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Sender:
Steve Hedley
Date:
Sat, 15 May 1999 12:44:50 +0100
Re:
Variations: Cotter

 

At 14:20 15/05/99, Louis Proksch wrote:

Like Gordon Goldberg, I haven't read Cotter. (Can someone give me a Web address?) What happened?

Murphy J's judgement is on the web at

http://www.law.cam.ac.uk/ restitution/restitution.htm

Click on Cases; Ireland.

I don't believe that the Supreme Court opinion is yet on the web, if anyone knows different, please say.

The facts are exceedingly convoluted !

Given the way in which the argument is developing, I would say that the original positions taken up by both Eoin and me are wrong here, inasmuch as neither of us noticed the extra-remuneration clause until rather late into the discussion.

In the light of that clause, it seems obvious enough on the facts that there can be no restitutionary claim here : either the procedure for making claims was

i merely directory, as Murphy J thought and I think, in which case the remedy is contractual

or

ii it was mandatory, as Eoin thinks, in which case the court should give no remedy at all, contractual or restitutionary. If the parties have made provision for extra payments, it will not be subverted by restitutionary reasoning.

The only way out of that, it seems to me, is if the amount of work needing to be done was so huge that it was in some sense uncontemplated *even though* the contract plainly made provision for *some* extra work. That is interesting, but not an argument that anyone seems to have made on the facts of Cotter. It would take very strong facts indeed, as the courts will be afraid of encouraging people to plead frustration merely because a project turns out to be more expensive than the parties originally thought -- which of course happens all the time.

 

Steve Hedley

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