Dear Colleagues,

Members may be interested in today's decision of Tomlinson J in Kommune & Anor v DEPFA ACS Bank [2009] EWHC 2227 (Comm) http://www.bailii.org/ew/cases/EWHC/Comm/2009/2227.html, where an English court has had yet another chance to consider restitution in the context of swaps transactions between a Bank and some local authorities, this time municipalities in Norway (whose borrowing powers are governed by the Norwegian Local Government Act 1992). The defendant in the main action was an Irish subsidiary of a German Bank, Depfa. The relevant part of the judgment can be found in the Bank's counterclaim for restitution from [142] onwards. It is of course fairly well-trodden territory, but there are some interesting arguments about the parties' risk taking and the availability of change of position (the defence failed: "The notion of the extent of success of a restitutionary defence of change of position depending upon the outcome of a speculative investment with borrowed money entered into by the payee at his own risk is to my mind quite extraordinary."  at [169]).

Best wishes,

James

--

James Lee

Lecturer

Director of the LLB Programme

Birmingham Law School

University of Birmingham

Edgbaston

Birmingham

B15 2TT, United Kingdom

Tel: +44 (0)121 414 3629

E-mail: j.s.f.lee@bham.ac.uk

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