-- Received: (qmail 11811 invoked from network); 5 Nov 1997 13:20:31 -0000 Received: from dux4.tcd.ie (134.226.1.194) by jess.oucs.ox.ac.uk with SMTP; 5 Nov 1997 13:20:31 -0000 Received: from [134.226.248.23] (law023.law.tcd.ie [134.226.248.23]) by dux4.tcd.ie (8.8.7/8.8.7) with SMTP id NAA16905 for ; Wed, 5 Nov 1997 13:24:03 GMT Date: Wed, 5 Nov 1997 13:24:03 GMT Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable To: restitution@maillist.ox.ac.uk From: eodell@tcd.ie (Eoin O' Dell) Subject: HL decides Kleinwort Benson v Glasgow DC Hello all Though I am sure that most of you will already have heard, I have just noticed on the House of Lords Server that judgment was given last week in Kleinwort Benson Limited v. City of Glasgow District Council on the question whether restitution claims are governed by the general rule as to jurisdiction in Art 2 of the Brussels convention, or are subject to the special rules in Art 5(1) on matters relating to contract or Art 5(3) on matters relating to tort, delict or quasi-delict. The Court of Appeal by a majority had held that the restitution claims arising out of void swaps contracts came within the special Art 5(1) jurisdiction. On 30 October 1997, the House of Lords (Lords Goff, Clyde and Hutton; Lords Mustill and Nicholls dissenting) have allowed the appeal. It seems to me that the ratio of Lord Goff's judgment and of the majority in the case is in the following clearly argued and compelling paragraph: "In truth, the claim in the present case is simply a claim to restitution, which in English law is based upon the principle of unjust enrichment; and claims of this kind do not per se fall within Article 5(1). =8A the vast majority of claims to restitution, =8A are founded simply upon the principle of unjust enrichment. Such is, in my opinion, the present case. No express provision is made in Article 5 in respect of claims for unjust enrichment as such; and it is legitimate to infer that this omission is due to the absence of any close connecting factor consistently linking such claims to any jurisdiction other than the defendant's domicile. Article 2 therefore provides the appropriate jurisdiction for such claims." The full text is at http://www.parliament.the-stationery-office.co.uk/pa/ld199798/ldjudgmt/jd971 030/klein01.htm Best to all Eoin EOIN O'DELL Barrister, Lecturer in Law Email: EODELL@mail.tcd.ie Trinity College ph (+ 353 - 1) 608 1178 Dublin 2 fax (+ 353 - 1) 677 0449 Ireland Live Long and Prosper !! (All opinions are personal; no legal responsibility whatsoever is accepted.) Received: (qmail 5391 invoked from network); 6 Nov 1997 13:08:44 -0000 Received: from dux4.tcd.ie (134.226.1.194) by jess.oucs.ox.ac.uk with SMTP; 6 Nov 1997 13:08:44 -0000 Received: from [134.226.248.23] (law023.law.tcd.ie [134.226.248.23]) by dux4.tcd.ie (8.8.7/8.8.7) with SMTP id NAA14462 for ; Thu, 6 Nov 1997 13:12:17 GMT Date: Thu, 6 Nov 1997 13:12:17 GMT Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: restitution@maillist.ox.ac.uk From: eodell@tcd.ie (Eoin O' Dell) Subject: Re: HL decides Kleinwort Benson v Glasgow DC Hello all I sent a summary of the above case to the list (and, en passant, indicating that I agreed with it) Robert Squirrell then replied to the list >could you please emial the www adress of the HL server. >thank you In the first message, I indicated that the url for the case was at http://www.parliament.the-stationery-office.co.uk/pa/ld199798/ldjudgmt/jd971 030/klein01.htm the HL server itself is at http://www.parliament.the-stationery-office.co.uk/pa/ld199697/ldjudgmt/ldjud gmt.htm Hope this helps Eoin EOIN O'DELL Barrister, Lecturer in Law Email: EODELL@mail.tcd.ie Trinity College ph (+ 353 - 1) 608 1178 Dublin 2 fax (+ 353 - 1) 677 0449 Ireland Live Long and Prosper !! (All opinions are personal; no legal responsibility whatsoever is accepted.) Received: (qmail 18772 invoked from network); 10 Nov 1997 19:35:23 -0000 Received: from sirocco.cc.mcgill.ca (132.206.27.12) by jess.oucs.ox.ac.uk with SMTP; 10 Nov 1997 19:35:23 -0000 Received: from lansend.cc.mcgill.ca (lansend.CC.McGill.CA [132.206.37.4]) by sirocco.CC.McGill.CA (8.6.12/8.6.6) with SMTP id OAA18473 for ; Mon, 10 Nov 1997 14:42:33 -0500 X-SMTP-Posting-Origin: lansend.cc.mcgill.ca (lansend.CC.McGill.CA [132.206.37.4]) Message-Id: <199711101942.OAA18473@sirocco.CC.McGill.CA> Received: by MicroMailer 3.71 (.Lan.McGill.CA) on Monday, 10 November 1997, 14:34:18 EST From: "David Stevens, Faculty of Law" Organization: McGill University - Faculty of Law To: restitution@maillist.ox.ac.uk Date: Mon, 10 Nov 1997 14:33:30 EST5EDT MIME-Version: 1.0 Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Subject: subrogation X-Confirm-Reading-To: "David Stevens, Faculty of Law" X-pmrqc: 1 Priority: normal X-mailer: Pegasus Mail for Windows (v2.42a) There are three recent decisions of the Ontario court of Appeal on