Dear Colleagues,

 

It is a short case and only at first instance but in Kennedy v Kennedy, Etherton C has held that the claimants were entitled to rescission for equitable rescission applying the principles in Pitt v Holt, in one of the first successful such applications since the Supreme Court decision itself http://www.bailii.org/ew/cases/EWHC/Ch/2014/4129.html. This might be of interest to list members.

 

It is furthermore a chance to share the following ‘postscript’, from a Court of Appeal case earlier this year which also engaged Pitt v Holt, as it might offer some light relief at the end of term (the case is Spaul v Spaul [2014] EWCA Civ 679 and the judge is Rimer LJ):

 

 

55. “I add as a postscript that after we had reserved judgment on the appeal, Mushtaq, whose case at the hearing was advanced with conspicuous ability by Mr Holmes-Milner, decided that he could usefully add to it and chose to send an undated manuscript letter to the court, which it received on 21 March 2014, accompanied by various documents. His letter, in upper case throughout, read:

'At the end of the hearing on 6^th February 2014 the panel of honourable judges were looking puzzled. Ultimately, one of the honourable judges said, he did not get clue of the claim.

Its reason is because not enough claim related information was provided in the bundle served to the court.

In view of this, broad based supplementary information is provided by the respondents to get clues of the claim.

Absolutely, this is the only objective.'

56. Whether or not the panel were looking puzzled, I cannot say. I have no recollection of any of us saying he did not 'get clue of the claim' or words to that effect. As regards Mushtaq's thought that we would be helped by further documents, it was by then too late for him to put in such documents, and it is also not apparent from his letter that he thought it appropriate to serve copies on the appellant's lawyers. Mushtaq continued, I presume, to be represented by Mr Holmes-Milner in the appeal; and if he wanted to make further representations the way to do it, if it was to be done at all, was via Mr Holmes-Milner.

57. I have not read the documents he provided: I have done no more than make a superficial glance at them, which shows that they consist in the main of his explanations of financial matters in relation to Nos 209 and 244, which, even if they are reliable (as to which I know not), are irrelevant to the issues on the appeal. I have not taken any account of Mushtaq's documents in arriving at my conclusions. The court, in case Mushtaq did not provide them to the appellant, has passed copies of them to the appellant's counsel, indicating that it wanted no submissions on them. Mushtaq should not have written to the court.

58. As I have said, I would dismiss the appeal.”

 

Best wishes,

James

 

--

James Lee

Senior Lecturer in Private Law

The Dickson Poon School of Law
King's College London
Strand
London WC2R 2LS

 

E-mail: james.lee@kcl.ac.uk

 

Profile: http://www.kcl.ac.uk/law/people/academic/j-lee.aspx