If they had fallen ill before paying, and had refused to pay, would Mr

Blumenthal have succeeded in an action for the agreed sum? I rather doubt

it. Here the defect in quality was so serious that the buyer didn't get what

they bargained for, in any sense. That being so, they should get their money

back as the price has not been earned.

They had also been compensated for the pain and suffering they had suffered

(£6k) but I don't think there would be any double recovery here unless that

sum was also supposed to reflect the value of the meal not received.

Rob

-----Original Message-----

From: Enrichment - Restitution & Unjust Enrichment Legal Issues

[mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of

Andrew.Dickinson@CLIFFORDCHANCE.COM

Sent: 15 September 2010 14:21

To: ENRICHMENT@LISTS.MCGILL.CA

Subject: [RDG] Restitution and food poisoning

Please see the attached link to a report of a recent English County Court

judgment in a match between sports pundit, Jim Rosenthal, and celebrity

chef, Heston Blumenthal. The District Judge rejected a claim by Mr Rosenthal

to recover the cost of a meal at Mr Blumenthal's Michelin starred

restaurant, the Fat Duck, apparently on the basis of a total failure of

consideration (or total failure of the meal, as it is explained in the

report). The claim arose in circumstances where Mr Rosenthal and his guests

had fallen violently ill after eating some "jelly oysters".  The grounds of

the decision are unclear, although the defence does appear to have been one

of compromise.

The argument by Mr Rosenthal's counsel is quoted as follows:

"The meal was of negative nutritional value and none of the other

ingredients were of benefit ... The meal failed to deliver the benefits the

claimant paid for."

"Nutritionally, it was as though they had paid for no meal at all."

"It was not simply disappointing - they were left wishing that had never had

the meals."

"Put in graphic terms, they did not even keep the meals down."

"What is the value of a meal that is going to make you violently ill? It

must be zero. No one is going to pay for a meal which is going to make them

violently ill - so on that basis, he is entitled to get the cost back."

If this isn't TFC (and the argument doesn't convince me - to wish that one

had not received something, or to have received and disposed of it, is not

the same as not having received it in the first place), I would rather not

think about questions of counter restitution, at least in kind.

Kind regards

Andrew

http://www.independent.co.uk/news/uk/home-news/boxing-host-loses-claim-over-

fat-duck-illness-2079151.html

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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 <listserv@lists.mcgill.ca>. To unsubscribe,

 send "signoff enrichment" to the same address. To make a posting to

 all group members, send to <enrichment@lists.mcgill.ca>. The list is

 run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.