Wouldn't that be a case of equitable set off/abatement of the claim for damages rather than total failure of consideration? They had their pudding and wine, and no doubt enjoyed it at the time, if all too briefly.  Andrew

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

From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]

Sent: 15 September 2010 14:38

To: Dickinson, Andrew (L&DR-LON); ENRICHMENT@LISTS.MCGILL.CA

Subject: RE: [RDG] Restitution and food poisoning

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,

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 of unjust enrichment. To subscribe, send "subscribe enrichment" in

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 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>.