James read an advertisement by a firm of London auctioneers to the effect that there would be held in London an auction sale “without reserve” of the famous Gatsby Painting Collection, valued by an independent expert recently at £250,000. He immediately booked a flight from Scotland to the auction rooms in London where the auction was to be held.

He was determined to get the Collection at any price, especially after catching sight of the artist himself at the sale. James was participating spiritedly in the bidding, which was reaching a very high level under the direction of the auctioneer, when Gatsby demanded that the auction cease since he could not after all bear to part with the paintings.  The auctioneer immediately refused to accept any more bids (the last one had been made by James) and went on to the next item. James’s last bid was £150,000.

James brought an action against the auctioneers for breach of contract demanding £100,000 damages (representing the difference between the contract price and the market value of the lot at the date of the breach) on the basis that the advertisement to hold an auction without reserve constituted a unilateral offer to sell the Collection to the highest bidder and that such an offer was accepted by him when he bid at the auction. The County Court, however, found for the auctioneers holding that:

  1. The advertisement to hold an auction without reserve did not amount to an offer to sell the lot to the highest bidder since there were no express words to that effect in the advertisement, merely a statement of fact that the seller had not placed a reserve on the lot.
  2. The auctioneer’s request for bids amounted merely to an invitation to make an offer to buy and that offer was made by bidding. No contract could be completed until the fall of the auctioneer’s hammer.
  3. There was no contract because there was no consideration for the auctioneer’s promise.
  4. In any event, damages would be purely nominal because, as the highest bidder, James was simply deprived of the chance of obtaining the lot at the price which he actually bid. Until the fall of the hammer, it would have been open to other bidders to bid at a higher price.

You are asked to write a concise piece of legal advice advising James of his chances of a successful appeal to the Supreme Court.