Upon a quick digestion, I rather doubt whether it is important, at least from the perspective of private law. A damp squib. (i) The conclusion that the words in s32(1)(c) of the Limitation Act ("relief from the consequences of a mistake") mean what they say is wholly predictable. In my view, nobody has ever come up with a plausible definition, other than that the mistake must be a necessary condition of the claim (for proof see [49]). (ii) That the Woolwich principle does not require a demand is clearly orthodox. My view is that it is not possible to articulate a plausible stopping point for the application of this principle, save that money paid that is not due is recoverable. What other limits there might be did not of course arise for resolution. The fact that we cannot give it a name other than "the Woolwich principle" is a give away sign of its instability (iii) As a matter of constitutional law, it is interesting to ask whether the various pieces of UK legislation which tried to curtail DMG v IRC were invalid or merely wrongful (before the UK courts). If they are invalid, I do not think they are wrongful (ie nothing legally has happened as a matter of UK law). This UK constitutional law question can only be answered by UK courts (although the ECJ could say what EU law requires). I think that they all seem to assume that the legislation is invalid if it contravenes EU law, but don't address their minds to the point. As a matter of UK constitutional law I would question that, but with my private law hat on it makes the analysis of DMG v IRC potentially easier. (iv) The EU law issue of the extent to which the UK legislature could retrospectively cut back the availability of the extended limitation period splits the court, but we'll just have to wait to see what the ECJ thinks. Seems a close run thing to me, but, although billions apparently turn on it, it is not a very interesting question as a matter of principle and is nothing to do with private law. I remain of the firm view that DMG v IRC is wrong in principle, but if it is accepted then the SC's decision in FII is obviously right. ________________________________________ From: Enrichment - Restitution & Unjust Enrichment Legal Issues [ENRICHMENT@LISTS.MCGILL.CA] on behalf of James Lee [j.s.f.lee@BHAM.AC.UK] Sent: 23 May 2012 10:32 To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG] UK Supreme Court on Overpaid Tax Dear Colleagues, The UK Supreme Court has today given judgment in the Franked Investment Income appeal: [2012] UKSC 19 http://www.supremecourt.gov.uk/docs/UKSC_2010_0085_Judgment.pdf. This is a very important decision, which will take some digesting, but the main issues, as summarised by the Court, are resolved as follows (with some significant differences from the Court of Appeal's approach): The appeal is allowed on the first two points: 1) The Woolwich principle by itself is not sufficient to meet the EU requirements of a remedy for the taxpayer, and an action based on mistake must therefore be available. Lords Brown and Lord Sumption dissent on this point, and a reference is made to the ECJ. The Supreme Court is unanimous that s 107 of the Finance Act 2007 was not lawful as it was contrary to the legitimate expectation of the Companies. 2) s 3 of the Taxes Management Act 1970 does not exclude the common law claim in the EU context. The appeal was then dismissed on the following two points: 3) s 32(1)(c) is not to be given a broad interpretation, so as to read widely 'an action for relief from the consequences of a mistake. 4) The Woolwich principle does not require a formal demand, but applies to tax which is unlawfully exacted more generally. The judgments also contain some reference to broader questions about the relevance of absence of basis. Change of position, which was in issue in the lower courts, was not an issue on the appeal. We have not reached the final stage of the litigation, as a reference to the European Court of Justice has had to be made. The saga continues. Best wishes, James -- James Lee Lecturer and Director of Careers Academic Fellow of the Inner Temple 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<mailto:j.s.f.lee@bham.ac.uk> Web: http://www.birmingham.ac.uk/staff/profiles/law/lee-james.aspx ==== 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>.
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