Andrew T suggests that if there was no evidence as to the influence of the

non-disclosure on Mrs Hewett's decision to enter into the transaction then

she ought to lose. But what (reliable) evidence could there be? As has been

pointed out in a number of cases there is no point putting someone like Mrs

Hewett in the witness box: what she would have done had she known of the

affair is pure speculation and she can't even say herself with any

certainty. It is impossible to disentangle her motivations after the fact.

A similar evidentiary problem arises whenever a person enters into a

transaction or otherwise acts to his or her detriment following the exertion

of pressure or influence or the making of a promise or representation by

another. The problem therefore similarly affects the doctrines of deceit,

duress and promissory and proprietary estoppel, amongst others. In all of

those doctrines the same solution is adopted: a 'but for' approach to

causation is rejected in favour of a requirement that the influence in

question be 'a cause', and a rebuttable presumption is made that the

influence, promise, representation etc was influential. In most cases, as

here, no evidence is available to rebut the presumption.

Andrew

On 1/04/10 5:21 AM, "Tettenborn, A" <A.M.Tettenborn@exeter.ac.uk> wrote:

> I absolutely agree with Richard's view, assuming that the assumption of

> marital fidelity was a factor which had some -- albeit not decisive --

> influence. But even NESS causation has to be proved. I'm just wondering what,

> if any evidence, there was that this assumption of Mrs Hewett's had any

> influence at all. If there wasn't any, then (unless we monkey around with the

> burden of proof) surely she ought to lose.

>

> Happy Easter

>

> Andrew