Is it not possible that
Sempra Metals [2007] UKHL 34 ended
the authority of
Westdeutsche as a decision on the law of
trusts in any case? In
Sempra Lord Nichollas at paras
109-112 and Lord Walker at paras 184-188 noted the concession of
counsel in
Westdeutsche agreeing not to put in issue any
common law basis for compound interest as part of a restitutionary
claim. But those judges in
Sempra seem to use a fusionary
theory that overwhelms the finding in
Westdeutsche as it
was argued, holding
that whether a breach of common law or
equitable rights is at stake, a fused jurisdiction can order a
remedy appropriate to the breach, including something more than
simple interest. Arguably this means under the declaratory theory
that
Westdeutsche was wrongly decided as argued, regardless
of the concession. Lord Walker says as much in
Sempra at
[184], holding that Lord Goff's dissent in
Westdeutsche was
correct. That further implies that all the trusts theory evoked by
Lord Browne-Wilkinson in the earlier case, which was
ratio prior
to
Sempra, has been shown by a later decision to be
unnecessary for the Lords' decision and is so reduced to
obiter
dicta. Which means that Lord Browne-Wilkinson's trust theories
can only survive on the basis of their strength as arguments,
without the buttress of authority.
Josh
Joshua Getzler
Professor of Law and Legal History, Faculty of Law, Oxford
On 19/03/2012 16:49, Jason Neyers wrote:
If the claimant's case is based on an argument that is not clearly
wrong ("far from clear as a matter of law") isn't that a
reason to let it go forward to trial? Or has the Canadian test
for for striking out radically changed from that employed in the
UK?
Jason Neyers
Associate Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435
On 3/17/2012 7:07 AM, Colin Liew wrote:
Dear all,
The English Court of Appeal, in striking out an action in
Maqsood
v Mahmood and another [2012]
EWCA Civ 251, did not have very promising things to say
about Lord Browne-Wilkinson's suggestion in
Westdeutsche
that
Chase Manhattan could be explained on the basis
that where a payee is aware that a payment is being made by
mistake he will hold that payment on trust for the payor.
Maqsood concerned a dispute over a sale of a lease
by the first defendant to the claimant. The claimant sued the
defendants, alleging a failure of consideration and that the
defendants utilised monies from the deal to buy property.
The claim was struck out at first instance for a number of
reasons, including the view that, on the barren facts pleaded
in the statement of case, there was no plausible cause of
action against the second defendant (the first defendant's
wife) because it was not alleged that she was a party to the
sale or owed any fiduciary duty to the claimant. On appeal,
the claimant sought to salvage its position by constructing a
creative argument that the sale by the first defendant having
suffered a failure of consideration, of which the first
defendant was aware, the first defendant held any sums paid by
the claimant thereunder on trust for the claimant, and the
claimant could trace those sums into the hands of the second
defendant.
The appeal was therefore dismissed (and the
claim struck out) on this and a number of other procedural
grounds.
Kind regards,
Colin