Victor Anthony Tee (Plaintiff/Applicant) v Lautro Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE NOURSE,LORD JUSTICE BROOKE
Judgment Date20 November 1996
Judgment citation (vLex)[1996] EWCA Civ J1120-9
CourtCourt of Appeal (Civil Division)
Docket NumberLTA 96/6823/B
Date20 November 1996

[1996] EWCA Civ J1120-9

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London WC2

Before:

Lord Justice Nourse

and

Lord Justice Brooke

LTA 96/6823/B

Victor Anthony Tee
Plaintiff/Applicant
and
Lautro Limited
Defendant/Respondent

THE APPLICANT PLAINTIFF MR. TEE appeared in person.

THE RESPONDENT DEFENDANT did not appear and was not represented.

1

Wednesday, 20th November 1996

LORD JUSTICE NOURSE
2

The plaintiff, Victor Anthony Tee, seeks leave to appeal against an order of Mr. Justice Ferris made on 16th July 1996, whereby he struck out his statement of claim and his action against the defendant, Lautro Limited, pursuant to Order 18, rule 19 of the Rules of the Supreme Court.

3

The background to the action and the nature of the plaintiff's claim are fully described in the judge's judgment and need not be repeated. The defendant's application to strike out was based on a number of grounds, of which the first three were accepted by the judge. They were, first, that no duty of care was owed by the defendant to the plaintiff; second, that the ingredients of the tort of misfeasance in a public office were not present; and, third, that the attempted plea of bad faith was unsustainable, so that section 187(1) of the Financial Services Act provided a complete defence. I should point out that, if both the first and second grounds were good, the judge did not in fact have to go on to consider section 187(1).

4

In regard to the first ground the judge carefully examined the recent authorities, including the decisions of the Privy Council in Yuen Kun Yeu v. Attorney General of Hong Kong [1988] AC 175 and Davis v. Radcliffe [1990] 1 WLR 821. He rejected an argument by the plaintiff's counsel that he was in a very different position vis-à-vis the defendant from the position of the depositors vis-à-vis the government authorities in those cases. He further rejected counsel's submission that an analogy could be drawn between the present case and Spring v. Guardian Royal Exchange Assurance [1995] 2 AC 296. While accepting that the defendant, as this court had indeed held in Mr. Tee's proceedings for judicial review in 1994, owed him a public law duty of fairness in relation to the giving of the intervention notice, he rejected the submission that it owed him a private law duty of care, basically on the ground that the necessary proximity was lacking. On this aspect of the case the judge concluded as follows:

"Miss Booth's superficially attractive argument to the effect of 'Granted that Lautro owed Mr. Tee a duty of fairness, why should it not also owe him a duty of care?' is, I think, dangerous in its simplicity. The true view, in my judgment, is that in exercising its regulatory functions under its rules Lautro owes to Mr. Tee, and to others in a similar position, a public law duty to exercise procedural fairness in the way which was established on Mr. Tee's application for judicial review. While the movement involved in passing from procedural fairness to a duty of care may seem to be slight, it is in fact very substantial. The public law duty and the supposed private law duty are based upon very different principles; and in my judgment the duty of care which is suggested in this case cannot be derived from the relevant private law principles."

5

I will refer to Mr. Tee's arguments this morning in due course. In my view it is quite clear that none of them could lead this court to take the view, if leave to appeal was granted, that the judge was wrong on the duty of care point. Indeed, I do believe that that point, on the existing authorities as analysed by the judge, is in truth unarguable.

6

In regard to the ingredients of the tort of misfeasance in a public office, it was agreed between counsel in the court below that the claim can be put in one or two different ways, the plaintiff's counsel claiming that it was the first which was applicable here. That requires that there should be both (1) an invalid, unauthorised or unlawful act or perhaps an omission on the part of a public officer in the exercise of his duty as such public officer which causes damage to...

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