That's not my understanding of the facts. It looks as if card-holders had simply bought a set amount of credit. The rate at which the credit was used up was determined by ET when the call was made - their mistake was in then charging card-holders at the standard rate, whereas ET were themselves charged a premium rate.

[i don't want to discuss the liability of a caller who catches up with her world-wide acquaintance via premium lines gleefully aware of the bargain she is getting through ET's mistake]

That seems closer to the actual facts than the hypo you were discussing.

but the cards are sold to enable holders to access ET's account/property for communications and not adventitious gain

An interesting distinction; but a little hard to apply. People make calls for all sorts of reasons, and phone companies live or die according as they can sensibly predict and take advantage of those trends.

the cards make ET's property available on a known condition and taking the property without satisfaction of that condition is tortious

the property is not tangible, and I don't know the terminology used in tort for misappropriation of a credit rather than a chattel: but surely tort law has stepped up to the wicket to cover intangibles with some sort of nominate tort, and can hit FT for the six of the best it so clearly deserves???

Isn't it interesting that it is said time and again that the defendants deserve everything that the courts throw at them, yet on closer investigation it seems harder and harder to say what they have done wrong? Very like AG v. Blake in that respect. And as the judges said, the closer you look at the facts, the less obvious it becomes that there was any wrongdoing. Do we really have to invent new forms of property holding before we can find liability? Is the alternative -- to hold ET responsible for their own pricing policy -- really so awful?

As with so many restitutionary issues, the answer is that the contractual obligations in the case are elaborate and apparently comprehensive. If some implied term can be found under which the defendant's behaviour can be condemned, then so be it. But otherwise, I don't see the problem.

Steve Hedley

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