Dear all
I am very grateful to James for the reference to the FTL Management Services
case and congratulate Gerard for his brave attempt to Scottify a small piece
of English enrichment law (no easy task). Unlike English law, in Scots law
as a result of our different history, we have a long list of authorities on
"incidental benefit" stretching back at least to the 18th century: see
attached draft extract from a forthcoming Stair Memorial Encyclopaedia text
on unjustified enrichment.
Baron Hume's Lectures vol III p 167 cites a case Ferguson v Smyth case
(1802) (unreported but the pleadings survive) in which Ferguson established
a right in the House of Lords in a decision which also incidentally in
practical effect established a neighbour's right. The Court of Session
rejected a claim of recompense by Ferguson against his neighbour for a
proportion of the expense of the proceedings: see attached extract for ease
of reference.
In fact "incidental benefit" was widely used as a control device to limit
the scope of recompense which (like its cousin the French actio de in rem
verso) was very widely defined and unlike English law had no system of
"unjust factors" to contain it. Our law has changed since the unification of
recompense with restitution and repetition in the late 1990s but I think
"incidental benefit" will still be useful and is certainly still part of our
law.
Incidentally students love Edinburgh & District Tramways Co Ltd v Courtenay
1909 SC 99 (the "decency boards" case) which is one of the small number of
Scottish cases on unjustified enrichment below the level of the House of
Lords to be cited in a few (not many) Common Law text-books including
Birks's two books; and Goff and Jones (8th edn) para 4-53. English lawyers
usually cite it for Lord President Dunedin's rising heat example popularised
by Birks. Its own facts are also socially interesting. A tramway company let
the right of advertising on their tramcars to an advertising contractor who
undertook to supply the necessary fittings. New cars were constructed for
the tramway co which were already supplied with fittings and in particular
on the upstairs tiers of the tramcars they had round them a board "which
fulfilled the useful purpose of being what some of the witnesses called a
decency board," [the date being 1909, as T B Smith pointed out] "and also no
doubt served purposes of safety, ....". The advertiser made use of these
decency boards. The tramway co claimed recompense for the advertisers' use
of the boards in addition to the agreed rent. The claim was rejected because
the benefit was incidental, and the tramway company had suffered no loss
over and above what it had to expend anyway to achieve its purpose: "nemo
debet locupletari ex aliena jactura" and here there was no jactura. For
those legal systems (or parts of systems) which require that enrichment must
arise out of the pursuer's loss this explanation may work OK. But I believe
English law no longer requires loss and the same is true of parts of Scots
law (viz in cases of enrichment by taking or interference with another's
rights - equivalent to the English restitution for wrongdoing)..
Best wishes
Niall (Whitty).

-----Original Message-----
From: Enrichment - Restitution & Unjust Enrichment Legal Issues
[mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Gerard McMeel
Sent: 14 November 2013 15:17
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] Incidental Benefits

Hi Hector

If I may, let me quote my Skeleton Argument:

11. The seminal modern English discussion of this limiting factor is
Professor Peter Birks, Unjust Enrichment (2nd edn, 2005), pp 158-60 under
the heading "By-benefits", which is the immediate source of the "flat
heating" example (example 21) in the Restatement. The late Professor Birks
set out the flat example and continued (at p. 158):
"Similarly, if you have a flat which overlooks the Oval you will be able to
watch test matches without paying.
In cases of this kind one person is enriched at another's expense and the
other is powerless to prevent it. But this is not an unjust enrichment.
There is no right to restitution."
Whilst commentators have doubted the suggested explanation (gift) the
principle and illustrating examples are compelling. Birks also noted that
the legal compulsion cases constituted an exception (pp. 159-60).
12. For his proposition quoted above, Birks cited the Scottish case
of Edinburgh Tramways Co v Courtenay 1909 SC 99, 105, from which it can de
discerned that Lord President Dunedin was the ultimate source of the "flat
heating" example. The Lord President said (at p.105):
"One man heats his house, and his neighbour gets a great deal of benefit. It
is absurd to suppose that the person who has heated his house can go to his
neighbour and say, - 'Give me so much for my coal bill, because you have
been warmed by what I have done, and I did not intend to give you a present
of it.'"
(See further on the modern Scots law: Shilliday v Smith 1998 SC 725, at
730-31 (Lord President Rodger) and H McQueen, "Peter Birks and Scots
Enrichment Law" in A Burrows and Lord Rodger of Earlsferry (eds), Mapping
the Law [-] Essays in Memory of Peter Birks (2006) ("Mapping the Law"), p
401 at p.402.)


