=============================================================== ========== Date: Fri, 4 Feb 2005 16:58:03 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell MIME-Version: 1.0 Content-Type: text/plain; charset=windows-1252 Content-Transfer-Encoding: 8bit The CA's judgment in Deutsche Morgan Grenfell v IRC is finally upon us, available on BAILII. 300 paras on mistake, Woolwich, absence of basis: enjoy! Charles -- Charles Mitchell charles.mitchell@kcl.ac.uk ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . =============================================================== ========== Date: Mon, 7 Feb 2005 21:29:48 +0000 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Big-time Disgorgement in the US MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: quoted-printable Hello all, A major decision on big-time disgorgement (to adopt Lionel Smith's descri= ption) in the US was handed down by the Court of Appeals for the DC Circuit last Friday. In US v Phillip Morris, the US Department of Justice argued that = the Federal Government was entitled to disgorgement of tobacco companies=92 p= rofits. They won at first instance, but failed on appeal. After the States=92 Attorneys General had reached their settlements with = Big Tobacco in 1999, the Department of Justice (DoJ) decided to get in on the= act. They launched this suit, which is still ongoing. In one of many procedura= l skirmishes, the DoJ argued that a provision of RICO ( the Racketeer Influ= enced and Corrupt Organizations Act) (18 U.S.C 1964(a) and (b)) which gives the Attorney General has the power =93institute proceedings=94 to ask a Feder= al District Court to issue =93appropriate orders . . . to prevent and restra= in=94 violations of RICO, allowed the AG to ask the Court to enjoin Big Tobacco= to disgorge all of its profits from 1954 onwards. And Judge Kessler at first instance agreed, holding that the relevant section of RICO not only allow= ed the government to prevent future wrongdoing, it also allowed it to seek remed= ies to prevent unjust enrichment. The Court of Appeals has now reversed. Judge Santelle took the view that the forward- looking preventative language of = the statute did not support backward-looking disgorgement remedies at all (no= t only over-ruling Kessler J but also disapproving of a more limited civil-RICO disgorgement remedy in an earlier case in a Court of Appeals in another Circuit); Judge Williams concurred, adding law-and-economics reasons in support; Judge Tatel dissented, for reasons very similar to Kessler J in = the Court below. It is unclear whether the DoJ will apply to the DC Circuit for the Court = of Appeals to rehear the appeal en banc, or further appeal to the Supreme Co= urt. But the Court of Appeals decisions make for very interesting reading, not= only for the narrow statutory interpretation point on which the case actually = turns, but also for what they say about the mechanics of disgorgement claims. All the best, Eoin. For those who want to follow this up, here are some links: The Court of Appeals decision can be found in various places, including: http://pacer.cadc.uscourts.gov/docs/common/opinions/200502/04-5252a.pdf http://caselaw.lp.findlaw.com/data2/circs/dc/045252a.pdf http://www.ll.georgetown.edu/federal/judicial/dc/opinions/04opinions/04-5= 252a.pdf (all .pdf, I=92m afraid; I couldn=92t find html or .doc versions, though = I=92m sure they must be out there somewhere in the vastness of www in the US). The matter is making some media waves even on this side of the Atlantic: http://news.bbc.co.uk/2/hi/business/4238505.stm http://news.independent.co.uk/business/news/story.jsp?story=3D608437 An excellent legal-news perspective can be found at: http://writ.news.findlaw.com/sebok/20050207.html (on the recent appeal) a= nd http://writ.news.findlaw.com/sebok/20041018.html and http://writ.news.findlaw.com/sebok/20041004.html (both on the first insta= nce decision). The text of the relevant statute (the Racketeer Influenced and Corrupt Organizations Act (RICO)) can be found at: http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/96/toc= .html The earlier relevant authority is the decision of the Court of Appeals fo= r the Second Circuit in United States v Carson can be found at: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=3D2nd&navby=3Dcase= &no=3D946044 The first instance decision is similarly widely available in .pdf, includ= ing: http://www.dcd.uscourts.gov/99-2496af.pdf and http://www.dcd.uscourts.gov/99- 2496ag.pdf (both parts) (again, both .pdf;= I couldn=92t find html or .doc versions). For anoraks of the interminable procedure of big US cases, the US DoJ mai= ntains a comprehensive website devoted to the legal procedures behind this case = at: http://www.usdoj.gov/civil/cases/tobacco2/ The first instance judgments on this aspect of the case are on that site = at http://www.usdoj.gov/civil/cases/tobacco2/ORDER%20&%20MEMO%20549.pdf http://www.usdoj.gov/civil/cases/tobacco2/ORDER%20&%20MEMO%20550.pdf but the Court of Appeals judgment doesn=92t seem to be up yet. All the best, Eoin. =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D Dr Eoin O=92Dell email: eoin.odell@t= cd.ie Fellow voicemail: +353-1-608 1= 178 Trinity