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The mistake, I seem to recollect, was to think that a third party could be bound by a contract to which it was not privy. I do not see how this could be described as anything other than a mistake of law.

W J Swadling.

At 09:01 09/02/00 -0000, you wrote:

Dear All,

In Nurdin & Peacock v D B Ramsden [1999] 1 WLR 1249, Neuberger J stated the following at page 1263C-D:

"As for the Banque Financiere case, it did not raise the question of whether or not a plaintiff could recover money paid under mistake of law; it was concerned with the law of subrogation".

Neuberger J was responding to Counsel's submission that the decisions of the House of Lords in Westdeutsche and Banque Financiere had overtaken or overruled the decisions in Woolwich Equitable Building Society v IRC [1993] and Friends' Provident Life Office v Hillier Parker May & Rowden [1997] pre-Kleinwort Benson.

There are conflicting opinions as to the nature of the mistake in Banque Financiere. Swaddling [1999] RLR at 210 suggests that arguably it was a mistake of 'law'. On the other hand, Villiers [1999] LMCLQ at 223 suggests that it was a mistake of 'fact'.

Any thoughts on (1) the nature of the mistake in Banque Financiere (in my opinion it is a mistake of fact) and (2) Neuberger's comments?

Mark Armstrong