I would have thought this was just an application of the rule we are most

familiar with from Edgington v Fitzmaurice. So, when we try to rescind a

contract in equity it has never been suggested that it is a requirement

that it be shown that the misrepresentation caused the contract to be

entered into, rather it has always sufficed that the misrepresented fact

formed part of the misrepresentee's decision making process. I assume the

same is true for undue influence too.

Rob

> 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 --------

> Subject:        RE: Punitive Damages and Undue Influence

> Date:        Tue, 30 Mar 2010 21:44:07 +0100

> From:        Barry Allan <barry.allan@otago.ac.nz>

> To:        obligations@uwo.ca <obligations@uwo.ca>

>

>

>

> 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

>

> .

>

>

>

--

Robert Stevens

Professor of Commercial Law

University College London