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Charles Mitchell
Fri, 23 Nov 2007 16:07:31 +0000
Deceit: damages and account


I'm sorry, Jason, I know I'm being thick but I’ve been racking my brains and I can't think what CJ means - in mitigation it's Friday afternoon - but when you tell me I'll give myself three kicks.

So far as your 2nd point goes, I don't think that it's consistent with the HL's explanation of waiver of tort in United Australia Ltd v Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon LC: ‘Where "waiving the tort" was possible, it was nothing more than a choice between possible remedies [sc: for the tort] derived from a time when it was not permitted to combine them or to pursue them in the alternative, and when there were procedural advantages in selecting the form of assumpsit.’ And again at 18: ‘When the plaintiff "waived the tort" and brought assumpsit, he did not thereby elect to be treated from that time forward on the basis that no tort had been committed; indeed, if it were to be understood that no tort had been committed, how could an action in assumpsit lie? It lies only because the acquisition of the defendant is wrongful and there is thus an obligation to make restitution.’ Lord Atkin says the same at 27-9.

Also as you know we do not believe in absence of juristic reason in England - at any rate Lord Hoffmann does not although the higher authority of P Birks and now R Stevens may yet win the day.


Best wishes


Quoting Jason Neyers:

Dear Charles:

The answer to your question depends, of course, on the principle underlying disgorgement. For those of us who buy the CJ justification for disgorgement there are good reasons why fraud will not support that remedy.

Also, the older cases you mention seem more consistent with the fraud destroying the underlying juristic reason for the transaction and therefore with restitution for unjust enrichment following rather than supporting for disgorgement for wrongs.

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