-- >From charles.mitchell@kcl.ac.uk Thu Dec 03 12:38:14 1998 Received: from mail.kcl.ac.uk ([137.73.66.6]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zlY1O-0001sX-00 for restitution@maillist.ox.ac.uk; Thu, 3 Dec 1998 12:38:14 +0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.9.1/8.9.1) with SMTP id MAA18163 for ; Thu, 3 Dec 1998 12:33:18 GMT Message-Id: <1.5.4.32.19981203123740.00668bac@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: Thu, 03 Dec 1998 12:37:40 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell In the Times today: the Court of Appeal's decision in Lloyds Bank plc v Independent Insurance Co Ltd - a bank made a payment via electronic fund transfer to its customer's creditor in the mistaken belief that the customer's account was sufficiently in credit to cover the payment - in fact, there was less in the customer's account than the bank had thought because he had previously deposited a cheque which was then dishonoured - the bank sought to recover the amount paid from the creditor Held: (i) the effect of the bank's payment was to discharge the debt - this followed from the fact that the customer had authorized the bank to pay - ie this was not a stopped cheque case like Barclays v Simms where the bank's mistaken payment was unauthorized - at first instance, the judge had held that on the facts the bank's payment had not been authorized - but once the CA had held otherwise the bank's case was clearly doomed, for it was then predictable that the court would go on to hold that: (ii) the nature of the bank's mistake was such that it prima facie had a right to recover from the creditor via an action in UE; but that (iii) the creditor had a good defence to the bank's claim, viz bona fide purchase for value of the money - the value given being the discharge of the debt; alternatively, the creditor could have relied on a change of position defence. All this was a straightforward application of Barclays v Simms, and as far as I can tell from the report, the case adds nothing new to Robert Goff J's analysis of the defences which can be raised to claims to recover mistaken payments at [1980] QB 695, apart from the weight of Court of Appeal authority. The case is another illustration of the fact that the courts disregard questions of fault in the context of claims in UE to recover mistaken payments - it was no bar to the bank's claim that its mistake had arisen from its own negligence. But the question arises whether, in Steve Hedley's words (in a message to this group on Kleinwort v Lincoln CC on 3rd November), it is appropriate for the courts to 'treat city banks as deserving the protection of the courts from the consequences of their own mistakes ... like vulnerable children, unversed in the ways of the world' - an argument which is also made by Michael Bridge in his recent JBL piece on BFC v Parc. The present case was obviously dissimilar to BFC v Parc in the sense that the bank did not confer the relevant benefit on the defendant following protracted commercial negotiations during the course of which it might reasonably have been expected to inform itself about various relevant matters, such as the identity of the parties upon whom it was conferring the benefit in question. And my instinct is to say that we may legitimately distinguish between this BFC type of case, and a case such as the present, where the plaintiff's negligence did not lie in a failure to inform itself properly about the identity and credit-worthiness of the defendant, for the purposes of saying whether the plaintiff's negligence was of a type that in principle should disable it from subsequently claiming in UE from that defendant. But this argument is of course purely academic, since as the law currently stands it makes no difference what type of idiocy the plaintiff has perpetrated, and negligence of whatever kind is no bar to recovery. Charles ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law King's College London Strand LONDON WC2R 2LS tel: 0171 873 2290 fax: 0171 873 2465 e-mail: charles.mitchell@kcl.ac.uk >From swh10@cus.cam.ac.uk Thu Dec 03 14:50:46 1998 Received: from taurus.cus.cam.ac.uk ([131.111.8.48] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zla5e-0002bd-00 for restitution@maillist.ox.ac.uk; Thu, 3 Dec 1998 14:50:46 +0000 Received: from swh10.christs.cam.ac.uk ([131.111.219.51] helo=swh10.cam.ac.uk) by taurus.cus.cam.ac.uk with smtp (Exim 2.054 #1) id 0zla4x-0001Bw-00 for restitution@maillist.ox.ac.uk; Thu, 3 Dec 1998 14:50:03 +0000 Message-Id: <3.0.1.32.19981203145009.007e21b0@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Thu, 03 Dec 1998 14:50:09 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Lloyds Bank plc v Independent Insurance Co In-Reply-To: <1.5.4.32.19981203123740.00668bac@law-mail.kcl.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 12:37 03/12/98 +0000, Charles Mitchell wrote: > >(ii) the nature of the bank's mistake was such that it prima facie had a >right to recover from the creditor via an action in UE; but > We will have to see what the full report says -- I can't agree with your interpretation of the Times law report on that point. The report says merely that His Lordship accepted that even an authorised payment might leave Independent enriched at Lloyds's expense. which is a rather less sweeping proposition. >The case is another illustration of the fact that the courts disregard >questions of fault in the context of claims in UE to recover mistaken >payments - it was no bar to the bank's claim that its mistake had arisen >from its own negligence. This point would be a little stronger if Lloyds had won ! As it is, I never suggested that the courts did, or should, impose an express defence of contributory negligence. There is more than one way to skin this particular cat, and a limited basis for recovery seems to me much preferable to a broad basis qualified by defences. >But the question arises whether, in Steve Hedley's >words (in a message to this group on Kleinwort v Lincoln CC on 3rd >November), it is appropriate for the courts to 'treat city banks as >deserving the protection of the courts from the consequences of their >own mistakes ... like vulnerable children, unversed in the ways of the >world' - an argument which is also made by Michael Bridge in his >recent JBL piece on BFC v Parc. > >The present case was obviously dissimilar to BFC v Parc in the sense that >the bank did not confer the relevant benefit on the defendant following >protracted commercial negotiations during the course of which it might >reasonably have been expected to inform itself about various relevant >matters, such as the identity of the parties upon whom it was conferring the >benefit in question. And my instinct is to say that we may legitimately >distinguish between this BFC type of case, and a case such as the present, >where the plaintiff's negligence did not lie in a failure to inform itself >properly about the identity and credit-worthiness of the defendant, for the >purposes of saying whether the plaintiff's negligence was of a type that in >principle should disable it from subsequently claiming in UE from that >defendant. Well, comparisons with BFC v Parc aren't desperately relevant unless we assume that the principles at work in mistake cases are essentially the same as those in subrogation cases -- which is not a proposition the courts have ever endorsed. (Vague statements that "unjust enrichment" is at the root of both are rather a long way from that.) It seems to me to be a very serious mistake to treat judicial references to "unjust enrichment" as bringing in the entire apparatus of academic unjust enrichement theory. But whether the comparison is relevant or not, I am little surprised to hear that the risk of a cheque failing to clear is the sort of treacherous and unforseeable event that Lloyds Bank need to be protected from. My own instinct is that there could be many reasons why Lloyds would take the risk of the cheques not clearing but that it is inconceivbable that they weren't aware of the risk. Perhaps someone with some knowledge of banking in general, or CHAPS in particular, might comment ? >But this argument is of course purely academic, since as the law >currently stands it makes no difference what type of idiocy the plaintiff >has perpetrated, and negligence of whatever kind is no bar to recovery. > If you are suggesting that all a plaintiff must prove is mistake and a causal connection between the mistake and the payment, "the law" to that effect rests wholly in dicta. Actual decisions are all equally consistent with a much lesser proposition, namely that the payment is recoverable only if paid on a false basis. No doubt Waller LJ's suggestion that the claim failed because "the payment had been made for good consideration" is related to that theory. Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== >From DoyoJul@DDSM.ca Thu Dec 03 23:43:44 1998 Received: from [205.236.28.25] (helo=berta.ddsm.ca) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.02 #2) id 0zliPP-0005DQ-00 for restitution@maillist.ox.ac.uk; Thu, 3 Dec 1998 23:43:44 +0000 Received: by berta.ddsm.ca with SMTP (Microsoft Exchange Server Internet Mail Connector Version 4.0.994.63) id <01BE1EEC.BCA4E1B0@berta.ddsm.ca>; Thu, 3 Dec 1998 18:42:53 -0500 Message-ID: From: Doyon Julie-Suzanne To: "'restitution@maillist.ox.ac.uk'" Subject: Question concerning passing on defense Date: Thu, 3 Dec 1998 18:42:50 -0500 X-Mailer: Microsoft Exchange Server Internet Mail Connector Version 4.0.994.63 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable > >It is the first time I use this very interesting group of discussion.=20 > >I am a lawyer from the province of Qu=E9bec (Canada) working in = administrative >law and civil law. > >I have a complicated problem concerning restitution of municipal taxes. = I >would like to discuss with you and to be informed of any cases or = articles >concerning the defense of passing on in the context of a claim in = restitution >presented against a municipal corporation alleging the invalidity of a = by-law >imposing taxes. > >Thank you very much > >S. Doyon > >From swh10@cus.cam.ac.uk Fri Dec 04 11:11:49 1998 Received: from taurus.cus.cam.ac.uk ([131.111.8.48] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zlt9J-0006QS-00 for restitution@maillist.ox.ac.uk; Fri, 4 Dec 1998 11:11:49 +0000 Received: from swh10.christs.cam.ac.uk ([131.111.219.51] helo=swh10.cam.ac.uk) by taurus.cus.cam.ac.uk with smtp (Exim 2.054 #1) id 0zlt8a-0001qD-00 for restitution@maillist.ox.ac.uk; Fri, 4 Dec 1998 11:11:05 +0000 Message-Id: <3.0.1.32.19981204111104.007e6820@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Fri, 04 Dec 1998 11:11:04 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Lloyds Bank plc v Independent Insurance Co In-Reply-To: <1.5.4.32.19981203123740.00668bac@law-mail.kcl.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Having now, courtesy of a colleague, seen a transcript of the court of appeal's judgement, I can confirm that there was no statement by Waller LJ along the lines Charles indicated. The bulk of the judgments are concerned with whether the payment was authorised by the bank's client. Having concluded that it was, Waller says merely that I follow in one sense the point that it can be said that even an authorised payment leaves Independent enriched at the expense of the Bank then went straight on to the point about good consideration for the payment. The other judgements are similarly uninterested in general points that did not arise in the case. There was no statement of a general right to recover, unless (perhaps) this is thought implicit in their general approval of Simms. I remain unconvinced, therefore, that there is a broad right to recover for causative mistake, and cannot a accept Charles's suggestion that the matter is purely academic, since as the law currently stands it makes no difference what type of idiocy the plaintiff has perpetrated. The argument for a broad theory, while substantial, consists of dicta not actual decisions. In most actual cases, the criterion seems to be failure of basis. So if (as in Lloyds v. Independent) the money is paid to discharge a debt owed, the money is recoverable if and only if the debt is not discharged. The question whether there was "good consideration" for the payment is therefore not a mere incidental defence, but is the root of the thing. Other mistakes are irrelevant. The few cases which do not fit that pattern (eg Gibbon v. Mitchell) concern the rare situation where there is a mistake as to the identity of the person paid or as to the nature of the payment itself -- a different doctrine entirely, and one which needs to be in a different doctrinal basket, because it is recognised to have proprietary consequences. Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== >From charles.mitchell@kcl.ac.uk Fri Dec 04 12:06:12 1998 Received: from mail.kcl.ac.uk ([137.73.66.6]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zltzw-0006gN-00 for restitution@maillist.ox.ac.uk; Fri, 4 Dec 1998 12:06:12 +0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.9.1/8.9.1) with SMTP id MAA07681 for ; Fri, 4 Dec 1998 12:01:14 GMT Message-Id: <1.5.4.32.19981204120538.0067b500@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: Fri, 04 Dec 1998 12:05:38 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell In response to Steve Hedley: 1) I wrote: > >(ii) the nature of the bank's mistake was such that it prima facie had a >right to recover from the creditor via an action in UE; but > He wrote: "We will have to see what the full report says -- I can't agree with your interpretation of the Times law report on that point. The report says merely that His Lordship accepted that even an authorised payment might leave Independent enriched at Lloyds's