Restitution Discussion Group Archives
| Sender: |
Eoin O' Dell |
| Date: |
Wed, 5 Nov 1997 13:24:03 |
| Re: |
HL decides Kleinwort Benson v Glasgow DC |
Hello all
Though I am sure that most of you will already have heard,
I have just noticed on the House of Lords Server that judgment was given
last week in Kleinwort Benson Limited v. City of Glasgow District
Council on the question whether restitution claims are governed by
the general rule as to jurisdiction in Art 2 of the Brussels convention,
or are subject to the special rules in Art 5(1) on matters relating to
contract or Art 5(3) on matters relating to tort, delict or quasi-delict.
The Court of Appeal by a majority had held that the restitution claims
arising out of void swaps contracts came within the special Art 5(1) jurisdiction.
On 30 October 1997, the House of Lords (Lords Goff, Clyde and Hutton;
Lords Mustill and Nicholls dissenting) have allowed the appeal. It seems
to me that the ratio of Lord Goff's judgment and of the majority in the
case is in the following clearly argued and compelling paragraph:
"In truth, the claim in the present case is simply a
claim to restitution, which in English law is based upon the principle
of unjust enrichment; and claims of this kind do not per se fall within
Article 5(1). The vast majority of claims to restitution, are founded
simply upon the principle of unjust enrichment. Such is, in my opinion,
the present case. No express provision is made in Article 5 in respect
of claims for unjust enrichment as such; and it is legitimate to infer
that this omission is due to the absence of any close connecting factor
consistently linking such claims to any jurisdiction other than the defendant's
domicile. Article 2 therefore provides the appropriate jurisdiction for
such claims."
The full text is at
http://www.parliament.the-stationery-office.co.uk/
pa/ld199798/ldjudgmt/jd971030/klein01.htm
Best to all
Eoin
EOIN O'DELL
Barrister, Lecturer in Law
Trinity College
Dublin 2
Ireland
ph (+ 353 - 1) 608 1178
fax (+ 353 - 1) 677 0449
Live Long and Prosper !!
(All opinions are personal; no legal responsibility whatsoever is accepted.)
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