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There's a nice little problem brewing from an English case last July, Esprit Telecom v Fashion Gossip.

FG ran a premium rate phone line (caller pays exorbitant sum, BT or whoever provider is gives a rake-off to owner of line). ET bought phone time from BT wholesale and sold "ring home cheap" cards enabling buyers to undercut official rates but still leave ET with a profit. There was no contract of any sort between ET and FG. FG discovered that ET cards allowed calls to premium rate lines at non-premium rates, bought ET cards galore and dialled its own premium number nonstop. They then sat back and collected the rake-off, which was much more than the calls had cost them to dial. The scam raked in over £1m before it was spotted & stopped. ET, who had had to pay the full premium rate to BT, sued for, inter alia, unjust enrichment. They said: (1) we provided this benefit to you by mistake, and / or (2) you took this benefit from us without our consent or other justifying factor. FG say, no mistake, only misprediction; and besides we have broken no law or contract. Goldring J says there must be liability & gives summary judgment for ET (!). CA say, no summary judgment, since point decidedly controversial. But Judge LJ thought ET probably right on (1) and said English law might even be ready to accept (2). It'll be interesting to see whether this one fights in detail.

See Esprit Telecoms v Fashion Gossip, CA, 27.vii.00, on Smith Bernal website.

AT

Andrew Tettenborn MA LLB
Bracton Professor of Law

Tel: 01392-263189 / +44-392-263189 (international)
Fax: 01392-263196 / +44-392-263196 (international)
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School of Law,
University of Exeter,
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[ Homepage: http://www.ex.ac.uk/law/ ].