Restitution Discussion Group Archives
| Sender: |
Paul Todd |
| Date: |
Wed, 19 May 1999 10:51:56 |
| Re: |
Change of position |
Results of LEXIS
search attached (citations and quick search from ENGGEN CASES - I have not
yet had a chance to look at these cases):
From: Andrew Dickinson Does anybody know of an English case in which the change
of position defence has been successfully raised other than Lipkin Gorman
itself? I am sure that I have forgotten perfectly good examples (leaving
to one side cases such as Cheese -v- Thomas which do not reason in terms
of change of position but may be so analysed) but the other cases in
which I recall that the defence was raised (Westdeutsche, South Tyneside,
Gray -v- Richards Butler and Omar -v- Omar) have all rejected its application.
If my current understanding is correct (i.e. that there
is no other case), can anybody explain the lack of development of the
defence since its inception some 8 years ago? Many thanks --------
---------------------
To: restitution@maillist.ox.ac.uk
Subject: RDG: Change of position
Date: Tue, 18 May 1999 20:33:12 +0100
Andrew
CHANGE OF POSITION DEFENCE
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LEVEL 1 - 18 CASES
1. ROYAL BANK OF SCOTLAND v ETRIDGE (No 2), Court of Appeal (Civil Division),
[1998] 2 FLR 843, [1998] Fam Law 665, 31 July 1998
2. Royal Bank of Scotland v Etridge (No 2) and other appeals, COURT OF APPEAL
(CIVIL DIVISION), [1998] 4 All ER 705, 31 July 1998
3. Portman Building Society v Hamlyn Taylor Neck, COURT OF APPEAL (CIVIL
DIVISION), [1998] 2 EGLR 113, [1998] 4 All ER 202, [1998] 31 EG 102, 77
P & CR 66, 22 April 1998
4. AEM (AVON) LTD v BRISTOL CITY COUNCIL, QUEEN'S BENCH DIVISION (CROWN
OFFICE LIST), [1998] RA 89, [1999] LGR 93, 23 February 1998
5. Guinness Mahon & Co Ltd v Kensington and Chelsea Royal London Borough
Council COURT OF APPEAL (CIVIL DIVISION), [1998] QB 215, [1998] 2 All ER
272, [1998] 3 WLR 829, 96 LGR 735, 19 February 1998
6. Rochester Upon Medway City Council v Kent County Council, QUEEN'S BENCH
DIVISION, 96 LGR 697, The Times 5 March 1998, 142 SJ LB 102, (Transcript:
V Wason), 9 FEBRUARY 1998
7. Amoco (UK) Exploration Company and Others v Teeside Gas Transportation
Limited, QUEEN'S BENCH DIVISION (COMMERCIAL COURT), (Transcript), 21 JANUARY
1998
8. Lloyds Bank plc v Simpson, QUEEN'S BENCH DIVISION, (Transcript), 23 NOVEMBER
1996
9. Kleinwort Benson Ltd v Birmingham City Council, COURT OF APPEAL (CIVIL
DIVISION), The Times 20 May 1996, (Transcript: Smith Bernal), 9 MAY 1996
10. Kleinwort Benson Ltd v Birmingham City Council, COURT OF APPEAL, (CIVIL
DIVISION), [1996] 4 All ER 733, [1996] 3 WLR 1139, 95 LGR 539, 9 May 1996
11. National Provincial Building Society v Ahmed, COURT OF APPEAL (CIVIL
DIVISION), [1995] 38 EG 138, [1995] 2 EGLR 127, 5 May 1995
12. BOSCAWEN v BAJWA; ABBEY NATIONAL PLC v BOSCAWEN, COURT OF APPEAL (CIVIL
DIVISION), [1995] 4 All ER 769, [1996] 2 WLR 328, 70 P & CR 391, 10 April
1995
13. Standard Bank London Ltd v The Bank of Tokyo Ltd; Sudwestdeutsche Landesbank
Girozentrale v The Bank of Tokyo Ltd and another, QUEEN'S BENCH DIVISION
(COMMERCIAL COURT), (Transcript), 13 March 1995
14. STANDARD BANK LONDON LTD v THE BANK OF TOKYO LTD SUDWESTDEUTSCHE LANDESBANK
GIROZENTRALE v THE BANK OF TOKYO LTD AND STANDARD BANK LONDON LTD, QUEENS'S
BENCH DIVISION (COMMERCIAL COURT), [1995] 2 Lloyd's Rep 169, 13 March 1995
15. South Tyneside Metropolitan Borough Council v Svenska International
plc, QUEEN'S BENCH DIVISION (COMMERCIAL COURT), [1995] 1 All ER 545, 9 December
1994
16. Westdeutsche Landesbank Girozentrale v Islington London Borough Council;
Kleinwort Benson Ltd v Sandwell Borough Council, QUEEN'S BENCH DIVISION
(COMMERCIAL COURT), [1994] 4 All ER 890, 12 February 1993
17. Re Interest Rate Swaps Litigation, Queen's Bench Division, (Transcript:Beverley
Nunnery), 10 June 1992
18. BARCLAYS BANK PLC v GLASGOW CITY COUNCIL; KLEINWORT BENSON LTD v SAME,
QUEENS' BENCH DIVISION, [1993] QB 429, [1994] 4 All ER 865, [1992] 3 WLR
827, 27 February 1992
LEVEL 1 - 14 OF 18 CASES
STANDARD BANK LONDON LTD v THE BANK OF TOKYO LTD
SUDWESTDEUTSCHE LANDESBANK GIROZENTRALE v THE BANK OF TOKYO LTD AND STANDARD
BANK LONDON LTD
QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
[1995] 2 Lloyd's Rep 169
13 March 1995
JUDGMENT-1: ... changed their position in good faith. That would have posed
the question as to what should be meant by the words "good faith". In Goff
and Jones, The Law of Restitution (4th ed), the authors at p 745 say this
in relation to the change of position defence: In English law it has been
held that beneficiaries of a trust were deemed to acquiesce in a breach
of trust when they knew all the facts but did not appreciate their legal
significance. It does not follow that the beneficiaries acted in ...
