Of course, Judge LJ was offering his thoughts before Dextra (albeit after Kleinwort Benson). The Dextra distinction was also considered, not entirely favourably, by the Victorian case of Hookway v Racing Victoria Ltd and Victorian Amateur Turf Club [2005] VSCA 310.

Best wishes,
James

-----Original Message-----
From: David Lascelles
Sent: 30 January 2008 23:01
Subject: Re: [RDG] Mistake and Voluntary Transfers

Dear All,

From reading James' email I had also wondered why this was not categorised as a misprediction as opposed to a mistake.

Although there is no mention of Dextra in Ogden nor any discussion (in terms) of mistakes and mispredictions, Lewison J does find that the transferor was suffering from cancer at the time of the transaction, was unaware of that and that "[t]he relevant mistake was a mistake about [his own] state of health." (para 24). As Lewison J holds, that can be characterised as a mistake about existing fact. Liability was established upon this (alternative) basis rather than in relation to the claimant's primary contention that the transferor had "mistakenly believed, at the times of the transfers, that there was a real chance that he would survive for seven years whereas in fact at that time his state of health was such that he had no real chance of surviving for that long".

In line with the mistake/misprediction divide, Lewison J agreed with counsel that had the transferor "been a hale and hearty young man and had entered into all the relevant transactions but fallen under a bus the following week, his executors would not have been able to ask the court to set aside the transactions on the ground of a mistake. I think that is right. The operative mistake must ... be a mistake which existed at the time when the transaction was entered into. The mere falsification of expectations entertained at the date of the transaction is not, in my judgment, enough."

As far as I am aware the mistake/misprediction distinction to which reference was made in Dextra has not been expressly discussed by reference to Dextra in any English decision. I don't know whether any list members are aware of any such decision?