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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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