LEVEL 1 - 15 OF 18 CASES
South Tyneside Metropolitan Borough Council v Svenska International plc
QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
[1995] 1 All ER 545
9 December 1994
HEADNOTE: ... defence of change of position, but what it could not do was
to rely on the supposed validity of the transaction either in support of
a plea of estoppel or in support of a defence of change of position because
the transaction was and always had been void. It followed that if the change
of position defence asserted by the net payee involved reliance on the validity
of an interest rate swap transaction which was in fact void, the result
would not be that events before the receipt could be taken into account
but that neither events before nor ...
JUDGMENT-1: ... court for the bank here to argue its case as to the correct
legal principles at first instance. While this case is close to the borderline
I have reached the conclusion that I should not hold that it is an abuse
of the process for the bank to argue its change of position defence at first
instance. The facts are not identical to those in the earlier cases and
wide ranging arguments as to the scope of the defence of change of position
have been fully deployed on both sides. It appears that the arguments have
been much more extensive than they were on this aspect of the ...
... not available at all in this type of case. For the reasons which I have
given I do not think that the net receiver is entitled to rely upon the
validity of a transaction which is in fact void, so that if in such circumstances
the change of position defence involved such reliance the result would not
be that events before the receipt can be taken into account but that neither
events before nor after it can be relied upon. As I understand it, Mr Mann
submits if necessary that that is the case, ...
... I have reached also makes it unnecessary to reach a firm conclusion
upon a further submission made by Mr Mann, namely that the bank would not
in any event be entitled to rely upon a change of position defence here
because from the very beginning it took the risk that the swap would or
might be void. I think that he makes that submission both on the basis that
banks always take such risks and on the particular facts here because he
says that the bank knew that there was such a risk when it entered into
the swap ...
LEVEL 1 - 16 OF 18 CASES
Westdeutsche Landesbank Girozentrale v Islington London Borough Council;
Kleinwort Benson Ltd v Sandwell Borough Council
QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
[1994] 4 All ER 890
12 February 1993
JUDGMENT-1: ... payments made, until the claim has been certified by the
district auditor. The relevant claims on the basis adopted by Mr Stenning
were never certified by the district auditor and I will have to revert to
this aspect when considering the change of position defence which has been
raised by Islington. Mr Stenning gave evidence at the trial. He was not
an impressive witness and certain aspects of his evidence were clearly unsatisfactory.
He demonstrably misunderstood the correct accounting approach in relation
to the treatment of the sums ...
... £275m was made, this argument would have not provided any defence to
a claim for its repayment. It is only because subsequent accounting years
have come and gone that the factual basis of the defence arises. That is
why I discuss this argument under the heading of the change of position
defence. The second argument is that it would be unjust to expect the charge
payers for the current year, 1992/3, or the council tax payers for the year
1993/4 to pay for a benefit which was received by the council ...
LEVEL 1 - 17 OF 18 CASES
Re Interest Rate Swaps Litigation
Queen's Bench Division
(Transcript:Beverley Nunnery)
10 June 1992
JUDGMENT-1: ... submitted) the decision on this key point will constitute
by far the most useful guideline for the general body of non-lead cases.
Warburgs v Birmingham centres on this key point together with a change of
position defence) , and, since both sides are volunteers, is self-selecting
as the lead case in the first tier of group one (the restitution group).
West Deutsche Landesbank v Islington and Kleinwort v Sandwell also raise
the key ...
LEVEL 1 - 18 OF 18 CASES
BARCLAYS BANK PLC v GLASGOW CITY COUNCIL; KLEINWORT BENSON LTD v SAME QUEENS'
BENCH DIVISION
[1993] QB 429, [1994] 4 All ER 865, [1992] 3 WLR 827
27 February 1992
JUDGMENT-1: ... in individual cases, eg, on change of position, since individual
local authorities dealt with the money received under swap transactions
in several different ways, which are variously relied upon as furnishing
a change of position defence. The same is likely to apply to the second
group. Mr Beazley invites me to give a very broad interpretation to paragraph
12 of the Kalfelis [1988] ECR 5565 judgment and to say that all these swap
actions fall broadly within the ...
http://www.cf.ac.uk/uwcc/claws/pntodd/index.html
http://ourworld.compuserve.com/homepages/pntodd/
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