Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

Dear All,

I must confess firstly that while I am clever enough to find a mistake in Kleinwort Benson I am not clever enough to find one here, but that is a by the by.

The main point surely is that Hedley is right to say that only a lunatic would deny that the Daily Star can recover if the judgment is set aside. I guess that the answer to the question whether this is possible is that it is on the basis of fraud. If this is so then it must surely be the fact that the judgment is set aside that allows recovery. I recognise that this is getting dangerously near to saying that because something was not due it is recoverable; however, I think we can draw, whether this is strictly necessary or not, an analogy with an unenforceable contract of loan.

If I lend 20 pounds to a 10 year old I cannot get that money back in a court either in an action for the contract debt or in an action in unjust enrichment (whatever the basis for that might be). This is because such an action would indirectly enforce an unenforceable contract. If a court in a libel case makes an order that the Daily Star pay Jeffrey Archer X pounds and that is overturned for fraud (say) surely it is tantamount to leaving the judgment in force to say that Archer gets to keep the money. That is why it is obvious (at least why it is obvious to me) and why only a lunatic would deny it.

Duncan Sheehan