Stewart Gill v Horatio Myer [1992] 2 QB 600

• Plaintiff installed a machine for Defendant and claimed for the money still owed, requesting the court to give summary judgment (i.e. not giving Defendant a full right to defend themselves in trial), which Defendant contested on the basis that they had certain claims against Plaintiff, which they wanted to be set off against the outstanding payment.

• Plaintiff’s request for summary judgment and refusal of Defendant’s counterclaims was on the basis that a clause in the contract stated that the money was due immediately upon completion and could not be delayed by counterclaims etc.

• CA held that such a clause came within s.13 (1) (b) which disallowed terms to deny ordinarily available remedy to the extent that other limitations are disallowed.

  • Thus it was for Plaintiff to show that the clause was reasonable, which it had not done at the original trial and a full case (NOT summary) would be required. 

• Plaintiff also had to show that the whole of the clause was reasonable and the court would not carve up and preserve the reasonable bits of it. 

Stuart-Smith LJ

the term as a whole that has to be reasonable and not merely some part of it.

• Otherwise there would be no predictability to the law since it would be a guessing game as to which bits the court keeps.