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Speaking (or maybe writing) as one who does in large measure accept that the disgorgement measure reflects corrective justice, I'd be interested to know what Jason thinks the reasons why fraud doesn't support it are. I can't immediately think of them, so I too will line up with Charles & Lionel.

On Abbots v Barry, I think the only answer is doesn't it depend on your view of unjust enrichment. If, unlike me, you accepted Peter's explanation in his last book of interceptive subtraction, would you not say that the possession of the wine carried with it earnings opportunities and therefore the sale proceeds could also be taken by unjust enrichment? In any case not being familiar with the case, was X D's agent, and if so wouldn't that make a difference?

Duncan

Ps I am wholly unpersuaded that English law accepts juristic reasons – the new Birksian model strikes me as flawed in a number of respects; explanations forthcoming if you like.

Dr Duncan Sheehan
Senior Lecturer in Law
Director of Research
Norwich Law School
University of East Anglia
Norwich NR4 7TJ
United Kingdom

-----Original Message-----
From: Charles Mitchell
Sent: Friday, November 23, 2007 5:05 PM
To: Jason Neyers
Subject: ODG RE: deceit: damages and account

Picking up first on Lionel’s point re waiver, of course I have to agree that the C19 judges were not asking themselves whether an action for money had and received following a waiver of tort was a claim for the profits of wrongdoing or a claim for restitution of unjust enrichment. So when we look back at the cases we must say that many are susceptible to alternative analysis since the plaintiff made a mistake and the quantum of the remedy would have been the same either way.

But I like Jason’s suggestion that looking at the award may help us to eliminate the unjust enrichment explanation if we can show that this looked to gains in D’s hands rather than the value of the assets transferred from P where those two things were different. Is Abbotts v Barry like this? D orchestrated a fraud pursuant to which his creature X induced P to sell X wine which X then failed to pay for; X handed the wine over to D, who sold it on; P claimed the sale proceeds in D’s hands as the profits accruing from the fraud and recovered them as money had and received.

So far as the corrective justice point goes, I happily line up with Lionel - which is why I take heart from Etherton J’s findings at first instance in Murad at [342]-[347], despite Arden LJ’s negative line in the CA.