I suggest you send the learned judge an email ... it can be fixed for the
reported version!

Lionel


------ Forwarded Message
> From: James Lee <j.s.f.lee@bham.ac.uk>
> Date: Thu, 7 Apr 2011 05:26:10 -0400
> To: ODG <obligations@uwo.ca>
> Subject: RE: Versailles
>
> Dear Colleagues,
>
> Just two footnotes to Andrew's e-mail on this interesting case. Firstly, the
> Court of Appeal does not mention (but might have mentioned) Dyson Technology
> Ltd & Ors v Curtis & Anor [2010] EWHC 3289
> (Ch)http://www.bailii.org/ew/cases/EWHC/Ch/2010/3289.html , in the
> supplemental judgment ([158]ff) of which His Honour Judge David Grant
> preferred Reid to Lister (disagreeing with Lewison J at first instance in
> Versailles), relying on an argument that dicta from Lord Guest in Boardman v
> Phipps were consistent with Lord Templeman's judgment.
>
> Secondly, I wonder about [74] of Lord Neuberger MR's judgment:
>
> [74] I do not suggest that it would always be wrong for this court to refuse
> to follow a decision of the Privy Council in preference to one of its own
> previous decisions, but it the general rule is that we follow our previous
> decisions, leaving it to the Supreme Court to overrule those decisions if it
> is appropriate to do so. Two recent cases where this court preferred to follow
> a decision of the Privy Council rather than an earlier domestic decision which
> would normally be regarded as binding (in each case a decision of the House of
> Lords) are R v James (Leslie) [2006]
> <http://www.bailii.org/ew/cases/EWCA/Crim/2006/14.html> EWCA
> <http://www.bailii.org/ew/cases/EWCA/Crim/2006/14.html> Crim
> 14<http://www.bailii.org/ew/cases/EWCA/Crim/2006/14.html>, [2006] 1 All ER 759
> and Abou-Rahmah v Abacha [2006]
> <http://www.bailii.org/ew/cases/EWCA/Civ/2006/1492.html> EWCA
> <http://www.bailii.org/ew/cases/EWCA/Civ/2006/1492.html> Civ
> 1492<http://www.bailii.org/ew/cases/EWCA/Civ/2006/1492.html>, [2007] 1 Lloyd's
> Rep
> 115<http://www.bailii.org/cgi-bin/redirect.cgi?path=/ew/cases/EWCA/Civ/2006/14
> 92.html>. In each case, the decision was justified, based as it was on the
> proposition that it was a foregone conclusion that, if the case had gone to
> the House of Lords, they would have followed the Privy Council decision.
> From the context, I think that the first sentence there should either begin "I
> do not suggest that it would always be right for this court to refuse to
> follow..." or "I do not suggest that it would always be wrong for this court
> to follow a decision of the Privy Council...". On the use of Abou-Rahmah v
> Abacha, it is not authority for the proposition for which it is cited, for two
> reasons. 1) Arden LJ's preference for Barlow Clowes over Twinsectra was a
> minority view, as Rix LJ (at [40]) and Pill LJ (at [91]) did not think that it
> was necessary to resolve the point on the appeal. (However, in Starglade
> Properties Ltd v Nash [2010] EWCA Civ 1314, the Court of Appeal did conclude
> that the Barlow Clowes objective test is to be adopted, but partly on the
> basis that Abou-Rahmah had said so). 2) The Barlow Clowes dishonest
> assistance problem is not the same as that facing the Court of Appeal
> regarding Lister/Reid (in Versailles) or regarding R v Smith (Morgan)/AG v
> Holley in James. In Barlow Clowes, the Privy Council did not purport to be
> disgareeing with Twinsectra, but merely clarifying what their Lordships meant.
> The difficulty is that that 'clarification' is manifestly inconsistent with
> what their Lordships had said in Twinsectra. In both Versailles and James, on
> the other hand, the Court of Appeal has to deal with the express disapproval
> from the Privy Council of an otherwise binding decision, which is very
> different.
>
> Best wishes,
>
> James
>
> --
> James Lee
> Lecturer and Director of Careers
> Academic Fellow of the Inner Temple
> Birmingham Law School
> University of Birmingham
> Edgbaston
> Birmingham
> B15 2TT, United Kingdom
>
> Tel: +44 (0)121 414 3629
> E-mail: j.s.f.lee@bham.ac.uk
>
> ________________________________
> From: Prof Andrew Tettenborn [a.m.tettenborn@swansea.ac.uk]
> Sent: 30 March 2011 12:36
> To: ODG
> Subject: Versailles
>
> Those interested in the interface between obligations, property & restitution
> will note that the CA has upheld Lewison J in Sinclair v Versailles: see
> [2011] EWCA Civ 347. And, in so doing, has decisively declined to follow AG v
> Reid, preferring to stick with Lister v Stubbs and say that unlawful fiduciary
> gains are owed to, rather than owned by, the beneficiary. And quite right too,
> in my view at least. Whether the SC will take the same view as and when this
> issue comes before it -- which it surely must in the nearish future -- remains
> to be seen.
>
>
> Andrew
>
>
> --
>
>
> Andrew Tettenborn
> Professor of Commercial Law, Swansea University
>
> School of Law, University of Swansea
> Richard Price Building
> Singleton Park
> SWANSEA SA2 8PP
> Phone 01792-602724 / (int) +44-1792-602724
> Fax 01792-295855 / (int) +44-1792-295855
>
>
> Andrew Tettenborn
> Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe
>
> Ysgol y Gyfraith, Prifysgol Abertawe
> Adeilad Richard Price
> Parc Singleton
> ABERTAWE SA2 8PP
> Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
> Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855
>
>
>
>
> Lawyer (n): One versed in circumvention of the law (Ambrose Bierce)
>
>
>
>
>
>
> Sent from a Microsoft-free zone -- keeping computing free
>

------ End of Forwarded Message

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