Public law error and private law claim

Charles Terence Estates Ltd v Cornwall Council [2012] EWCA Civ 1439, [2012] All ER (D) 147 (Nov); NLJ 23 November

The approach of Hobhouse LJ in Credit Suisse v Allerdale Borough Council [1996] 4 All ER 129 was to be preferred to that of Neill LJ in the same case. The assimilation of the various types of public law error in Anisminic Ltd v Foreign Compensation Commission [1969] 1 All ER 208 had not had the effect of imposing a rule which extended inexorably to public law error as a defence to a private law claim. It would be highly undesirable if, years after time expired for the making of a prompt public law challenge by a person with a sufficient interest, the fact of an historic breach of fiduciary duty should inevitably lead to the defeat of a private law claim brought by a party who acted throughout in good faith. Breach of duty, fiduciary or otherwise, might be a defence depending on the circumstances.