Date: Fri, 23 Nov 2007 17:04

From: Charles Mitchell

Subject: Deceit: damages and account

Picking up first on Lionel’s point re waiver, of course I have to agree that the nineteenth century judges were not asking themselves whether an action for money had and received following a waiver of tort was a claim for the profits of wrongdoing or a claim for restitution of unjust enrichment. So when we look back at the cases we must say that many are susceptible to alternative analysis since the plaintiff made a mistake and the quantum of the remedy would have been the same either way.

But I like Jason’s suggestion that looking at the award may help us to eliminate the unjust enrichment explanation if we can show that this looked to gains in D’s hands rather than the value of the assets transferred from P where those two things were different. Is Abbotts v Barry like this? D orchestrated a fraud pursuant to which his creature X induced P to sell X wine which X then failed to pay for; X handed the wine over to D, who sold it on; P claimed the sale proceeds in D’s hands as the profits accruing from the fraud and recovered them as money had and received.

So far as the corrective justice point goes, I happily line up with Lionel - which is why I take heart from Etherton J’s findings at first instance in Murad at [342]-[347], despite Arden LJ’s negative line in the CA.

Best wishes
Charles

Quoting Jason Neyers:

Dear Charles:

Corrective Justice, sorry to have been so lazy.

English law does believe in juristic reasons (since it is the most coherent generalization of the liability imposed) it just hasn't explicitly caught up to what is implicit in itself yet. :). Think of negligence law immediately prior to Donoghue v Stevenson.

A history question (since I am painfully ignorant of these matters): when plaintiffs asked for money had and received in the 1800s cases cited were they limited to the amount that they gave (restitution for unjust enrichment) or could they also get the gain from whatever source (restitution for wrongs/disgorgement)?

--
Charles Mitchell

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