equirable subrogation reported in vol 34 O.R (3rd) at 583, 594 and 599. They were heard together. All involved creditors who had lent intending to take the rank of a prior secured lender, but failing to do so due to a lawyer's error. In two of the three the creditors succeeded in its equitable subrogation claim. See, respectively, Re Mutual Trust Company and Credtiview Estate Homes Limited, Re Midland Mortgage Corporation and 784401 Ontario Ltd. et al., Re Armatage Motors Limted and Royal Trust Corporation of Canada et al FYI from Canada. .. David Stevens Faculty of Law McGill University 3644 Peel Street Montreal, Canada H3A 1W9 514-398-6636 David@falaw.lan.mcgill.ca Received: (qmail 2817 invoked from network); 11 Nov 1997 13:05:46 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 11 Nov 1997 13:05:46 -0000 Received: from andromeda.rutgers.edu by oxmail4 with SMTP (PP); Tue, 11 Nov 1997 13:05:42 +0000 Received: from localhost (axelrod@localhost) by andromeda.rutgers.edu (8.6.12+bestmx+oldruq+newsunq/8.5) with SMTP id IAA15761; Tue, 11 Nov 1997 08:01:56 -0500 Date: Tue, 11 Nov 1997 08:01:56 -0500 (EST) From: Allan AXELROD To: "David Stevens, Faculty of Law" cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: subrogation In-Reply-To: <199711101942.OAA18473@sirocco.CC.McGill.CA> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII On Mon, 10 Nov 1997, David Stevens, Faculty of Law wrote: > There are three recent decisions of the Ontario court of Appeal on > equirable subrogation reported in vol 34 O.R (3rd) at 583, 594 and > 599. They were heard together. All involved creditors who had lent > intending to take the rank of a prior secured lender, but failing to > do so due to a lawyer's error. In two of the three the creditors > succeeded in its equitable subrogation claim. See, respectively, Re > Mutual Trust Company and Credtiview Estate Homes Limited, Re Midland > Mortgage Corporation and 784401 Ontario Ltd. et al., Re Armatage > Motors Limted and Royal Trust Corporation of Canada et al > FYI from Canada. pretty tricky are the unsecured creditors now subrogated to any malpractice claim against the attorney[s]? Received: (qmail 29622 invoked from network); 12 Nov 1997 12:47:27 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 12 Nov 1997 12:47:27 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Wed, 12 Nov 1997 12:47:22 +0000 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.2/8.8.3) with SMTP id MAA30606 for ; Wed, 12 Nov 1997 12:47:19 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Wed, 12 Nov 1997 12:46:08 +0000 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: new cases and notes Greetings all, and welcome to new members. The latest LQR (Oct 97) has notes on "general average as restitution" and on Foskett v. McKeown (tracing into life assurance proceeds). There are two new cases from the Supreme Court of Canada on knowing receipt, released together on 31 October: Gold v. Rosenberg and Citadel General Assurance Co. v. Lloyds Bank Canada. They are on the web at: http://www.droit.umontreal.ca/doc/csc-scc/en/rec/html/gold.en.html http://www.droit.umontreal.ca/doc/csc-scc/en/rec/html/citadel.en.html Or, if you want to download text, RTF or WordPerfect versions, or you want the French text, use the recent judgments page at http://www.droit.umontreal.ca/doc/csc-scc/en/rec/index.html Lionel Received: (qmail 4917 invoked from network); 12 Nov 1997 16:47:02 -0000 Received: from cayman.kcl.ac.uk (137.73.66.10) by jess.oucs.ox.ac.uk with SMTP; 12 Nov 1997 16:47:02 -0000 Received: from mail.kcl.ac.uk by cayman.kcl.ac.uk with SMTP (PP); Wed, 12 Nov 1997 16:46:39 +0000 Received: from pc231.kcl.ac.uk ([137.73.78.187]) by mail.kcl.ac.uk (8.8.8/8.8.8) with SMTP id QAA20221 for ; Wed, 12 Nov 1997 16:00:23 GMT Message-Id: <1.5.4.32.19971112155839.006856fc@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk X-Mailer: Windows Eudora Light Version 1.5.4 (32) Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Wed, 12 Nov 1997 15:58:39 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell This is my first foray into the restitution web-group; I hope I've followed instructions correctly to get this message to everyone. Like Lionel, I've also just written a note on Foskett v McKeown (for Nov LMCLQ). I found it a frustrating experience. Hobhouse LJ's judgment depends on a construction of the policy terms which leads him to conclude that the policy proceeds could not have been the traceable product of the misappropriated trust money, because they were 'bought' with the first two (untainted) premiums only. Yet he also thinks that the beneficiaries should be entitled to a lien over the policy proceeds on restitutionary grounds. These two findings seem mutually incompatible to me. Meanwhile, Morritt LJ and Scott V-C both think that the policy proceeds were the traceable proceeds of all five premiums paid, and