To Rob and all, on ITC and "at the expense of"
I think that "struggling" is a little unfair: whilst we've all been squabbling over the parameters and role of the nexus between claimant and defendant, Lord Reed manages to come up with a clear statement that:
1) Unjust enrichment requires a direct transfer of value (not something fuzzier);
2) "Direct" includes cases where the middleman is an agent;
3) "Direct" also includes a set of coordinated transactions;
4) In all other cases, tough luck. That includes the present one, in which there are two payments, not one.
Happy days.
Tatiana
From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: 11 April 2017 10:48:24
To: obligations@uwo.ca
Subject: Two UKSC Restitution cases
Two big and interesting cases today.
First is HMRC v ITC
Where I think the result is right, but the court have been left struggling by trying to apply the theory they have adopted and the need to place some limits on it. Looks a bit Byzantine and ad hoc to me.
"The reversal of unjust enrichment, usually by a restitutionary remedy, is premised on the claimant’s also having suffered a loss through his provision of the benefit" [43] Lord Reed. Oh dear.
"A “but for” causal connection between the claimant’s being worse off and the defendant’s being better off is not, therefore, sufficient in itself to constitute a transfer of value." [52] Lord Reed. Good.
The second is Lowick Rose v Swynson
Where again, I think the result is right, and where we have some interesting discussion of res inter alios acta, and transferred loss.
Rob