expense. which is a rather less sweeping proposition." Fair enough. Let's wait and see. 2) I wrote: ">The case is another illustration of the fact that the courts disregard >questions of fault in the context of claims in UE to recover mistaken >payments - it was no bar to the bank's claim that its mistake had arisen >from its own negligence. He wrote: a) "This point would be a little stronger if Lloyds had won !" Agreed. b) "As it is, I never suggested that the courts did, or should, impose an express defence of contributory negligence. There is more than one way to skin this particular cat, and a limited basis for recovery seems to me much preferable to a broad basis qualified by defences." I don't want to take a big stand on this issue. If we think it desirable that the courts should place some kind of quasi-"contributory negligence" limit on restitutionary recovery for mistaken payers, then presumably we would all want them to implement the imposition of such a limit in a principled but flexible way. You appear to think that they would be better able to achieve this by imposing the limit at the unjust factor rather than at the defences stage. I have no particular reason for thinking that you are wrong about this. But I have no particular reason for thinking that you are right either. 3) I wrote: >But the question arises whether, in Steve Hedley's >words (in a message to this group on Kleinwort v Lincoln CC on 3rd >November), it is appropriate for the courts to 'treat city banks as >deserving the protection of the courts from the consequences of their >own mistakes ... like vulnerable children, unversed in the ways of the >world' - an argument which is also made by Michael Bridge in his >recent JBL piece on BFC v Parc. > >The present case was obviously dissimilar to BFC v Parc in the sense that >the bank did not confer the relevant benefit on the defendant following >protracted commercial negotiations during the course of which it might >reasonably have been expected to inform itself about various relevant >matters, such as the identity of the parties upon whom it was conferring the >benefit in question. And my instinct is to say that we may legitimately >distinguish between this BFC type of case, and a case such as the present, >where the plaintiff's negligence did not lie in a failure to inform itself >properly about the identity and credit-worthiness of the defendant, for the >purposes of saying whether the plaintiff's negligence was of a type that in >principle should disable it from subsequently claiming in UE from that >defendant. He wrote: a) "Well, comparisons with BFC v Parc aren't desperately relevant unless we assume that the principles at work in mistake cases are essentially the same as those in subrogation cases -- which is not a proposition the courts have ever endorsed. (Vague statements that "unjust enrichment" is at the root of both are rather a long way from that.) It seems to me to be a very serious mistake to treat judicial references to "unjust enrichment" as bringing in the entire apparatus of academic unjust enrichement theory." I can't agree with this. In my opinion there is a group of cases which are both "mistake cases" and "subrogation cases". In my opinion, the courts have awarded subrogation as a response to the unjust enrichment of the defendant in these cases, and the unjust factor present in these cases I would say is mistake. I make this argument in Chapter 9 of my book and I stand by it. For specific judicial endorsement of this approach, I would refer you to BFC v Parc [1998] 2 WLR 475, 478-9 (per Lord Steyn) and 485-6 (per Lord Hoffmann), where both judges specifically state both that the reversal of UE is the reason why subrogation is awarded in some cases, and also identify mistake as the unjust factor entitling the plaintiff to subrogation in BFC itself. Further judicial statements to the effect that subrogation can be awarded as a remedy awarded to mistaken payors can be found in eg Halifax Mortgage Services v Muirhead (CA - now in (1998) P & CR); Brown v Maclean (1889) 18 OR 533, at 536 (per Street J) and the other Canadian cases I cite in my note on Muirhead in the most recent issue of TruLI. As I also say in my note on Muirhead, in my opinion it would be desirable for the courts generally to take on board the idea that mistake is the reason why subrogation is awarded to some plaintiffs, not only because this would enable them to understand why subrogation is awarded, but also because they could then integrate a discussion of the cases where subrogation has been awarded for this reason into their discussions in future cases of when (if at all) it is appropriate to award mistaken payors proprietary remedies. b) "But whether the comparison is relevant or not, I am little surprised to hear that the risk of a cheque failing to clear is the sort of treacherous and unforseeable event that Lloyds Bank need to be protected from. My own instinct is that there could be many reasons why Lloyds would take the risk of the cheques not clearing but that it is inconceivbable that they weren't aware of the risk." Obviously I agree with this. But I think that we can only make the argument that certain types of negligent mistaken payors do not "deserve" to recover their money if we also take into account the question whether the recipients of their payments "deserve" to keep them. I think that the point I was trying to make when floating the idea that we could distinguish between the Lloyd's-type case and the BFC-type case is that when we come to assess the position of the defendant in the two types of situation, we should not assume that that the position of someone who receives payment by a bank on a cheque made out to him by a customer with insufficient funds in his account to cover the cheque is necessarily the same as the position of a member of a corporate group benefitted by a payment to another member of the group. 