hence, inter alia, of the trust money which was used to pay premiums 4 and 5, and maybe some or all of premium 3 as well. Besides the fact that they go on to reach mutually incompatible decisions with regard to the remedy which the trust beneficiaries should therefore get, their view of the traceable proceeds issue clearly contradicts Hobhouse LJ's analysis of the policy terms - yet bizarrely they make no reference to this fact in their judgments. Scott V-C's enthusiasm for backwards tracing seems a welcome development - but not his attempt to introduce a requirement that the intention to pay off the debt with a claimant's money shd have been formed before the debt was contracted. Dr Charles Mitchell School of Law King's College London Strand LONDON WC2R 2LS tel: 0171 873 2290 e-mail: charles.mitchell@kcl.ac.uk Received: (qmail 7244 invoked from network); 12 Nov 1997 18:19:40 -0000 Received: from dux4.tcd.ie (134.226.1.194) by jess.oucs.ox.ac.uk with SMTP; 12 Nov 1997 18:19:40 -0000 Received: from [134.226.248.23] (law023.law.tcd.ie [134.226.248.23]) by dux4.tcd.ie (8.8.7/8.8.7) with SMTP id SAA17426 for ; Wed, 12 Nov 1997 18:23:19 GMT Date: Wed, 12 Nov 1997 18:23:19 GMT Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: restitution@maillist.ox.ac.uk From: eodell@tcd.ie (Eoin O' Dell) Subject: Footnote to Woolwich Hello all An interesting footnote to the Woolwich decision has recently been reported in the Times. It seems that the Government moved swiftly to enact legislation to ensure that no other building society could maintain a similar restitution action to that which the had Woolwich successfully maintained. That legislation was the subject of a challenge before the European Court of Human Rights, which has recently held that, although it retrospectively removed a cause action which had accrued to the applicants, constituted neither an invasion of their property rights (Art 1 of Protocol 1 to the Convention), nor unjustifiable dissimilar treatment (Art 14 of the Convention). I seem to recall that Lord Goff had in Woolwich referred to "prudence, also known as the Treasury". It seems that prudence has managed to limit the fiscal fall-out from Woolwich. For those who are interested, the full title to this case is CASE OF THE NATIONAL & PROVINCIAL BUILDING SOCIETY, THE LEEDS PERMANENT BUILDING SOCIETY ANd THE YORKSHIRE BUILDING SOCIETY v. THE UNITED KINGDOM and it is available from the server of the European Court of Human Rights at http://www.dhcour.coe.fr/eng/NATIONAL%20&%20PROVINCIAL%20ENG.html Best regards to all Eoin. EOIN O'DELL Barrister, Lecturer in Law Email: EODELL@mail.tcd.ie Trinity College ph (+ 353 - 1) 608 1178 Dublin 2 fax (+ 353 - 1) 677 0449 Ireland Live Long and Prosper !! (All opinions are personal; no legal responsibility whatsoever is accepted.) Received: (qmail 24285 invoked from network); 25 Nov 1997 10:05:15 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 25 Nov 1997 10:05:15 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Tue, 25 Nov 1997 10:05:03 +0000 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.2/8.8.3) with ESMTP id KAA29220 for ; Tue, 25 Nov 1997 10:04:59 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Date: Tue, 25 Nov 1997 10:03:39 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: SCC Case from June Greetings all. I managed to miss a Supreme Court of Canada case decied in June, Air Canada v. Ontario (Liquor Control Board). The Ont CA decision is at 126 DLR (4th) 301, [1996] RLR =A785. Confirming the CA, the airlines had been properly charged "markups" by the provincial liquor monopoly, but not "gallonage" fees. But the Supreme Court of Canada made an important variation relating to fault. The defendant had not pleaded limitation and the trial court and CA held that gallonage fees had to be refunded from 1 Jan 84 which was when the defendant became aware that it might not be entitled to charge them. The Supreme Court of Canada held that the defendant had to refund all of the gallonage fees. The text of the case (which is reported at [1997] 2 SCR 581 and elsewhere) is at ; if you would like access to other formats (eg WordPerfect file) go to . The (short) relevant bit is below. Lionel extract follows D. Restitution 77 The respondents concede that the Court of Appeal did not err in ordering restitution of the gallonage fees paid by the airlines after January 1, 1984. And in the light of my conclusion that the provincial authorities were entitled to charge a markup on liquor purchased abroad and kept in Ontario awaiting eventual consumption in flight, no question arises about restitution of markups. 