Tesco v Constain - Thomson Reuters

[1961] 1 Q.B. 31 Page 301960 WL 18924 (CA), [1960] 3 All E.R. 332, [1960] 3 W.L.R. 504, (1960) 104 S.J. 704(Cite as: [1961] 1 Q.B. 31)merit his approval. But here, contrary to its habit, the common law, instead oflooking for a principle that is simple and just, rests on theoreticaldistinctions. Why should the question whether the defendant should or should notpay the plaintiff damages for conversion depend upon voidness or voidability, andupon inferences to be drawn from a conversation in which the defendant took nopart? The true spirit of the common law is to override theoretical distinctionswhen they stand in the way of doing practical justice. For the doing of justice,the relevant question in this sort of case is not whether the contract was voidor voidable, but which of two innocent parties shall suffer for the fraud of athird. The plain answer is that the loss should be divided between them in suchproportion as is just in all the circumstances. If it be pure misfortune, theloss should be borne equally; if the fault or imprudence of either party hascaused or contributed to the loss, it should be borne by *74 that party in thewhole or in the grdater part. In saying this, I am suggesting nothing novel, forthis sort of observation has often been made. But it is only in comparativelyrecent times that the idea of giving to a court power to apportion loss has founda place in our law. I have in mind particularly the Law Reform Acts of 1935, 1943and 1945, that dealt respectively with joint tortfeasors, frustrated contractsand contributory negligence. These statutes, which I believe to have workedsatisfactorily, show a modern inclination towards a decision based on a justapportionment rather than one given in black or in white according to the logicof the law. I believe it would be useful if Parliament were now to considerwhether or not it is practicable by means of a similar act of law reform toprovide for the victims of a fraud a better way of adjusting their mutual lossthan that which has grown out of the common law.RepresentationSolicitors: Corbin, Greener & Cook for Charles Ingham, Clegg & Crowther, LythamSt. Annes, Lancs.; Gibson & Weldon for B. A. Greenwood & Co., Poole, Dorset.Appeal dismissed with costs. Leave to appeal to the House of Lords. (N. P. )(c) Incorporated Council of Law Reporting For England & WalesEND OF DOCUMENTCopr. © West 2004 No Claim to Orig. Govt. Works