College Law School: +353-1-608 1= 125 Dublin 2 mobile: +353-87-2021= 120 Ireland fax: +353-1-677 0= 449 -------------------------------------------------------------------------= --- (All opinions are personal. No legal responsibility whatsoever is accepte= d.) -------------------------------------------------------------------------= --- ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . =============================================================== ========== Date: Mon, 7 Feb 2005 21:41:50 +0000 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Big-time Disgorgement in the US MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: quoted-printable Hello all, A major decision on big-time disgorgement (to adopt Lionel Smith's descri= ption) in the US was handed down by the Court of Appeals for the DC Circuit last Friday. In US v Phillip Morris, the US Department of Justice argued that = the Federal Government was entitled to disgorgement of tobacco companies=92 p= rofits. They won at first instance, but failed on appeal. After the States=92 Attorneys General had reached their settlements with = Big Tobacco in 1999, the Department of Justice (DoJ) decided to get in on the= act. They launched this suit, which is still ongoing. In one of many procedura= l skirmishes, the DoJ argued that a provision of RICO ( the Racketeer Influ= enced and Corrupt Organizations Act) (18 U.S.C 1964(a) and (b)) which gives the Attorney General has the power =93institute proceedings=94 to ask a Feder= al District Court to issue =93appropriate orders . . . to prevent and restra= in=94 violations of RICO, allowed the AG to ask the Court to enjoin Big Tobacco= to disgorge all of its profits from 1954 onwards. And Judge Kessler at first instance agreed, holding that the relevant section of RICO not only allow= ed the government to prevent future wrongdoing, it also allowed it to seek remed= ies to prevent unjust enrichment. The Court of Appeals has now reversed. Judge Santelle took the view that the forward- looking preventative language of = the statute did not support backward-looking disgorgement remedies at all (no= t only over-ruling Kessler J but also disapproving of a more limited civil-RICO disgorgement remedy in an earlier case in a Court of Appeals in another Circuit); Judge Williams concurred, adding law-and-economics reasons in support; Judge Tatel dissented, for reasons very similar to Kessler J in = the Court below. It is unclear whether the DoJ will apply to the DC Circuit for the Court = of Appeals to rehear the appeal en banc, or further appeal to the Supreme Co= urt. But the Court of Appeals decisions make for very interesting reading, not= only for the narrow statutory interpretation point on which the case actually = turns, but also for what they say about the mechanics of disgorgement claims. All the best, Eoin. For those who want to follow this up, here are some links: The Court of Appeals decision can be found in various places, including: http://pacer.cadc.uscourts.gov/docs/common/opinions/200502/04-5252a.pdf http://caselaw.lp.findlaw.com/data2/circs/dc/045252a.pdf http://www.ll.georgetown.edu/federal/judicial/dc/opinions/04opinions/04-5= 252a.pdf (all .pdf, I=92m afraid; I couldn=92t find html or .doc versions, though = I=92m sure they must be out there somewhere in the vastness of www in the US). The matter is making some media waves even on this side of the Atlantic: http://news.bbc.co.uk/2/hi/business/4238505.stm http://news.independent.co.uk/business/news/story.jsp?story=3D608437 An excellent legal-news perspective can be found at: http://writ.news.findlaw.com/sebok/20050207.html (on the recent appeal) a= nd http://writ.news.findlaw.com/sebok/20041018.html and http://writ.news.findlaw.com/sebok/20041004.html (both on the first insta= nce decision). The text of the relevant statute (the Racketeer Influenced and Corrupt Organizations Act (RICO)) can be found at: http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/96/toc= .html The earlier relevant authority is the decision of the Court of Appeals fo= r the Second Circuit in United States v Carson can be found at: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=3D2nd&navby=3Dcase= &no=3D946044 The first instance decision is similarly widely available in .pdf, includ= ing: http://www.dcd.uscourts.gov/99-2496af.pdf and http://www.dcd.uscourts.gov/99- 2496ag.pdf (both parts) (again, both .pdf;= I couldn=92t find html or .doc versions). For anoraks of the interminable procedure of big US cases, the US DoJ mai= ntains a comprehensive website devoted to the legal procedures behind this case = at: http://www.usdoj.gov/civil/cases/tobacco2/ The first instance judgments on this aspect of the case are on that site = at http://www.usdoj.gov/civil/cases/tobacco2/ORDER%20&%20MEMO%20549.pdf http://www.usdoj.gov/civil/cases/tobacco2/ORDER%20&%20MEMO%20550.pdf but the Court of Appeals judgment doesn=92t seem to be up yet. All the best, Eoin. PS: Apologies if this arrives more than once; listserv is having its usua= l email alias problems, and I'm trying to make it listen to email from this accou= nt! E. =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D Dr Eoin O=92Dell email: eoin.odell@t= cd.ie Fellow