Dear Colleagues,

Just two footnotes to Andrew's e-mail on this interesting case. Firstly, the Court of Appeal does not mention (but might have mentioned) Dyson Technology Ltd & Ors v Curtis & Anor [2010] EWHC 3289 (Ch)http://www.bailii.org/ew/cases/EWHC/Ch/2010/3289.html , in the supplemental judgment ([158]ff) of which His Honour Judge David Grant preferred Reid to Lister (disagreeing with Lewison J at first instance in Versailles), relying on an argument that dicta from Lord Guest in Boardman v Phipps were consistent with Lord Templeman's judgment.

Secondly, I wonder about [74] of Lord Neuberger MR's judgment:

[74] I do not suggest that it would always be wrong for this court to refuse to follow a decision of the Privy Council in preference to one of its own previous decisions, but it the general rule is that we follow our previous decisions, leaving it to the Supreme Court to overrule those decisions if it is appropriate to do so. Two recent cases where this court preferred to follow a decision of the Privy Council rather than an earlier domestic decision which would normally be regarded as binding (in each case a decision of the House of Lords) are R v James (Leslie) [2006] <http://www.bailii.org/ew/cases/EWCA/Crim/2006/14.html> EWCA <http://www.bailii.org/ew/cases/EWCA/Crim/2006/14.html> Crim 14<http://www.bailii.org/ew/cases/EWCA/Crim/2006/14.html>, [2006] 1 All ER 759 and Abou-Rahmah v Abacha [2006] <http://www.bailii.org/ew/cases/EWCA/Civ/2006/1492.html> EWCA <http://www.bailii.org/ew/cases/EWCA/Civ/2006/1492.html> Civ 1492<http://www.bailii.org/ew/cases/EWCA/Civ/2006/1492.html>, [2007] 1 Lloyd's Rep 115<http://www.bailii.org/cgi-bin/redirect.cgi?path=/ew/cases/EWCA/Civ/2006/1492.html>. In each case, the decision was justified, based as it was on the proposition that it was a foregone conclusion that, if the case had gone to the House of Lords, they would have followed the Privy Council decision.
From the context, I think that the first sentence there should either begin "I do not suggest that it would always be right for this court to refuse to follow..." or "I do not suggest that it would always be wrong for this court to follow a decision of the Privy Council...". On the use of Abou-Rahmah v Abacha, it is not authority for the proposition for which it is cited, for two reasons. 1) Arden LJ's preference for Barlow Clowes over Twinsectra was a minority view, as Rix LJ (at [40]) and Pill LJ (at [91]) did not think that it was necessary to resolve the point on the appeal. (However, in Starglade Properties Ltd v Nash [2010] EWCA Civ 1314, the Court of Appeal did conclude that the Barlow Clowes objective test is to be adopted, but partly on the basis that Abou-Rahmah had said so). 2) The Barlow Clowes dishonest assistance problem is not the same as that facing the Court of Appeal regarding Lister/Reid (in Versailles) or regarding R v Smith (Morgan)/AG v Holley in James. In Barlow Clowes, the Privy Council did not purport to be disgareeing with Twinsectra, but merely clarifying what their Lordships meant. The difficulty is that that 'clarification' is manifestly inconsistent with what their Lordships had said in Twinsectra. In both Versailles and James, on the other hand, the Court of Appeal has to deal with the express disapproval from the Privy Council of an otherwise binding decision, which is very different.

Best wishes,

James

--
James Lee
Lecturer and Director of Careers
Academic Fellow of the Inner Temple
Birmingham Law School
University of Birmingham
Edgbaston
Birmingham
B15 2TT, United Kingdom

Tel: +44 (0)121 414 3629
E-mail: j.s.f.lee@bham.ac.uk

________________________________
From: Prof Andrew Tettenborn [a.m.tettenborn@swansea.ac.uk]
Sent: 30 March 2011 12:36
To: ODG
Subject: Versailles

Those interested in the interface between obligations, property & restitution will note that the CA has upheld Lewison J in Sinclair v Versailles: see [2011] EWCA Civ 347. And, in so doing, has decisively declined to follow AG v Reid, preferring to stick with Lister v Stubbs and say that unlawful fiduciary gains are owed to, rather than owned by, the beneficiary. And quite right too, in my view at least. Whether the SC will take the same view as and when this issue comes before it -- which it surely must in the nearish future -- remains to be seen.


Andrew


--


Andrew Tettenborn
Professor of Commercial Law, Swansea University

School of Law, University of Swansea
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Phone 01792-602724 / (int) +44-1792-602724
Fax 01792-295855 / (int) +44-1792-295855


Andrew Tettenborn
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