My intention had not been to suggest a granular approach.  I agree that one cannot analyse the contract with the restaurant as divisible into installments (starters, main course, dessert and drinks).  Instead, I would see the contract as being for the whole package (including table, service, music) to be paid for at a price to be calculated according to the prices on the menu.  In terms of TFC, the question, as I understand it, is whether the claimant received all or part of what he had bargained for. Where the claimant has eaten, drunk and made himself merry, I would submit that he has received at least part (if not all) of what he bargained for, and that the fact that his experience turns sour (even if it is due to a breach of contract on the part of the defendant) cannot reverse that fact. Suppose that his illness on the evening is due to drinking too much fine claret (at £200 a bottle) or to eating something to which he is allergic - would he be entitled to bring a restitutionary claim and, if not, why not? Also, if he falls ill later, how can one analyse the question of liability at the point where performance is complete as depending on an event that has not occurred and may not occur - if I eat a dodgy prawn, I will likely fall ill but my constitution may be sufficiently robust to pull through. The restauranteur, no doubt, promises to provide food of a merchantable quality, but a breach of that promise does not remove my obligation to pay for what I have ordered and consumed (or does it?).

Kind regards

Andrew

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

From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Matthew Taylor

Sent: 15 September 2010 16:36

To: ENRICHMENT@LISTS.MCGILL.CA

Subject: Re: [RDG] Restitution and food poisoning

The DJ's refusal would make a lot more sense if there was a dispute between the parties as to what the £6,000 was offered by Blumenthal and accepted (presumably by Rosenthal?) in respect of. If compensation had been agreed, then an attempt made to circumvent that agreement by claiming for the price of the meal, I can see why this might be resisted by the judge. Speculation, of course, unless/until there's a case report or better court reporting.

Agree with Charles/Robert: Rosenthal having reportedly paid a single fee for "the experience", it would be highly artificial to say after the event that because he and his guest enjoyed it at the time, and only 1/5 of it actually gave them food poisoning, he has had full value (or even full value from the other 4/5). Also bears saying that Blumenthal's pitch - that he is selling "the experience", rather than just food - surely runs counter to adopting a granular approach to the individual items of food.

On Wed, Sep 15, 2010 at 3:16 PM, uctlcm2 <charles.mitchell@ucl.ac.uk> wrote:

> That would depend on whether you think the customer pays the

> restaurant for a series of discrete items - jelly oysters, snail

> porridge, bacon-and-egg ice cream, rhubarb wine, acorn coffee, wafer

> thin mints - or a complete meal. The latter I'd have thought, but the

> argument is like The Mikhail Lermontov (complete cruise package or day

> by day journey?). Best wishes, Charles

>

>> 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-clai

>> m-over-

>> fat-duck-illness-2079151.html

>>

>> This message and any attachment are confidential and may be

>> privileged or otherwise protected from disclosure.

>> If you are not the intended recipient, please telephone or email the

>> sender and delete this message and any attachment from your system.

>> If you are not the intended recipient you must not copy this message

>> or attachment or disclose the contents to any other person.

>>

>> Clifford Chance LLP is a limited liability partnership registered in

>> England & Wales under number OC323571.

>> The firm's registered office and principal place of business is at 10

>> Upper Bank Street, London, E14 5JJ.

>> For further details, including a list of members and their

>> professional qualifications, see our website at

>> www.cliffordchance.com. The firm uses the word 'partner' to refer to

>> a member of Clifford Chance LLP or an employee or consultant with

>> equivalent standing and qualifications. The firm is regulated by the Solicitors Regulation Authority.

>> The Authority's rules can be accessed by clicking on the following

>> link: http://www.sra.org.uk/code-of-conduct.page

>>

>> Clifford Chance as a global firm regularly shares client and/or

>> matter-related data among its different offices and support entities

>> in strict compliance with internal control policies and statutory

>> requirements.

>> Incoming and outgoing email communications may be monitored by

>> Clifford Chance, as permitted by applicable law and regulations.

>>

>> For further information about Clifford Chance please see our website

>> at http://www.cliffordchance.com or refer to any Clifford Chance office.

>>

>> Switchboard: +44 20 7006 1000

>> Fax: +44 20 7006 5555

>>

>> To contact any other office

>> http://www.cliffordchance.com/about_us/find_people_and_offices.html

>>

>> ====

>>

>> 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>.

>>

>>

>>

>>

>>

>>

>> ====

>>

>> 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>.

>>

>

> ====

>

> 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>.

>

====

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>.

[CC]Personal[/CC]

This message and any attachment are confidential and may be privileged or otherwise protected from disclosure.  

If you are not the intended recipient, please telephone or email the sender and delete this message and any

attachment from your system.  If you are not the intended recipient you must not copy this message or attachment

or disclose the contents to any other person.

 

Clifford Chance LLP is a limited liability partnership registered in England & Wales under number OC323571.

The firm's registered office and principal place of business is at 10 Upper Bank Street, London, E14 5JJ.

For further details, including a list of members and their professional qualifications, see our website

at www.cliffordchance.com. The firm uses the word 'partner' to refer to a member of Clifford Chance LLP or

an employee or consultant with equivalent standing and qualifications. The firm is regulated by the Solicitors Regulation Authority.

The Authority's rules can be accessed by clicking on the following

link: http://www.sra.org.uk/code-of-conduct.page

 

Clifford Chance as a global firm regularly shares client and/or matter-related data among its different

offices and support entities in strict compliance with internal control policies and statutory requirements.

Incoming and outgoing email communications may be monitored by Clifford Chance, as permitted by applicable law and regulations.

 

For further information about Clifford Chance please see our website at http://www.cliffordchance.com or refer

to any Clifford Chance office.

Switchboard: +44 20 7006 1000

Fax: +44 20 7006 5555

To contact any other office http://www.cliffordchance.com/about_us/find_people_and_offices.html

====

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>.