One passage from Briggs J I find particularly foggy.
"34. Mr Lightfoot submitted that there was no evidence at trial that,
had Mrs Hewett known of her husband's affair in January 2004, she would
have decided not to participate in the re-mortgage. That is in my
judgment nothing to the point. It has never been part of the proof of
undue influence that, but for the relevant abuse of trust, the impugned
transaction would not have been entered into. The right to set aside
the transaction arises not because, on a but for causation analysis, it
would otherwise have been avoided, but because of the equitable wrong
constituted by the abuse of confidence was part of the process by which
the victim's consent to it was obtained."
Unless his Lordship is referring to situations of joint causation,
which are a familiar exception to "but for", or possibly to the burden
of proof, this has me stumped. I can't quite see how you can say in the
same breath that the non-disclosure of the affair didn't cause the wife
to execute the mortgage, but that it was part of the process by which
she was induced to do so. But it's the end of term, and I'm feeling
jaded. Do any group members have any better enlightenment than me?
Andrew
-------- Original Message --------
The Hewett case is certainly a bit of a stretch. Husband was a bit of a
ratbag, financially speaking, with far more credit card debts than he
could cope with. The wife's trust and confidence in him in relation to
financial matters was eroded considerably, as she and her mother had
been bailing him out. But the CA siad trust and confidence can go beyond
the financial, and she trusted him to stick around and meet his
responsibilities. This created a duty of candour, which was breached by
the concealment of the affair. Whether that caused the wife to enter the
impugned transaction was irrelevant - Briggs J saw the issue as best
"addressed by asking whether a solicitor, consulted by Mrs Hewett for
advice about the wisdom of the transaction, would have thought it
relevant to know that her husband was, while asking for her unqualified
trust, at the same time conducting a clandestine affair. There can in my
view only be an affirmative answer to that question."
I don't find the decision at all convincing, and think that the CA did
exactly what our own CA (in New Zealand) warned against: let sympathy
for the victim get in the way of doing the job. The decision can be read
at http://www.bailii.org/ew/cases/EWCA/Civ/2010/312.html.
Still digesting the SCNZ decision on the need for subjective
consciousness of risk of harm before exemplary damages can be awarded,
haven't even started on Sunset Terraces.
Barry
________________________________________
From: Jason Neyers [jneyers@uwo.ca]
Sent: Friday, 26 March 2010 3:28 a.m.
To: obligations@uwo.ca
Subject: ODG: Punitive Damages and Undue Influence
Dear Colleagues:
Some of you might be interested in two recent decisions.
The second, from the English Court of Appeal, deals with undue influence
and holds (I am told) that a failure to disclose an extra-marital affair
creates a presumption of undue influence. See HEWETT v. FIRST PLUS
FINANCIAL GROUP PLC [2010] EWCA Civ 312.
Happy Reading,
--
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
.