From: John Halladay <>
To: 'Jason Neyers' <>
Robert Stevens <>
Date: 28/09/2015 15:16:15 UTC
Subject: RE: Volkswagen and breach of contract/tort

How about Hayward v Zurich Insurance Company plc [2015] EWCA Civ 327?

Briggs LJ:  [31] In my opinion the true principle is that the equitable remedy of rescission answers the affront to conscience occasioned by holding to a contract a party who has been influenced into making it by being misled or, worse still, defrauded by his counterparty. Thus, once he discovers the truth, he must elect whether to rescind or to proceed with the contract. It must follow that, if he already knows or perceives the truth by the time of the contract, he elects to proceed by entering into it, and cannot later seek rescission merely because he later obtains better evidence of that which he already believed, still less if he merely repents of it. This seems to me to be a fortiori the case where, as here, the misrepresentation consists of a disputed claim in litigation, and the contract settles that claim.



From: Jason Neyers []
Sent: 28 September 2015 15:50
To: Robert Stevens <>;
Subject: Re: Volkswagen and breach of contract/tort


There is some discussion in Commercial Banking  Company of Sydney Ltd v RH  Brown  & Co (1972) 126 CLR 337 (HCA) if I remember correctly.

Jason Neyers
Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435 

On 24/09/2015 6:23 AM, Robert Stevens wrote:

1. Deceit is an interesting issue.


Now, my understanding of deceit is that the claimant must have been deceived. So it would not be enough to show that you have been left worse off as a result of deceit if you yourself have not been deceived. The gist of deceit is being deceived, not suffering loss.


However, I don't off the top of my head know of any Commonwealth authority standing for that proposition, or the opposite (there is US authority, but there is US authority for most legal propositions.)




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