Restitution Discussion Group Archives
| Sender: |
Andrew Tettenborn |
| Date: |
Mon, 16 Oct 2006 13:25:16 +0100 |
| Re: |
Charter plc v City Index Ltd [2006] EWHC 2508 (Ch) |
Charles Mitchell wrote:
Dear Andrew
I think there are 2 issues here. The
first is whether we can meaningfully say, as a matter of everyday language,
that a restitutionary claim grounded in UE is a claim 'in respect of
damage'.
You say that we can, and I agree, since
I subscribe to the view that the law of UE has a corresponding loss
requirement - i.e. I don't believe that a claimant can recover on the
ground of UE without showing a loss (or 'damage') in his hands which
corresponds to the gain in the defendant's hands which is the subject
matter of his claim.
Others disagree with this analysis
(notably PB), but laying the point to one side, there is anyway a second
issue in play, namely whether Parliament intended the 'same damage'
requirement in the 1978 Act to bear the same meaning as its everyday
meaning. You implicitly suggest that it did, but this is incorrect.
The purpose of the 1978 Act was to widen out the scope of statutory
contribution claims between wrongdoers, and Parliament, following the
Law Commission, specifically excluded from the scope of the 1978 Act,
claims in contract for debt, and claims in 'quasi-contract', which are
not wrong-based claims. If your reading of the 'damage' requirement
in the 1978 Act were correct, then a claim would lie between common
debtors under the statute, since they could meaningfully be said to
cause their creditor 'damage' if they failed to pay their debt. But
we know that they are NOT covered by the statute, and this tells us
that 'damage' has a specialised meaning in the context of the Act that
enquiries into everyday usage will not help us discover. Dear Charles, I absolutely accept that claims for money paid by mistake
and for payment of debts weren't meant to be, and aren't, covered by the
1978 Act. But I'm not sure the claim for knowing receipt can be lumped
together with them. As regards mistaken payments and claims in debt it
is simply beside the point that the claimant suffered a reduced loss,
or no loss at all. Not so, I suggest, with knowing receipt. Suppose in
Target Holdings v Redferns [1996] AC 421 the money wrongly paid
away by the solicitors had passed through the hands of some party X, and
X (having paid it away) had been sued for knowing receipt. It seems self-evident
that if the solicitors could pray in aid the fact that the claimants'
loss had not been caused by their paying the money to X, X must be allowed
to say the same about his receiving it from them. If so, then whatever noises people may make about restitution,
I think that in this connection we're talking about liability for damage
of the kind the 1978 Act was meant to address. Best wishes Andrew -- Tel: 01392-263189 / +44-392-263189 (outside UK) Snailmail: School of Law, Exeter Law School homepage: http://www.law.ex.ac.uk
LAWYER, n. One skilled in circumvention of the law (Ambrose
Bierce, 1906).
Andrew Tettenborn MA LLB
Bracton Professor of Law
University of Exeter, England
Cellphone: 07870-130528 / +44-7870-130528 (outside UK)
Fax: 01392-263196 / +44-392-263196 (outside UK)
University of Exeter,
Amory Building,
Rennes Drive,
Exeter EX4 4RJ
England
My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml
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