Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

Dear All,

From reading James' email I had also wondered why this was not categorised as a misprediction as opposed to a mistake.

Although there is no mention of Dextra in Ogden nor any discussion (in terms) of mistakes and mispredictions, Lewison J does find that the transferor was suffering from cancer at the time of the transaction, was unaware of that and that "[t]he relevant mistake was a mistake about [his own] state of health." (para 24). As Lewison J holds, that can be characterised as a mistake about existing fact. Liability was established upon this (alternative) basis rather than in relation to the claimant's primary contention that the transferor had "mistakenly believed, at the times of the transfers, that there was a real chance that he would survive for seven years whereas in fact at that time his state of health was such that he had no real chance of surviving for that long".

In line with the mistake/misprediction divide, Lewison J agreed with counsel that had the transferor "been a hale and hearty young man and had entered into all the relevant transactions but fallen under a bus the following week, his executors would not have been able to ask the court to set aside the transactions on the ground of a mistake. I think that is right. The operative mistake must ... be a mistake which existed at the time when the transaction was entered into. The mere falsification of expectations entertained at the date of the transaction is not, in my judgment, enough."

As far as I am aware the mistake/misprediction distinction to which reference was made in Dextra has not been expressly discussed by reference to Dextra in any English decision. I don't know whether any list members are aware of any such decision?

Best,
David

David Lascelles
Barrister
Littleton Chambers, Temple

-----Original Message-----
From: Eoin O'Dell
Sent: 30 January 2008 22:04
Subject: [Bulk] Re: [RDG] Mistake and Voluntary Transfers

Hi all,

Thanks James for bringing this interesting case to my attention. But isn't it a misprediction as to a future event (the time of his death)? If so, shouldn't it be outside the definition of mistake? Is that one of the points of Dextra Bank & Trust Co Ltd v Bank of Jamaica [2001] UKPC 50 (26 November 2001) (which doesn't seem to have been discussed by Lewison J). What am I missing here? Any guidance gratefully appreciated.