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Hello all,

Thanks to Andrew Tettenborn for bringing Fea v Roberts to our attention. In that case, the executor mistakenly paid a namesake, and recovered, and will therefore have had to disburse to the intended legatee. Could the legatee have shortcircuited this process and sued directly, alleging that the namesake was unjustly enriched at the expense of the namesake?

Presumably, Peter Birks would have treated this as an example of interceptive subtraction, but there have been forces lining up against this concept. For example, I suspect that Lionel Smith would point to the facts and holding of Fea v Roberts as support for his argument in the OJLS that such cases ought to be resolved by the payor (here, the executor) - rather than the intended payee - suing (as happened here). Similarly, I suspect that Andrew Burrows would say that there was insufficient privity between the namesake and the intended legatee. On the other hand, Andrew Tettenborn suggest in the RLR of a defence of lawful receipt would be unlikely to apply here, as the receipt by the namesake from the executor was not of a payment of the executors' unencumbered property. I suspect instead that (as I have argued in the MLR) Nourse LJ's short-circuiting rationale in Official Custodian for Charities v Mackey (No 2) would apply to justify such a claim.

Eoin.

Dr Eoin O’Dell Fellow Trinity College Dublin 2 Ireland	fax: +353-1-677 0449 phone: +353-1-608 1178 mobile: +353-87-2021120 www.tcd.ie/Law/EoinO'Dell.html
(All opinions are personal. No legal responsibility whatsoever is accepted.)