4) I wrote: >But this argument is of course purely academic, since as the law >currently stands it makes no difference what type of idiocy the plaintiff >has perpetrated, and negligence of whatever kind is no bar to recovery. > He wrote: a) "If you are suggesting that all a plaintiff must prove is mistake and a causal connection between the mistake and the payment, "the law" to that effect rests wholly in dicta. Actual decisions are all equally consistent with a much lesser proposition, namely that the payment is recoverable only if paid on a false basis." You have misunderstood me, no doubt because I did not express myself well. My point was simply that the authorities do not support the proposition that once a plaintiif has established that he made a payment under a mistake which was of a kind sufficiently fundamental to justify recovery in an action for UE, it is no answer to his claim that the mistake arose out of his own negligence (unless the case is of the Skyring v Greenwood variety). If you want chapter and verse, I would refer you to eg BFC v Parc [1998] 2 WLR 475, 479 (per Lord Steyn) and 487 (per Lord Hoffmann). b) "No doubt Waller LJ's suggestion that the claim failed because "the payment had been made for good consideration" is related to that theory." As I understand this comment, it is a statement that the defendant had a valid defence of bona fide purchase to the plaintiff's claim. But again, let's wait and see the full report. Charles ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law King's College London Strand LONDON WC2R 2LS tel: 0171 873 2290 fax: 0171 873 2465 e-mail: charles.mitchell@kcl.ac.uk >From mulland@qsilver.queensu.ca Fri Dec 04 22:54:41 1998 Received: from qsilver.queensu.ca ([130.15.62.41]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zm47V-0001TS-00 for restitution@maillist.ox.ac.uk; Fri, 4 Dec 1998 22:54:41 +0000 Received: from localhost (mulland@localhost) by qsilver.queensu.ca (8.8.8/8.8.8) with ESMTP id RAA23914 for ; Fri, 4 Dec 1998 17:53:53 -0500 (EST) Date: Fri, 4 Dec 1998 17:53:53 -0500 (EST) From: David J Mullan X-Sender: mulland@qsilver1 To: restitution@maillist.ox.ac.uk Subject: Re Eurig Estate Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII There has now been Ontario government reaction to the judgment of the Supreme Court of Canada in Re Eurig Estate, this being the case in which the Court struck down as unconstitutional probate fees imposed by regulation. The ruling that these fees were a tax which could not be imposed by subordinate legislation created the spectre of a massive number of law suits for recovery of what was estimated to be $1.5 billion paid to the province since the fees were first imposed in May of 1950. Whether any of these actions would have been successful is an interesting question. However, the Conservative Government has now ensured that we will never know the answer to it by introducing legislation on November 24, 1998 (the Estate Administration Tax Act, 1998, being a Schedule to the Tax Credit and Revenue Protection Act, 1998, Bill 81). Under this legislation, a retroactive tax dating back to May 15, 1950 has been imposed on estates at the same levels as the then applicable probate fees with those estates which have paid the probate fees entitled to a credit against the tax now being levied. However, the government did show a modicum of restraint in its response to the Supreme Court's judgment. It did not go as far as depriving the Eurig Estate of the fruits of the order that the government repay the "fees" that the estate had paid under protest. Section 7(2) of the Act provides: "The estate of Donald Valentine Eurig, who died on or about October 14, 1993, is exempt from tax under this Act". David Mullan, Faculty of Law, Queen's University, Kingston, ON >From swh10@cus.cam.ac.uk Fri Dec 04 23:40:49 1998 Received: from ursa.cus.cam.ac.uk ([131.111.8.6] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zm4q9-0001Ws-00 for restitution@maillist.ox.ac.uk; Fri, 4 Dec 1998 23:40:49 +0000 Received: from swh10.christs.cam.ac.uk ([131.111.219.51] helo=swh10.cam.ac.uk) by ursa.cus.cam.ac.uk with smtp (Exim 2.054 #1) id 0zm4pQ-0002c1-00 for restitution@maillist.ox.ac.uk; Fri, 4 Dec 1998 23:40:04 +0000 Message-Id: <3.0.1.32.19981204233955.007e5a70@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Fri, 04 Dec 1998 23:39:55 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Lloyds Bank plc v Independent Insurance Co In-Reply-To: <1.5.4.32.19981204120538.0067b500@law-mail.kcl.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" It appears then, satisfyingly enough for the end of term, that Charles and I agree on far more than we disagree about. The only significant area of disagreement is : Are cases of the Lloyds v. Independent type very different from cases of the BFC v. Parc type ? Or only somewhat different ? I say that they are wholly different. "Mistake" in restitution is no more of a coherent category than is "mistake" in contract. *All* reported cases (on any topic !!) involve a mistake of some sort, because no sane person would willingly end up as the subject of a leading case -- an expensive and generally unrewarding experience at best. Charles's approach is more complex, insisting that in some respects the two classes of case are similar : >In my opinion there is a group of cases which >are both "mistake cases" and "subrogation >cases". In my opinion, the courts have awarded >subrogation as a response to the unjust >enrichment of the defendant in these cases, and >the unjust factor present in these cases I would >say is mistake. I make this argument in Chapter >9 of my book and I stand by it. At a simplistic level I can retort that the overlap of two areas doesn't demonstrate that they are the same, or even are related. Just because land is often referred to in restitution texts doesn't demonstrate that "restitution" and "land law" are the same subject. Less simplistically, I don't imagine that "mistake" forms a coherent category in restitution, any more than it does in contract. So the question is not whether it is possible to speak of "mistake" in both Lloyds-cases and Parc-cases, but whether the same legal phenomenon is being referred to. If the "false basis" criterion is the one really at work in the Lloyds type of case, then they seem to be different : for the Lloyds-cases will involve payments which do not discharge a debt, whereas the Parc-cases involve those that do. That is precisely why it is important that Charles, after all, argue that we should treat the two groups of cases differently : >I think that we can only make the argument >that certain types of negligent mistaken >payors do not "deserve" to recover their >money if we also take into account the >question whether the recipients of their >payments "deserve" to keep them. I think >that the point I was trying to make when >floating the idea that we could distinguish >between the Lloyd's-type case and the BFC- >type case is that when we come to assess >the position of the defendant in the two types >of situation, we should not assume that that >the position of someone who receives payment >by a bank on a cheque made out to him by a >customer with insufficient funds in his account >to cover the cheque is necessarily the same >as the position of a member of a corporate >group benefitted by a payment to another >member of the group. So, it seems that we agree that the two types of case are different. The issue is : * How* different ? >But again, let's wait and see the full report. Indeed. The transcript is now on the web site. Enjoy. Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== >From eodell@dux4.tcd.ie Mon Dec 07 12:42:14 1998 Received: from dux4.tcd.ie ([134.226.1.194]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zmzzR-00071f-00 for restitution@maillist.ox.ac.uk; Mon, 7 Dec 1998 12:42:14 +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 MAA02384 for ; Mon, 7 Dec 1998 12:41:26 GMT Date: Mon, 7 Dec 1998 12:41:26 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: RDG: Re Eurig Estate Hello all: David Mullan tells us that the Ontario government has introduced a statute to impose a tax retrospectively to achieve the same effect as the tax struck down in Re Eurig Estate. Is this constitutional ? In those jurisdictions which take seriously a constitutional prohibition upon retrospective legislation, especially retrospective penal legislation, there would be serious questions to be asked. In Ireland, there is such strong constitutional presumption against retrospective criminal legislation, though retrospecitve legislative change of the civil law is possible provided that the relevant statute is clear and unambiguous on the point. Tax legislation is treated for other purposes as penal in the same way as criminal legislation is (both can affect the fortunes and economic liberties of the subjects in the same way, and are thus characterised together for the purposes of the public policy against enforcement of foreign penal judgments and for the application of strict literal rules of statutory interpretation). If tax legislation is treated as penal, and thus functionally equivalent to criminal legislation, for constitutional purposes, then, such legislation as the Ontario legislature introduced would be unconstitutional in Ireland. On the other hand, in a previous message to this list, I pointed out that a similar UK measure to regulate the position in the aftermath of Woolwich passed muster when tested against the prohibition on retrospective (criminal) legislation in the European Convention on Human Rights. My question is whether there are similar constitutional arguments to be made in Canada, and if so, what would the likely outcome be ? Two further minor points. First, David Mullan tells us that the ruling in Re Eurig Estate raised the >spectre of a massive number >of law suits for recovery of what was estimated to be $1.5 billion paid to >the province since the fees were first imposed in May of 1950. Recalling Kleinwort Benson v Lincoln CC, would the claims have gone all the way back to 1950, or would there have been some limitation point to restrict the claims ? Second, David Mullan tells us that the legislative re-enactment of the tax did not apply to the Eurig estate: >Section 7(2) of the Act provides: >"The estate of Donald Valentine Eurig, who died on or about October 14, >1993, is exempt from tax under this Act". In Ireland, the absence of such a saver would have amounted to an unconstitutional attempt by the legislature to interfere in the judicial process: do the Canadian separation of powers principles lead to a similar result (in turn requiring the above saver), or did the milk of human kindness flow in the veins of the parliamentary draughtsman (which I am reluctant to believe: cp: "caution, otherwise known as the Treasury ...." Woolwich per Lord Goff) ? 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.) >From mulland@qsilver.queensu.ca Mon Dec 07 17:36:28 1998 Received: from qsilver.queensu.ca ([130.15.62.41]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zn4aC-0008Q6-00 for restitution@maillist.ox.ac.uk; Mon, 7 Dec 1998 17:36:28 +0000 Received: from localhost (mulland@localhost) by qsilver.queensu.ca (8.8.8/8.8.8) with ESMTP id MAA20308; Mon, 7 Dec 1998 12:35:15 -0500 (EST) Date: Mon, 7 Dec 1998 12:35:14 -0500 (EST) From: David J Mullan X-Sender: mulland@qsilver1 To: "Eoin O' Dell" cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: Re Eurig Estate In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII The only explicit constitutional protections in Canada against retrospective legislation are found in sections 11(g) and (i) of the Canadian Charter of Rights and Freedoms. Section 11(g) provides that no one shall be found guilty of an offence unless at the time of the relevant act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations. Section 11(i) confines sentencing to the range of sanctions available at the time of the commission of an offence. However, both these protections are subject to the legislative override provisions of section 33(1) of the Charter and obviously neither of them in any event covers the kind of retrospective legislation that was used to deal with the situation in Eurig Estate. The only other potential source of protection against such legislation that could be raised is section 7 and its requirement that deprivations of life, liberty and security of the person be constrained by adherence to the principles of fundamental justice. However, life, liberty and security of the person has been construed consistently as not including economic and property rights. It is also noteworthy that the Supreme Court of Canada postponed the operation of the declaration of invalidity of the subordinate legislation in issue in Eurig for six months in a manner that might be read as wanting to give the province an opportunity to rectify the situation by passing intra vires primary legislation. Whether the exemption of the Eurig Estate from the operation of the new law was an act of generosity or constitutional necessity is a fascinating question. Certainly, there are precedents for the legislative reversal of Supreme Court of Canada judgments. See e.g. the K.V.P. Co. Ltd. Act, 1950 (Ont.) dissolving the injunction granted in K.V.P. v. McGie, [1949] S.C.R. 698. However, as far as I am aware, those legislative reversals have never been contested. What is also clear is that the Supreme Court of Canada is showing an increasing willingness, outside of the Charter of Rights and Freedoms, to read guarantees of judicial independence into the Canadian constitution by reference to the Preamble to the Constitution Act, 1867 and sections 96-100 of that Act. See e.g. Reference re Remuneration of the Provincial Court Judges of Prince Edward Island, [1997] 3 S.C.R. 3 (on the Preamble). Thus, I think a case could be made quite strongly and without reliance on the Charter for the same outcome in Canada were the facts of Liyanage v. The Queen to be replicated here. Whether, however, this growing sense of a constitutionally protected independent judiciary would extend as far as dooming any legislative reversal of a Supreme Court of Canada judgment outside of the domain of the criminal law is a rather more problematic matter. On the middle question, I would be interested in any reactions by other correspondents on whether, absent the legislative reversal, the judgment in Eurig would have triggered successful claims by all other estates which had previously paid the ultra vires tax. Certainly, before the introduction of the Bill resurrecting the tax, there was much talk in the media of class action suits on behalf of groups of executors. David Mullan. On Mon, 7 Dec 1998, Eoin O' Dell wrote: > Hello all: > > David Mullan tells us that the Ontario government has introduced a