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RDG
online Restitution Discussion Group Archives |
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Steve Hedley writes:
' "The question is WHY is it recoverable" answers itself.'
We seem to be having trouble moving away from answering the question
"If event X happens, what legal result follows?" by saying "It's obvious!"
without more. It seems to me that when a judgment is set aside, we should
say that money paid pursuant to that judgment is recoverable because:
1. As things have turned out, there was no legal basis for the payment,
and our system of law says that when that is so the payment must be returned;
or The Germans would, I think, say 1. We say 2. In either case, the claim
is one where the law raises a right of recovery in order to prevent the
defendant being unjustly enriched. The mere fact that the older cases
mentioned by Charles Mitchell did not use the words "unjust enrichment"
hardly vindicate Hedley's view that the cases had nothing to do with that
well-recognised (though only recently articulated) principle.
Of course my analysis of the law's response to the setting aside of a
judgment is based on the assumption that the law gives the plaintiff a
right to recover money paid under that judgment independently of a court
order to that effect. Charles Mitchell cites Pill LJ in R v Barnet Magistrates'
Court, ex p Cantor [1998] 2 All ER 333, at 345 and the Law Commission
to support the assertion that there is no right of recovery until the
court says so. If Charles is correct, then my analysis is wrong.
But in relation to Hedley's views, we can put that to one side, for Hedley
and I agree that the "court is [not] *creating* the liability when it
gives the requested confirmation". In other words, Hedley and I both say
that the right of recovery arises independently of the court order.
So we return to the point at which we started. I say that the right of
recovery is raised by the law in order to reverse the defendant's unjust
enrichment. He says that the explanation of the obligation is so obvious
it does not need explaining.
Jonathon Moore <== Previous message Back to index Next message ==> |
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