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Andrew Dickinson rightly points up Dextra v BoJ on the change of position point.

Less obviously, however, the case also seems to blow out of the water the HL decision in Jones v Waring & Gillow. In both cases the essential scenario is the same: A is duped by B into drawing a cheque in favour of C, for which C gives value. Jones allows A to recover from C on the basis that he has paid C by mistake, and that C, not being a holder in due course, has no defence. But, as Dextra points out, this can't be right. Even if C wasn't a holder in due course, he was a holder for value and could have sued A on the cheque if it hadn't been met, and you can't use restitution to get back sums you were bound to pay the defendant in the first place.

Dextra, I suggest, must be correct on this point and Jones wrong. The only puzzle is why this argument was thought only to be relevant if Dextra relied on the payment of the cheque, rather than its acquisition by BoJ, as giving Dextra a cause of action. I would have thought that once BoJ had *acquired* the cheque for value, they had a right to sue on it from that moment, and hence that Dextra were out of court anyway. Or am I missing something?

Andrew

Andrew Tettenborn MA LLB
Bracton Professor of Law

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