statute > to impose a tax retrospectively to achieve the same effect as the tax > struck down in Re Eurig Estate. > > Is this constitutional ? In those jurisdictions which take seriously a > constitutional prohibition upon retrospective legislation, especially > retrospective penal legislation, there would be serious questions to be > asked. In Ireland, there is such strong constitutional presumption against > retrospective criminal legislation, though retrospecitve legislative change > of the civil law is possible provided that the relevant statute is clear > and unambiguous on the point. Tax legislation is treated for other purposes > as penal in the same way as criminal legislation is (both can affect the > fortunes and economic liberties of the subjects in the same way, and are > thus characterised together for the purposes of the public policy against > enforcement of foreign penal judgments and for the application of strict > literal rules of statutory interpretation). If tax legislation is treated > as penal, and thus functionally equivalent to criminal legislation, for > constitutional purposes, then, such legislation as the Ontario legislature > introduced would be unconstitutional in Ireland. On the other hand, in a > previous message to this list, I pointed out that a similar UK measure to > regulate the position in the aftermath of Woolwich passed muster when > tested against the prohibition on retrospective (criminal) legislation in > the European Convention on Human Rights. My question is whether there are > similar constitutional arguments to be made in Canada, and if so, what > would the likely outcome be ? > > Two further minor points. First, David Mullan tells us that the ruling in > Re Eurig Estate raised the > > >spectre of a massive number > >of law suits for recovery of what was estimated to be $1.5 billion paid to > >the province since the fees were first imposed in May of 1950. > > Recalling Kleinwort Benson v Lincoln CC, would the claims have gone all the > way back to 1950, or would there have been some limitation point to > restrict the claims ? > > Second, David Mullan tells us that the legislative re-enactment of the tax > did not apply to the Eurig estate: > > >Section 7(2) of the Act provides: > >"The estate of Donald Valentine Eurig, who died on or about October 14, > >1993, is exempt from tax under this Act". > > In Ireland, the absence of such a saver would have amounted to an > unconstitutional attempt by the legislature to interfere in the judicial > process: do the Canadian separation of powers principles lead to a similar > result (in turn requiring the above saver), or did the milk of human > kindness flow in the veins of the parliamentary draughtsman (which I am > reluctant to believe: cp: "caution, otherwise known as the Treasury ...." > Woolwich per Lord Goff) ? > > 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.) > > > > ________________________________________________________________________________ > 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 restitution" in the body of a > message to . To unsubscribe, send "unsubscribe > restitution" to the same address. To make a posting to all group members, > send to . The list is run by Lionel Smith of > St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email > . > >From lionel.smith@law.oxford.ac.uk Tue Dec 08 11:54:08 1998 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0znLiR-00020H-00 for restitution@maillist.ox.ac.uk; Tue, 8 Dec 1998 11:54:07 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.05 #1) id 0znLhi-0007mZ-00 for restitution@maillist.ox.ac.uk; Tue, 8 Dec 1998 11:53:22 +0000 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.054 #1) id 0znLhg-0006kH-00 for restitution@maillist.ox.ac.uk; Tue, 8 Dec 1998 11:53:21 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: In-Reply-To: References: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 8 Dec 1998 11:53:31 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Re Eurig Estate David Mullan gave a very thorough answer to Eoin's inquiry about the constitutionality of retrospective taxes. I thought I would just add that if I am not mistaken the same kind of legislation was used successfully in the great Air Canada v. British Columbia imbroglio. That is, La Forest's J. judgment denying recovery to the airlines is based first of all on the constitutionality of a retroactive taxing statute like the new Ontario one, and he spoke for five of the six judges on that point; the restitution stuff (recovery for mistake of law, but not if it would cause fiscal chaos) was added because the point had been so fully argued. See eg Maddaugh & McCamus, p. 273-4. I suppose that makes all of the restitution stuff obiter, since that part of the judgment is based on the statute's being ultra vires, which it was not. I should add that I am no friend of the mistake of law rule, and do not want to provoke anyone into a discussion about whether the case can stand for what everyone thinks it stands for - I am happy that it should do so, at least along with Canadian Pacific v. B.C. But anyone who was not a fan of "fiscal chaos" could build on this, as well as on the fact that La Forest J. spoke for only three of six; and as Mitchell McInnes originally noted, the Court itself may have signalled its intention to do this in Eurig. The basis of the constitutional argument was Amax Potash Ltd. v. Saskatchewan [1977] 2 SCR 576, 71 DLR (3d) 1. In that case the Saskatchewan Proceedings Against the Crown Act was amended so as to preclude actions against the government in respect of anything done pursuant to legislation later found to be ultra vires. Those amendments were held themselves ultra vires. But the holding in Air Canada seems to say that this does not extend to the situation where the retroactive tax is one which could have been validly enacted prospectively. It seemed to be accepted, even by Wilson J. who dissented on the Amax point and on other points, that there is no general bar to retroactive tax in Canada. Section 7 of the Charter was raised without success. Lionel >From francis.rose@buck.ac.uk Thu Dec 10 12:47:00 1998 Received: from gateway.buckingham.ac.uk ([194.83.163.1]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zo5Ui-0000iA-00 for restitution@maillist.ox.ac.uk; Thu, 10 Dec 1998 12:47:00 +0000 Received: from LAW_6.buckingham.ac.uk ([194.83.163.186]) by gateway.buckingham.ac.uk (8.8.5/8.8.5) with ESMTP id MAA05461 for ; Thu, 10 Dec 1998 12:52:55 GMT Message-Id: <199812101252.MAA05461@gateway.buckingham.ac.uk> From: "Francis Rose" To: Subject: Law Commission Date: Thu, 10 Dec 1998 12:53:27 -0000 X-MSMail-Priority: Normal X-Priority: 3 X-Mailer: Microsoft Internet Mail 4.70.1155 MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 7bit The SPTL has an annual meeting with the Law Commission inter alia to discuss areas of law which might be suitable for reform by the Commission. I