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I don’t think that there is any problem with a claim based upon the wrong in DMG v IRC. There is a tort as a result of the infringement of Art 52 of the Rome Treaty, and it is clear that that is actionable. The problem for the claimants in DMG v IRC was that this would not bring them within the advantageous limitation rule applying to claims for relief from the consequences of a mistake.

For me, however, to get a claim in unjust enrichment off the ground it is necessary to set aside the obligation. As DMG never elected the only way to bring a claim in unjust enrichment is to deem them to have done so. Many jurisdictions adopt a ‘fiction of fulfilment’ where a claimant is wrongfully prevented from fulfilling a condition precedent to liability. So, in the Scottish decision of Mackay v Dick an excavating machine was sold on condition that it could excavate at a specified rate on the defendant’s property. The buyer refused to provide the opportunity for the excavation rate to be tested. The buyer was held liable for the price. The buyer’s wrongful refusal to allow the condition precedent to be fulfilled led the court to deem it to be fulfilled. Similarly in the US case of Foreman v Tauber a man promised his fiancée $20,000 if she married and survived him. Some years after the marriage he shot and killed his wife. His estate was held liable to the wife as it was his deliberate and wrongful act which had prevented fulfilment of the condition.

The doctrine of fictional fulfilment has been rejected in England (Little v. Courage Ltd. (1995) 70 P. & C.R. 469 at p. 474 per Millett L.J). The alternative is to hold the defendant liable in damages for the wrong committed in preventing the fulfilment of the condition eg Bournemouth v Manchester United The Times 22 may 1980. It seems to me that this is what should have been done in DMG v IRC.

RS

From: Enrichment - Restitution & Unjust Enrichment Legal Issues On Behalf Of Lionel Smith
Sent: 16 May 2005 22:07
Subject: [RDG] IRC v DMG

At the risk of generating a few hundred more error messages ...

I don't know much EU law but I see two ways of looking at it. Under the Canadian constitution, if money were due under valid provincial law, but not due under equally valid federal law, then we would say that the provincial law was inoperative (though valid) to the extent of the conflict, and the money was therefore not due; this is based on the idea that federal law is "paramount". That is what happened in Garland, for example.

Even if we cannot face the possibility of saying that an Act of the Westminster Parliament is inoperative, it is not an invariable rule that an enrichment made pursuant to an obligation cannot be an unjust enrichment. If according to English law the tax was due, and it was paid, and it should not have been due according to EU law, and English law is required to yield to EU law in this field, then there can still be an unjust enrichment, at least according to EU law. It reminds me of the old case of a debtor who paid his debt due under a sealed bond but failed to recover the bond or get a sealed receipt; if the creditor sued on the bond, then at common law the debtor had to pay again, but he would get relief in equity.

But either way it seems to me that the problem Robert identifies remains. The undue-ness depended on an election that was never made, even though, in violation of EU law, DMG never had a chance to make it. What is left is a tax due under English law but also due under EU law, unless EU law says that the consequence of unlawfully failing to offer the election to some taxpayers is that they shall be allowed to exercise it retroactively.

If as Robert says it is a wrong for a state to legislate contrary to EU law, then you could perhaps reach a result like retroactive election via the application of the proposition, well known in many other contexts (Rainbow Industrial Caterers Ltd. v. Canadian National Railway Co. [1991] 3 S.C.R. 3, Hodgkinson v. Simms [1994] 3 S.C.R. 377; cf Smith New Court Securities v. Scrimgeour Vickers [1996] UKHL 3; [1997] AC 254; the law of tracing through mixtures), that everything is factually presumed against a wrongdoer. The factual question being whether DMG would have exercised the election, had it been given a choice, could be answered yes on that view, since it was wrong not to give DMG the choice. Then with that established (with the aid of a rebuttable presumption) as a fact, the earlier-than-necessary payment can be said to have been made under a mistake of law that was only discovered at the time of Metallgesellschaft. The wrong would be essential to the claim in unjust enrichment, because I don't think the presumption works unless there is a real wrong, separate from the evidentiary difficulty which it resolves. But it would be essential not as a cause of action, but as helping to establish unjustness via the factual finding based on the presumption triggered by the wrong.

To my mind this kind of presumption only descends into fiction if it is irrebuttable. As long as it is rebuttable, ie it is open to the Revenue to prove, if they can, that DMG would not have elected even if they had been given the opportunity, then there is no fiction but only a reversal of the burden of proof, for what I think is a good reason.

In Canada it is not a wrong to legislate unconstitutionally, and Peel v Canada illustrates that one result of this is that a party can end up seriously out of pocket as a result of faulty legislation, but still be without any claim at all.