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Sender:
Benedict White
Date:
Mon, 21 Jul 2003 15:26:09
Re:
Restitution for torts

 

Working on the basis that no man may profit from his own wrong, here is an interesting one to think about.

A is facing proceedings from B, so sees some solicitors who advise him wrongly that he has a good defence.

The wrong advice is based on two things,

1. Failure to realise which act covers the proceedings.

2. An error in the pleading of B.

3. A failure to spot that B has got it wrong despite papers in the hands of A's advisers showing that there case is unanswerable if correctly pleaded.

A then takes this advice as good and proceeds until B realises his mistake and fixes his pleadings.

This is allowed on the basis that most but not all of A's costs are paid to date.

So, to save a bit of time let us assume that as a matter of fact the failure to read the file and see the true position is an act of negligence. That therefore leaves A out of pocket.

The interesting question is should A's legal advisors get the benefit of the costs order, their being instructed in the first place being as a result of their own negligence?

I know what I think, and that is that it would be perverse that a party who has not done work so tainted with negligence can't expect to be paid. What do others think?

 

Kind regards

Benedict White


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