78 The only real issue about restitution is whether the provincial authorities should be made to disgorge only gallonage fees paid after January 1, 1984, or whether they should be liable as well for the fees paid before that date. 79 In my view, the restriction of restitution to gallonage fees paid after January 1, 1984 is arbitrary. The trial judge and the Court of Appeal justified their choice of that date on the ground that it was then that Wardair brought the matter of the licence to the attention of the provincial authorities. The courts below concluded that before January 1, 1984, the parties were in pari delicto, and perhaps even that the airlines were more "delictus" than the provincial authorities. Both the trial judge and the Court of Appeal seem to have thought that the burden was on the airlines to discover that Ontario's liquor licencing laws were inapplicable to them. 80 This "compromise" approach may seem to have a certain "equitable" appeal, but in truth it has little to recommend it. Essentially, the position of the trial judge and the Court of Appeal is that a governmental agency may never be liable for amounts collected under an inapplicable law unless it can be shown that the agency knew that the law was inapplicable and nevertheless continued to apply it. But Canadian law has never required a showing of bad faith as a precondition to the recovery of monies collected by a governmental agency under an inapplicable law. This Court has said that monies paid under such a law may be recovered even if it appears that the governmental agent responsible for collecting them did not know that the law was inapplicable: In this case, the appellant, as a taxpayer and inhabitant of the defendant corporation, was dealing with the Clerk-treasurer of the corporation and that Clerk-treasurer was under a duty toward the appellant and other taxpayers of the municipality. When that Clerk-treasurer demands payment of a sum of money on the basis of an illegal by-law despite the fact that he does not know of its illegality, he is not in pari delicto to the taxpayer who is required to pay that sum. [Emphasis added.] (Eadie v. Township of Brantford, [1967] S.C.R. 573, at p. 583). 81 In my view, the rule in Eadie is a sensible one. If the question is which of two parties should be responsible for guaranteeing the applicability of a law, and the choice is between the governmental agency charged with administering that law and the citizen who is subject to that law, surely the better choice is the governmental agency. I cannot see that it matters how sophisticated an actor the citizen is. Governments make laws and governments administer them. Citizens do not. The responsibility for taking care that the law is legal and applicable must rest with the party that makes and administers the law. And in any case, to make the apportionment of responsibility depend on the sophistication of the actors would be to introduce a vague idea into an area of the law that is otherwise clear. 82 Therefore, I conclude that the trial judge and the Court of Appeal erred in restricting restitution to the gallonage fees collected after January 1, 1984. The provincial authorities should be made to restore all the monies that they wrongfully took from the airlines. Received: (qmail 11889 invoked from network); 28 Nov 1997 09:51:22 -0000 Received: from mail.kcl.ac.uk (root@137.73.66.6) by jess.oucs.ox.ac.uk with SMTP; 28 Nov 1997 09:51:22 -0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.8.8/8.8.8) with SMTP id JAA14032 for ; Fri, 28 Nov 1997 09:46:46 GMT Message-Id: <1.5.4.32.19971128094452.00675c8c@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk (Unverified) X-Mailer: Windows Eudora Light Version 1.5.4 (32) Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Fri, 28 Nov 1997 09:44:52 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell A Scots case in the Times today (28th Nov 1997) proves in spectacular fashion that it's a bad idea to confuse contribution and subrogation: Elf Enterprise (Caledonia) Ltd v London Bridge Engineering Ltd. The pursuers' insurer settled claims for damages against the pursuer in respect of deaths and personal injuries on the Piper Alpha oil platform. It then attempted to bring (simply) subrogated actions in the pursuers' name against the defenders, who had given the pursuers contractual indemnities in respect of the same losses. In the Outer House, Lord Caplan held that all but one of these actions should be dismissed because the effect of the insurer's payment had been to discharge the defenders from liability, and the insurer's action should have been framed as a contribution action in its own name. The case therefore echoes The Esso Bernicia, another case where the Scots courts took a dim view of parties getting into a muddle over subrogation pleadings. What is striking about the present case is that the defenders only noticed the pursuers' mistake after 381 days of argument - time and money down the drain. Regards, Charles. Dr Charles Mitchell School of Law King's College London Strand LONDON WC2R 2LS tel: 0171 873 2290 e-mail: charles.mitchell@kcl.ac.uk