voicemail: +353-1-608 1= 178 Trinity College Law School: +353-1-608 1= 125 Dublin 2 mobile: +353-87-2021= 120 Ireland fax: +353-1-677 0= 449 -------------------------------------------------------------------------= --- (All opinions are personal. No legal responsibility whatsoever is accepte= d.) -------------------------------------------------------------------------= --- ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . =============================================================== ========== Date: Tue, 8 Feb 2005 16:34:07 +0100 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: error messages Mime-Version: 1.0 (Apple Message framework v619.2) Content-Transfer-Encoding: 7bit Content-Type: text/plain; charset=US-ASCII; format=flowed This is a test message relating to a system problem. Recent postings (the two this week) have been generating ca. 35 error messages each, from all around the globe, which say that the message cannot be delivered because it has been forwarded too many times which could indicate a mail loop. That means about 10% of subscribers are not getting new postings. Unfortunately those affected will probably not get this message either. But just in case: if you did NOT get a posting from Charles Mitchell announcing Deutsche Morgan Grenfell, or you did NOT get a posting from Eoin O'Dell about US tobacco litigation, you are affected and should read to the end of this message. Mail servers send that error when a messages has been forwarded more than a set number of times. Internal systems normally generate a number of such "hops", quite apart from the transfer of the message from one place to another. I started getting "could be a mail loop" errors last year, but they have suddenly gone off the scale. New virus and spam filtering at McGill seems to have added five hops at the McGill end and this is making too many total hops for many servers. The McGill technical people seem to think that those servers need to have their settings adjusted since what is a "normal" number of hops has risen over the years. The collective action problem is, however, rather daunting. So this is partly a notice (postings are not getting to all subscribers any more) and partly a test (to see whether my own posting might generate fewer errors since it starts from a McGill server and maybe therefore makes fewer hops). It is also partly a warning, that I may eventually need to unsubscribe some subscribers if there is no other way to solve this. But I would write to them directly first (which should not generate too many hops...). Lionel ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . =============================================================== ========== Date: Wed, 9 Feb 2005 12:41:15 -0500 Reply-To: Mitchell McInnes Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Mitchell McInnes Organization: University of Western Ontario Subject: Professor Birks - Unjust Enrichment MIME-version: 1.0 Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7BIT Oxford University Press has published a second edition of "Unjust Enrichment." The new edition adds about fifty pages and contains a re-assessment of the second and third elements of the claim. Excitement over the new edition is, of course, tempered by sadness. As Andrew Burrows notes in his Foreword, Peter was working on the book "with characteristic commitment ... until a few days before he died." Mitchell McInnes ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . =============================================================== ========== Date: Fri, 11 Feb 2005 15:33:17 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_-2117844000==_.ALT" --=====================_-2117844000==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed In Axa General Insurance Ltd v Gottlieb [2005] EWCA Civ 112 (http://www.bailii.org/ew/cases/EWCA/Civ/2005/112.html), Mance LJ considers the effect of fraud on insurance claims and concludes at [132] that 'the proper scope of the common law rule relating to fraudulent insurance claims is to forfeit the whole of the claim to which the fraud relates, with the effect that the consideration for any interim payments made on that claim fails and they are recoverable.' Essays, please, on the meaning of the word 'consideration' in this sentence. CM --=====================_-2117844000==_.ALT Content-Type: text/html; charset="us-ascii" In Axa General Insurance Ltd v Gottlieb [2005] EWCA Civ 112 (http://www.bailii.org/ew/cases/EWCA/Civ/2005/112.html), Mance LJ considers the effect of fraud on insurance claims and concludes at [132] that 'the proper scope of the common law rule relating to fraudulent insurance claims is to forfeit the whole of the claim to which the fraud relates, with the effect that the consideration for any interim payments made on that claim fails and they are recoverable.'  Essays, please, on the meaning of the word 'consideration' in this sentence.  CM


