Date: Wed, 3 May 2006 16:55:51 -0400

From: Lionel Smith

Subject: A Change of Topic

To John’s note, I would add that I consider Cullity J’s judgment in Serhan to be a fine addition to the law of blood sugar meters ...

In addition to Serhan, which was digested by Robert Chambers in [2005] RLR §95, Cullity J’s more recent decision in Lewis v. Cantertrot Investments Ltd. (20 March, [2006] O.J. No. 1061), another class action, is also based on the distinction between unjust enrichment properly so called and disgorgement for wrongs.

Keeping one foot in the other camp, of misfeasance versus nonfeasance, while I hesitate to rush in here on my own account, I note that the contribution of J. Kortman, Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio (Oxford: OUP, 2005) is largely concerned with whether it makes sense to distinguish nonfeasance and misfeasance.

Lionel Smith

On 3/5/06 16:16, "John Swan" wrote:

If the fascinating exchanges on Childs v. Desormeaux have run their course - and I don't want to interrupt then if they have not - may I suggest that members look at the decision of Cullity J. in Serhan v. Johnson & Johnson? The judgment is fairly recent but is now before the Divisional Court whose judgment is expected any day.

While the case only involves the question whether the plaintiffs in a proposed class proceeding have stated a cause of action, the justification for the trial judge's conclusion that they have are interesting - one might even say startling.

The case has parallels with Borders (U.K.) Ltd. v. Commissioner of Police of the Metropolis, [2005] EWCA Civ 197, [2005] All E.R. (D.) 60 (March), the comment on which by David Campbell and James Devenney in the Cambridge Law Journal, 65(1), March 2006, pp. 208–225, I have just read (and enjoyed).

I would be very interested to have the opinions of members of the ODG imagine what the Divisional Court might or should do, bearing in mind that the question before the court is a preliminary one, viz., whether the plaintiffs have stated a cause of action.

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