions printed in small type on the back. These
included the London lighterage clause, exempting the plaintiffs from liability for
any loss, damage or detention, in respect of goods entrusted to them in the
course of their business, occasioned by the negligence, wrongful act or default of
themselves, servants, or agents. The barrels were found to be either empty or in
such damaged condition as to be useless on collection. In an action by the
warehousemen to recover charges due for storage, the defendant
counterclaimed for damages for alleged breach of an implied term of the
contract of bailment to take reasonable care of the barrels. The plaintiffs denied
negligence and relied on the exemption clause. The county court judge, after
hearing evidence for the defendant only, found that the plaintiffs had been
negligent; he dismissed the counterclaim, holding that the exemption clause
applied. On appeal by the defendant the appeal was dismissed on the grounds
that the warehousemen were entitled to rely on the exempting condition.