--=====================_-2117844000==_.ALT-- ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . =============================================================== ========== Date: Fri, 11 Feb 2005 19:11:48 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: FWD: [RDG] Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: 7bit It'd obviously be foolish & artificial to characterise the consideration that failed as the quid pro quo, though you could just do it (Axa paid for a release from a valid obligation, and didn't get it because they received a release from an invalid one instead). Instead I'd read "consideration" widely as meaning "basis" or even "assumption" and say that had failed. It's rather like a completed swop recovery with the additional complication that what made the swop void wasn't the doctrine of ultra vires but ex post facto legislation. Best wishes to all Andrew >===== Original Message From Charles Mitchell > ===== In Axa General Insurance Ltd v Gottlieb [2005] EWCA Civ 112 (http://www.bailii.org/ew/cases/EWCA/Civ/2005/112.html), Mance LJ considers the effect of fraud on insurance claims and concludes at [132] that 'the proper scope of the common law rule relating to fraudulent insurance claims is to forfeit the whole of the claim to which the fraud relates, with the effect that the consideration for any interim payments made on that claim fails and they are recoverable.' Essays, please, on the meaning of the word 'consideration' in this sentence. CM Andrew Tettenborn Bracton Professor of Law, University of Exeter, England Snailmail: Law School University of Exeter Rennes Drive Exeter EX4 4RJ England Tel: 01392-263189 (int +44-1392-263189) Fax: 01392-263196 (int +44-1392-263196) Cellphone: 07729-266200 (int +44-7729-266200) Snailmail: School of Law University of Exeter Amory Building Rennes Drive Exeter EX4 4RJ England ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . =============================================================== ========== Date: Sat, 19 Feb 2005 19:28:52 +0000 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Woolwich and Constitutional Property Rights in Ireland MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: quoted-printable Dear all, On Wednesday of this week, the Irish Supreme Court handed down an importa= nt decision on Woolwich-type claims and the constitutionality of subsequent leglisation seeking retrospectively to extinguish such claims. Health Boards in Ireland were required by statute to make in-patient serv= ices available without charge (pursuant to the terms of section 53(1) of the H= ealth Act 1970) to elderly or long-stay in-patients; but nevertheless imposed c= harges for such services. This became a matter of political controversy at the e= nd of last year, and the Government passed the Health (Amendment) (No. 2) Bill,= 2004 which, inter alia, declared that =93the imposition and payment of a relev= ant charge is, and always has been, lawful=94 (inserting a new s.53(5) in the= 1970 Act), in effect retrospectively validating the unlawful charges. When the Bill was submitted to the President for signature, she exercised= her power under Article 26 of the Constitution to refer the Bill to the Supre= me Court to determine its constitutionality. The Supreme Court held that the relevant in-patients did indeed have Woolwich-type claims to restitution = of the unlawful charges, and that, as choses in action, these claims were proper= ty rights within the meaning of Articles 40.3.1 and 43 of the Constitution. = In particular, the Court held that, in accordance with the principles of soc= ial justice (mentioned in Article 43.2.1 of the Constitution), =93the propert= y of persons of modest means must necessarily =85 be deserving of particular protection, since any abridgement of the rights of such persons will norm= ally be proportionately more severe in its effects=94 (at p. 79). As a consequ= ence, although the cost to the State was likely to be very great (figures of be= tween half a billion and a billion euros have subsequently been mentioned), the= Court held that the extinction of the property rights =93very largely of person= s of modest means =85in the sole interests of the State=92s finances would req= uire extraordinary circumstances=94 (at p. 85) which did not arise on the fact= s. The Reference constitutes an important contribution to the jurisprudence = of property rights at Irish Constitutional law, but - I am ashamed to admit = - the Court=92s reasoning on the restitution issues leaves a very great deal to= be desired. This is so not only in relation to its characterisation of the in-patients' claims, but also in its treatment both of Murphy v AG [1982]= IR 241 (SC) the leading Irish case on change of position, and of National & Provincial Building Society v UK (no 21319/93, judgment of 23 October 199= 7, (1997) 25 EHRR 127). If you want to have a look at it, the case is available at: I am grateful to Steve Hedley for archiving it there. All the best, Eoin. =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D Dr Eoin O=92Dell email: eoin.odell@t= cd.ie Fellow voicemail: +353-1-608 1= 178 Trinity College Law School: +353-1-608 1= 125 Dublin 2 mobile: +353-87-2021= 120 Ireland fax: +353-1-677 0= 449 -------------------------------------------------------------------------= --- (All opinions are personal. No legal responsibility whatsoever is accepte= d.) -------------------------------------------------------------------------= --- ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, .