Restitution Discussion Group Archives
| Sender: |
Lionel Smith |
| Date: |
Thu, 29 Oct 1998 16:44:54 |
| Re: |
Kleinwort Benson |
A few minutes ago
the Kleinwort Benson case went on to the web at:
‹http://www.parliament.the-stationery-office.co.uk/
pa/ld199798/ldjudgmt/jd981029/ klein01.htm›
The "next page" button at the bottom of each section
appears to be missing, so you need to go to "klein02" etc to get each
of the nine sections. It is very long.
On a very quick scan, mistakes of law now ground recovery
in England. By a majority, there is no "settled understanding of the law"
defence. One extract from Lord Goff:
"Of course, I recognise that the law of restitution must
embody specific defences which are concerned to protect the stability
of closed transactions. The defence of change of position is one such
defence; the defences of compromise, and settlement of an honest claim
(the scope of which is a matter of debate), are others. It is possible
that others may be developed from judicial decisions in the future. But
the proposed "settled understanding of the law" defence is not, overtly,
such a defence. It is based on the theory that a payment made on that
basis is not made under a mistake at all. Once that reasoning is seen
not to be correct, the basis for the proposed defence is, at least in
cases such as the present, undermined. "
Money paid under completed transactions is recoverable
on the basis of mistake.
Lionel
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