I can't resist taking a moment from my crushing overdue work pile to

point out that, if the assumption of marital fidelity was part of her

decision making process in participating in the re-mortgage, then the

lack of disclosure of the affair was a NESS cause, although not a

but-for cause--as is very often true in cases involving reasons as

causes as well as in cases involving multiple physical sources of

pollution, fire, floods, noise etc.

- Richard

-----Original Message-----

From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]

Sent: Wednesday, March 31, 2010 11:06 AM

To: Andrew Tettenborn

Cc: obligations@uwo.ca

Subject: Re: Fwd: RE: Punitive Damages and Undue Influence

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