Lloyd's Maritime and Commercial Law Quarterly
MISTAKEN SETTLEMENTS OF DISPUTABLE CLAIMS
N. H. Andrews*
1. Introduction
The main question to be examined in this article is how the law should treat a plea of mistake made by a party to a settlement of a disputed or disputable claim. There can be no doubt that the main policy of the law is to uphold a “settlement” or “compromise” reached by parties sitting in the very jaws of court proceedings. The basis of this public policy in favour of finality will be discussed in the second section of the article. But there are two major areas of uncertainty, which will provide material for the rest of the discussion. First, many overlapping and murky terms are used in the literature, such as “compromise”, “settlement”, “submission to honest claims” and “process of law”.1 These need to be clarified. The term “settlement” will be used as the main platform for discussion. It will be argued in particular that it is important to recognize the concept of an “implied settlement”. Once the factor of settlement is cleanly isolated, many leading decisions on “mistake”—namely, Huddersfield Banking Co. Ltd. v. Lister,2
Magee v. Pennine Insurance Co. Ltd.,3
Kelly v. Solari,4
Norwich Union Fire Insurance Soc. v. William H. Price Ltd.5 and Bell v. Lever Bros. Ltd.6—take on a new aspect. Each of these cases should be reviewed in the light of this factor.
The second main issue is to reconsider the relationship between the contractual doctrine of mistake and the restitutionary claim for recovery of money paid under mistake. As will be seen, it is clear that the latter allows recovery much more easily than the setting aside of a contract by reason of mistake.7 It is not intended to attack these differences on general grounds in this article, but it will be argued that they should not warp the treatment of settlements. The best approach, it is submitted, is to apply the contractual test to a transaction which has been categorized as a settlement, even if payment has already occurred.
* Fellow of Churchill College, Cambridge. The author would like to record his thanks to Dr Francis Rose, the General Editor, who convenes the annual meeting held by the Restitution Group of the Society of Public Teachers of Law, before whom an earlier version of this article was read, and to the members of that group for their comments.
1. See J. Beatson, “Duress As a Vitiating Factor in Contract” [1974] C.L.J. 97; Goff and Jones, The Law of Restitution (3rd. edn.), (1986)(hereafter “Goff and Jones” 36–38; 105–108; 119.
2. [1895] 2 Ch. 273.
3. [1969] 2 Q.B. 507; A.L.G. (1969) 85 L.Q.R. 454; Harris (1969) 32 M.L.R. 688.
4. (1841) 9 M. & W. 54.
5. [1934] A.C. 455.
6. [1932] A.C. 161.
7. See infra, text to fn. 49.
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