I see what Ger's getting at (which is essentially what the CA said). But, to play angel's advocate for a moment:
(1) Hunt was badly advised: he could easily have arranged the financing so as to preserve his rights.
(2) Those who do business through one-man companies are using a
technicality to protect themselves against liability. One
shouldn't shed too many tears if, for once, the technicalities of
company law turn round and bite them them for a change.
On the subject of avoided loss, note that the SC may well have
been keeping their powder dry. A case was argued at the same time
as Swynson that directly raised that issue, but we still haven't
had judgment in that one. As far as I know it hasn't settled. If
anyone's interested it's The New Flamenco [2015] EWCA Civ 1299.
Andrew
Dear all I've only had time to skim the Swinsin case and may have more detailed comments when I read it later but the result seems unjustifiable in any sense but the most arid and technical. It seems wrong to me and would I think seem clearly wrong to the average intelligent lay person. I am dubious whether recovery should be through subrogation or unjust enrichment reasoning but in no doubt at all that there should be recovery on facts such as these. Kind regards Ger
Andrew Tettenborn Professor of Commercial Law, Swansea University
Institute for International Shipping
and Trade Law
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Andrew
Tettenborn Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe
Sefydliad y
Gyfraith Llongau a Masnach Ryngwladol |
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