Restitution Discussion Group Archives
| Sender: |
Steve Hedley |
| Date: |
Fri, 4 Dec 1998 11:11:04 |
| Re: |
Lloyds Bank plc v Independent Insurance Co |
Having
now, courtesy of a colleague, seen a transcript
of the court of appeal's judgement, I can confirm that there was no statement
by Waller LJ along the lines Charles indicated. The bulk of the judgments
are concerned with whether the payment was authorised by the bank's client.
Having concluded that it was, Waller says merely that
"I follow in one sense the point that it can be said that even an authorised
payment leaves Independent enriched at the expense of the Bank"
then went straight on to the point about good consideration for the payment.
The other judgements are similarly uninterested in general points that
did not arise in the case. There was no statement of a general right to
recover, unless (perhaps) this is thought implicit in their general approval
of Simms.
I remain unconvinced, therefore, that there is a broad
right to recover for causative mistake, and cannot accept Charles's suggestion
that the matter is
"purely academic, since as the law currently stands it makes no difference
what type of idiocy the plaintiff has perpetrated."
The argument for a broad theory, while substantial, consists of dicta
not actual decisions. In most actual cases, the criterion seems to be
failure of basis. So if (as in Lloyds v. Independent) the money is paid
to discharge a debt owed, the money is recoverable if and only if the
debt is not discharged. The question whether there was "good consideration"
for the payment is therefore not a mere incidental defence, but is the
root of the thing. Other mistakes are irrelevant.
The few cases which do not fit that pattern (eg Gibbon v. Mitchell) concern
the rare situation where there is a mistake as to the identity of the
person paid or as to the nature of the payment itself -- a different doctrine
entirely, and one which needs to be in a different doctrinal basket, because
it is recognised to have proprietary consequences.
Steve Hedley
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FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE
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messages : (01223) 334900
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Christ's College Cambridge CB2 3BU
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