A mildly interesting mistaken payment case in the English High Court

today, Fitzalan-Howard (Norfolk) & Anor v Hibbert [2009] EWHC 2855 (QB)

(12 November 2009), whose result must be right. Property developers in

error pay something over £200k to their land agents which they ought to

have paid to someone else. Before the agents can send it back they go

bust and their bank annexes the payment using its right of set-off.

Developers then sue an employee and would-be purchaser of the agents

personally, alleging dishonest assistance in a breach of fid duty. The

assistance alleged is (essentially) not taking quicker steps to return

the loot and continuing to deal with the agents once the payment had

been received.

Nice try, says Tomlinson J, but nothing doing. First, the defendant is

guilty of a mere omission, and it is doubtful whether omission can

amount to dishonest assistance. Second, he wasn't dishonest. And

thirdly, it still isn't clear that Chase Manhattan is right to say that

mistaken payments are held on constructive trust anyway.

Best wishes to all,

Andrew

--

Andrew M Tettenborn

Bracton Professor of Law, University of Exeter

Snailmail:

Law School

University of Exeter

Rennes Drive

Exeter EX4 4RJ

England

Phone:

Tel:             01392-263189 (int +44-1392-263189)

Fax:             01392-263196 (int +44-1392-263196)

Cellphone:       07870-130528 (int +44-7870-130528)

LAWYER, n.

One skilled in circumvention of the law. (Ambrose Bierce, 1906).

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