Sadly my attempt to persuade the English CA that the Scots (quoting you) and
Germans (Sonia Meier) had the right idea did not appeal on a strike out!

Hey ho,

Gerard



Gerard McMeel
Barrister

T 0117 930 9000
F 0117 930 3814
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-----Original Message-----
From: Enrichment - Restitution & Unjust Enrichment Legal Issues
[mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Hector MacQueen
Sent: 14 November 2013 15:06
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] Incidental Benefits

Interesting case. Incidentally, Peter Birks' example of the flat heated by
the downstairs neighbour's flat derived from the Scottish case, Edinburgh
and District Tramways Co Ltd v Courtenay 1909 SC 99, where Lord President
Dunedin said (at p 105): "One man heats his house, and his neighbour gets a
great deal of benefit. It is absurd to suppose that the person who has
heated his house can go to his neighbour and say, 'Give me so much for my
coal bill, because you have been warmed by what I have done, and I did not
intend to give you a present of it.'"
The example may have appealed to Peter particularly because of his own
experiences as an Edinburgh flat-dweller. Even though the case is about
Edinburgh trams, it is a useful one on what constitutes an incidental
benefit.

Hector

--
Hector L MacQueen
Professor of Private Law
Edinburgh Law School
University of Edinburgh
Edinburgh EH8 9YL
UK

SSRN http://ssrn.com/author=463210

Currently working at the Scottish Law Commission tel: (UK-0)131-662-5222


Quoting James Lee <j.s.f.lee@BHAM.AC.UK> on Thu, 14 Nov 2013 12:15:32
+0000:

> Dear Members,
>
>
>
> The English Court of Appeal has considered the law on incidental
> benefits today in TFL Management Services Ltd v Lloyds Bank Plc [2013]

> EWCA Civ 1415 http://www.bailii.org/ew/cases/EWCA/Civ/2013/1415.html,
> in which RDGer Gerard McMeel appeared. The problem was whether summary

> judgment should be granted in favour of the defendant bank in
> circumstances as framed by Floyd LJ (at [1]):
>
>
>
> "A spends money seeking a judgment for the recovery of a debt from B.
> A fails to recover the debt because, so the court holds, the debt is
> not in fact owed by B to A (as A mistakenly thought), but owed by B to

> C. C then recovers the debt, relying on the judgment in A's
> unsuccessful claim. The question raised in this appeal is whether A
> has a claim based on unjust enrichment against C, enabling him to
> recover the money expended on obtaining the judgment."
>
>
>
> The Court considers academic commentary but declines to formulate
> general principles. It is also divided. Beatson LJ's concurring
> judgment is particularly worthwhile (see eg at [86]):
>
>
>
> "Given the position in the scholarly commentaries, and the absence of
> decisions which explicitly proceed on the basis of a principle barring
> "incidental benefits", or any clear (let alone agreed) formulation of
> what it is which is to be prevented, I do not consider that it is
> appropriate to give summary judgment on the basis of a general
> principle barring restitution in respect of benefits conferred
> "incidentally". To do so would, in particular, be to discount the
> possible alternative explanations for the scenarios which have been
> said to be examples of its operation."
>
>
>
> Best wishes,
>
> James
>
>
>
> --
> James Lee
> Senior Lecturer and Director of Admissions Birmingham Law School, room
> 235 University of Birmingham Edgbaston Birmingham
> B15 2TT, United Kingdom
>
> Tel: +44 (0)121 414 3629
> E-mail: j.s.f.lee@bham.ac.uk
>
>
> Web: http://www.birmingham.ac.uk/staff/profiles/law/lee-james.aspx
>
>
> SSRN: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1192219
>
> ====
>
> 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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> all group members, send to <enrichment@lists.mcgill.ca>. The list is
> run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.
>
>



--
The University of Edinburgh is a charitable body, registered in Scotland,
with registration number SC005336.

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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>.