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A bird in the hand ...

I have more sympathy for Rimer's reasoning. The consideration's failure is contingent upon a future event; C is entitled to gamble upon that future event or to buy peace of mind in the here and now. If the future event goes C's way, then he hasn't lost the benefit of the insurance which he had against an adverse outcome. Waiting and praying for the HL to overrule Top deck was no doubt easier given C's relative indifference to the outcome.

Simon

Simon MacDonald
Solicitor
Oury Clark Solicitors
10 John Street, London, WC1N 2EB
Tel: + 44 (0)207 067 4300
Fax: + 44 (0)207 067 4301
Website: www.ouryclark.com

-----Original Message-----
From: Andrew Tettenborn
Sent: 20 July 2004 11:43
Subject: [RDG:] failure of consideration - or not?

Payment for disputed rights surfaces again.

I say I have a right to drive across your land to my house. You say I haven't, and if I want one I'll have to pay. Litigation is threading its tortuous way to the HL on the point. Meanwhile I want access for my car. If I pay now, insisting it's under protest, can I get my money back from you if the HL rules in my favour?

No, says Rimer in Cobbold and others v Bakewell Management Ltd [2003] EWHC 2289 (Ch) (a case that seems only to have surfaced recently).

C owns a house abutting a Newbury common owned by B; C says he has a right to drive across the common to his house, but B denies this. The CA has decided for B but a HL appeal is pending.

Under 2002 legislation C has a right to compulsorily purchase an easement from B, but it'll cost him, and he can only get the order if he applies, like, now (i.e. if he waits for the HL his application will be out of time, and if the HL upholds the CA he'll then be over a barrel and have to negotiate on the open market with B or its successor). A further complication: B is on the skids, and if C pays now the chances are £10 to a dried pea that B won't be able to repay.

C seeks to pay but immediately to Mareva (sorry, freeze) the payment pending the HL decision. Whether he can do this depends on whether he has a decent arguable case that, if the HL reverses the CA, he will have a right to get his money back. Rimer says he doesn't have such a case. There's no mistake; and because by buying an easement now C will be buying certainty, there's no failure of consideration either. So no relief.

On mistake this is arguably right: even if we accept Nurdin v Ramsden [1999] 1 AER 941, it's going to be difficult for C to say he was under any illusion as to his right to repayment. But on failure of consideration / purpose? If I pay you for something (i.e. access) that isn't yours to give, surely there's a failure of purpose: the fact that I'm buying certainty is irrelevant, and there's no indication that I intend to compromise my rights.

Or is there something I'm missing?