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James must be right. The decision itself is plainly correct, since ME's equitable interest in the money subsisted (because of the solicitors' agreement) at the time Midland got paid. But it cannot be correct to say no property in the money would ever have passed to Mr Filby if he had got his hands on it. Apart from anything else, the CA view is inconsistent with all the cases about title to goods. Take the Lewis v Averay situation. There too the original owner of the car could say, quite truthfully, that he simply didn't get what he bargained for: he'd bargained for a good cheque, not a stolen one. Yet property passed ...

Andrew

Date: Fri, 18 Jun 2004 11:21:00 +0100
Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues
From: James Shirley
Subject: [RDG:] CA decision

Members of the list might be interested in Filby v. Mortgage Express (No 2) [2004] EWCA (Civ) 759, handed down by the Court of Appeal this morning.

http://www2.bailii.org/ew/cases/EWCA/Civ/2004/759.html

The judgment is notable for what appears to be a startling finding that an agreement was void because "the claimants simply did not get what they bargained for." No authority is cited for the proposition but it appears to get the court out of answering some very difficult subrogation questions.

I'd be interested to know what others think.