represent the SPTL Restitution Section and would be grateful to receive suggestions of possible areas for discussion (and what might be done to reform them). Francis Rose >From lionel.smith@law.oxford.ac.uk Thu Dec 10 17:48:54 1998 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zoACs-00022p-00 for restitution@maillist.ox.ac.uk; Thu, 10 Dec 1998 17:48:54 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.05 #1) id 0zoAC7-0007G9-00 for restitution@maillist.ox.ac.uk; Thu, 10 Dec 1998 17:48:07 +0000 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.054 #1) id 0zoAC5-00010A-00 for restitution@maillist.ox.ac.uk; Thu, 10 Dec 1998 17:48:07 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 10 Dec 1998 17:48:15 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith approved: eregion From: "Francis Rose" To: Subject: Law Commission Date: Thu, 10 Dec 1998 12:53:27 -0000 X-MSMail-Priority: Normal X-Priority: 3 X-Mailer: Microsoft Internet Mail 4.70.1155 MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 7bit The SPTL has an annual meeting with the Law Commission inter alia to discuss areas of law which might be suitable for reform by the Commission. I represent the SPTL Restitution Section and would be grateful to receive suggestions of possible areas for discussion (and what might be done to reform them). Francis Rose >From charles.mitchell@kcl.ac.uk Fri Dec 11 17:06:16 1998 Received: from mail.kcl.ac.uk ([137.73.66.6]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zoW19-0005fO-00 for restitution@maillist.ox.ac.uk; Fri, 11 Dec 1998 17:06:15 +0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.9.1/8.9.1) with SMTP id RAA14400 for ; Fri, 11 Dec 1998 17:01:02 GMT Message-Id: <1.5.4.32.19981211170521.0066f3a0@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="iso-8859-1" Content-Transfer-Encoding: quoted-printable Date: Fri, 11 Dec 1998 17:05:21 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Paul Matthews has just given me a copy of a case decided in the Royal Court of Jersey (Samedi Division), by B I LeMarquand, Greffier Substitute, on 25th November: _Planning and Environment Cttee of the States of Jersey_ v _Lesquende Ltd_. The case may be of interest to members of the group, for the Greffier Substitute's pre-Kleinwort response to an argument that D had been unjustly enriched because P had paid him a sum of money under a mistake of law. The background to the case was that P had used its statutory powers of compulsory purchase to acquire certain land belonging to D, and paid it c =A32.5 million for the land. Pursuant to the relevant statutory regime a board of arbitrators was also appointed to determine whether any further sum should additionally be paid, which board later held that a further =A32.4 million (or thereabouts) should be paid by P to D, along with interest, bringing the total further sum payable up to approx =A32.7 million. D accepted this sum without any reservation that it might wish to challenge the decision of the board of arbitrators. However, D then launched proceedings seeking a judicial review of the board's award, and in response P admitted that the award should be set aside, but on different grounds. In these proceedings, both parties therefore asked the Royal Court to set the award aside, which it did, holding that the award should be quashed as being ultra vires, and remitting the arbitration back to the board. P then commenced the present proceedings, seeking an order that that D return the =A32.7 million. The Greffier Substitute held that the effect of the Royal Court's decision in the previous proceedings to quash the award and remit the arbitration was that the award ceased to exist. He also held that for this reason D should make restitution of the money to P. P certainly seems to have argued the case as a case of UE, and the Greffier Substitute to have accepted it as such, but it is unclear from the judgment what unjust factor he thought to be operating here - possibly, he was feeling his way towards ordering restitution on the ground that the payment was made for 'no consideration'. Alternatively, though, it might perhaps be possible to explain the case as grounded in estoppel reasoning, since he laid great emphasis on the fact that it would be 'unjust for D to be permitted to keep the fruits of the Award (ie the sum whose return is now being sought) and at the same time to be able to continue to argue for a larger sum, having participated in setting aside the award'. One thing which is clear, though, is that the Greffier Substitute did not think that P could recover on the ground of mistake - and his comments on this point are worth quoting in full, in the light of Lord B-W's subsequent misgivings in Kleinwort: "Para 5(e) sets out an argument that repayment should not be ordered pursuant to the principle of unjust enrichment because D had been paid pursuant to an error of law. I asked Advocate Habin to explain to me what was the relevant error of law and he replied that it was that P had wrongly paid out the moneys on the basis that the Award was not ultra vires and therefore void. I immediately dismissed this line of argument. At the time when the payment was made, the Award had been registered and when payment was made, it was accepted without any reservation. That would normally have brought the matter to an end. It cannot possibly be argued that an award which has been registered in the Royal Court can be void ab initio. At the most it is capable of being set aside by action. At the time when the payment was made there was no such action in existence." Charles ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law=20 King's College London Strand LONDON WC2R 2LS tel: 0171 873 2290 fax: 0171 873 2465 e-mail: charles.mitchell@kcl.ac.uk >From charles.mitchell@kcl.ac.uk Tue Dec 15 17:08:22 1998 Received: from mail.kcl.ac.uk ([137.73.66.6]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zpxxO-0006Z8-00 for restitution@maillist.ox.ac.uk; Tue, 15 Dec 1998 17:08:22 +0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.9.1/8.9.1) with SMTP id QAA14340 for ; Mon, 14 Dec 1998 16:37:32 GMT Message-Id: <1.5.4.32.19981214164149.00687a5c@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: Mon, 14 Dec 1998 16:41:49 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell I have another Christmas present for the group, viz the CA's decision in _Surrey Breakdown Ltd_ v _Knight_, unreported 27th April 1998, which concerned a claim by a garage to recover the costs of pulling a man's car out of a pond at the request of the police, on the ground that the police were 'agents of necessity' and that their 'agency extended to authorising the [garage] to take away the car'. The car had been stolen, it seems by joyriders, who then dumped it in the edge of a pond, and because the owner had no telephone it was impossible to contact him when the car was found, to authorise the car's