Dear all,
It appears that I missed one more case, which is perhaps of more interest and relevance to the property lawyers. In
Crossco No 4 Unlimited & ors v Jolan Limited & ors [2011] EWCA Civ 1619, the Court of Appeal has evinced a difference of opinion on the proper explanation of the "
Pallant v Morgan" equity, with Etherton LJ explaining it on the basis of breach of fiduciary duty, while Arden and McFarlane LJJ consider that, at least at the level of the Court of Appeal, it must still be explained as a common intention constructive trust.
Kind regards,
Colin
On Thu, Dec 22, 2011 at 12:12 PM, Colin Liew
<colinliew@gmail.com> wrote:
Dear all,
You might be interested in the following two cases from the Court of Appeal, which arise out of unusual facts:
Delaney v Pickett and another [2011] EWCA Civ 1532 concerns injuries sustained by the claimant (C) in a severe road accident, for which he claimed damages against the defendant (D) and D's insurer. D raised the defence of
ex turpi causa, while D's insurer relied on a provision in the Motor Insurers' Bureau (MIB) Agreement. Essentially, D argued that he and C were engaged in a criminal enterprise of possessing illegal drugs with intent to supply, and that C's claim therefore arose directly
ex turpi causa, while D's insurer argued that cl 6(1)(e)(iii) relieved them of liability where "the vehicle was being used in the course or furtherance of a crime". On the
ex turpi causa issue, the CA was unanimous that the defence had not been made out, although I think this point might have been dealt with rather too shortly by Richards and Tomlinson LJJ. On the MIB Agreement issue, the CA split 2-1, with Richards and Tomlinson LJJ giving cl 6(1)(e)(iii) a natural interpretation so as to cover the situation, while Ward LJ adopted what seems to me to be an excessively purposive interpretation so as to render the clause effectively otiose.
In
Padden v Bevan Ashford Solicitors [2011] EWCA Civ 1616, C's world was turned upside down when she was abruptly informed by her husband and his solicitor that her husband had misappropriated clients' funds, and that he was facing prison and she the breakup of her family unless she gave up her interest in her home and certain other assets to her husband so that these could be mortgaged or charged to one of the defrauded clients. C then took, or attempted to take, legal advice from D, and the issue was whether, on the limited facts and evidence available (the trial judge having called an early end to the trial), there was any case for D to answer. The Court of Appeal unanimously concluded that there was.
Season's greeetings,
Colin