Dextra Bank & Trust Co Ltd v Bank of Jamaica
The Privy Council held that the claim failed, first because Dextra had made no relevant mistake of fact, and second because the Bank of Jamaica had changed its position.In that passage, Professor Birks explains the rationale of this distinction in terms relevant to the present case, as follows: "The reason is that restitution for mistake rests on the fact that the plaintiff's judgment was vitiated in the matter of the transfer of wealth to the defendant.Dextra's misplaced reliance on Phillips led it to assume that a loan would result; and this prediction proved to be mistaken.This is because it was overtaken by the specific instructions given by Dextra to Phillips that the cheque was not to be handed over to the BOJ except against the delivery to him of a promissory note evidencing the loan and its terms.The significance of the earlier deception by Wildish was only that it contributed to Dextra instructing Phillips to ensure that the cheque was handed over as a loan.Their Lordships find themselves to be in agreement with Professor Peter Birks who, in his article already cited on Change of Position and Surviving Enrichment at p. 41, rejected the adoption of the criterion of relative fault in forthright language.In particular he stated (citing Thomas v Houston Corbett & Co. [1969] NZLR 151) that the New Zealand courts have shown how hopelessly unstable the defence [of change of position] becomes when it is used to reflect relative fault.Certainly, in the case of Thomas, the reader has the impression of judges struggling manfully to control and to contain an alien concept.’ (at [45]The decision in Dextra has been broadly accepted by academic lawyers, although it has been pointed out that the difference between a "misprediction" and a "mistake of fact" is a very narrow one.