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Dear All,

The debate seems to have moved on slightly from Rafal's initial query. I have three things to say.

1) Firstly I don't see Rafal's problem. We know from restitution for wrongs cases, for instance patent or trademark infringements, that there does not have to be any loss to the plaintiff to enable him to sue; we also know that the whole point of restitutionary claims is unjust enrichment, not unjust sacrifice. Why then should the plaintiff's wealth have to be reduced at all?

2) Charles Mitchell mentions cases of where fairy godmother payments still allow claims against the tortfeasor and cases where they do not. I would be interested in knowing how he can justify a distinction between the two sets of cases. Surely a tort is a tort, or maybe I'm missing something vitally important here. If so I'd appreciate enlightenment.

3) Can you allow the fairy godmother to recover by an analogy with subrogation, in those cases where a live claim seems to continue in existence? It's obviously not the same as the typical subrogation case where a surety who pays the creditor is subrogated to the creditor's security interest against the debtor, but it's not far off. The third party who pays the tort creditor is subrogated to the tort creditor's rights against the tort debtor, the tortfeasor?

Duncan