removal. Interestingly, Sir Christopher Staughton regarded the issue of whether necessitous interveners can recover the costs they incur as 'not settled' if their actions take place on land, rather than at sea, and after citing Bowen LJ's well-known anti-recovery dictum in _Falcke_, he went on to describe and implicitly to accept 'the modern view ... to be found at Chap 15 in Goff & Jones 4th edn, esp p 373 [where] it is said that to support an agency of necessity "[it] must have compelled the intervention. The emergency must be so pressing as to compel intervention without the property owner's authority."' Having apparently accepted the principle that necessitous interveners might recover via an action in UE, however, he then went on to hold on the facts that: 'it cannot reasonably be said that [the garage] in taking the car out of the pond at 4.35 in the morning were doing so because necessity compelled them to do so without the authority of ... the owner.' He therefore concluded that no claim in UE would lie. Charles ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law King's College London Strand LONDON WC2R 2LS tel: 0171 873 2290 fax: 0171 873 2465 e-mail: charles.mitchell@kcl.ac.uk >From lionel.smith@law.oxford.ac.uk Wed Dec 16 10:43:58 1998 Received: from oxmail4.ox.ac.uk ([163.1.2.33] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zqEQw-0000Kg-00 for restitution@maillist.ox.ac.uk; Wed, 16 Dec 1998 10:43:58 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.05 #1) id 0zqEQ7-00018o-00 for restitution@maillist.ox.ac.uk; Wed, 16 Dec 1998 10:43:07 +0000 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.054 #1) id 0zqEQ5-00067w-00 for restitution@maillist.ox.ac.uk; Wed, 16 Dec 1998 10:43:06 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Wed, 16 Dec 1998 10:43:13 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: new book Greetings all, While we all try to find a transcript of Charles' joyriding case, I will mention that there is a new book: Joachim Dietrich, Restitution: A New Perspective (Federation Press; 272pp; Hardback: ISBN 1862873054). The blurb from their web site at says: "Restitution: A new perspective provides a detailed critique of current and widely accepted theories seeking to unify the law of restitution on the basis of a principle of unjust enrichment. Commencing with a brief history of restitution, the book proceeds to illustrate the diverse legal problems addressed by the law of restitution. The legal doctrines now collected under this heading are demonstrated to have fulfilled a gap-filling role in our law, much like the diverse doctrines of equity have done. The book questions the underlying basis for unjust enrichment theories and demonstrates their inadequacy as descriptions and explanations of restitution. The book then sets out alternative methods of organising and rationalising the topics of restitution. The approach adopted rejects an explanation of liability in restitution on the basis of a defendant's unjust enrichment and thus challenges much of the current academic and judicial writing the in the field. Instead, the approach adopted is to emphasise the relevance of a defendant's conduct in determining the nature and extent of any liability imposed." Lionel >From lionel.smith@law.oxford.ac.uk Wed Dec 16 13:20:54 1998 Received: from oxmail4.ox.ac.uk ([163.1.2.33] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zqGso-0000rw-00 for restitution@maillist.ox.ac.uk; Wed, 16 Dec 1998 13:20:54 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.05 #1) id 0zqGrz-0004V2-00 for restitution@maillist.ox.ac.uk; Wed, 16 Dec 1998 13:20:03 +0000 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.054 #1) id 0zqGrx-0008TH-00 for restitution@maillist.ox.ac.uk; Wed, 16 Dec 1998 13:20:02 +0000 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: Wed, 16 Dec 1998 13:20:09 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Surrey Breakdown You can find Surrey Breakdown Ltd. v. Knight on the web at It is a fascinating case, and one of some practical importance; though as the brief judgment notes, on such facts there is a statutory route to recovery (see below) not relied upon by these plaintiffs. The county court judge thought that their claim was rather excessive - not so much the =A3120 to tow the car, but the =A310 per day storage which amounted to =A33500 by = the time the statement of claim was issued. The car owner counterclaimed for damage and loss of use, =A3750. The trial judge allowed the claim to the extent of =A3563 and dismissed the counterclaim. The car owner successfully appealed against the judge's decision on the main claim, but his appeal on the dismissal of the counterclaim was dismissed. So both claim and counterclaim came to nothing. It is a shame, albeit an understandable one, that neither party seems to have engaged professional representation. On the interpretation of the relevant statutory provisions (ss 100-2 of the Road Traffic Regulation Act 1984) the court referred to its earlier decision in Service Motor Policies at Lloyd's v City Recovery Ltd, 9th July 1997, also unreported but available at . Parliament has effectively overridden part of the Falcke dictum, in one narrow set of facts. Garages who act on police instructions do not get a right of recovery against victims of car theft, but they do get a lien on the car to secure payment of the authorised fees. Lionel >From jerrym@mweb.co.za Tue Dec 29 15:44:23 1998 Received: from quantum.mweb.co.za ([196.2.16.241]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zv1Jm-0002uQ-00 for restitution@maillist.ox.ac.uk; Tue, 29 Dec 1998 15:44:22 +0000 Received: from f3g7t2 (net-59-146.mweb.co.za [196.2.59.146]) by quantum.mweb.co.za (8.8.7/8.7.3) with SMTP id RAA16480 for ; Tue, 29 Dec 1998 17:44:17 +0200 Message-ID: <000a01be3341$d453b8e0$923b02c4@f3g7t2> From: "from me to you" To: Subject: RESTITUTION - TENANTS RIGHTS Date: Fri, 31 Jul 1998 21:43:21 +0200 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_00E5_01BDBCCC.3CC90840" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.3110.1 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 This is a multi-part message in MIME format. ------=_NextPart_000_00E5_01BDBCCC.3CC90840 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Dear Forum=20 =20 I am trying to obtain information regarding the valuing of tenants = rights in respect of losses suffered as a result of losing their rights = (usually occupational) held in respect of immovable property. =20 Jerry Margolius jerrym@mweb.co ------=_NextPart_000_00E5_01BDBCCC.3CC90840 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
Dear Forum
 
I am trying to obtain information = regarding the=20 valuing of tenants rights in respect of losses suffered as a result of = losing=20 their rights (usually occupational) held in respect of immovable=20 property.
 
Jerry Margolius
jerrym@mweb.= co
------=_NextPart_000_00E5_01BDBCCC.3CC90840--