In a special two-part series Richard Samuel considers Lord Millett’s taste for Marmite: two policy needs & a single response
- In the second of a two-part series, Richard Samuel explores the reasoning of Lord Millett in Johnson v Gore Wood and Waddington v Thomas which supports the view that the rule on reflective loss is to be applied strictly...
- … and explores how a third policy requirement behind the rule might be better achieved if the rule is applied flexibly on the facts of each case.
In Part 1, readers were introduced to an alternative reading of Johnson v Gore Wood & Co [2002] 2 AC 1, in which the rule against reflective loss is properly to be seen as a flexible rule of procedure rather than an inflexible rule of law (see NLJ, 5 July 2019, p17).
Readers also tasted the fruits of Lord Millett’s speech in Waddington Ltd v Thomas [2009] 2 BCLC 82, recording how the courts developed flexible procedural rules permitting a shareholder to bring a derivative action (Wallersteiner v Moir (No
